TB6-08356

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB6-08356 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX XXXX XXXXXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 28, 2016 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Maureen Silcoff Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] XXXX XXXX XXXX(the Appellant), a citizen of Sudan, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination and refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he fears persecution by the Sudanese authorities, who accuse him of anti-government views and activities. [4] The Appellant's application for refugee protection was heard on May 16, 2016. By a decision of May 30, 2016, the RPD rejected the claim. The panel found that the Appellant gave highly contradictory evidence about key elements of his claim, noted that he failed to seek protection in Spain, and concluded that he was not a credible witness and had not established his claim of past persecution or his fear of future harm. [5] The Appellant submits that the RPD made unsustainable credibility findings. He also asks the RAD to accept new evidence showing that he has a cognitive deficit, which affected his ability to provide coherent testimony to the RPD. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected1 in the circumstances to have presented, at the time of the rejection. [7] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.2 Application of Section 110(4) [8] Section 110(4) establishes a disjunctive test.3 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in his circumstances, to have presented the evidence to the RPD prior to the rejection of his claim. If he could not have been expected to do so, the evidence meets the requirements of the section. [9] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.4 [10] As the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD - either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. [11] Section 110(4) does not provide an opportunity for the Appellant to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.5 [12] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.6 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [13] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in section 110(4). [14] In Singh,7 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza8 to the assessment of new evidence. While Raza predates the introduction of section 110(4) of the IRPA, it is based on the nearly identical wording of section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.9 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).10 [15] Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [16] Relevance is a basic condition for the admissibility of any piece of evidence.11 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the Appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [17] In addition to credibility and relevance, the factors in Raza include "newness" and "materiality." Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section110 (6) of the IRPA, which describes when the RAD may hold an oral hearing.12 [18] For these reasons, the RAD will apply the following factors to its consideration of the Appellant's proposed new evidence. It will first consider whether the evidence that passes the test in section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. [19] The Appellant asks the RAD to admit the following evidence in this appeal: (a) A letter, purportedly from the Appellant's wife to Dr. XXXX XXXX XXXX XXXX XXXX, and a letter from Dr. XXXX XXXX XXXX, a "neurologist and specialist in brain diseases at Khartoum Educational Hospital," claiming that he treated the Appellant on three occasions for a head injury;13 (b) A receipt, dated April 16, 2016, from a British post office outlet;14 and (c) A report from family doctor XXXX XXXX, dated July 14, 2016, diagnosing the Appellant with "considerable cognitive and memory deficits" as well as post-traumatic stress disorder.15 [20] The Appellant declares that, prior to the RPD hearing, he asked his wife to obtain a medical report from Dr. XXXX XXXX XXXX. She obtained a report and gave to a friend who was traveling to the U.K. who said they sent it to me in Canada but I never received it. I have a copy of the receipt that it was sent. I asked my wife for another letter for this appeal. She has now provided this to me along with a letter she wrote.16 [21] The documents in (a) arose after the rejection of the Appellant's refugee claim; however, the evidence in them did not. The Appellant now claims that he was treated by a brain specialist before he made his refugee claim, and that his wife was attempting to corroborate this before his RPD hearing. However, as the Appellant concedes, he "did not previously mention that he saw this doctor."17 Further, he does not appear to have told the RPD that his wife was attempting to get a letter from this doctor, or that such a letter had been mailed but never arrived. [22] The RAD has reviewed the Appellant's Basis of Claim narrative. In it, he claims that he was beaten in January of 2016; he "got medical treatment from a doctor from our neighbourhood, she treated the wounds on my left leg, my left arm and my head."18 There is no mention of three subsequent visits to a brain specialist, no mention of attempts to get a corroborating letter, and no request to the RPD to await documents. [23] These documents do not meet the test in section 110(4). The evidence in them ? that the Appellant's wife sought a doctor's letter, and that a brain specialist treated the Appellant no less than three times ? does not post-date the rejection of his refugee claim. He does not provide an explanation for the fact that this evidence was not presented to the RPD. The RAD sees no reason why the Appellant could not have told the RPD that he was treated by a brain specialist and that he was seeking a corroborating letter. He has not established that this evidence was not reasonably available for presentation to the RPD, even if the letter itself was lost. Given that the alleged beating was a key element of his claim, the Appellant could reasonably have been expected to reveal this evidence to the RPD. [24] In the alternative, even if these documents did meet the test in section 110(4), the RAD would find that they are not admissible, as they are neither credible nor trustworthy. As discussed above, and as conceded by the Appellant on appeal, he simply made no mention to the RPD of repeated treatment by a brain specialist. He did not tell the RPD that he was awaiting a corroborating letter. Further, the letter itself is suspicious. Despite allegedly being written by a neurologist affiliated with a teaching hospital in a large city, the document provides no address, no phone number, no email address, no web site, and its only security feature is a badly-smudged stamp. While the RAD is not expert in medical terminology, it observes that this document lacks any such terminology, and appears instead written for the purpose of the Appellant's appeal: ...I examined and treated him and ran the necessary x-rays, and it became evident to us that he was suffering from some memory loss, he would remember some things and forget others, his condition varied....19 This is the only diagnosis, if it can be called a diagnosis, in the letter. [25] The documents in (a) do not meet the test in section 110(4) and are not admissible here. In the alternative, they are not admissible because they are not credible. [26] The postal receipt in (b) pre-dates the rejection of the Appellant's refugee claim. The Appellant refers to this as proof that an earlier letter from Dr. XXXX XXXX XXXX was sent to him, though it did not arrive; however, he does not explain why this fact was not presented to the RPD along with the receipt. This receipt did not arise after the rejection of his refugee claim, and he has not explained why it was not reasonably available to him for presentation to the RPD. Given that the issue of the alleged beating and subsequent medical treatment were key elements of his claim, he could reasonably have been expected to tell the RPD that a corroborating letter had been mailed to him. [27] Even if this document did meet the test in section 110(4), it would be inadmissible here because it is not relevant. There is nothing in the document itself to indicate that it was sent to the Appellant and nothing to indicate what type of document was sent at the post office which issued the receipt. [28] The medical report in (c) is dated after the rejection of the Appellant's refugee claim; he attended at Dr. XXXX office on July 14, 2016 and the report was written that day. However, the report does not contain new evidence. The doctor repeats the Appellant's claim that he "sustained blunt trauma to his head in January 2016... Since that time, he has suffered from memory and cognitive deficits, as well as frequent headaches."20 [29] The Appellant's medical condition is not new, nor is this something which only came to his attention after the RPD hearing. In fact, he provided the RPD with a report from Dr. XXXX, who indicates that the Appellant suffers headaches as a result of a head injury.21 Why did the Appellant not see Dr. XXXX in time to provide her report to the RPD? While the RAD recognizes that there might be a reason ? perhaps the doctor was unable to see him at that time ?the Appellant does not provide an explanation in his affidavit. His Memorandum does not explain how this document meets the test in section 110(4); he simply asserts that it does, and then makes submissions with respect to the Raza factors.22 [30] The Federal Court of Appeal has held that "The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected."23 In the RAD's view, the Appellant here is attempting to submit evidence that should have been placed before the RPD. The Appellant was represented by experienced counsel before the RPD. He and his counsel knew that his alleged head injury and his medical condition were at issue, and in fact they obtained a medical report from Dr. XXXX to this effect. The evidence from Dr. XXXX is not new; the Appellant has not explained why it was not reasonably available, and he could reasonably have been expected, in his circumstances, to have presented this to the RPD. As this document does not meet the test in section 110(4), the RAD has no discretion to admit it. [31] The Appellant argues further that: 24 Even if, in retrospect, the Appellant should have been tested in advance of the hearing, he has an undeniable cognitive deficit which must be taken into account in order for natural justice to be served in this refugee claim. He submits that the RPD "must take a fresh look at the claim, taking the report into account...." [32] With the greatest of respect, the Appellant is in no position to argue that he was denied natural justice at the RPD because he chose not to obtain and present this medical report. The RPD did not deny him the opportunity to provide such a report. The RAD must consider the report under section 110(4), and the report does not meet the requirements set out there. [33] For these reasons, none of the Appellant's proposed new evidence is admissible in this appeal. [34] The Appellant does not request an oral hearing, and as the RAD has not admitted the Appellant's proposed new evidence, it must proceed without an oral hearing. THE ROLE OF THE RAD [35] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [36] The Appellant submits that the RAD must apply a correctness standard of review; where there are credibility findings, the RAD may be in a position to assess the claim as the RPD may not have an advantage over the RPD and can thus deal with credibility matters, although other situations require the matter to be remitted to the RPD. Here, since the credibility findings are based largely on contradictions and omissions, the matter should be remitted to the RPD for a fresh determination.25 [37] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.26 [38] The RAD is a creature of statute and so is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.27 Such an appeal (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.28 [39] According to the Federal Court of Appeal, the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. It is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.29 [40] With respect to findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness.30 When applying that standard, the RAD will not show deference to the RPD's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to decide whether it agrees with the determination of the RPD; if not, the RAD will substitute its own view and provide the correct answer.31 [41] There are, however, cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because such findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.32 The Federal Court of Appeal, in discussing the standard of review to be applied by the RAD to the RPD's decision, has declined to provide the scope and degree of deference to be shown by the RAD: The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.33 [42] While it is clear that some level of deference is warranted, it is less obvious how much deference is owed, and to what findings. As the Federal Court observed in Akuffo: [T]here also appears to be a consensus that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings. The opinions rather diverge on: i) the level of deference that is owed or its exact definition; and ii) the scope of the questions of fact and questions of mixed fact and law for which deference is owed.34 [43] The RAD will show deference to the RPD's findings where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony. As such, credibility findings arising from that oral testimony are deserving of deference, as are other findings of fact based on oral evidence, as are findings based on the RPD's specialized knowledge of a particular matter where the RAD does not have its own specialized knowledge with respect to the same factual issue. The RPD's advantage may even extend to personal documents in situations where it has questioned the claimant or witness about such documents and where the resulting testimony gives rise to credibility concerns. [44] Not every finding relating to credibility warrants deference. Where the RPD has made a finding of implausibility, for example, it has no advantage where the determination of plausibility is based on the RPD's own reasoning, or on objective documents, and does not arise directly from the oral evidence.35 Similarly, where the RPD draws an inference - a credibility finding based on deduction and reasoning, rather than a contradiction in evidence - the RAD may see no reason to show deference, as the appellate tribunal can be expected to have equal expertise in the inferential process.36 [45] How much deference is owed by the RAD to findings of the RPD? In Huruglica, the Federal Court held that the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error".37 This passage has subsequently been endorsed by other decisions of the Court. [46] Although the Court did not explain what level of deference is established by recognizing and respecting a conclusion of the RPD, it has repeatedly upheld decisions in which the RAD applied a reasonableness standard to decisions of the RPD.38 In the RAD's view, this suggests that "recognize and respect" is indeed somewhat similar to reasonableness. [47] In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome. 39 Despite the difference between judicial review and a RAD appeal, the RAD finds this framework helpful in considering its own approach to deference. [48] Even where the RAD is to show deference to findings of the RPD, those findings must still be the result of a comprehensible reasoning process. The RAD must be able to read the RPD's decision and understand how the RPD's conclusions were reached. [49] Further, the outcome of that process must be a result that is based on and supported by the evidence that was before the RPD. For this reason, it is particularly important that the RAD engage in its own review of the evidence in the RPD's record, in order to determine whether the RPD's finding is supported by that evidence. [50] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [51] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from a comprehensible reasoning process whose premises are rooted in such advantages. If either the process or the outcome does not meet these requirements, the RAD will determine the findings to be in error. [52] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. The RPD's Findings [53] Much of the Appellant's appeal rests on his proposed new evidence: he argues that the medical report from Dr. XXXX explains his inconsistent and contradictory testimony before the RPD. The RAD has not admitted that report. However, it has conducted an independent review of the evidence, and considered the Appellant's challenges to the RPD's findings. [54] The Appellant concedes that he omitted two detentions in his Port of Entry (POE) statement, incorrectly claimed therein that he was detained in April of 2013, and incorrectly testified that he was detained in 2014 and 2015.40 [55] He challenges the RPD's findings with respect to the inconsistency between the POE notes, his narrative, and his testimony. He said at the POE that he was detained for three months in 2016, while he later said that he was detained for three days; he also got the month wrong. He submits on appeal that these inconsistencies were due to interpretation issues: the interpreter was Moroccan and not Sudanese, while the interviewing officer spoke to the interpreter in French but wrote notes in English. He argues that "three languages were at play," that he has memory issues, and that the forms were not read back to him. [56] The Appellant has provided no evidence that the interviewing officer had any difficulty in communicating in English and French, or that Moroccan Arabic is significantly different than Sudanese Arabic. The RAD has reviewed the POE interview notes.41 The Appellant's answers show an understanding of the questions, and there is no indication that he had any difficulty with interpretation. It is, however, difficult to reconcile the POE statement with the Appellant's later narrative. He stated at the POE that he was imprisoned for three months because he was arrested at a protest; he claimed his uncle and cousin were killed that day, and that his problem started in February of 2015. In his BOC narrative, he wrote that his cousin was killed in April of 2013;42 he told the RPD that he was detained for three days in January of 2016. The RAD agrees with the RPD that the Appellant's evidence here is contradictory and cannot be reconciled, and that this significantly damages his credibility. [57] The Appellant also argues that the RPD erred by faulting him for telling Dr. XXXX only about the January 2016 detention; this was the only detention he discussed with Dr. XXXX because the doctor was to examine the injury caused during that incident. The difficulty with this argument is that in fact Dr. XXXX set out to examine the Appellant "to verify his injuries sustained as a result of various detentions and assaults in Sudan."43 [58] The Appellant made a hand-written statement in support of his refugee claim. In it, he alleged that he was detained after a protest in April of 2013; he was hit on the middle of the head and whipped with lashes until he bled.44 It does not appear that he told Dr. XXXX about this detention; even if his written statement recorded the wrong month and year of detention, it does not explain why he did not tell Dr. XXXX about struck with wood and whipped with lashes. Instead, it appears that Dr. XXXX simply copied a portion of the Appellant's BOC narrative and placed this in his report. It is not clear why the Appellant did not tell Dr. XXXX about the earlier, or different, torture. [59] The Appellant also takes issue with the RPD's finding that the Appellant showed a lack of subjective fear when he failed to seek protection in Spain in May of 2013. He argues that: It was not open to the RPD to reject that the Appellant had a problem in April 2013 on the basis that he offered contradictory evidence about when he was detained and then assume that he did have a problem in April 2013 and use re-availment against him when he left Sudan and returned.45 [60] In the RAD's view, the RPD here was simply pointing out the many inconsistencies in the Appellant's evidence. He claimed he was tortured in April of 2013, and then later claimed this happened later. He went to Spain but did not claim there, despite his alleged problems in Sudan. If the Appellant's written statement is to be believed, he had already been severely tortured by the time he went to Spain. Even if that statement is to be disregarded, and his BOC narrative to be believed instead, his lands were being seized; a resulting protest was dispersed when police attacked, beat, and shot civilians; his cousin was fatally shot in the head and others were seriously wounded, and sixty people were arrested. Only days later, another demonstration was attacked by police.46 Whether believing one part of the Appellant's evidence or another, it is still difficult to see why he did not seek protection in Spain, and why he instead voluntarily returned to Sudan. [61] Having reviewed the evidence, the RAD has reached the same conclusion as did the RPD: the Appellant is generally lacking in credibility. He did not provide the RPD with medical evidence to establish that his credibility problems might be explained by memory or cognitive difficulties. [62] Finally, the Appellant argues that refusing him a new RPD hearing "would result in possible refoulement to Sudan for a cognitively impaired person."47 The RAD does not agree. Neither the RPD nor the RAD decides whether a person is removed from Canada; the refugee tribunals have the responsibility of determining whether a claimant is a Convention refugee or a person in need of protection. Both tribunals have determined that the Appellant is not. CONCLUSION [63] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld September 28, 2016 Date 1 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 51. 2 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, October 29, 2014, 2015 FC 895, para. 19. 4 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55; Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 63. 5 Singh, 2016 FCA 96, para. 54 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 16. 7 Singh, 2016 FCA 96, para. 64. 8 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 9 Ibid., Raza, paras. 13-15. 10 Singh, 2016 FCA 96, para. 64. 11 Singh, 2016 FCA 96, para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministery of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 12 Singh, 2016 FCA 96, para. 48. 13 Exhibit P-2, Appellant's Record, pp. 66-69. 14 Ibid., p. 71. 15 Ibid., pp. 72-77. 16 Ibid., p. 64, para. 5. 17 Exhibit P-2, Appellant's Record, p. 84, Memorandum, para. 26. 18 Exhibit RPD-1, RPD's Record, p. 28, Basis of Claim narrative, lines 170-173. 19 Exhibit P-2, Appellant's Record, p. 68. 20 Ibid., p. 72. 21 Exhibit RPD-1, RPD's Record, p. 151. 22 Exhibit P-2, Appellant's Record, pp. 84-85, paras. 23-27. 23 Singh, 2016 FCA 96, at para. 54. 24 Exhibit P-2, Appellant's Record, p. 85, paras. 29-30; it is not entirely clear here whether the Appellant is asking the RAD or the RPD to take a fresh look at the claim. 25 Exhibit P-2, Appellant's Record, pp. 83-84. 26 See, for example, Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063, para. 33. 27 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 28 Dhillon, paras. 14-18. 29 Huruglica, 2016 FCA 93, para. 103. 30 Ibid. 31 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, para. 50. 32 Huruglica, 2016 FCA 93, para. 70. 33 Ibid., para. 74. 34 Akuffo, paras. 34-35; see also Meilina, Yani v. M.C.I. (F.C., no. IMM-642-14), Gagné, December 18, 2014, 2014 FC 1233, para. 11. 35 See Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, para. 32; see also M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 72. 36 An inference is "a conclusion reached by considering other facts and deducing a logical consequence from them" (Black's Law Dictionary, 7th ed., page 781); the Federal Court has described an inference as a legal concept with the same meaning as a plausibility finding (para. 58, K.K. v. M.C.I., IMM-11142-12, 2014 FC 78, which decision contains a thorough discussion of the drawing of inferences.). 37 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799, para. 55. 38 See Yin, Sarom v. M.C.I. (F.C., no. IMM-2845-14), Noël, December 12, 2014, 2014 FC 1209, para. 36, citing Njeukam, Gaelle Leonelle Nguedo v. M.C.I. (F.C., no. IMM-7280-13), Locke, September 10, 2014, 2014 FC 859, Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063, Allalou, Abedelkrim v. M.C.I. (F.C., no. IMM-7217-13), Shore, December 17, 2014, 2014 FC 1084, and Sajad, Zeeshan v. M.C.I. (F.C., no. IMM-926-14), Shore, November 21, 2014, 2014 FC 1107; also Bui, Van Son v. M.C.I. (F.C., no. IMM-1654-14), Shore, November 28, 2014, 2014 FC 1145. 39Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, at para. 47: "A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." 40 Exhibit P-2, Appellant's Record, p. 86, para. 32. 41 Exhibit RPD-1, RPD's Record, p. 33. 42 Exhibit RPD-1, RPD's Record, p. 25, lines 60-62. 43 Ibid., p. 150, Report of Dr. Les Richmond, emphasis added. 44 Ibid., p. 71. 45 Exhibit P-2, Appellant's Record, pp. 87-88, para. 40. 46 Exhibit P-2, Appellant's Record, p. 25. 47 Ibid., p. 85, para. 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-08356