TB7-01180

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 : TB7-01180 TB7-01181 TB7-01182 TB7-01183 TB7-01184 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 XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 28, 2017 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Giselle Salinas Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX(the "Principal Appellant" or "PA"), XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, citizens of Costa Rica, and XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX (collectively, the "Appellants") citizens of Costa Rica and the U.S.A., appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. They have submitted new evidence in support of this appeal. The Appellants are requesting an oral hearing. The Appellants ask the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be returned to the RPD for a new hearing under a differently constituted panel. [2] The two daughters with U.S. citizenship, XXXX and XXXX, are not claiming against the U.S.A. However, due to their dual citizenship, their claims will be assessed separately. Background [3] The Appellants alleged before the RPD that they have a well-founded fear of persecution at the hands of a criminal gang due to the Appellants having witnessed the murder of another gangster by members of the criminal gang. Greater details may be found in the Appellants' Basis of Claim (BOC) form1 and in the audio recording of the hearing. [4] The Appellants' application for refugee protection was heard on September 30, 2016. A negative decision was rendered in writing on December 16, 2016. The RPD found that the Appellants were unable to rebut the presumption of state protection with trustworthy and credible evidence. [5] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. Appellants' Issues [6] The Appellants submit that the RPD erred in its assessment of the Appellants' credibility. No other errors were identified in the Appellants' list of issues, in the Memorandum of Argument. [7] Other issues listed by the Appellants in their Memorandum are: 1) What is the scope of the RAD's appellate jurisdiction? 2) Should the RAD receive new evidence under section 110(4) of the IRPA? ANALYSIS The Role of the RAD [8] The RAD is an Appellate body governed by specific legislation2 and guided by the jurisprudence3 of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.4 Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD." [9] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.5 [10] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness,6 with no deference accorded to the RPD.7 [11] The RAD will show deference to the RPD's findings on credibility where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. [12] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [13] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [14] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [15] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD may determine the findings to be in error. [16] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. [17] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellants are Convention refugees or persons in need of protection. Admissibility of Evidence Submitted on Appeal [18] Section 110(4) of the IRPA provides that the appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected8 in the circumstances to have presented, at the time of the rejection. [19] 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.9 Application of Section 110(4) [20] Section 110(4) establishes a disjunctive test.10 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. [21] 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.11 [22] 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. [23] Section 110(4) does not provide an opportunity for appellants to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.12 [24] 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.13 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) [25] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in section 110(4). [26] In Singh,14 the Federal Court of Appeal held that there is no valid reason why the RAD cannot apply the criteria set out in Raza15 to the assessment of new evidence. While Raza predates the introduction of IRPA section 110(4), it is based on the nearly-identical wording of section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance and newness, in addition to any express statutory provisions.16 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).17 [27] Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [28] Relevance is a basic condition for the admissibility of any piece of evidence.18 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [29] In addition to credibility and relevance, the factors in Raza include "newness". Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.19 [30] For these reasons, the RAD will apply the following factors to considering the Appellants' proposed new evidence. It will first consider whether the evidence passes the test in section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. The Appellants' proposed new evidence submitted pursuant to Section 110(4), IRPA 1) "Costa Rica Government Seeks to Expand Police Programme..."- dated October 21, 201620 2) "Bust of Transnational Drug Ring..." - dated November 25, 201621 3) "Gamechangers 2016..." dated January 8, 201722 4) "155 Police Fired..." dated December 8, 201623 5) "Hombre ligado a narco es..." translated and dated December 15, 201424 [31] The RAD has assessed the Appellants' affidavit as to how the proposed evidence meets the criteria of section 110(4). The RAD notes that the PA provides weak explanation why some of these documents were not available prior to the hearing, or what steps he had taken to obtain these documents prior to the hearing. According to the RAD Rules, Section 3(3)(g)(iii): (g) a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant, [32] The Principal Appellant has provided explanations as to why he is now submitting the proposed evidence. The PA clearly indicates that he is submitting these documents to refute the RPD findings, and that is the reason he obtained some of them at this time.25 The RAD finds the PA had had sufficient time before the RPD hearing to gather some of the documents that he is now asking the RAD to accept as new evidence. As Federal Court noted in one of its recent decisions, "An appeal to the RAD should not be tantamount to another full-blown hearing."26 [33] In this case, the RAD looked at the literal provisions of subsection 110(4) of the Act in assessing the new evidence, asking itself two questions with respect to the new evidence; namely, (1) did the evidence arise after the rejection of the claim and was not reasonably available at the time of the rejection; and (2) was the evidence such that the Appellants could not reasonably have expected in the circumstances to have presented it at the time of rejection? [34] The RAD, after assessing the evidence in regards to the above questions, finds that the evidence does not meet the requirements of subsection 110(4). In answer to question (1), the Principal Appellant is now submitting these documents as a result of the RPD impugning his credibility. But there is no reasonable explanation as to why he did not submit these documents or attempt to get these documents prior to his hearing. The Appellants' explanation is that "I did not know that I should obtain this document before my refugee claim was rejected." However, as soon as he received a negative decision, he was able to get these documents which he now attempts to have the RAD accept as evidence. I note that the Appellants were represented at the RPD hearing by competent counsel. [35] In the RAD's opinion, this clearly indicates that some of these documents were available to the Appellants prior to their RPD hearing; however, they chose not to get them until they received the RPD decision rejecting their claim due to credibility concerns. They are now attempting to submit these documents to negate the RPD findings. [36] In regards to question (2), the Appellants were represented by counsel before the RPD, who is very conversant with claims and what requirements are necessary before the RPD. The Appellants could reasonably have been expected to know that credibility would be an issue, given the references to the issue in the Act, the Rules, and the BOC form. [37] The BOC form advises that the refugee claimant is "responsible for obtaining and providing to the IRB any documents that may support your claim."27 [38] The date of the RPD decision in this case was December 16, 2016. Therefore, the four news articles which pre-date that decision, exhibits "I", "J", "K" and "M" will not be received into evidence. [39] The article marked exhibit "L" postdates the decision of the RPD. This evidence meets the test of section 110(4). The document appears to be both relevant and from a credible source. I will admit this document into evidence. [40] Having decided on the evidence, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellants are Convention refugees or persons in need of protection. I will begin with the two dual citizens, XXXX and XXXX, who have not submitted a claim against their birth country, the U.S.A. DECISION Re: XXXX and XXXX [41] With respect to XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX, born in the United States, as they are citizens of the U.S., they enjoy the rights and privileges of that country. They would be able to benefit from the social safety networks of the U.S. and the U.S. would be able to extend protection to these young women who are nationals of that country. [42] Furthermore, the Principal Appellant has informed the RAD in his Affidavit that these two young women are not claiming refugee protection from the U.S.A. [43] Therefore, I find that the two young women born in the U.S. are neither Convention refugees, nor are they persons in need of protection. Therefore, I am rejecting their claims for protection. The Arguments [44] The Appellants argue that the RPD erred in its assessment of the Appellants' credibility. [45] Counsel argues that in one instance, the panel errs by faulting the PA for being unable to explain why the perpetrators are targeting his family. [46] What has actually occurred in this instance is that the PA testified that the people who shot the victim, sped past the PA while he was driving his car. The killers were on a motorcycle and were both wearing helmets which totally obscured their faces so that identification of the killers was impossible. The PA testified that it was true that these killers had nothing to fear from the Appellants as they could not identify the killers. The panel asked the PA why then these killers would be targeting his family if identification was impossible. The PA did not know the answer to the question. [47] It is correct that the panel errs if the panel infers negative credibility on the PA because the PA could not speak to a reason for someone else's actions or inactions. [48] Counsel argues that the panel erred when it found the alleged actions of the perpetrators to be unreasonable or implausible. Specifically, eleven months after the killing, the killers allegedly turned up at the home of the PA and circled the home in an intimidating manner and then again four months later and hundreds of kilometers away, the same killers (unidentifiable) on the same motorcycle showed up at the PA's current home and again circled his home in an intimidating manner. This time, a second vehicle was seen with the motorcycle. [49] The PA was unable to identify the drivers/riders of the motorcycle at any time. There is no allegation of actual contact, physical or verbal, between the cyclists and the Appellants. The Appellants claim that the motorcycle was the same one in all three instances; however, the Appellants could not describe the make or model of the motorcycle, but only the colour and that it was unusual. [50] The RAD must consider the likelihood of these killers doing as the PA alleges they did. The killers allegedly rode past the PA quickly on their motorcycle and killed the victim ahead. The next day, the killers somehow knew a cousin of the PA, whom the killers advised to speak to the PA about keeping silent on what he may have witnessed. This scenario suggests that the cousin would then be able to identify the killers while the Appellants cannot. However, there is no evidence adduced to suggest that the cousin who had actual contact with the killers (in order to relay the message to the PA) ever had any problem with the killers. This is why it makes no sense that these killers would chase the Appellants all over Costa Rica, over a period of about 18 months, and do nothing more than ride a motorcycle around the Appellants' home. It simply is not reasonable. As the Appellants never were able to identify the killers and were only able to identify the size and the sound of the motorcycle on which the killers rode, I find that it is reasonable to presume that in all of Costa Rica, there may be many motorcycles which appear to be the same as the one used by the killers. What may have appeared to the Appellants as a unique motorcycle in Rio Claro may not have been so unique in San Vito Coto and even less so in a city of 288,000 population such as San Jose. When one considers that Costa Rica is connected by road to all of Central America and through North America, it is unreasonable to presume that there is only one unique motorcycle as suggested here. I find that the RPD did not err in its assessment of the credibility regarding this issue. [51] Counsel argues that the panel gave little weight to the two letters adduced in support of the Appellants' story. The letters were from the two individuals with whom the Appellants stayed after they fled their home. The panel gave little weight to the letters because, not only were they not notarized but they were also unaccompanied by identification documents. This is definitely an error by the Board. As noted by counsel, the Courts have made it clear that supporting letters do not have to be sworn or notarized, nor must they be accompanied by identification documents, in order to carry evidentiary weight.28 [52] Counsel argues that the panel focused on peripheral matters, inferring negative credibility as a result of those peripheral issues. Specifically, the panel finds the PA not credible because on the PA's TRV, it was indicated that the PA would be staying with friends in Alberta during the PA's visit to Canada. The PA testified that he did not stay with those friends and rather chose to remain in Toronto during his visit. Where the PA stayed during a visit to Canada is irrelevant to the claim. The panel appears to believe the TRV was obtained and used for the PA to scout out the living conditions in Canada in preparation for his family's relocation. However, there is no evidence adduced to support that speculation. I find that the panel erred when it impugned the PA's credibility over such a peripheral issue. The panel further erred by not giving the PA an opportunity to explain, at the hearing, why the PA did not stay with the friends in Alberta. [53] Overall, I find that there are still remaining credibility issues; however, the determinative issue in this case is going to be state protection. I will begin my analysis of state protection by re-iterating some of the principles: 1. States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown. (Ward29) 2. The presumption that a state is capable of protecting its citizens underscores the principle that international protection comes into play only when a refugee claimant has no other recourse available. (Ward30) 3. To rebut the presumption of state protection, a claimant must provide "clear and convincing" evidence of the state's inability to protect its citizens, (absent an admission by the national's state of its inability to protect that national). (Ward31) 4. A claimant who alleges that the state protection is inadequate must persuade the Board that the evidence establishes that the state protection is inadequate. (Flores Carrillo32) The evidence that state protection is inadequate must not only be reliable and probative, it must also satisfy the Board, on a balance of probabilities, that the state protection is inadequate. (Flores Carrillo33) 5. Thus RPD is not obliged to prove that the state can offer the claimant effective protection, rather, the claimant bears the legal burden of rebutting the presumption that state protection exists by adducing clear and convincing evidence which satisfies the RPD on a balance of probabilities. (Kaleja34) 6. Where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that the state's efforts are not always successful will not rebut the presumption of state protection. (Villafranca35) The Board is not obliged to prove that a state can offer its citizens effective state protection. (Quintero Sanchez36) 7. A claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state. (Judge,37 Kim,38 Camacho39) 8. Doubting the effectiveness of the protection offered by the state when one has not really tested it does not rebut the existence of a presumption of state protection. (Rio Ramirez40) 9. A claimant is required to approach the state for protection if protection might reasonably be forthcoming or, alternatively, if it is objectively reasonable for the claimant to have sought protection. (Ward41) However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness. (Ward42) 10. In the absence of a compelling explanation, where the state is a functioning democracy with willingness and the apparatus necessary to provide a measure of protection to its citizens, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim. (Camacho43) This is so even where the protective services of the state have gaps or deficiencies. (Salazar Santos44) It is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system. (Marquez Alvarez,45 Romero Castaneda46) [54] Counsel argues that the panel disregarded evidence in the National Documentation Package (NDP) and in the Appellants' country documentation package relating to corruption and violence in Costa Rica that contradicted what the panel noted in the Reasons and Decision. [55] Specifically, counsel argues that the panel ignored NDP item7.2, a U.S.D.O.S. report on the International Narcotics Control Strategy. This document, counsel argues, specifically addresses corruption and drug trafficking (notions that the Appellants have consistently referred to when discussing their choice of why they did not seek police protection). [56] Counsel argues that this document indicates that Costa Rican government policies aimed at the corruption, etc., is mired in a legislative limbo. However, in my reading of this document (NDP 7.2), I see that under the current administration, corruption has become a priority with various investigations ongoing in various government ministries. Reforms have been taken and counsel is correct in saying that some of these reforms are mired in legislative limbo but others are proving successful. Costa Rica has much to do in order to more effectively battle organized crime and drug smuggling. However, that does not mean that the state cannot offer adequate protection to these Appellants at this time or in the future, should they need it. [57] Another document47speaks to the Costa Rican police. The document says, "Even if the police forces in Costa Rica are reportedly insufficiently trained and have a shortage of personnel and resources, they are reportedly better trained and equipped than other Central American police forces." Costa Rica employs the 911 emergency call service. Costa Rica has a "witness protection program" for those involved in criminal proceedings. [58] The Office for Assistance and Protection of Offence Victims (OAPVD) provides a number of protective services including psychological, social and legal assistance, home surveillance, personal protection by a bodyguard, change of home and employment. They will even be given state assistance for leaving Costa Rica, if necessary. So no, the state protection offered by Costa Rica is not perfect; however, after weighing both the pros and the cons as presented by counsel, I believe that Costa Rica is providing adequate state protection. [59] The Appellants argue that corruption is growing in Costa Rica, as is violence and overall criminal activity. That would appear to be true and the government of Costa Rica, with help from the USA, is working diligently to combat these cancers on society. As cited in the above principles of state protection, the protection need not be perfect. (Zalzali48) [60] The Appellants have adduced and I have accepted one piece of new evidence, that being Exhibit "L", an article speaking to the problems of increased criminal activity, drug related in Panama and Costa Rica. The article speaks to a "massacre" which occurred in October 2016, after which the Security Minister threatened to resign if his Ministry was not allocated more funds for crime fighting. On the other hand, the same document tells me that the Costa Rican government had just added 400 extra police officers to the important seaport of Limon, an important drug smuggling port city. [61] As I find in the NDP, the new evidence document is mixed in what it tells me. Although on the one hand, the documents speak to the rising crime rates and the expanding corruption, on the other hand, they tell me of the work being done by government agencies to fight the ever-escalating crime. [62] Counsel argues that in light of the many errors regarding credibility made by the panel, the panel's state protection assessment is tainted by the misperception of the Appellants' credibility. [63] I respectfully disagree with counsel. Credibility is very subjective and can be determined in more abstract means as opposed to an issue such as state protection which must be assessed with hard evidence. With state protection, it either exists or it doesn't. If it does exist, then it is either adequate, or it isn't. Credibility issues have too many variables and while one person finds something credible, another may not because it can be so subjective. [64] Therefore, I find that the panel's assessment of state protection was not tainted by the panel's overall negative credibility inferences. [65] With state protection, when I weigh the pros and the cons in my hands, considering the witness protection program, the fact that the Appellants have never tested the adequacy of state protection and the mixed data, I find that the Appellants have failed to rebut the presumption of state protection with clear and convincing evidence. [66] After a fulsome and independent analysis of the evidence adduced, I find that the Appellants have failed to rebut the presumption of state protection with credible and trustworthy evidence. As state protection is determinative under both section 96 and 97 of the IRPA, there is no need to go further in this appeal. [67] As the two young women have previously been dealt with, this part of my Decision relates to the remaining three Appellants. Disposition [68] The RAD has found that the RPD decision will stand. CONCLUSION [69] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe April 28, 2017 Date 1 Exhibit RPD-1, RPD Record at pages 16 - 95. 2 Immigration and Refugee Protection Act (IRPA). 3 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14, M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 4 Dhillon, paras. 14 - 18. 5 Huruglica, para. 103. 6 Ibid. 7 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 8 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. 9 Refugee Appeal Division Rules, section 3(3)(g)(iii). 10 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2015, 2015 FC 895, para. 19. 11 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55; Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 63. 12 Singh, 2016 FCA 96, para. 54. 13 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R., para. 16. 14 Singh, 2016 FCA 96, para. 64. 15 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 16 Ibid, Raza, paras. 13-15. 17 Singh, 2016 FCA 96, para. 64. 18 Singh, 2016 FCA 96, para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministery of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 19 Singh, 2016 FCA 96, para. 48. 20 Exhibit P-2, Appellants' Record, Exhibit "I". 21 Ibid., Exhibit "J". 22 Ibid., Exhibit "L". 23 Ibid., Exhibit "K". 24 Ibid., Exhibit "M". 25 Exhibit P-2, Appellants' Record, pages 22-25, paragraphs 5-13, Affidavit of XXXX XXXX XXXX. 26 Zhong, Zhihui et al v. M.C.I. (F.C., no. IMM-3438-15), Boswell, March 23, 2016, 2016 FC 346. 27 Exhibit RPD-1, RPD Record, page 16, Basis of Claim Form, page 1 of 10. 28 Paxi v. Canada (Citizenship and Immigration), (F.C., no. IMM-115-16), Russell, August 9, 2016, 2016 FC 905 at para. 52. 29 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 725. 30 Ibid. 31 Ibid., at 724. 32 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), para. 20, 24. 33 Ibid., para. 30. 34 Kaleja, Michal v. M.C.I. (F.C., no. IMM-4106), Near, June 9, 2011, 2011 FC 668. 35 M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Hugessen, Marceau, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), at 133. The Federal Court has held that Villafranca is not inconsistent with Ward. See Velarde-Alvarez, Jorge Luis v. S.S.C. (F.C.T.D., no. IMM-194-94), McKeown, February 9, 1995. Reported: Velarde-Alvarez v. Canada (Secretary of State) (1995), 27 Imm. L.R. (2d) 88 (F.C.T.D.); Boston, Edwin v. M.C.I. (F.C., no. IMM-6554-06), Snider, December 4, 2007, 2007 FC 1271. For a contrary view see Garcia v. Canada (Minister of Employment and Immigration), [2007] 4 F.C.R. 385 (F.C.), 2077 FC 79 (Campbell J.); the Federal Court declined to follow Garcia in Tellez Alvarez, Jaime Alejandro v. M.C.I. (F.C., no. IMM-301-08), Mactavish, August 6, 2008, 2008 FC 933. Moreover, Justice Campbell's view that the presumption of state protection can be rebutted if the claimant produces "some clear and convincing evidence" that the state has failed to effectively respond to requests for protection is inconsistent with the holding of the Federal Court of Appeal in Flores Carrillo which held that a heavier evidentiary onus is required to rebut the presumption. 36 Quintero Sanchez, Valentin v. M.C.I. (F.C., no. IMM-4478-10), Near, April 26, 2011, 2011 FC 491. 37 Judge, Gurwinder Kaur v. M.C.I. (F.C., no. IMM-5897-03), Snider, August 9, 2004, 2004 FC 1089. 38 Kim, Eun Mee v.M.C.I. (F.C., no. IMM-8191-04), Phelan, August 17, 2005, 2005 FC 1126. 39 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 40 Rio Ramirez, Leticia Lizet Del v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008, 2008 FC 1214. 41 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 724. 42 Ibid. 43 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 44 Salazar Santos, Marco Antonio v. M.C.I. (F.C., no. IMM-4602-06), Barnes, July 30, 2007, 2007 FC 793. 45 Marquez Alvarez, Guillermo v. M.C.I. (F.C., no. IMM-2477-09), Boivin, February 23, 2010, 2010 FC 197. 46 Romero Castaneda, Manuel Alejandro v. M.C.I. (F.C., no. IMM-4838-09), Boivin, April 13, 2010, 2010 FC 393. 47 Exhibit RPD-1, National Documentation Package (NDP) for Costa Rica, May 13, 2016, item 10.1. 48 Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-01180 TB7-01181 TB7-01182 TB7-01183 TB7-01184