TB4-05438

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 : TB4-05438 Private Proceeding / Huis clos Redetermination of the Appeal 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 27, 2016 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane 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 Sri Lanka, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant had appealed to the Refugee Appeal Division (RAD) earlier, and had submitted new evidence, including six newspaper articles which post-dated the RPD decision. The RAD concluded that the new evidence was not material and gave no weight to the letters, and dismissed the appeal. The Federal Court allowed the Appellant's application for judicial review on the basis that these findings were unreasonable and remitted the matter to a differently constituted panel of the RAD for re-determination. The Appellant makes supplementary submissions, complementary to the prior ones. He submitted new evidence and requests that an oral hearing be held. The Appellant submitted as new evidence an affidavit by him and seven exhibits, including a letter from the police, acknowledgement of a complaint to the police concerning his sister's disappearance. The Appellant asks the RAD to overturn the decision of the RPD and to find that this Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. 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 re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that he fears returning to Sri Lanka because as a young Muslim male he will be persecuted by extreme nationalist factions such as and including the group known as Bodu Bala Sena (BBS), which is an anti-Muslim organization in Sri Lanka. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [4] The Appellant's application for refugee protection was heard on March 7, 2014. A negative decision was rendered in writing on May 15, 2014. The RPD found that the Appellant was not a credible witness and that he failed to provide sufficient credible evidence to substantiate the core of his claim. [5] In the original Memorandum of Argument, Counsel for the Appellant (Counsel) submitted that the RAD should not defer to the findings of the RPD. [6] Counsel submitted that the RPD erred in its assessment of the Appellant's credibility because the RPD's inferences were unreasonable, and because the RPD gave no probative value to corroborative documents. [7] Counsel submitted that the RPD erred in failing to consider that if the Appellant's subjective belief was that Muslims in the United States (USA) are discriminated against, it did not matter if that belief was unreasonable. The Appellant's subjective fear of anti-Muslim discrimination resulted in the Appellant's failure to claim asylum in the USA. The RPD erred by assessing a lack of subjective fear because of the Appellant's failure to claim in the USA. [8] Counsel submitted that the RPD erred when it gave no weight to a letter2 from the Appellant's sister because the letter was not notarized and was not accompanied by identity documents. [9] Counsel submitted that the RPD erred when it assessed no weight to the supporting letter3 from Justice of the Peace XXXX XXXX XXXX XXXX XXXX XXXX XXXX because the letter was not notarized, was not accompanied by identity documents and did not explain how the author was aware of the Appellant's issues with BBS. [10] Counsel submitted that the RPD erred when it assessed no weight to the letter4 from the Appellant's Mosque in Sri Lanka. The RPD's reason for assessing the letter as it did was that the Appellant himself was not credible, therefore his supporting evidence could not be credible. [11] In the supplemental Memorandum, the Appellant argues that his identity as a Muslim had not been specifically addressed by the RPD and that the letter disclosed from the Mosque establishes that the Appellant is a Muslim. This evidence supports earlier evidence disclosed in the Appellant's BOC at question 1 (f). [12] The supplemental argument also sets out that the Appellant's sister has disappeared and that disappearance has been reported to the police. The police have corroborated that such a complaint has been made. [13] The Appellant argues that his failure to claim in the USA should not be fatal to his claim. The Appellant cites "The Law of Refugee Status"5 which, in short, suggests that a short stay in an intermediate country would not signify a lack of subjective fear. ANALYSIS Role of the RAD [14] Counsel has made some 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,6 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." [15] 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. Admissibility of Evidence Submitted on Appeal [16] Section 110(4) of the IRPA provides that Appellants may present only evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not reasonably have been expected7 in the circumstances to have presented, at the time of the rejection. [17] It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellants.8 Application of Section 110(4) [18] Section 110(4) establishes a disjunctive test.9 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. 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 claims. 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 Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [19] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.10 [20] As the RAD understands it, Section 110(4) provides the Appellants 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 Appellants could not have been expected to present it to the RPD. [21] 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.11 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) [22] 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). [23] The RAD has, in many appeals to date, applied the factors set out by the Federal Court of Appeal in Raza.12 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.13 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.14 [24] In Iyamuremye,15 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,16 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,17 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).18 [25] 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.19 [26] 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.'"20 [27] 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)? [28] The question of whether the Raza factors are applicable to evidence that passes the test in Section 110(4) is still unsettled.21 It has been found that the application of the Raza criteria by the RAD is reasonable;22 it has also been held that the application of those factors without modification is an error.23 The Raza factors have also been described by the Court as "useful guidance."24 [29] 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. [30] In Denbel, the Federal Court held that: "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."25 [31] 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 were to completely disregard that decision. [32] 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. [33] 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.26 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." [34] It is therefore appropriate for the RAD to consider whether new evidence is relevant, even if it meets the test in Section 110(4). [35] 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. [36] 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,27 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.28 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. [37] 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).29 [38] 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 considering whether the RAD thinks the determination should have been different or whether the RPD decision was in error. [39] 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.30 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 does not in and of itself 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. [40] 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. [41] 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.31 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. [42] 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. New evidence in the original Memorandum [43] The Appellant has disclosed six news articles32 from various and trustworthy sources such as Refworld (a United Nations High Commissioner for Refugees publication). These articles all postdate the decision of the RPD and do meet the test of newness in accordance with Section 110(4) of the IRPA. Each of the articles speaks to anti-Muslim violence in Sri Lanka. The Appellant's claim is based upon his religious identity as a Muslim, which was not disputed by the RPD. Consequently, these articles disclosed as new evidence are relevant and material to the claim. The RAD accepts these documents into evidence. New evidence in the supplementary Memorandum [44] The Appellant has disclosed a RAD decision listed as RAD file number TB4-0392733, sanitized. This is a decision by the RAD on a similarly situated individual. The decision was rendered on August 21, 2014 and therefore is considered new in accordance to Section 110 (4) of the IRPA. The Appellant wishes to draw attention specifically to paragraphs 27 and 28 of this decision. This decision does meet the test of Section 110 (4) having been rendered on August 21, 2014, well after the RPD decision for this Appellant. It speaks to the issue of Muslims in Sri Lanka being persecuted by BBS. As these are circumstances very similar to the claim of this Appellant, the RAD finds this decision to be relevant and material and credible. The RAD will therefore allow this document into evidence. [45] The Appellant has disclosed a series of supporting letters in support of the appeal. In assessing the weight to be given to such documents when credibility of the Claimant/Appellant may be a concern, the RAD will follow the guidance of Justice Rennie, who spoke to the issue and explained in Chen:34 It is impermissible to reach a conclusion on the claim based on certain evidence and dismiss the remaining evidence as inconsistent with that conclusion. Before concluding that the raid did not occur the Board must consider whether the prison visiting card substantiated it. The reasoning has been inverted. [46] The RAD will conduct individual assessments of each of the documents (letters) disclosed in this appeal. [47] The first of these letters35 is one written by the Appellant's aunt XXXX. This letter speaks to the issue of the Appellant's sister, XXXX who has apparently gone missing. The letter speculates about XXXX possibly being a victim of BBS as well as speculating that BBS is backed by government and police. Aside from speculation about the Appellant's missing sister, the letter speaks briefly to the author's belief that the Appellant's father and brother are safer in Dubai where they currently reside, than in Sri Lanka. The RAD will accept the letter as evidence and assess the weight to it accordingly. In assessing its weight or value, the RAD notes that the letter speaks about a missing sister. Although the author speculates that the sister is a victim of anti-Muslim hate, the letter itself provides no hard evidence of that fact. Therefore, the RAD gives it very little weight. [48] The second letter36 is from the Commissioner of the XXXX police station in Sri Lanka. This letter speaks to the fact that the Appellant's family has "lodged a complaint to police in respect of separating the said child from the legal custody of XXXX XXXX XXXX XXXX." The letter goes on to say that the child (XXXX) "...is not traceable up to now..." This letter does not indicate in any way how the child was separated from the aunt's custody or by whom. The letter does support the allegation that the Appellant's sister is missing from her legal guardian but sheds no light on where she has gone, how she left, what if any involvement BBS has in her separation from aunt XXXX or whether there is any anti-Muslim connection to the child's separation or not. This letter does nothing to support the Appellant's claim. It does meet the test of Section 110(4) but due to its lack of specificity and its vagueness, the RAD will accept this document into evidence and will assess its probative value. The document clearly confirms that the Appellant and/or his family has reported the missing child to the police. The police acknowledge the report but clearly do not show who is responsible or who is suspect. Therefore, RAD cannot assign much weight to the document as evidence of the Appellant's basis of claim. The next letter37 is a "Certification of Learning" from a school in XXXX, Sri Lanka where the child XXXX attended. This letter simply says that XXXX attended there from "XXXX XXXX XXXX-2005 to XXXX XXXX XXXX-2013" and that she lastly passed grade 8. This letter meets the newness standard of Section 110(4) but does not offer the RAD any information of value. It simply attests to the fact that XXXX attended this school and passed grade 8. The RAD finds that this letter is of no probative value. [49] The next letter38 is one from the Appellant's brother, XXXX. The letter speaks to the issue of the missing sister, XXXX. It tells how the family has attended the police station a number of times but that the police do not take them seriously. XXXX speculates that BBS is behind XXXX disappearance. XXXX also speaks to his living in hiding due to his fear. The letter is dated "2015/XXXX XXXX XXXX" so clearly is technically, at least, new in accordance to Section 110(4) of the IRPA. It is relevant as it speaks to the issue of XXXX fear and to the issue of the missing sister, XXXX. The RAD will allow this letter into evidence as it supports the anti-Muslim allegations of the Appellant. The RAD appreciates how this letter supports the allegations of the Appellant in regards to the anti-Muslim factors, however, the letter does not provide any actual proof of anti-Muslim involvement in the alleged disappearance of the sister. The letter speculates on who may have been responsible for the sister's disappearance but it does not provide any hard evidence in support of the allegation. Consequently, the RAD cannot give much weight to the letter. RPD Findings [50] The Appellant argues that in the case at bar, the RPD assessed certain evidence as incredible and then, using that assessment, gave no weight to the evidence which supported the Claimant's/Appellant's allegation. The RPD should have first assessed the value of the supporting documentation on its own merit and without consideration of the earlier credibility finding. As shown above, Justice Rennie has spoken on this issue. The Appellant is correct in his argument that the RPD should have considered each supporting document on its own merit rather than dismissing them simply due to credibility concerns it held on one or two earlier issues. The RAD finds that the RPD did err in this regard. [51] The Appellant argues that the RPD's negative inference concerning subjective fear on the basis of the failure to apply for refugee status in the USA is not reasonable. The Appellant had explained that he believed that there was an anti-Muslim bias in the USA, and consequently did not want to apply for refugee protection there. Counsel argues that regardless of whether the Appellant was right or wrong about the existence of such bias, it was the Appellant's subjective fear of that bias that prevented him from seeking asylum there. The RAD agrees with the Appellant. The amount of time spent in the USA was certainly enough time to seek refugee status, however, it was not an extraordinary amount of time (about three months) and the Appellant did testify that he feared anti-Muslim bias in the USA. He also testified that he had no friends in the USA and wished to make a claim in Canada. The RAD finds that the time spent in the USA was not excessive and the failure to claim in the USA is certainly not fatal to the Appellant's credibility. The explanation is reasonable. The RAD finds that the failure to claim in the USA does not adversely affect the Appellant's credibility. [52] The Appellant argues that the RPD's assessment of documents entered in support of the Claimant's/Appellant's claim was in error. Specifically, the RPD rejected a letter from the Appellant's sister39 because the letter was not notarized nor was it accompanied by identity documents of the author. The RPD rejected this letter after taking into account its previous credibility finding. As spoken to above by Justice Rennie, this is inverted reasoning and cannot stand. The RPD should have assessed the value of the letter without consideration of the earlier credibility concern. This letter from the Appellant's sister speaks to how she is in Colombo, confined to her home out of fear of BBS. The second letter is from the Appellant's Mosque in Sri Lanka. This letter speaks about how the Appellant was "ill-treated and tortured" by members of BBS. The RPD stated in its Reasons and Decisions at paragraph 21 "As the panel found that the claimant was generally not credible with respect to his allegations that he was targeted by BBS, the panel finds this letter does not overcome the credibility concerns. The panel gives no weight to this letter." Once again, the RPD is using inverted reasoning in this assessment. The RAD points out that the credibility concerns of the RPD are few and minor. In the first instance, the RPD has an issue and infers negative credibility on the Appellant because the Appellant testified that BBS came to his family's home looking for him the day after he fled Sri Lanka but he had failed to mention that visit in his BOC. The Appellant had testified that he simply did not think to mention the visit in his BOC. The RAD agrees that this would speak somewhat to credibility if there were multiple issues of credibility concerns however, this is not the case. Aside from this minor issue, the only other credibility concern voiced by the RPD was based on the failure to claim in the USA. These concerns, cumulatively, are insufficient to impugn the overall credibility of the Appellant and are insufficient reason to not give the Appellant the benefit of the doubt as spoken to in Maldonado.40 [53] The main basis on which the RPD rejected the Appellant's claim was his lack of credibility. The RAD finds that it cannot defer to the RPD on the issue of credibility in this case. However, the RAD, having canvassed the evidence, does not find there to be sufficient evidence to allow the RAD to find that the Appellant is a Convention refugee or a person in need of protection. However, the RAD also finds that there is a need for a new hearing. [54] DispositionThe RAD has found that the RPD decision cannot stand. CONCLUSION [55] Pursuant to Section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. (signed) "David Lowe" David Lowe January 27, 2016 Date 1 Exhibit RPD-1, RPD's Record, exhibit 2. 2 Exhibit RPD-1, RPD's Record, exhibit 8, p. 182. 3 Ibid., exhibit 9, p. 187. 4 Ibid., exhibit 9, p. 186. 5 The Law of Refugee Status, Hathaway and Foster, 2nd Edition (2014), p. 98.20. 6 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 7 In the French version of 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. 8 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 9 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, October 29, 2014, 2015 FC 895, para. 19. 10 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55. 11 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. 12 Ibid. 13 Ibid., paras. 13-15. 14 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. 15 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 45. 16 Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, paras 17-18. 17 Singh, supra, footnote 6, para 56. 18 See also Khachatourian v. Canada (Citizenship and Immigration), 2015 FC 182, para. 37. 19 Singh, supra, footnote 6, para. 55. 20 Singh, supra, footnote 6, para. 58. 21 Deri, supra, footnote 9, para. 56. 22 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. 23 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. 24 Niyas, Mohamed Zayan v. M.C.I. (F.C., no. IMM-6829-14), Locke, July 17, 2015, 2015 FC 878, para. 27. 25 Denbel, supra, footnote 21, para. 43. 26 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. 27 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. 28 IRPA, s 112(b.1). 29 Singh, supra, footnote 6, para. 53. 30 Liu, Lanfen v. M.C.I. (F.C., no. IMM-4384-06), Barnes, August 10, 2007, 2007 FC 831, para. 18. 31 See Raza, supra, footnote 10, 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." 32 Exhibit P-2, Appellant's Record, pp. 10-21. 33 Ibid., Application to File New Documents, pp. 2-11. 34 Chen, Jin Xiang v. M.C.I. (F.C., no. IMM-5888-12), Rennie, March 26, 2013, 2013 FC 311, at para. 20. 35 Exhibit P-2, Appellant's Record, Supplemental Application, pp. 14-15. 36 Ibid., pp. 6-7. 37 Ibid., pp. 11-12. 38 Exhibit P-2, Appellant's Record, Supplemental Application, pp. 19-21. 39 Exhibit RPD-1, RPD's Record, exhibit 8, p. 182. 40 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19,. 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.), p 303 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :