TB5-05414

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 : TB5-05414 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 28, 2016 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Bjorn Harsanyi Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), who is a citizen of Georgia, has been granted a de novo hearing, at the Refugee Appeal Division (RAD), by Justice Fothergill of the Federal Court. The Appellant's original Refugee Protection Division (RPD) hearing was held on June 24, 2014. In a decision of the same day, the RPD determined that the Appellant was not a Convention refugee and not a person in need of protection. [2] The Appellant's decision was appealed to the RAD, and in a decision of July 22, 2015, the RAD upheld the RPD decision. [3] The RAD decision was appealed to the Federal Court, and in a decision, dated XXXX XXXX, 2015, the RAD decision was returned for judgement by consent. [4] For the de novo appeal by RAD, the Appellant has submitted new evidence. The Appellant requests that the previous RAD appeal, upholding the negative RPD determination, be set aside and be substituted with a finding that Mr. XXXX is a Convention refugee or a person in need of protection. The Appellant stated there was no need for an oral hearing. In that no further requests have been made by the Appellant, the RAD will proceed with the decision in this case. DETERMINATION [5] Pursuant to subsection 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination. Background [6] In the Appellant's original story, outlined in his BOC, 1 he states that he fears persecution by the political party of Georgia, the Georgian Dream. He states that because of his political beliefs, they are danger to him and his family. He appealed to the police several times but nobody has helped. [7] In the Memorandum of Appeal, received on August 18, 2014,2 the Appellant states that his problems are a direct result of his brother-in-law XXXX XXXX who was a XXXXto the former President of Georgia, Mikheil Saakashvili. After his defeat in the election, the new government began targeting former officials and those affiliated with President Mikheil Saakashvili. When the new government did not get information from his brother-in-law, they approached the Appellant his family and threatened them with harm. On XXXX XXXX, 2013, the Appellant was allegedly beaten by police in an attempt to have him disclose information. On XXXX XXXX, 2014, the Appellant left Georgia and fled to Turkey, eventually making his way into Canada on XXXX XXXX, 2014. Admissibility of Evidence Submitted on Appeal [8] Section 110(4) of the IRPA provides that the Appellant "may 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 expected3 in the circumstances to have presented, at the time of the rejection." [9] It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence that meets the requirements of section 110(4) and how that evidence relates to the Appellant.4 [10] While section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, or is immaterial to the issues to be considered by the RAD, it would make little sense to admit such document, even if it meets the test in section 110(4). [11] For these reasons, the RAD will apply the following factors to evidence that passes the test in section 110(4). [12] The RAD will consider whether the proposed new evidence is credible and trustworthy. [13] The RAD will assess the relevance of the evidence-whether it is capable, together with the other evidence in the record (including other admissible new evidence) of proving or disproving a fact at issue in either the refugee claim or the appeal. [14] The RAD will determine whether the evidence is material, in the sense that it would be capable of justifying, with or without the benefit of an oral hearing, as the case may be, a disposition under section 111 of the IRPA. [15] The following evidence was submitted by the Appellant within the initial RAD appeal: * The BOC narrative for XXXX XXXX * Letter from XXXX XXXX XXXX XXXX * Letter from former XXXX XXXX XXXX * Refugee card for XXXX XXXX * Hospitalization record for XXXX XXXX * Letters confirming that XXXX XXXX had fled Georgia * Photos of XXXX XXXX performing duties as XXXX to Mikheil Saakashvili [16] It is submitted by the Appellant that he was completely reliant on his brother-in-law to corroborate his story and his problems are entirely attributed to XXXX. XXXX had a hearing before the RPD on July 27, 2014, three days after the Appellant's hearing. However, the Appellant was awaiting documentation from XXXX, and he was not represented by counsel. [17] The Appellant submits that the RPD found that he had not established his story on a balance of probabilities, because he did not have evidence to corroborate his allegations. [18] For the Appellants de novo appeal to the RAD, he submitted the following: * a letter from Mr. XXXX wife, Ms XXXX XXXX * letters from two neighbours * a letter from Mr. XXXX father * a letter from his brother-in-law, Mr. XXXX XXXX [19] The RAD will accept these documents as new evidence and will explain later in this decision the disposition of this new evidence. The RAD finds that the initial documentation (new evidence for the initial RAD appeal) was not reasonably available prior to the rejection of the claim in June 2014, and therefore, it meets the statutory requirement. The RAD finds that the letters submitted above could reasonably have been available prior to the Appellant's hearing. However, given the extenuating circumstances of no counsel and other issues, the RAD will accept this new evidence. The RAD finds that this is new evidence which was not considered by the RPD and this evidence pertains to the Appellant's brother-in-law, upon whom the Appellant's claim is based. ROLE OF THE RAD [20] The RAD finds that the recent Federal Court decision, in Huruglica,5 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the [Appellant] is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [21] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Respondent is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS [22] As stated above, none of the new evidence was available to the RPD at the refugee hearing. In reviewing the recording of the RPD hearing, the RAD found several inconsistencies. The RPD, during its hearing, was unable to deal effectively with many issues because of the lack of corroborating evidence and documentation, the lack of which caused the RPD to make a negative decision. [23] There appeared to be no direct connections between the Appellant and the documentation of his brother-in-law submitted as new evidence at the initial RAD appeal. There was nothing in the Memorandum of Appeal that drew this connection. The Appellant needs to be questioned regarding this connection in order for a complete and fulsome decision to be made. [24] The new evidence submitted for the RAD de novo appeal needs to be dealt with in a fulsome manner. There is a need for an explanation as to how the documentation submitted, especially that of his brother-in-law, relates to the Appellant's RAD appeal. [25] The RAD is unable to hold a hearing in that the initial testimony and subsequent documentation need to be addressed in its entirety. As a result, the RAD is upholding the appeal and returning the case to the RPD for redetermination. Disposition [26] The RAD according to section 111(1)(c) is upholding the Appellant's appeal and referring the matter back to the Refugee Protection Division for redetermination with a differently constituted panel. (signed) "Robert S. Garner" Robert S. Garner January 28, 2016 Date 1 Exhibit RPD-1, RPD's Record, at pp. 11-12. 2 Exhibit P-2, Appellant's Record, at pp. 6-8. 3 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, at para. 51. 4 Rule, 3(3)(g)(iii), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 5 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05414