TB5-05416

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 : TB5-05416 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX-XXXX (a.k.a. XXXX XXXX XXXX XXXX-XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 9, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Inderpreet Kaur Budesha 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 FOR DECISION [1] XXXX XXXX XXXX XXXX-XXXX (the Appellant), a citizen of Iraq, 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, and asks the Refugee Appeal Division (RAD) to grant his appeal. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. This appeal is allowed. Background [3] The Appellant alleged before the RPD that he fell in love with a girl from a different religion, and despite his requests to marry her, the girl's family refused and the Appellant and this girl moved to a neighbouring town where they lived together. The Appellant further alleges that approximately three weeks later, the girl's family came to their home and took her back to their home where she was later killed. Just over two months later, the Appellant left Iraq for the United States of America (USA). The Appellant did not make a claim in the USA, but instead hired some people to smuggle him into Canada. The Appellant ended up in Edmonton, Alberta where he attended a CIC office. He made a refugee claim, fearing that he will be at risk upon return to Iraq because he fears that the girl's family will harm or kill him and there is no safe place to go. [4] The Appellant's application for refugee protection was heard on November 18, 2014. In an oral decision delivered at the conclusion of the hearing, the RPD rejected the claim, citing the lack of subjective fear, and that the Appellant did not face a risk to his life or a risk to cruel and unusual treatment or punishment or a danger of torture at the hands of the state. [5] The Appellant submits on appeal that the RPD erred in its assessment of his subjective fear, and further erred in finding that the Appellant did not have continuous danger if he returns to Iraq, and that the RPD failed to observe the principles of natural justice by not considering a document dealing with Honour killings. He also presents new evidence-an affidavit-in support of his appeal. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of IRPA provides that an 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 an 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 [8] 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, or is immaterial to the issues to be considered by the RAD, it would make little sense to admit such a document, even if it meets the test in Section 110(4). [9] The RAD has, in almost all appeals to date, applied the factors set out by the Federal Court of Appeal in Raza.3 While Raza predates the introduction of IRPA Section 110(4), it is based on the nearly-identical wording of Section 113(a). 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.4 [10] In Iyamuremye5, the Federal Court accepted the RAD's application of the factors in Raza to new evidence submitted on an appeal under IRPA. Subsequently, in Ghannadi,6 the Court held that the RAD should consider the factors in Raza, but noted that these are merely considerations to be taken into account and not necessarily determinative of admissibility. Most recently, the Court, in Singh,7 found that the factors in Raza are based specifically in the language of Section 113(a) and are not transferable in the context of an appeal before the RAD. The Court found that it was unreasonable for the RAD to strictly apply the Raza factors without distinguishing its own role from that of a Pre-Removal Risk Assessment (PRRA) Officer who is bound by Section 113(a). [11] In Singh, the Court wrote that ...in order for there to be a "full fact-based appeal" before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur. Often, the evidence at stake will be essential for proving the factual basis of the errors the claimant alleges were made by the RPD. This consideration becomes all the more pertinent in light of the strict timelines a claimant now faces for initially submitting evidence before the RPD. A claimant now has 50 days to present all documents from the date he or she made the claim; the previous legislative scheme required the documents 20 days prior to a hearing, which, on average, took much longer to take place. When the RPD confronts a claimant on the weakness of his evidentiary record, the RAD should, in subsequent review of the decision, have some leeway in order to allow the claimant to respond to the deficiencies raised.8 [12] The Court also held that the "main issue is whether the evidence 'was not reasonably available, or that the person could not reasonably (or normally according to the French version) have been expected in the circumstances to have presented.'"9 [13] The Court did not discuss Iyamuremye or Ghannadi in its analysis of Sections 110(4) and 113(a). It did, however, certify the following question: In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? [14] While the certified question has not yet been answered, the RAD must nevertheless continue to consider new evidence, such as that which has been submitted in support of this appeal. While it may be inappropriate to strictly apply the factors in Raza, given that they are not specific to Section 110(4) and were not crafted for use in an appellate process, the RAD's consideration of new evidence cannot end with the application of the test in Section 110(4). To limit its analysis to that provision would be to ignore other provisions of IRPA-such as Sections 162(2) and 171(a.3)-as well as established jurisprudence based on statutory provisions almost identical to Section 110(4). Such a restricted analysis would also require the RAD to accept "new" evidence even if it is irrelevant, immaterial, or lacking in credibility. [15] The RAD presumes that Parliament, in creating Section 110(4), was well aware that this provision is almost identical in wording to Section 113(a)-which provides a strong indication that Parliament intended the test from Raza to be used by the RAD.10 [16] The RAD will therefore undertake an analysis of any proposed new evidence, not only for its timeliness, which is largely the focus of Section 110(4), but also for its evidentiary value. In doing so, the RAD will look to the factors in Raza but will not be strictly bound by them, and in applying any Raza factors, must distinguish its own role from that of a PRRA officer. [17] Section 171(a.3) of 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 and trustworthiness of proposed new evidence. [18] While IRPA makes specific reference to the credibility of evidence received by the RAD, there is no corresponding provision which addresses relevance. However, in the RAD's view, it is obvious that evidence must be assessed for its relevance.11 Apart from the support from the case law, it would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to Section 162(2) of 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." [19] It is therefore appropriate for the RAD to consider whether new evidence is relevant, even if it meets the test in Section 110(4). [20] The RAD will also consider whether the proposed new evidence is material. In Raza, the Federal Court of Appeal described this factor: "Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered." This factor may, in the RAD's view, set an inappropriately high standard in the context of a RAD appeal. [21] An officer determining a PRRA application must not engage in a review of the applicant's negative RPD decision. The PRRA process exists to determine whether a risk to the applicant has arisen between the date of issue of the RPD's decision and the date of the applicant's pending removal from Canada,12 and the officer has no power to reconsider or set aside the RPD's decision. A PRRA will in most cases take place a year or more after the RPD's decision.13 In this context, the definition of materiality set out in Raza makes sense: the new evidence must be so significant that it would have led to a different outcome before the RPD. [22] However, as the Court noted in Singh, the RAD context is considerably different. The RAD is not restricted to making a new assessment of the risk faced by the Appellant, though this could occur as a result of new evidence presented upon appeal. The RAD appeal is meant to be decided within four or five months of the RPD's decision. The Appellant may challenge the decision of the RPD, and the RAD has broad powers to review that decision for errors of fact or law, or mixed fact and law, to confirm the decision, to confirm on other grounds, to set aside the decision and substitute another, or to set aside the determination and refer the matter back to the RPD for redetermination. It is of paramount importance that the RAD may look only to admissible new evidence when considering whether to hold a hearing under Section 110(6).14 [23] The Court's definition of materiality, which is appropriate for evidence presented in support of a PRRA application, seems overly restrictive when applied to evidence submitted in an appeal to the RAD. If the RAD would apply the materiality factor as set out in Raza, it could lead to the rejection of evidence that is capable of showing that the RPD's decision was in error, only because that evidence is not so strong that it would have resulted in the acceptance of the refugee claim had the evidence been before the RPD. Further, the RAD is not asking-as the PRRA officer is under Raza-whether the RPD decision would have been different. The RAD is considering whether the RAD thinks the determination should have been different or whether the RPD decision was in error. [24] For example, it is not uncommon for the RPD to reject a refugee claim on the basis that the claimant has not established his or her identity, and in such situations, the RPD is not required to go further to consider the evidence of persecution.15 A claimant rejected by the RPD on the basis of identity-perhaps because identity documents were still in transit from the country of origin at the time of the refugee hearing-might appeal to the RAD and presents as new evidence such recently-received documents. However, those documents might be rejected by the RAD if it considers their materiality as defined in Raza: whether the refugee claim would probably have succeeded if the documents were made available to the RPD. In many cases, the establishment of identity does not in and of itself warrants the acceptance of a refugee claim, and therefore the Appellant's newly-obtained identity documents could be rejected by the RAD as lacking materiality. [25] In the RAD's view, this restrictive approach to materiality is not consistent with the broad powers given to the RAD. While the PRRA officer is required to focus on a single issue-risk to the applicant-the RAD is required to consider both whether the RPD decision is in error and, after having reviewed all of the evidence, whether the Appellant is a protected person. An approach that focuses on whether the evidence is material enough to affect the outcome of the RAD appeal rather than the RPD's decision is therefore preferred. [26] For these reasons, the RAD will apply the following factors to evidence that passes the test in Section 110(4). (a) The RAD will consider whether the proposed new evidence is credible and trustworthy. (b) The RAD will assess the relevance of the evidence-whether it is capable, together with the other evidence in the record (including other admissible new evidence) of proving or disproving a fact at issue in either the refugee claim or the appeal.16 (c) The RAD will determine whether the evidence is material, in the sense that it would be capable of justifying, with or without the benefit of an oral hearing, as the case may be, a disposition under section 111 of IRPA. [27] If the proposed new evidence does not meet each of the factors above, the RAD may choose not to admit it. These factors, however, are not exhaustive, as the RAD may consider other factors as appropriate in the circumstances. The Appellant's proposed new evidence Letter/Affidavit from a XXXX XXXX XXXX XXXX, dated January 4, 2015; [28] Document (1) is a letter/affidavit which is dated January 4, 2015. The author of the letter/affidavit writes that the Appellant is in danger if he were to return to Iraq, as a result of a relationship between him and girl from the XXXX clan. The Appellant has not provided an explanation as to why this document was not available previously. There is no explanation how he got possession of it, what steps if any had he taken to obtain it for his RPD hearing and how it came into his possession. Further, there is no explanation of whom and what is the role of this alleged lawyer is, and who are these witnesses. The RAD also has concerns about the document's credibility. The RAD notes the letter is lacking several important items, such as an address, file number, etc. but does have a mobile number. The content of the letter does not identity the girl, does not state how it is known that it is the girl's relatives that are looking for him, how these witnesses relate to this matter. What evidence can they supply and in what context. [29] The RAD has considered this context in assessing document (1); the Appellant has failed to show to the RAD how this letter/affidavit is relevant, material, and credible. The RAD finds that this proposed new evidence does not meet the requirements of section 110 (4). The Appellant's lack of explanation falls short of how this would be relevant and material and credible to his claim. [30] For these reasons, the RAD does not admit the Appellant's proposed new evidence. Application for an Oral Hearing [31] The Appellant asks that an oral hearing be held, pursuant to Section 110(6) of IRPA. [32] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [33] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [34] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [35] The RAD has not admitted the new evidence submitted by the Appellant in support of her appeal. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. ANALYSIS Role of the RAD [36] The Appellant has made submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,17 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it 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 an "overriding and palpable error." [37] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [38] The Appellant argues that the RPD made various errors in rejecting his claim on the basis of a lack of subjective fear. [39] The Appellant claimed to fear for his life in XXXX, Iraq, and yet he delayed in departing, and did so only after making three trips to Turkey and re-availing himself each time. He alleges that he was at great risk in his country but, when he gained access to another country, he did not seek to remain there instead he opted to illegally enter Canada. Although he feared harm in Iraq, he voluntarily returned there after completing XXXX XXXX XXXX XXXX XXXX XXXX XXXX while he alleges he was in hiding and knowing he was in danger in Iraq as he alleges. In its "subjective fear" analysis, the RPD identified the contrast and inconsistency between the Appellant's allegations and his actions. He claimed to fear for his life but his behaviour suggested otherwise. This is a matter of credibility, which is not appropriately considered in the context of both sections 96 and 97. In fact, each time the RPD made a finding of a lack of subjective fear, it did not connect it to a negative credibility finding on the basis of the same evidence. [40] The Appellant argues on appeal that the RPD erred in law by considering subjective fear, a component of the Convention refugee definition in Section 96 of IRPA, in an analysis conducted under Section 97, which includes no such component. [41] The RAD disagrees. While it might have been better if the RPD had avoided using the term "subjective fear" in the course of a Section 97 analysis, the panel's reasoning is not clear. The presiding member seems to accept certain portions of the Appellant's claim as credible and not others, nonetheless he does not make a clear and concise finding on the overall credibility of the Appellant. [42] The Appellant asks that the negative determination of the RPD be set aside. After conducting an independent assessment of the entirety of the evidence, the RAD does not reach the same conclusion as the RPD did in its findings. The RAD noted that there were numerous credibility concerns in the record before it, but without giving the Appellant the opportunity to give explanations, the RAD defers any credibility concerns to the RPD. [43] I am unable to make a determination as to whether the Appellant is a Convention refugee or person in need of protection under paragraph 111(1)(a) or (b) without hearing the evidence that was presented to the Refugee Protection Division. Therefore, the matter is remitted to the RPD for redetermination by a differently-constituted panel. CONCLUSION [44] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently-constituted panel. This appeal is allowed. (signed) "Luis F. Agostinho" Luis F. Agostinho July 9, 2015 Date 1 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, para 51. 2 Immigration and Refugee Board, Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 Raza, Syed Masood v. M.C.I. (F.C., no. IMM-7269-05), Mosley, November 16, 2006, 2006 FC 1385; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 4 Ibid, paras. 13-15. 5 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 45. 6 Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, paras 17-18. 7 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 56. 8 Singh, para. 55. 9 Singh, para. 58. 10 The presumption of consistent expression holds that "it is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings." Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008) at pp 214-15: 11 There is a great deal of support for this view. "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 Cupid, Keturah Laverne v. M.C.I. (F.C., no. IMM-1737-06), Snider, February 16, 2007, 2007 FC 176, paras. 4, 25, 26. 13 s. 112(b.1) of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27 14 Singh, para. 53. 15 Liu, Lanfen v. M.C.I. (F.C., no. IMM-4384-06), Barnes, August 10, 2007, 2007 FC 831, para. 18. 16 See Raza at para. 13.4; also David Paciocco & Lee Stuesser, The Law of Evidence, 3d ed. (Irwin Law, 2002) at 24: "Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence." 17 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05416