TB5-12613

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 : TB5-12613 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 Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 30, 2016 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ashley Erin Fisch 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 FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Libya, 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 determination of the RPD and either substitute its own positive determination or refer the matter back to the RPD for reconsideration. 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 his uncle was a XXXX XXXX XXXX official in the regime of former Libyan dictator Gaddafi. After the fall of Gaddafi, an extremist group detained the uncle, despite the Appellant's efforts to stop them. The Appellant came to Canada in 2014 to study; while in this country, he learned that his uncle had escaped, and the extremists came to the Appellant's family home in search of him. Unable to locate the Appellant's uncle, they seized another of his uncles. They subsequently fired shots at the Appellant's vehicle, which was being driven by his brother. The Appellant then filed a refugee claim in Canada. [4] The Appellant's application for refugee protection was heard on October 9, 2015. By a decision of November 6, 2015, the RPD rejected the claim. Citing a number of inconsistencies, the RPD found that the Appellant was not a credible witness, and found that his profile as a relative of a former Gaddafi official did not give rise to a well-founded fear of persecution. [5] The Appellant argues on appeal that the RPD erred in its assessment of his credibility, and asks the RAD to admit new evidence in support of his appeal. 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] 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.5 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) [12] 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, or is immaterial to the issues to be considered by the RAD, it would make little sense to admit such document, even if it meets the test in Section 110(4).6 [13] The RAD has, in many appeals to date, applied the factors set out by the Federal Court of Appeal in Raza.7 While Raza predates the introduction of Section 110(4) of the IRPA 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.8 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.9 [14] In Iyamuremye10, the Federal Court accepted the RAD's application of the factors in Raza to new evidence submitted on an appeal under the IRPA. Subsequently, in Ghannadi,11 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. In Singh,12 the Court found that the factors in Raza are based specifically on 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).13 [15] 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.14 [16] 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.'"15 [17] 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)?" [18] The question of whether the Raza factors are applicable to evidence that passes the test in Section 110(4) is still unsettled.16 It has been found that the application of the Raza criteria by the RAD is reasonable;17 it has also been held that the application of those factors without modification is an error.18 The Raza factors have also been described by the Court as "useful guidance."19 [19] While trusting that the matter will eventually be resolved by the Federal Court of Appeal, the RAD must nevertheless continue to consider new evidence, such as that which has been submitted in support of this appeal. Although 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 the IRPA - such as Sections 162(2) and 171(a.3). Such a restricted analysis would also require the RAD to accept "new" evidence even if it is irrelevant, immaterial, or lacking in credibility. [20] In Denbel, the Federal Court held that: [43] When interpreting legislative intent, the Court must give priority to the written text in the absence of any lexical ambiguity. The Court's opinions on best policy cannot supplant the text of the law; nor can select passages from the Hansard. In my view, Parliament intended these two provisions to enshrine the same legal test. If Parliament had intended to establish more flexible admissibility rules in RAD appeals, it would not have replicated the restrictive language which governs PRRAs.20 [21] 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 to consider whether it has evidentiary value and, if so, how much. While the factors in Raza are indeed helpful guidance, the RAD would undertake a very similar analysis even if it would completely disregard that decision.21 [22] 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. [23] While the 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.22 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 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." [24] It is therefore appropriate for the RAD to consider whether new evidence is relevant, even if it meets the test in Section 110(4). [25] 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. [26] 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,23 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.24 In this context, the definition of materiality set out in Raza makes good sense: the new evidence must be so significant that it would have led to a different outcome before the RPD. [27] 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).25 [28] 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 were to apply the materiality factor as defined 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 making its own assessment of whether the determination should have been different or whether the RPD decision was in error. [29] 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.26 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 present 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 in and of itself does not warrant the acceptance of a refugee claim, and therefore the Appellant's newly obtained identity documents could be rejected by the RAD as lacking materiality, even though they could be the basis for a successful appeal. [30] 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. [31] 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 or 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.27 (c) The RAD will determine whether the evidence is material, in the sense that it could be capable of justifying, with or without the benefit of an oral hearing, as the case may be, a disposition under section 111 of the IRPA. [32] 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. [33] The Appellant asks the RAD to admit the following as new evidence. (a) A receipt from the XXXX XXXX Centre, dated February 12, 2014;28 (b) A letter from the Appellant's aunt, dated December 12, 2015;29 (c) Items 1.5, 1.10, 2.11, and 7.5 from the National Documentation Package (NDP) for Libya dated November 30, 2015. [34] Document (a) is a receipt showing that the Appellant paid a sum of money to the XXXX XXXX Company for Educational Services for the purpose of "Canadian visa procedure." The RPD had concerns with where the Appellant was living when he applied for a Canadian visa in XXXX of 2014. He told the RPD that he was living in the family home in XXXX, and denied that he was living in XXXX, which he claimed in his visa application. The Appellant also told the RPD that someone else had helped him obtain the visa, though he did not mention this in his narrative or in immigration forms. The RPD found that the Appellant was actually living in XXXX when he applied for the visa, and made a negative credibility finding. [35] The Appellant argues that the document in (a) is credible, and is relevant because it "disproves a credibility finding that negatively impacts the outcome of the appellant's refugee claim."30 He submits that the evidence is material in that it rebuts a negative credibility finding. In his view, the document meets the requirements of Section 110(4) because he could not have reasonably been expected, in the circumstances, to have presented this to the RPD, as his whereabouts at the time of his visa application were not a central or determinative element of the refugee claim. [36] This proposed new evidence is dated XXXX XXXX, 2014, and clearly does not post-date the rejection of the Appellant's claim. If this document was indeed material, the Appellant could reasonably have been expected to present it to the RPD. He testified that he used the XXXX agency to apply for his Canadian visa, and was specifically questioned about this.31 About a month passed between his hearing and the RPD's decision; the Appellant has not explained why this document was not available to him to provide to the RPD post-hearing. The RAD finds that this document did not arise after the rejection of the Appellant's refugee claim; he could reasonably have been expected to present it to the RPD, and has not established that it was unavailable for him to do so. [37] The RAD notes again here that the test in Section 110(4) relates to the timing of proposed new evidence, and not its evidentiary value. A document that is irrelevant or immaterial may meet the statutory requirements because a refugee claimant could not reasonably have been expected to present irrelevant or immaterial evidence to the RPD. This illustrates the importance of an additional evaluation of the evidence beyond that prescribed in Section 110(4). [38] It may be that document (a) is simply not material. As the Appellant concedes in his Memorandum, it does not establish where he lived at the time of the visa application. The RPD's credibility finding is with respect to the visa application is specifically linked to that issue: "I find that the claimant was actually living in XXXX at the time when he applied for his Canadian visa. I do not know why the claimant is obfuscating the amount of time he lived in XXXX, but I find this does have an impact on his credibility...."32 Although the RPD also disbelieved the Appellant's explanation that someone else made the visa application on his behalf, this document simply does not establish that XXXX actually made the Appellant's application - as opposed to, for example, providing advice, or copying, or mailing, or other administrative services. [39] There is no dispute that the Appellant actually made a visa application; in fact, he was granted a Canadian study visa and used it to come to Canada. The document in (a) does nothing to establish where the Appellant lived at the time he applied for a visa, and therefore does not address the RPD's credibility concern. [40] The document in (a) does not meet the test in Section 110(4); if it does meet that test, it is only because the evidence is not material, and therefore inadmissible in this appeal. [41] The document in (b) is dated December 12, 2015. However, its contents are not that recent. The author of the letter writes that the Appellant's female relatives have lived in XXXX since XXXX of 2015, after they left XXXX City to find a safe place to stay "due to the incidents happened with the family in XXXX."33 The RAD finds, and the Appellant concedes,34 that the evidence in this letter did not arise after the rejection of the Appellant's refugee claim. However, he submits that "contact with his family back home was sparse in the period preceding his hearing" and that the "volatility of the situation in Libya" prevented him from tendering such evidence in advance of the RPD hearing. [42] The RAD finds that the Appellant has not explained why this evidence is available now, but was not available after his RPD hearing and before the RPD rendered a decision. In fact, the Appellant did provide detailed letters to the RPD from his father and brother - and those documents make no mention of the relocation of the female family members.35 He also reported in his Basis of Claim (BoC) form that his mother and sisters currently live in XXXX,36 which conflicts with his claim, also contained in the BoC narrative that they fled to XXXX. [43] The document in (b) does not meet the requirements of Section 110(4). The evidence it contains arose before the rejection of the Appellant's refugee claim, and he has not established that it was not reasonably available to him, particularly as he was able to provide detailed letters from two family members who certainly would have had knowledge of the location of his mother and sisters. Given that the Appellant provided contradictory information in his BoC form about the location of these female family members, he could reasonably have been expected to provide this corroborating evidence to the RPD. [44] Even if the document in (b) did meet the test in Section 110(4), the RAD would not admit it, as it is not material in the sense that it could justify a disposition under Section 111 of the IRPA. The Appellant provided contradictory evidence in his BoC about the location of his mother and sisters; he provided detailed letters from his father and brother which expressed concern about the family's safety but made no mention of the significant departure of the female members of the family. In this context, even the admission of a document purporting to corroborate the flight of those individuals to XXXX would not resolve these credibility problems. [45] The documents in (c) are from the most recent Libya NDP, which was not before the RPD. The RAD finds that this evidence arose after the rejection of the Appellant's refugee claim and therefore meets the requirements of Section 110(4). The evidence is also credible, relevant, and material, and is therefore admitted in this appeal. What is the Role of the RAD? [46] 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. [47] The Appellant makes no specific submissions with respect to the standard of intervention to be applied here. [48] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.37 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [49] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [50] Where the proceeding is a true appeal - that is, where there is no admissible new evidence - the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [51] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.38 [52] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [53] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [54] Where the RPD's determination is entirely based on findings which warrant deference - such as an overall lack of credibility, based on oral testimony - the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [55] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The RPD's Findings [56] The Appellant argues that the RPD made various errors in rejecting his claim. [57] Canadian visa application: The RPD considered the Appellant's testimony that, at the time he applied for a Canadian visa, he lived in the family home in XXXX; he also provided this information in an immigration form. However, the RPD noted that immigration data provided by the Minister shows the Appellant living in XXXX at the time. The Appellant then claimed that he retained someone to make the visa application for him; when the RPD pointed out that the application used his own email address, he then claimed that he provided his email and password to someone to assist him. The RPD found that the Appellant was actually living in XXXX at the time of the application, and made a negative credibility finding. [58] The Appellant asks the RAD to admit a receipt to establish that someone made the visa application for him. For reasons set out above, the RAD has declined to admit the document: it does not show where the Appellant was living, and does not even establish that the organization which issued the receipt actually completed the visa application. [59] The Appellant does not point out any errors in the RPD's credibility finding with respect to his place of residence at the time he applied to come to Canada. [60] Location of female family members: The Appellant's BoC form listed his mother and sisters as living in XXXX; his narrative and testimony claimed they fled to XXXX. Although his father and brother provided detailed letters to corroborate his claim, they said nothing about the flight of their female family members to another city. The RPD found that the Appellant's mother and sisters had not fled, and made a further negative credibility finding. [61] The Appellant asks the RAD to admit as new evidence a letter from his aunt in XXXX, with whom his mother and sisters are allegedly living. For reasons set out above, the RAD has found that this evidence is not new and does not meet the requirements of Section 110(4). [62] The Appellant does not point out any errors in the RPD's credibility finding with respect to whether his mother and sisters fled to XXXX. [63] Departure from Libya: The RPD noted that the Appellant left Libya on his own passport, departing via an airport controlled by the very extremist group he allegedly fears. He departed without incident, and the RPD found that he does not have "a profile which would found a grant for asylum."39 [64] The Appellant points out on appeal that he was only speculating about who controlled the airport, and, more importantly, that the group was not interested in him at the time he left because his uncle had not yet escaped their custody. [65] The problem with this argument is that the Appellant simultaneously takes the position that he is at risk simply as a relative of a former Gaddafi official. He points to evidence that individuals are harmed because of real or suspected family political affiliations; he argues that the RPD erred by fining that "merely being a family member of a Gaddafi loyalist is not enough to found an asylum case."40 [66] On the one hand, the Appellant argues that he was not at risk at the airport; his uncle had not yet escaped, and therefore the extremists had no reason to target him. The difficulty with this argument is that there is no credible evidence that his uncle was kidnapped or escaped, and therefore the extremists still have no reason to target the Appellant. [67] On the other hand, the Appellant argues that he is at risk merely by family association with his uncle. The flaw in this argument is also obvious: if he is indeed a target merely because of a family connection, then it is difficult to understand how he passed through the extremist-controlled airport on his own passport without incident. [68] It was not an error for the RPD to find, based on the Appellant's uneventful exit through the airport, that he does not have a profile which places him at risk of harm at the hands of the extremists. [69] Profile: The Appellant points to new evidence in support of his position that he is indeed at risk on the basis of his family connection to his uncle. [70] The RPD's analysis of the Appellant's profile is confused and difficult to follow. After considering the Appellant's testimony, the RPD concluded that "the claimant is not a credible witness."41 It then embarked on what began as an alternative analysis: "I am not persuaded that the incidents alleged by the claimant occurred as he described if at all. However, even if they did occur as described by the claimant, the documentary evidence before me does not support the claimant's assertions of a well-founded fear due to his profile as a relative of a former XXXX XXXX member of the Gaddafi regime."42 [71] This appears to be the beginning of an analysis of the risk to the Appellant, based on the assumption that his allegations are true. However, the RPD almost immediately abandoned that assumption after considering one piece of objective evidence. "This document clearly states that merely being a family member of a Gaddafi loyalist is not sufficient to found an asylum claim in and of itself, and that the claimant must demonstrate a risk in his particular circumstances. I have found that the claimant's allegations of being personally targeted by the AAS to be without merit and to be lacking in credibility. I am therefore considering only whether the claimant's familial relationship to [his uncle] is sufficient to establish a well-founded fear of persecution in Libya."43 [72] The RPD subsequently referred to the Appellant's allegations and again stated that "I do not find this believable."44 [73] The RPD's analysis here is puzzling for two reasons. First, after finding the Appellant to be generally lacking in credibility, the panel appeared to nevertheless accept that his uncle was XXXX XXXX official in the Gaddafi regime. It appears that the only proof of the uncle's position was the Appellant's own evidence, which was not believable. The RPD did not explain why it accepted this one key piece of the Appellant's story when it found that he was not a credible witness. Second, the RPD then set out on an alternative analysis - assessing the risk to the Appellant as if he had credibly established his allegations - but almost immediately reverted to its original credibility findings. [74] Although the RPD erred in its consideration of the Appellant's profile, this error is not fatal to its determination of the refugee claim. Although the RAD does not understand how the RPD accepted the Appellant's profile while finding him to be generally lacking in credibility, it will defer to the RPD's credibility findings. The RAD therefore accepts that the Appellant was generally lacking in credibility, but also that he somehow established that his uncle was an official in the Gaddafi regime. [75] Is the Appellant at risk of harm in Libya because his uncle once worked for the previous government? He has not established with credible evidence that he or his family have suffered threats or harm as a result of this relationship; therefore this risk must be considered solely on the basis of objective evidence, both that in the RPD record and that accepted as new evidence here. [76] The Appellant points to evidence that fighters from various groups have abducted and killed civilians on the basis of family, tribal, and perceived political affiliations.45 The RAD has carefully considered the Appellant's new evidence as well as the existing documents in the RPD record. The panel notes that particular types of claims, including those of members of families perceived to be in support of the Gaddafi regime, merit careful consideration.46 [77] The new evidence on which the Appellant relies contains general observations about the risk to civilians based on family, tribal, and political affiliations. The Appellant's profile is very specific. He has been found by the RPD to be the nephew of a former XXXX XXXX XXXX Gaddafi official. As such, the RAD prefers specific evidence of the risk to such individuals. [78] It is important to observe here that there is no credible evidence that the Appellant's family has suffered any threats or harm as a result of their relationship to the Appellant's uncle. The RAD also notes the Appellant's own testimony about his profile. He explained that he does not share the same last name as his uncle. He testified that he is not at risk because of his tribal affiliation, but only because of his uncle's involvement with the regime.47 In fact, his tribe is not known to be pro-regime, or pro-militia, but rather is seen as "neutral."48 [79] Objective evidence discusses the mistreatment of individuals closely associated with the Gaddafi regime.49 While this might apply to the Appellant's uncle, he himself has had no involvement with the regime. A relatively recent research document from the United Kingdom Home Office finds that "the likelihood of a person being perceived or known as a supporter of Gaddafi will vary according to the individual profile," which includes elements such as ethnicity, age, and place of origin.50 Here the Appellant's relative youth, as well as his tribe's perceived neutrality, are in his favour. The same document notes that the majority of Libyans worked for, or have a relationship to someone who worked for the regime, but family members are not at risk of persecution merely on account of their familial relationship.51 A Dutch investigation found no reports of violent reprisals against people solely on the basis of family relationships to former security and intelligence employees.52 [80] Having considered the evidence, the RAD reaches the same conclusion as did the RPD. The Appellant comes from a neutral tribe, and does not share the name of his uncle. The Appellant himself is not closely associated with the Gaddafi regime. He has provided no credible evidence that his family has been threatened or harmed in any way since the fall of the regime. The objective evidence establishes that Libya is a country torn by violence, and that individuals who were or are perceived as being close to Gaddafi are particularly at risk. The Appellant has not established that he has such a profile. Request for an Oral Hearing [81] The Appellant requests that the RAD hold an oral hearing, pursuant to Section 110(6) of the IRPA. [82] Section 110(6) provides that the RAD may convene an oral hearing in very specific circumstances. There must be new evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, that is central to the decision with respect to the refugee protection claim, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [83] Here the only admissible new evidence was that of country conditions in Libya. While this evidence may speak to the risk faced by the Appellant, it does not raise a serious issue with respect to his credibility. The new evidence admitted here cannot justify allowing or rejecting the Appellant's refugee protection claim. The Appellant's request is therefore denied. CONCLUSION [84] The RPD made a number of serious findings with respect to the Appellant's lack of credibility. The Appellant does not challenge most of those findings, although he has unsuccessfully sought to introduce "new" evidence in response to a few. The Appellant has not explained why the RPD was wrong to find him lacking in credibility with respect to his vague account of his uncle's alleged kidnapping, where the Appellant could not even remember the day or month of this serious event. He has not made submissions about why the RPD was wrong in finding that his delay in departure and in claiming was indicative of a lack of subjective fear. He provided contradictory evidence about where he was living at the time he applied to come to Canada, and about where he was living at the time his uncle was allegedly kidnapped. He claims that he will be targeted by extremists because of his relationship to his uncle, but was able to leave the country through an extremist-controlled airport without incident. [85] There was ample reason for the RPD to find that the Appellant is generally lacking in credibility. Although the RPD inexplicably accepted that the Appellant's uncle was involved in the Gaddafi regime, the objective evidence does not establish more than a mere possibility of persecution for this reason in the Appellant's particular circumstances. [86] 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 January 30, 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. 5 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. 6 See Cyril, Edward v. M.C.I. (F.C., no. IMM-3081-14), Brown, September 22, 2015, 2015 FC 1106, para. 13. 7 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 8 Ibid, Raza, paras. 13-15. 9 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. 214-215. 10 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014, 2014 FC 494, para. 45. 11 Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, paras 17-18. 12 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 56. 13 See also Khachatourian, Robert v M.C.I. (F.C., no. IMM-4928-14), Noèl, February 13, 2015, 2015 FC 182, para. 37. 14 Singh, para. 55. 15 Singh, para. 58. 16 Deri, para. 56. 17 For example, Oluwole, John v. M.C.I. (F.C., no. IMM-6525-14), Southcott, August 14, 2015, 2015 FC 953, paras. 10 and 39; Ismailov, Dilshod v. M.C.I. (F.C., no. IMM-6839-14), Strickland, August 13, 2015, 2015 FC 967, para. 59; Denbel, Bekelech v. M.C.I. (F.C., no. IMM-3827-14), Mosley, May 13, 2015, 2015 FC 629, paras. 40-44. 18 For example, Shukurov, Sharof v. M.C.I. (F.C., no. IMM-6058-14), Fothergill, August 6, 2015, 2015 FC 949, para. 26; Ajaj, Firas Salem Munef v. M.C.I. (F.C., no. IMM-5604-14), Gascon, July 28, 2015, 2015 FC 928, paras. 61-63; Ching, Wai Kheong v. M.C.I. (F.C., no. IMM-1272-14), Kane, June 9, 2015, 2015 FC 725, para. 56; Khachatourian, Robert v. M.C.I. (F.C., no. IMM-4928-14), Noèl, February 13, 2015, 2015 FC 182, para. 37. 19 Niyas, Mohamed Zayan v. M.C.I. (F.C., no. IMM-6829-14), Locke, July 17, 2015, 2015 FC 878, para. 27. 20 Denbel, para. 43. 21 Cyril, para. 13. 22 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 Ministry of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33, at para. 64. 23 Cupid, Keturah Laverne v. M.C.I. (F.C., no. IMM-1737-06), Snider, February 16, 2007, 2007 FC 176, paras. 4, 25, and 26. 24 IRPA, s 112(b.1). 25 Singh, para. 53. 26 Liu, Lanfen v. M.C.I. (F.C., no. IMM-4384-06), Barnes, August 10, 2007, 2007 FC 831, para. 18. 27 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." 28 Appellant's Record, Pages 14 and 15. 29 Appellant's Record, Pages 16 and 17. 30 Appellant's Record, Page 80, Memorandum, para. 16. 31 Transcript, Page 26. 32 RPD's Reasons, para. 11. 33 Appellant's Record, Page 17. 34 Appellant's Record, Page 81, Memorandum, para. 20. 35 RPD's Record, Pages 311 and 316; the Appellant's brother's letter ends by stating that " I do always pray to God to save me and to save all members of my family," but does not mention that close family members have fled to another city. 36 Appellant's Record, Page 27, Basis of Claim form, Question 5. 37 X (Re), 2015 CanLII 19235 (CA IRB). 38 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 55. 39 RPD's Reasons, para. 23. 40 Appellant's Record, Page 82, Memorandum, para. 27. 41 RPD's Reasons, para. 18. 42 RPD Reasons, para. 19, emphasis added. 43 RPD Reasons, para. 20, emphasis added. 44 RPD's Reasons, para. 23. 45 Appellant's Record, Page 82, Memorandum, para. 26, citing items 1.5, 1.10, 2.11, and 7.5 of the NDP for Lybya (November 30, 2015). 46 NDP for Libya (November 30, 2015), Item 1.10, Page 13, Para. 26. 47 Transcript, Page 33; see NDP for Libya (July 17, 2015), Item 2.9, para. 4.2, which indicates that most Libyan tribes have been labelled as either pro-Gaddafi or anti-Gaddafi. 48 Transcript, Page 35. 49 See, for example, NDP for Libya (July 17, 2015), Item 1.6, Section 3.10. 50 NDP for Libya (July 17, 2015), Item 1.7, Par. 1.3.3. 51 Ibid, paras. 1.3.9 and 1.3.10. 52 Ibid, Item 2.9, para. 4.3.3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-12613