TB5-13247

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 : TB5-13247 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 XXXX Personne(s) en cause Appeal considered Toronto, Ontario Appel instruit à Date of decision March 15, 2016 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Abdus Samad Howlader Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] XXXX XXXX XXXX XXXX XXXX(the Appellant), a citizen of Bangladesh, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to grant his appeal. 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 has been in Canada since mid-2007. He made a refugee claim approximately eight years later, in August of 2015. He told the RPD that he and his family have been threatened, harmed, and extorted by Islamic extremists who demand money from the family's fishing farm. Upon return to Bangladesh, he fears that he will be killed by these extremists, who continue to pursue his family. [4] The Appellant's application for refugee protection was heard on October 15, 2015. By a decision of November 19, 2015, the RPD rejected the claim on the basis of credibility. The RPD found that the Appellant had not provided a satisfactory explanation for his very lengthy delay in seeking Canada's protection, and also identified some inconsistencies in his evidence. [5] The Appellant submits that the RPD was "prejudicial" in making its decision, failed to observe principles of natural justice, did not consider human rights conditions in Bangladesh, and ignored his cultural background and extraordinary circumstances. 1 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 has been expected2 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.3 [8] It is unclear to the RAD exactly what the Appellant seeks to present as new evidence. He writes that "I am enclosing some documents, which could support my submission for her fair decision." He adds that "I am submitting new documentary evidence for understanding their personal and country condition as well."4 [9] The Rules require the Appellant to make full and detailed submissions about how the proposed new evidence meets the test in Section 110(4), and how that evidence relates to him. Here the Appellant makes no submissions on these subjects, and on this basis alone any new evidence is not admissible. [10] However, as far as the RAD can determine, the Appellant has not submitted any new evidence. His Appeal Record includes an index received by the RPD on October 6, 2015, along with six documents totaling about 80 pages.5 The same index and accompanying documents form part of the RPD's record.6 [11] The Appellant writes on appeal that: I have submitted 06 pages submission, which were received on October 28, 2015 by the IRB but could not submit any supporting documents because of the Member's instructions. In consequence I am enclosing some documents, which could support my submission for her fair decision.7 [12] This statement is puzzling. The Appellant's counsel before the RPD (who also represents him in this appeal) asked to make written submissions to the RPD because he was not feeling well. The RPD granted this request, telling counsel, "If you can undertake them, if you could submit them in two weeks, then I would agree to that given that you're not feeling well. But it would be just written submissions, no more additional evidence because the testimony is concluded." The panel later added, "So counsel, back to the matter of new evidence, I've not heard anything from the claimant in his testimony that he's expecting anything to be received. Is that correct? So we're just going with what we have, is that right? And you're providing submissions on the evidence that's been adduced?" Counsel replied in the affirmative.8 [13] Counsel did make written submissions to the RPD, as instructed.9 Those submissions make no reference to any further documentary evidence, nor was there an application made to the RPD to submit post-hearing evidence. [14] The Appellant's appeal Memorandum seems to suggest that he is submitting documents on appeal that were not accepted by the RPD. However, no such documents have been included in his appeal record; instead, he has re-submitted documents that were accepted by the RPD. The RAD cannot admit these as new evidence as they are already in the RPD's record and therefore already before the RAD. What is the Role of the RAD? [15] 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. [16] The Appellant submits that the RAD should make an independent assessment of the merits of his refugee claim. [17] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.10 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 [18] 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. [19] Where the proceeding is a true appeal - that is, where there is no admissible new evidence, as appears to be the case here - 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. [20] 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.11 [21] 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. [22] 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. [23] 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. [24] 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 [25] The RAD must note here that the Appellant's Memorandum does not comply with the RAD Rules. Those Rules require full and detailed submissions regarding the errors that are the grounds of the appeal, and where those errors are located in the RPD's reasons or the transcript of the hearing. The Appellant has made extensive submissions on very general subjects, but his Memorandum includes few specifics, and this makes it rather difficult for the RAD to determine the grounds of this appeal. The RAD has nevertheless carefully reviewed the RPD's record, the transcript, the RPD's reasons, and the Appellant's Memorandum. [26] Standard of proof: The RPD found the Appellant's key allegations "not credible on the balance of probabilities;"12 the Appellant seems to argue that this indicated the RPD "has some doubt on his credibility" and therefore he should be given the benefit of the doubt. He also submits that "the panel didn't mention clearly which part of the evidence she didn't believe to question his credibility."13 [27] The RAD cannot accept these arguments. The portion of the RPD's decision cited by the Appellant is an introduction to a much longer discussion of the Appellant's credibility, in which the RPD clearly explained its credibility concerns. The RPD's use of the correct standard of proof cannot be the foundation for an argument that the RPD was somehow unsure of its finding. [28] Lawyer's letter: The Appellant submitted a corroborating letter, written by a lawyer in Bangladesh, to the RPD.14 The RPD gave this document no weight, as it lacked detail about how the lawyer obtained information from the police, and as the Appellant himself could not explain how the lawyer had obtained this information. The RPD also found difficulty with the Appellant's testimony that he had not contacted the lawyer for further information because the Appellant was too stressed by his situation and worried about his family, as the lawyer apparently had information about that situation. [29] The Appellant argues on appeal that "the panel didn't accept the lawyer's letter because of her misconception including it has been addressed to the claimant."15 In fact, the RPD wrote that this concern "has been reasonably addressed by the claimant," so there is no basis for the Appellant's argument here.16 [30] The RPD gave the letter no weight because its author provides no details about how he obtained key information, and because the Appellant himself did not follow up to seek such information. The RAD has reviewed the letter. It is not on letterhead, does not contain a stamp or seal, and appears to have a handwritten correction to the name of the court in which the advocate purports to serve. When it comes to the key aspects of the Appellant's refugee claim, the author writes that: I am explaining you in short that those Islamc terrors are looking for you to kill although you are living long time outside of the country.... I came to know from reliable sources including police and your family that those Islamic terrors are looking for you to kill, so it would be a disaster and tragedy for you and your family to return to the country.... The RPD accepted the Appellant's explanation for an apparent error in the letter, which suggests that the Appellant's family has left the country, when that is not the case. However, it is unclear from the letter how the lawyer learned from police that extremists seek the Appellant. Given the form of the letter, its lack of specifics, and the Appellant's own lack of knowledge, it was not an error for the RPD to give this document no weight. Having reviewed the letter, the RAD reaches the same conclusion. Further, the RAD notes that the Appellant's explanation for his lack of knowledge - that he was too worried about the situation and afraid for his father and mother - makes no sense, as the letter suggested that his family could be in danger, and as it would have made sense for the Appellant to inquire further about the lawyer's vague statements. [31] Omissions from the Basis of Claim (BoC) form: The Appellant makes some broad arguments about omissions from the BoC.17 Unfortunately, these are not followed by any specific submissions with respect to his own refugee claim, and it is difficult for the RAD to determine what it is that the Appellant objects to. The RPD did note the Appellant's testimony that extremists have been extorting money from his mother every year since 2008, and made a negative credibility finding, as this allegation was not included in the BoC.18 The Appellant has not explained to the RAD why this finding is in error. Having reviewed the evidence, the RAD sees no error here. The Appellant made a significant allegation in his oral testimony that was not included in his BoC, and was clearly relevant to his refugee claim. His explanation - that his BoC focussed on problems he faced personally - does not make sense, as his entire claim is based on a fear of extremists who seek to extort money from his family's business. [32] Delay in claiming: The Appellant arrived in Canada in 2007 - after allegedly experiencing harm at the hands of the extremists - but did not make a refugee claim. When his study permit expired, he remained in Canada for five years without status before seeking refugee protection. He blamed this delay on advice from "some lawyer, immigration expert, and community brother,"19 but could not recall the name of any such individuals for the RPD. In his submissions to the RPD, counsel provided a different explanation, completely unsupported by the evidence, claiming that the Appellant "can't discuss everybody for privacy reasons."20 [33] The RPD noted the Appellant's allegation that his family had been targeted for years and his father was on the run, and that he himself was out of status for years. It found that the Appellant's delay in claiming was indicative of a lack of fear of returning to Bangladesh. The RAD, having reviewed the evidence, agrees. If the Appellant truly was in fear when he arrived in Canada, and if his family was indeed facing on-going difficulties at the hands of extremists, it simply makes no sense that the Appellant would allow five years to elapse during which he had no status. His actions are simply inconsistent with his claim to be afraid for his life in Bangladesh, and this seriously damages his credibility. As the Appellant observes in his Memorandum, unexplained delay can be fatal to a refugee claim, even where there are no other credibility concerns.21 Here, in addition to a lengthy and unexplained delay, there were also other credibility problems. [34] Impact of past persecution on ability to testify: The Appellant points out that the RPD must be sensitive to the impact of past persecution on a refugee claimant's ability to testify. He also observes that an opinion from a psychiatrist or psychologist is highly relevant to the assessment of credibility. While this is undoubtedly true, the problem here is that the Appellant did not submit such an opinion to the RPD or to the RAD. [35] The Appellant argues that the RPD member was "inattentive or lost in thought" and therefore failed to consider the Appellant's "extraordinary situation" and "painful facts," as well as his lack of experience in the Canadian immigration system.22 The RAD sees absolutely no foundation for this argument. The Appellant has pointed to nothing in the transcript or the audio recording which suggests that the RPD member was not paying attention or was insensitive; nothing in the RAD's own review of the record shows that this was the case. [36] Questioning and Bias: The Appellant argues further that the RPD was expected to be sensitive to the impact that his past persecution, as well as his lengthy illegal stay in Canada, had on his ability to testify. However, he fails to point out where the RPD was not sensitive, and the RAD cannot find such instances. [37] The Appellant also submits that his credibility "should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details...."23 The RAD agrees completely. The RAD also notes that the RPD's credibility findings were not based on peripheral details, but on matters that went to the heart of the Appellant's refugee claim, including the alleged on-going extortion of his mother, the identity of the agents of persecution, and his lengthy delay in seeking protection. [38] Despite his earlier claims of bias and prejudice, the Appellant subsequently submits that: I am not judging the Board member's impartiality, rather rationality of her vigorous questioning, continuous demands "why your father/mother/Brother didn't do this or that" without considering the background of the client that he is not an immigration specialist or with immigration background related person. Hence there are grounds to believe that the Board member was pre-occupied on that day.24 [39] The Appellant goes on to again allege bias: "...the Board member was unreasonably pre-occupied or unreasonably bias and started questioning vigorously. I respectfully and humbly submit that the board has deprived my clients from natural justice and rights as a human for being very aggressive and unreasonably hostile...."25 [40] This argument is not only nonsensical, but it is inappropriate. Allegations of bias are serious indeed and should not be made without basis. Despite the requirements of the Rules for full and detailed submissions, including with respect to the location of alleged errors, the Appellant has not pointed to any portion of the transcript, audio recording, or RPD's reasons which supports his contention here. The RAD has reviewed the transcript, recording, and reasons, and there is no indication of actual bias or any basis for a reasonable apprehension of bias. [41] Further, if the Appellant or his counsel did have concerns with the RPD's questioning at the RPD hearing, he should have raised it at the earliest opportunity. He has not identified any part of the transcript where he objected to the RPD's questions, and although counsel made written submissions to the RPD some weeks after the hearing, those submissions raise no concern with the RPD's questions, alleged "pre-occupation," or bias. [42] The Appellant has not identified any error in the RPD's decision which would warrant the setting aside of that determination. Having reviewed the evidence, the RAD has reached the same conclusion as did the RPD. The Appellant delayed in claiming for years, despite being out of status, without adequate explanation, and this alone is fatal to his refugee claim. He also omitted important information from his BoC form without satisfactory explanation and gave inconsistent testimony about the agents of persecution. The Appellant has not established with credible or trustworthy evidence that he is sought by or in danger from extremists in Bangladesh. [43] The Appellant requests an oral hearing before the RAD. As there is no admissible new evidence in this appeal, the RAD has no discretion to convene such a hearing. CONCLUSION [44] 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 March 15, 2016 Date 1 Appellant's Record, Page 12, Memorandum, Part III. 2 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. 3 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 4 Appellant's Record, Page 11, Memorandum, Part 1. 5 Appellant's Record, Pages 50-130. 6 RPD's Record, Pages 110-192; there appears to be some duplication in the RPD record between pages 111 and 192. 7 Appellant's Record, Page 11, Memorandum, Part I. 8 Transcript, Page 23, lines 5-8 and 41-46. 9 RPD's Record, Pages 194-199. 10 X (Re), 2015 CanLII 19235 (CA IRB). 11 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. 12 RPD's Reasons, para. 9. 13 Appellant's Record, Pages 14-15, Memorandum. 14 RPD's Record, Page 113. 15 Appellant's Record, Page 15, Memorandum. 16 RPD's Reasons, para. 16. 17 Appellant's Record, Page 18, Memorandum. 18 RPD's Reasons, paras. 11-13. 19 RPD's Record, Page 18, Basis of Claim Narrative. 20 RPD's Record, Page 195, Post-hearing Submissions. 21 Velez, Liliana v. M.C.I. (F.C., no. IMM-5660-09), Crampton, September 15, 2010, 2010 FC 923, para. 28. 22 Appellant's Record, Page 23, Memorandum. 23 Appellant's Record, Page 24, Memorandum. 24 Ibid. 25 Ibid, Page 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-13247