TB4-01841

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 : TB4-01841 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 XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 2, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dushahi Sribavan Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the Appellant), a citizen of Iran, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either find her to be a Convention refugee or order a new hearing before either the RAD or a different panel of the RPD. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she is a convert to Christianity. She was visiting Canada when she learned in XXXX of 2013 that the Iranian authorities were seeking her because of her religious beliefs. She made a refugee claim in XXXX of 2013. She fears that, upon return to Iran, she will be persecuted by the authorities there because of her conversion. [4] The Appellant's application for refugee protection was heard on November 26, 2013. By a decision of February 7, 2014, the RPD rejected the claim. It cited numerous credibility concerns with the Appellant's evidence, found that she was generally lacking in credibility, and concluded that she had not established her identity as a Christian convert. [5] The Appellant submits that the RPD erred by proceeding with the claim even though her counsel was not present and had left her "in the lurch." She argues that the RPD also failed to apply the Chairperson's Guidelines concerning gender1 and vulnerable persons.2 In her submission, the panel erred with respect to her sur place claim, and it applied the wrong test in assessing her conversion to Christianity. She also takes the position that the RPD erred in making findings on a microscopic and selective basis, in giving little weight to corroborating evidence, and in making negative credibility findings on an absence of further corroborating evidence. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: (a) A letter of support, dated XXXX XXXX, 2014, from her sister;3 (b) A letter of support, dated XXXX XXXX XXXX 2014, from her husband in Iran;4 (c) A letter, dated XXXX XXXX, 2014, from Dr. XXXX XXXX XXXX about his treatment of the Appellant;5 (d) A letter, dated XXXX XXXX, 2014, from XXXX XXXX XXXX XXXX;6 and (e) A letter, dated XXXX XXXX, 2014, from the XXXX XXXX XXXX XXXX XXXX7 [8] Document (a) is a letter from the Appellant's sister, corroborating the Appellant's allegations and explaining that she did not attend the Appellant's hearing because she fell ill with food poisoning the night before, and "it was too late to write a letter since the hearing was in the morning." Despite the requirements of RAD Rule 3(3)(g)(iii), the Appellant's Memorandum does not provide full and detailed submissions-or any comment-on how this document meets the requirements of Section 110(4). In her Written Statement, the Appellant explains that this document did not exist at the time of the RPD hearing. [9] While this document is dated after the rejection of the Appellant's refugee claim, its contents in fact predate that rejection. In Raza, the Federal Court of Appeal endorsed the principle that a document's newness cannot be tested solely by its date of creation; what is important is the event or circumstance sought to be proved by the evidence.8 The contents of this letter-relating to the author's knowledge of the Appellant's religious conversion and reasons for not attending the Appellant's hearing-did not arise after the rejection of the claim. In fact, the issue of the Appellant's sister's failure to attend the hearing or provide a supporting letter was put to the Appellant during the hearing. In these circumstances, the Appellant could reasonably have been expected to provide this document to the RPD prior to the rejection of her claim, which did not occur until more than two months after the hearing. Document (a) does not meet the test in Section 110(4) and is not admissible as new evidence in this appeal. [10] Document (b) is a letter from the Appellant's husband, setting out particulars of his detention in Iran in XXXX of 2013, of raids conducted by the authorities of his house and business, and corroborating the Appellant's claim that she is at risk upon return to Iran. [11] The Appellant's husband also provided a letter in support of her claim, which was before the RPD.9 Although it was brief, it confirmed that his apartment had been searched by the authorities, that he was detained, and that his wife, the Appellant, was accused of spreading Christianity. The RPD had credibility concerns about the Appellant's testimony in respect to this letter: she testified that she received it in Canada on XXXX XXXX, 2013 via post, though the letter was dated XXXX XXXX, 2013 in Iran, and she could not provide the envelope in which it arrived. The RPD also noted that the letter did not mention problems the Appellant's husband allegedly experienced at his business at the XXXX XXXX XXXX. [12] The contents of the letter in (b) are not new and in fact predate the rejection of the Appellant's refugee claim. Given that there were evidentiary problems at the refugee hearing with the husband's first letter, it is reasonable to expect that this further letter would have been presented at or before the rejection of the claim. Despite the requirements of the RAD Rules, the Appellant's Memorandum does not make full and detailed submissions about how this document meets the requirements of Section 110(4); although her Written Statement claims that her husband "was going through a difficult time at the time he wrote the initial letter, and was not able to express himself well at that time due to the shock and disbelief, and therefore was reasonably unavailable," this inability is not mentioned in or corroborated by the new letter. Even if the husband was unable to provide adequate details when he wrote the first letter, there is no explanation of why he could write a detailed letter in XXXX of 2014-after the rejection of the Appellant's claim-but not some weeks earlier, before that claim was rejected. The RAD finds that document (b) does not meet the test in Section 110(4). [13] Document (c) is a letter from a medical doctor in Canada, dated XXXX of 2014, certifying that the Appellant has been seen by the doctor on a regular basis since XXXX XXXX, 2013, that she is depressed and suffers from post-traumatic stress disorder (PTSD) and XXXX, and that she is on medication. The Appellant's Memorandum does not make full and detailed submissions on how this document meets the requirements of Section 110(4); her Written Statement explains that "a letter was not provided by the doctor at the time of the RPD hearing, as it had been less than two weeks since the initial appointment, and therefore in the circumstances, the RPD could not reasonably have expected the Appellant to have provided it when it rejected the claim." [14] While the Appellant has attempted to explain why this letter was not provided to the RPD, she has not set out why the document was not available prior to the rejection of her claim in February of 2014. Why was the letter available in XXXX but not in XXXX? Document (c) does not meet the test in Section 110(4), as its contents predate the rejection of the Appellant's claim. Even if the letter met the requirements of Section 110(4), however, the RAD would not admit it. The Appellant's medical condition, including the diagnosis of depression and PTSD, was already in evidence before the RAD, as this was discussed in a psychological report,10 and document (c) offers no further information that is significant to the Appellant's condition or claim. [15] Document (d) is a letter from XXXX XXXX XXXX XXXX, confirming that the Appellant came to Canada in XXXX of 2013 and "soon after began attending XXXX XXXX XXXX XXXX," where she was baptized in XXXX of 2013. The letter reports that the Appellant became part of the congregation at XXXX XXXX XXXX in XXXX or XXXX of 2013, and she has since become a full member and makes "enthusiastic efforts to spread the word of Jesus." [16] Again, the Appellant does not make full and detailed submissions about how this document meets the requirements of Section 110(4). She provided the RPD with another letter from XXXX XXXX XXXX, which also reported that she faithfully attends worship services and Bible study sessions.11 The new letter refers to the Appellant's genuine faith, which goes to the heart of her refugee claim; however, the Appellant has not explained why this letter was not provided prior to the rejection of her refugee claim. There is no indication in the letter that the Appellant's enthusiastic efforts to spread the Gospel began only after the rejection of her claim. The RAD finds that this document is not new evidence, as contemplated by Section 110(4). Even if this letter was admissible, however, the RAD would give little weight to the author's assessment of the genuineness of the Appellant's faith, as such a determination is to be made by the trier of fact, who owes no deference to the pastor's opinion on the matter.12 [17] Document (e) postdates the rejection of the Appellant's claim but its contents do not: "This is to certify that Mrs. XXXX XXXX is a member of our Church and she practices her faith in this parish since XXXX 2013." Simply placing a new date on old information does not create new evidence for the purposes of Section 110(4). In the absence of full and detailed submissions in respect to this document, the RAD is left to guess at why this was presented to the RAD after the rejection of the Appellant's claim and not to the RPD prior to that rejection. This document does not meet the requirements of Section 110(4) and is not admissible in this appeal. [18] For the reasons set out above, none of the Appellant's proposed new evidence is admitted by the RAD. Request for an Oral Hearing [19] In her Written Statement, the Appellant requests that a hearing be held under Section 110(6) of IRPA. [20] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [21] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [22] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [23] The RAD has not admitted any of the new evidence submitted by the Appellant in support of her appeal. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. Standard of Review [24] The Appellant submits that the RPD erred in considering evidence of her sur place claim, in making findings based on a microscopic review of the evidence, in making negative credibility findings on the absence of corroborating documents, and in giving little weight to other documentary evidence. These allegations raise questions of fact. [25] The Appellant also submits that the RPD erred by applying the wrong test with respect to her conversion to Christianity, and this raises a question of law. [26] The Appellant also raises questions of procedural fairness, as the RPD proceeded with her hearing despite the absence of counsel, and because the panel allegedly failed to consider the Chairperson's Guideline with Respect to Vulnerable Persons Appearing Before the IRB (the Vulnerable Persons Guideline)13 and the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (the Gender Guidelines).14 [27] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [28] The Appellant makes no specific submissions on the standard of review to be applied here. [29] In Dunsmuir,15 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, which is not a reviewing court but rather an administrative appellate body. In Khosa,16 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [30] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:17 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [31] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.18 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [32] In the RAD's view, these respective roles suggest deference is owed to findings of fact that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [33] The nature of the question in issue: This appeal raises questions of fact, and such questions have generally, in both the appellate court and judicial review contexts, attracted a deferential standard of review.19 The Federal Court, in reviewing decisions of the RPD, has also found that a review of the application of the Gender Guidelines is subsumed in the reasonableness standard for credibility findings.20 [34] Questions of law, also raised in this appeal, have in general been reviewed on a correctness standard in the appellate court context.21 In the judicial review context, following Dunsmuir, most questions of law are to be interpreted on a standard of reasonableness, except for certain narrow categories, such as constitutional questions, true questions of jurisdiction, questions of law that are of central importance to the legal system and outside the specialized area of expertise of the tribunal, and questions about the jurisdictional lines between tribunals.22 The RAD is unaware of any case law that has considered whether this approach is applicable to administrative appellate tribunals. Unlike in the judicial review context, however, the RAD and the RPD appear to have similar expertise with respect to questions of law, including those arising from their shared home statute, and this suggests that no deference is owed to the RPD by the RAD on questions of law. [35] The application of the Vulnerable Persons Guideline has been found, in the judicial review context, to be a question of procedural fairness, reviewable on a standard of correctness, and the RAD adopts this standard.23 Procedural fairness plays a role in ensuring that proper decisions are made. A fair procedure has been described as the handmaiden of justice, and the need for procedural safeguards is obvious.24 The requirements of procedural fairness at the RPD are "at the high end of the continuum of procedural fairness," in part because Charter rights are at stake in refugee cases.25 While the requirements of procedural fairness are variable,26 here the RAD and the RPD are divisions of the same tribunal, with similar expertise in the application of their governing statute and governed by many of the same procedural guidelines. In this context, the RAD sees no reason to show deference to the RPD on matters of procedural fairness. In fact, it is incumbent on the RAD, as an appeal tribunal, to ensure that procedural fairness is respected. [36] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [37] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.27 Section 3(2)(e) of IRPA identifies one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [38] In the context of an appeal to the RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [39] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [40] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [41] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,28 and each can take notice of information and opinion within its specialized knowledge.29 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,30 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.31 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,32 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [42] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.33 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [43] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in these appeals, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact and of mixed fact and law. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. Some questions in issue here are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.34 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [44] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to RPD on matters of fact, including the assessment of credibility. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.35 [45] The appropriate standard of review here for issues of fact is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.36 [46] The RAD owes no deference to the RPD's decision, however, on questions of law. It is an appropriate function for the RAD to ensure that the RPD is applying the correct law; this approach promotes just decisions and avoids inconsistent application of the law.37 A correctness standard on questions of law ensures universality in the application of the law.38 [47] The appropriate standard of review for the question of law raised in this appeal, and for questions of procedural fairness, is one of correctness. The RAD will not show deference to the RPD's reasoning process on such issues, but it will undertake its own analysis of the question to determine whether it agrees with the RPD on the matter.39 The RPD's Findings [48] The Appellant argues that the RPD made various errors in rejecting her claim for refugee protection. [49] Procedural fairness: The Appellant argues that she was denied procedural fairness when the RPD proceeded despite the absence of her counsel and when the panel failed to consider her as a vulnerable person and make necessary procedural accommodations. [50] The Appellant argues on appeal that she was "'left in the lurch' days before the hearing" by her former counsel, who withdrew because Legal Aid was not granted and the Appellant could not pay him. Although she did not request an adjournment at the time, she now argues she was denied procedural fairness. [51] The Appellant cites jurisprudence to support her argument that it was a breach of procedural fairness for her refugee hearing to proceed without counsel. However, those cases, where an adjournment was requested and refused, can be readily distinguished from the Appellant's matter, in which she did not request an adjournment. [52] The right to counsel is not an absolute one. Here, the Appellant did not seek a change of date or time, and instead she proceeded with the hearing of her claim without representation. The RAD finds that this does not constitute a denial of procedural fairness. [53] The Appellant also argues on appeal that she was denied procedural fairness because the Vulnerable Persons Guideline was not followed. While she acknowledges that she requested no accommodations, she submits that, as a woman who has suffered a rape, she falls under the definition of a vulnerable person and that this was evident from the psychological report she submitted to the RPD. [54] The Guideline defines vulnerable persons as "individuals whose ability to present their cases before the IRB is severely impaired. Such persons may include, but would not be limited to, the mentally ill, minors, the elderly, victims of torture, survivors of genocide and crimes against humanity, women who have suffered gender-related persecution, and individuals who have been victims of persecution based on sexual orientation and gender identity."40 It notes that many persons appearing before the RPD have some vulnerabilities; the Guideline addresses difficulties that go beyond those that are common to most persons appearing before the RPD. [55] Vulnerability must be identified at the earliest possible opportunity and, wherever possible, the vulnerability must be supported by independent credible evidence. Counsel for the person is in the best position to bring the vulnerability to the attention of the IRB, and must do so as soon as possible. [56] The Appellant was represented by counsel until two days prior to her refugee hearing. On XXXX XXXX, 2013-weeks before the hearing-psychologist Dr. XXXX XXXX wrote a letter to that counsel describing the Appellant's psychological condition. That letter does not suggest any procedural accommodations. Former counsel did not make an application to have the Appellant designated a vulnerable person, and the Appellant has not alleged negligence or incompetence on the part of former counsel. Nor did the Appellant ask the RPD to accommodate her in any way. Despite this, the RPD's reasons indicate that the panel questioned the Appellant in a sensitive way-and the Appellant does not dispute this on appeal-and allowed her to request breaks when needed. The RPD did make negative credibility findings, but the RAD notes that these findings were not made in respect to the incident which is the basis for the Appellant's claim to be vulnerable, an alleged rape by Iranian officials. [57] The Appellant's former counsel did not make an application to have her designated as vulnerable or to have accommodations made. The Appellant's psychological report does not suggest accommodations, and the Appellant herself did not seek accommodations at the hearing. Despite this, the RPD proceeded with sensitivity to the Appellant's vulnerability. The RAD finds that the RPD did not err in its application of the Vulnerable Persons Guideline.41 [58] Conversion to Christianity: The Appellant submits that, in making adverse credibility findings with respect to her conversion, the RPD "further erred and moreover applied the wrong test as set out by this Court...." She goes on to cite several Federal Court cases, but, despite the requirements of the RAD Rules to provide full and detailed submissions on any alleged errors, she does not explain how or where the RPD erred. While the RAD can only guess at the Appellant's argument here, the cases cited include matters where the RPD found that allegations of past persecution were not credible, but it failed to make a clear determination in respect to the claimant's religious identity. Here, the RPD did not make such a mistake: it found that the Appellant "has not established, on a balance of probabilities, her identity as a Christian convert."42 In addition to its finding that the Appellant was generally lacking in credibility, the RPD made a specific finding in regard to her professed Christian faith. A refugee claimant must prove the facts upon which she relies, and whether she is a Christian is such a fact. Those factual contentions are to be measured on the civil standard of proof,43 which the RPD correctly applied here. [59] Sur place claim: The Appellant argues that the RPD failed to apply a sur place analysis to her claim. Once again, the Appellant's Memorandum provides a great deal of case law but very few specific submissions identifying the alleged error made by the RPD. In fact, the RPD appears to have considered the sur place element of the claim: "The panel... finds that the evidence before it does not establish, on a balance of probabilities, that the authorities in Iran would have any knowledge of her activities in Canada."44 Having earlier addressed whether the Appellant is actually a Christian, here the RPD considered whether she would be perceived as such, and concluded she would not. The Appellant has not directed the RAD to any evidence which contradicts this finding of the RPD, and the RAD finds no error here. [60] Credibility: The Appellant argues that the RPD failed to properly apply the Gender Guidelines in considering her claim. In her submission, the RPD erred in finding her not credible based on amendments and omissions in her evidence. She submits that the Gender Guidelines explain evidentiary problems arising from shame about sexual violence. [61] The RAD has some difficulty with this argument. The Appellant alleges that she participated in a political demonstration in 2009, and she was detained and raped. She subsequently became interested in Christianity in the hope it would provide her with relief from the trauma she had suffered. The RPD questioned the Appellant with sensitivity, and it did not find fault with her evidence in respect to her detention and rape. However, it found many inconsistencies in areas of evidence not directly related to the alleged sexual violence: how the Appellant was introduced to Christianity, how often she hosted secret church meetings, a government raid on her husband's business, her religious activities in Canada, her failure to claim previously and her voluntary return to Iran, among other things. [62] The Gender Guidelines exist to ensure that gender-based claims are heard with sensitivity.45 The Appellants have not demonstrated how the RPD failed to hear their claims with sensitivity. The Gender Guidelines do not shield the Appellant's testimony from the RPD's scrutiny or preclude an assessment of her credibility; they are not intended to serve as a cure for all deficiencies in a claimant's evidence.46 In the RAD's view, the Gender Guidelines simply cannot explain all of these inconsistencies and contradictions, which are not at all closely related to the alleged sexual violence. [63] It would have been better had the RPD made specific mention of the Gender Guidelines. However, the RPD is presumed to have taken all evidence into account,47 and in the RAD's view, it is more important that the RPD implement the spirit and intention of the Guidelines than simply mention them. It was reasonable for the RPD to conclude that the Appellant's inconsistent and contradictory evidence was indicative of a lack of credibility. [64] The Appellant argues that the RPD made perverse and capricious findings in its reasons. Once again, the Appellant's Memorandum is rich in broad allegations and excerpts from case law but poor in specific submissions about the alleged errors. The RAD has carefully reviewed paragraphs 16, 21, 33, 34, 36, and 40 of the RPD's reasons, as these paragraph numbers are the only specifics provided by the Appellant of the alleged errors. The RAD does not see how the findings there are perverse or capricious, and the Appellant has not provided full and detailed submissions to assist the RAD in this regard. The RAD concludes that the RPD's credibility findings in those paragraphs were reasonable. [65] The RPD drew a negative inference from the lack of testimony or a supporting letter from the Appellant's sister, who has refugee status in Canada and practices Christianity with the Appellant. It also faulted the Appellant for failing to provide a letter from the church she claims she currently attends, though she provided documents from a church she attended previously. The Appellant submits that the RPD erred by making negative credibility findings based on a lack of corroborating documents. She argues that oral evidence does not have to be corroborated by documents, and that to reach a negative credibility finding on this basis is to commit an error. [66] While the Appellant relies on the "consistency, preponderance, and avalanche of this jurisprudence" about the provision of documents, the RAD finds that such case law is not completely on point here. Section 11 of the Refugee Protection Division Rules requires a refugee claimant to provide acceptable documents establishing identity and other elements of the claim, and adds that a claimant who does not provide acceptable documents must explain why not and what steps were taken to obtain them.48 In a case where the RPD rejected a claim solely on the basis of a lack of documents, the Federal Court held that: [10] It is well established that a panel cannot make negative inferences solely from the fact that a refugee claimant failed to produce any extrinsic documents to corroborate a claim. But where there are valid reasons to doubt a claimant's credibility, a failure to provide corroborating documentation is a proper consideration for a panel if the Board does not accept the applicant's explanation for failing to produce that evidence. See Singh v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. 755 per O'Reilly J. at paragraph 9. [11] In this case, the applicant provided documents about his father's and brother's involvement in the UNP, and the Board reasonably expected documents would be produced about the applicant's involvement with the UNP. The failure to produce documents one would normally expect is a relevant consideration in assessing and rejecting the credibility of the applicant. [12] The onus is on the applicant to establish a credible claim. The applicant failed to do so, and the Board provided clear reasons for its credibility finding. This finding is not patently unreasonable, and does not err with respect to the absence of corroborative documents which the Board reasonably expected.49 [67] Here, the RPD had numerous reasonable credibility concerns with the Appellant's evidence. It had further concerns with her failure to produce documents from Canada, which she could reasonably be expected to obtain. In this context, it was reasonable for the RPD to draw a negative inference from the Appellant's lack of corroborating documents. [68] Finally, the Appellant argues that the RPD erred when it gave little weight to her husband's letter, to letters from XXXX XXXX XXXX XXXX, and to a baptism certificate and corresponding photographs. [69] The RPD considered the husband's letter, and it had concerns with the Appellant's testimony about this document. Although the letter appears to have been signed on XXXX XXXX, 2013, and although the Appellant claimed it was mailed to her, she also testified that the letter was received on XXXX XXXX. She could not provide the envelope in which it arrived. The panel also noted that the letter made no mention of a raid on the husband's business, which allegedly happened near the XXXX XXXX XXXX. In light of these concerns, the RPD gave the letter little weight. Although the Appellant again quotes extensively from case law in challenging this finding, she fails to make full and detailed submissions about how the RPD erred in its treatment of the letter. The RAD sees no error and finds it reasonable that the RPD gave the document little weight. [70] The Appellant also fails to explain how the RPD erred in giving little weight to the letters from XXXX XXXX XXXX XXXX. The RPD concluded that, while the letters may confirm the Appellant's activities at the church, they cannot speak to her motivation for doing so. As the RAD has already observed above, the genuineness of the Appellant's faith is for the RPD, not the church, to decide.50 The RPD did not err in assigning the letters little probative value in proving the Appellant's Christian identity. [71] The RPD gave the baptismal certificate and accompanying photographs little weight. The Appellant challenges this, but she does not explain why the RPD erred here. The panel concluded that those documents have little probative value in proving the genuineness of the Appellant's faith, and this was a reasonable conclusion. [72] The RPD did not err in its assessment of the Appellant's credibility. [73] For the reasons set out above, the RAD finds that the RPD's decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law. This appeal must therefore fail. CONCLUSION [74] Pursuant to Section 111(1)(a) of 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 June 2, 2014 Date 1 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 2 Guideline 8: Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada, December 15, 2006. 3 Appellant's Record, p. 109. 4 Appellant's Record, p. 114. 5 Appellant's Record, p. 121. 6 Appellant's Record, p. 122. 7 Appellant's Record, p. 123. 8 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. 9 RPD's Record, p. 208. 10 RPD's Record, p. 134, Report of Dr. XXXX XXXX XXXX. 11 RPD's Record, p. 138, XXXX XXXX XXXX XXXX, XXXX XXXX, 2013. 12 Cao, Wo Ji v. M.C.I. (F.C., no. IMM-1303-08), Mosley, October 17, 2008; 2008 FC 1174, para. 28. 13 Guideline 8: Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada, December 15, 2006. 14 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 15 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 16 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 17 Newton, para. 43. 18 IRPA, Sections 96 and 97. 19 Khosa, para. 89. 20 Evans, Alison Michelle v. M.C.I. (F.C., no. IMM-4432-10), Mosley, April 11, 2011; 2011 FC 444, para. 8. 21 Ibid., para. 90. 22 Dunsmuir, paras. 58-61. 23 Gilles, Dilano v. M.C.I. (F.C., No. IMM-2214-10), Pinard, January 6, 2011; 2011 FC 7, para. 11. 24 Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 129. 25 Geza, Kozak v. M.C.I. and Smajda, Sandor v. M.C.I. (F.C.A., nos. A-419-04, A-420-04), Evans, Décary, Sharlow, March 27, 2006; 2006 FCA 124, at para. 53 26 Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, at paras. 48-63. 27 IRPA, Section 3(2)(a). 28 IRPA, Sections 170(g) and 171(a.2). 29 IRPA, Sections 170(i) and 171 (b). 30 IRPA, Section 170(b). 31 IRPA, Section 110(3). 32 Khosa, para. 89. 33 Newton, para. 80. 34 Khosa, para. 89. 35 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 36 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 37 Dunsmuir, para. 50. 38 Khosa, para. 90. 39 Dunsmuir, para. 50. 40 Guideline 8: Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada, December 15, 2006, Paragraph 2.1. 41 See Gilles, Dilano v. M.C.I. (F.C., No. IMM-2214-10), Pinard, January 6, 2011; 2011 FC 7, para. 17. 42 RPD's Reasons, para. 52. 43 Alam, Shafiul v. M.C.I. (F.C., IMM-9797-03), O'Reilly, January 6, 2005; 2005 FC 4, para. 8. 44 RPD Reasons, para. 53. 45 Munoz, Olga Cadenas v. M.C.I. (F.C. No. IMM-1218-06), Shore, October 26, 2006; 2006 FC 1273, 307 F.T.R. 67, paras. 29-35. 46 Karanja, Anne Wanja v. M.C.I. (F.C., no. IMM-3296-05), Pinard, May 11, 2006; 2006 FC 574, paragraphs 5-7. 47 Karanja, para. 6. 48 Refugee Protection Division Rules, Section 11, emphasis added. 49 Amarapala, Priyanga Udayantha v. M.C.I. (F.C., no. IMM-5034-03), Kelen, January 7, 2004; 2004 FC 12, paras. 10-12; for a discussion of the "exception" in paragraph 10 of Amarapala see Radics, Sandor Andras v. M.C.I. (F.C., no. IMM-4020-13), Noël, February 4, 2014; 2014 FC 110, paras. 30-33. 50 Cao, Wo Ji v. M.C.I. (F.C., no. IMM-1303-08), Mosley, October 17, 2008; 2008 FC 1174, para. 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-01841