TB4-02198

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 : TB4-02198 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX 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 21, 2014 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael F. Loebach 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 (the Appellant), a citizen of Egypt has appealed a negative determination of the Refugee Protection Division (RPD) dated February 13, 2014. DETERMINATION [2] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) returns the matter to the RPD for redetermination. BACKGROUND [3] Ms. XXXX alleged in her Basis of Claim (BoC) narrative that she was a victim of sexual harassment by a co-worker and sexual assault by police in Cairo. The Appellant also fears being harmed or killed by her father, as she left Egypt without his permission and therefore shamed her family. [4] The Appellant travelled to Canada via Amsterdam on her own genuine passport. The Appellant arrived in Canada on XXXX XXXX, 2013 and was admitted based on a valid student visa. The Appellant made her claim for protection on November 12, 2013. [5] The Appellant had a refugee determination hearing on January 21, 2014. The RPD provided written reasons dismissing the claim on February 13, 2014. The RPD found that central aspects of the Appellant's claim were not credible given plausibility concerns, inconsistency in the Appellant's evidence, and the Appellant's failure to produce supporting documents. The RPD found that the Appellant fabricated her story in an attempt to obtain refugee protection to remain in Canada. Specific findings included: 1. The RPD found the Appellant's allegation that her father would kill her upon her return (honour killing) as she shamed her family by leaving without her father's permission was not plausible given that the evidence does not support the Appellant's assertion that her father is a conservative Muslim. The RPD found the fact that the Appellant was allowed to attend university, to work at night and to travel in a taxi alone undermined the plausibility that her father was a conservative Muslim. In addition, the Appellant's father was unconcerned when told about the Appellant's experiences of sexual harassment. 2. The RPD found the allegations that the Appellant was sexually assaulted by police not plausible given that the Appellant did not explain how her taxi was being frequently targeted to be stopped, and why the police would touch her inappropriately for being in a taxi late at night. The RPD also found that the failure of the Appellant to report the assaults to police or to her employer undermined the plausibility of the allegations. 3. The RPD found the Appellant's allegation that her friend arranged for her to obtain a visa in Saudi Arabia was not credible. 4. The RPD found the fact that the Appellant and her landlord had similar Canadian visa applications and an immigration history undermined the Appellant's allegations that she did not have a plan upon her arrival in Canada. 5. The RPD assigned a negative inference to the failure of the Appellant to provide neutral documentary evidence to support her allegations. The RPD placed little weight on the handwritten evidence from the Appellant's mother as it was obtained through her friend XXXX, and the note does not speak of the alleged problems with the police. The RPD found the note from XXXX had little probative value, and XXXX was not made available as a witness. 6. The RPD found an inconsistency between the address of the Appellant's mother in the document provided, and the Appellant's address was not adequately explained. 7. The RPD found that the documentary evidence shows that women in Egypt face harassment and discrimination, but the Appellant did not establish that the discrimination would amount to persecution. [6] The Appellant's counsel submitted pleadings on March 28, 2014. In the pleadings, the Appellant's counsel alleged that the RPD made several errors including: 1. The RPD erred in fact in its plausibility findings that the Appellant would not be a victim of her father given that she was allowed to attend university, work away from home at night, and to travel in a taxi. Counsel indicated that there was no evidence on the record that Muslim fathers in Cairo would never allow their daughters to go to university and/or to work. As such, the RPD did not base its plausibility findings on evidence; rather, it made its negative plausibility finding on the RPD's own view of what a conservative Muslim father would or would not do. 2. The RPD disregarded the Appellant's circumstances in its analysis. The RPD disregarded evidence that the Appellant was a young, unmarried woman under the control of her father. 3. The RPD based its negative plausibility findings regarding the police assaults based on its own presumption of what police would and would not do and with disregard to the documentary evidence before it. 4. The RPD erred in finding a negative inference to the Appellant's failure to report incidents of abuse to the police as this finding did not take into consideration the particular circumstances of the Appellant, and it was based on North-American standards of behaviour. 5. The RPD erred in placing significant weight on concerns with the Appellant's visa application and her travel to Canada, which were not central to the claim. 6. The RPD erred by insisting that the Appellant produce documentary evidence in support of her sworn testimony, thereby breaching the principle that sworn evidence is considered to be truthful. 7. The RPD erred in drawing a negative credibility inference related to an inconsistency between the addresses presented on her mother's identity card and the Appellant's BoC, given that this inconsistency was not material to the claim. 8. The RPD erred by failing to address the submissions and documentary evidence that went against its finding that the Appellant did not establish a serious possibility of persecution in Egypt. [7] The Appellant provided new evidence, in the form of a report from a social worker indicating that the Appellant had been sexually abused by her father and brother, disclosure refused at the hearing, and evidence regarding sexual abuse. For the reasons outlined below, the RAD rejected this new evidence. As such, the request for a hearing included in the appeal was dismissed, as it did not conform to s. 110 (6). [8] The pleadings request that the RAD set aside the determination and refer the matter back to the RPD for a new hearing by a differently-constituted panel, pursuant to s. 111(1)(c) of IRPA. In the alternative, the Appellant request that the RAD find the Appellant to be a Convention refugee. Admissibility of Evidence Presented Upon Appeal [9] The Appellant provided a statement,1 which provided an explanation for the new evidence along with the pleadings. At paragraph 11, the Appellant indicated that the RPD refused to take late disclosure concerning country conditions in Egypt. The RAD noted that the record does not support this statement in its entirety. The RPD provided direction to counsel to refer to the late disclosure during submissions, thereby ensuring that the late disclosure was placed on the record. The Appellant's counsel did not raise any objection or concern with this methodology. The transcript of the hearing2 (specifically page 402) demonstrates that counsel was provided an opportunity to cite the late evidence, and that she cited some of it during her submissions. As such, the RAD finds that the RPD did deny the request to enter the documents as exhibits; however, the RPD provided counsel an opportunity to have the articles on the record by citing them in submissions. As such, the RAD finds that the articles cited as new evidence were not new evidence, as they were included on the record. In addition, the RAD finds that the articles the RPD had before it-evidence concerning honour killings in the National Documentation Package-was cited by counsel. [10] As outlined above, the Appellant has provided a psychosocial assessment.3 The assessment was based on five hours of meetings over three days (MaXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2014). [11] Section 110(4) of IRPA indicates that: "the person who is the subject of the appeal 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 expected in the circumstances to have presented, at the time of the rejection." The RAD considered the assessment in conjunction with the direction in Section 110(4) of IRPA and RAD Rule 3(3)(g)(iii) concerning the content of the Appellant's Record. [12] The RAD noted that the assessment was started on XXXX XXXX, 2014, which was approximately XXXX XXXX after the negative decision was rendered on XXXX XXXX, 2014. The Appellant provided an explanation for the delay in a statement,4 which accompanied the pleadings. The Appellant alleges that her lawyer tried to obtain the assessment prior to the hearing but that there was no possibility to schedule an assessment before XXXX of 2014. The RAD noted that no evidence was presented to support the statement that the Appellant or her counsel had difficulties in arranging an assessment or that they tried to arrange an assessment but were told that one would not be available before the hearing. Counsel did not mention any scheduling difficulties at the hearing, in her oral submissions, or in her written submissions issued in response to the RPD's request for additional information after the hearing.5 The assessment provided did not make reference to the Appellant having to wait to be assessed. Given the absence of any mention on the record that the Appellant had tried to arrange a psychological assessment before the rejection despite many opportunities to do so, the RAD finds that the Appellant's explanation for the late assessment was not credible. [13] Furthermore, the RAD noted that the Appellant was from London, Ontario, which is a medium-sized city. No evidence was presented to document a lack of psycho-social assessment services in London or the surrounding area. The RAD notes that London is home to a community health centre (XXXX XXXX XXXX XXXX) which serves newcomer women, as well as the University of Western Ontario which has graduate-level programs in psychology, social work and medicine. Given the lack of documentation of attempts to seek an assessment, and given that no evidence was presented regarding the lack of psycho-social resources available to the Appellant in London or in the surrounding area, the RAD finds that the Appellant's explanation that she was unable to obtain an assessment between November and January was not credible. [14] Given that the Appellant's explanation for why she obtained the assessment after the rejection of the claim was found not to be credible, the RAD considered the issue of the Appellant's motivation to provide evidence attesting to allegations of incest in the appeal. The RAD noted incest was not mentioned in the BoC or in her oral testimony, despite the BoC and the oral testimony dealing with issues of sexual abuse and the Appellant's fear of her father. The Appellant explained that it was only after counselling that she was able to disclose the incest allegations. As identified above, there is no evidence before the RAD to confirm that the Appellant sought counselling before her claim was rejected on February 13, 2014. The RAD also noted that no evidence was presented at the time of the hearing to indicate that the Appellant was in psychological distress or required supportive counselling. The Appellant's statement explaining the late evidence and disclosure of the alleged incest did not make reference to her motivation or need to attend counselling before the claim was rejected on February 13, 2014. The assessment6 did not comment on any precipitating factors or conditions that caused the Appellant to seek counselling at the time that she did, or whether or not the Appellant has received counselling after the assessment was completed. The Appellant has a history of using fraudulent means to achieve the results she desires (e.g., visa). [15] Given the lack of evidence to support the explanation that an assessment was not possible between the time she made her claim on November 12, 2013 and the hearing on January 21, 2014, given the lack of evidence to support that the Appellant was in need of psychological support and counselling before the rejection, given the lack of evidence to attest to the motivation of the Appellant to seek counselling in March of 2014, and given the Appellant's own testimony that she obtained a fraudulent visa in order to come to Canada, the RAD finds that the Appellant's explanation for why her assessment was provided after her rejection was not reasonable. The RAD finds that the assessment was undertaken for reasons other than those presented in the assessment and the Appellant's statement. Given that the RAD is returning the entire matter to the RPD for reconsideration, the RAD leaves it up to the RPD to further assess the Appellant's motivation to undertake an assessment after the rejection, the impact that this has on the credibility of the allegations revealed in the assessment, and the Appellant's overall credibility. [16] Based on the analysis above, the Appellant did not persuade the RAD that an assessment could not have been available at the time of the hearing or that she could not have been expected in the circumstances to have presented the assessment at the time of the rejection. The RAD therefore finds that the assessment does not conform to the requirements of s. 110(4) of IRPA, and therefore it is not accepted into evidence. [17] In addition to the concerns highlighted above, the RAD finds that the credibility of the assessment has not been established. The person completing the assessment (Dr. XXXX) did not provide evidence of his credentials to establish his profile as an expert witness. The RAD referred to the Chairperson's Guideline on Vulnerable Persons7 to assist it in assessing the report by Dr. XXXX. The Guideline comments on the expectations regarding expert reports. It indicates that: 8.3 Generally, experts' reports should contain the following information: a. the particular qualifications and experience of the professional that demonstrate an expertise that pertains to the person's particular condition; b. the questions that were posed to the expert by the person who requested the expert report; c. the factual foundation underlying the expert's opinion; d. the methodology used by the expert in assessing the person, including whether an interview was conducted, the number and length of interviews, whether tests were administered and, if so, what those tests were and the significance of the results; e. whether the person is receiving treatment and, if so, the nature of the treatment and whether the treatment is controlling the condition; f. whether the assessing expert was also treating the person at the time of producing the report; and g. the expert's opinion about the person's condition and ability to participate in the hearing process, including any suggested procedural accommodations and why particular procedural accommodations are recommended. 8.4 Experts should not offer opinions on issues within the exclusive jurisdiction of the decision-maker, such as the merits of the person's case. 8.5 An expert's opinion is not in itself proof of the truthfulness of the information upon which it is based. The weight given to the report will depend, among other things, on the credibility of the underlying facts in support of the allegation of vulnerability. [18] The RAD noted that the assessment indicated that the writer is a registered social worker (RSW); however, it did not indicate that the writer had any specific qualifications or experience to assess the Appellant's psychosocial functioning and to make findings related to PTSD. The assessment indicates that it was based on three meetings which lasted five hours in total; however, it does not indicate from whom the counselling was received, when, and why. This is an important issue as, if Dr. XXXX acted as counsellor in addition to writing the assessment, the independence of the assessment would be compromised by the conflicting roles of therapist and assessor or provider of expert opinion. [19] In general, the RAD finds that the assessment is poorly written and seems to be a jumble of the Appellant's allegations in her BoC and her self-reported story of incest. The conclusions in the assessment are unclear, including the factual basis upon which the conclusions were made. The RAD noted that there was inconstant evidence in the assessment regarding the incest. At one point, the report indicates that the Appellant was repeatedly sexually abused by her father and brother since age 15.8 Further down on the same page, the assessment indicates that the Appellant: "has a history of sexual abuse while at the age of 11 years old in Egypt." Given this inconsistency regarding the key allegations of incest, the RAD finds that the assessment is not credible. [20] Furthermore, the RAD noted significant inconsistencies between the Appellant's BoC narrative, her oral testimony, and the contents of the assessment which undermine the credibility of the new evidence. The Appellant explained that she required counselling to be able to expose the incest. The RAD finds that the assessment contained many other allegations beyond the incest which were not included in the BoC or in oral testimony. For example, on page 306, the assessment indicates that the Appellant experienced "threats of honor killing (by father and family members)." On page 309 in section 9, the assessment indicates that the Appellant received death threats. The RAD noted that nowhere in the BoC narrative or oral testimony did the Appellant testify that she had received death threats from her family while she was in Egypt. The Appellant indicated in the BoC and her oral testimony that she feared being a victim of honour killing; however, this was the result of having left Egypt without the permission of her family. [21] The RAD also noted other issues that were raised in the assessment that were omitted from the Appellant's claim documents and her oral testimony. These issues did not relate to the incest, which the Appellant allegedly experienced and for which she required counselling to disclose. For example, the fact that the Appellant was subject to physical violence as a result of conflicts in the house. The RAD noted that the BoC indicated that the Appellant was assaulted when she indicated that she wanted to leave work; however, there was no mention of any other incidents of domestic abuse. The assessment revealed the following allegations: the Appellant tried to escape her family but was controlled by her father, psychological manipulation, being locked in the house, being asked to search YouTube for pornography by her father. These allegations in assessment were in stark contrast to the description of the Appellant's relationship with her family in her BoC,9 which indicated that the Appellant: "suffered from the dry-cool treatment and did not have the feelings of love and compassion, which a child needs from her parents. My parents never regard or respect for my opinion." These inconsistencies, on issues unrelated to allegations of incest, undermined the credibility of the assessment. [22] Given the credibility concerns highlighted above, the RAD finds that the assessment was not credible and trustworthy evidence, and therefore it is not admissible under s. 171(a.3) of IRPA. [23] Given that the assessment was not accepted as new evidence, the RAD finds that the articles addressing incest and sexual abuse10 were not relevant, as they addressed issues which were not before the RPD at the time of the rejection, and they pertained to allegations that were in the assessment which was not admitted as new evidence. STANDARD OF REVIEW [24] The RAD focused on one issue in assessing this appeal: Did the RPD err in its treatment of the evidence before it? [25] Counsel argued in the pleadings that the RPD is not bound by the findings of the RPD and should examine the issue de novo and apply the standard of review of correctness. [26] The Federal Court, in a recent decision, Iyamuremye,11 provided guidance to the RAD regarding the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as per Dunsmuir.12 The correctness standard is applicable to questions of law and issues of general legal importance which fall outside the specialized area of expertise of the RAD.13 [27] In the case at hand, the Appellant alleges that the RPD made errors of fact in its plausibility findings and in its failure to assess the totality of the evidence. The RAD affords the RPD with deference and considered the reasonableness of the determination for the alleged errors of fact. The pleadings make reference to the RPD's failure to assess the claim based on the particular profile of the Appellant. The RAD finds that this failure includes failing to assess the Appellant's situation as a woman in fear of gender-related persecution. Failing to apply the Gender Guideline14 has been reviewed on a reasonableness standard, as per Correa Juarez.15 ANALYSIS OF THE MERITS OF THE APPEAL [28] As identified above, based on a review of all of the evidence and pleadings in the appeal, the RAD focused on one issue in assessing this appeal: Did the RPD err in its treatment of the evidence before it? [29] After consideration of the totality of the evidence, the RAD finds that the RPD erred in its negative credibility findings based on plausibility; it erred in failing to assess the totality of the evidence before it, and it failed to make reference to or demonstrate an integration of the Chairperson's Guideline on Women Refugee Claimants Fearing Gender-Related Persecution.16 The errors were sufficient to overturn the decision. Plausibility Considerations [30] The RPD indicated that the central aspects of the claim lacked credibility. The RPD found the Appellant's allegations that her father would kill her upon her return (honour killing) as she shamed her family by leaving without her father's permission was not plausible given that the evidence does not support the Appellant's assertion that her father is a conservative Muslim. In the Appeal, counsel argued that the RPD erred in fact in finding its plausibility findings that the Appellant would not be a victim of her father given that she was allowed to attend university, work away from home at night, and to travel in taxi. Counsel indicated that there was no evidence on the record that Muslim fathers in Cairo would never allow their daughters to go to university and/or to work. As such, the RPD did not base its plausibility findings on evidence, rather, it made its negative plausibility finding on the RPD's own view of what a conservative Muslim father would or would not do. [31] The RAD notes that the RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and it may reject evidence if it is not consistent with the probabilities affecting the case as a whole.17 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of the evidence, there must be a basis in the evidence to support the inferences.18 Considerable caution is required when assessing the norms and patterns of different cultures and the practices and procedures of different police, political, and social systems.19 The Federal Court has cautioned about the perils of drawing inferences from cultural generalizations20 and relying on stereotypical profiles.21 [32] The RAD concurs with counsel that the RPD erred in fact when it found that it was implausible that the Appellant could not be from a conservative Muslim family because she was allowed to attend university and to work at night. The RPD based its negative finding on facts; however, the RPD's interpretation of these facts was based on a stereotype or generalized perception of how a conservative Muslim family might function. The RPD did not cite any specialized knowledge concerning Muslim culture or traditions, and it did not seek to support its findings on conservative Muslim family practices on the documentary evidence. As such, the RAD finds that the negative plausibility findings were not reasonable, as they were not grounded in the evidence and were based on the RPD's speculative view of conservative Muslim behaviour. [33] The RPD found the allegations that the Appellant was sexually assaulted by police was not plausible given that the Appellant did not explain how her taxi was being frequently targeted for being stopped, and why the police would touch her inappropriately for being in a taxi late at night. The RPD also found that the failure of the Appellant to report the assaults to police or to her employer undermined the plausibility of the allegations. Counsel argued that the RPD erred in fact in its negative plausibility finding regarding the police assaults based on its own presumption of what police would and would not do and with disregard to the documentary evidence before it. The RPD also erred in finding a negative inference to the Appellant's failure to report incidents of abuse to the police, as this finding did not take into consideration the particular circumstances of the Appellant and was based on North-American standards of behaviour. [34] Again, the RAD concurs with counsel that the RPD's negative plausibility findings were not supported in the evidence and were based on the RPD's subjective assessment of what is or is not plausible. The RAD also noted that the Appellant made reference to a curfew and to road blocks within the city which could have reasonably explained why the Appellant had been stopped by police. In addition, the RAD noted that the RPD's findings regarding the Appellant's failure to report to police or to her employer failed to take into consideration the Gender Guideline.22 This issue will be addressed further below. [35] Given the analysis above, the RAD finds that the RPD erred in fact as its negative plausibility findings were not supported by the evidence and were based on generalizations regarding the behaviour of a conservative Muslim family and generalizations regarding the behaviour of a Muslim woman who claimed to be a victim of sexual assault. As such, the RAD finds the RPD's individual findings and conclusions as a whole were not reasonable, as they were not justified by the evidence. Failure to Address the Evidence Before It [36] In its Reasons and Decision, the RPD found that the documentary evidence shows that women in Egypt face harassment and discrimination but that the Appellant did not establish that the discrimination would amount to persecution. Counsel argued that the RPD erred by failing to address the submissions and documentary evidence that went against its finding that the Appellant did not establish a serious possibility of persecution in Egypt. [37] The RAD is cognizant that an adverse finding of credibility must have a proper foundation in the evidence. The RPD can err by ignoring evidence, misapprehending or misconstruing evidence, or by basing its conclusions on speculation. If a finding of fact on an issue which was material to a finding of lack of credibility was made without regard to the evidence, the RPD's decision will generally be overturned.23 The Federal Court has been clear that, when assessing the credibility of a claimant, it is important to consider all of the evidence, including oral and documentary evidence.24 The RPD should not selectively refer to evidence that supports its conclusions without also referring to evidence to the contrary.25 It is only necessary to refer explicitly to evidence that is directly relevant to the issue being addressed, and that which otherwise may appear to be in conflict with the conclusion reached.26 [38] Other than the one brief finding cited above regarding the situation of women in Egypt, the RAD finds that the RPD's decision failed to mention the evidence before it, in the documentary package, as well presented by counsel in the submissions, regarding the situation of women in Egypt, especially women who are victims of assault and who fear honour crimes. The Appellant argued that she feared being killed by her father because she brought shame on her family for leaving the country without permission. The RPD's Reasons and Decision did not address this allegation, despite the Appellant's oral testimony and the documentary evidence in support of honour killings in Egypt. Given the lack of mention, the RAD finds that the RPD erred in fact by ignoring evidence on the record that went against its determination. As such, the RAD finds that the RPD's findings regarding the treatment of women in Egypt were not reasonable. Gender Guideline [39] In the pleadings, counsel argued that the RPD disregarded the Appellant's circumstances in its analysis. The RPD disregarded evidence that the Appellant was a young, unmarried woman under the control of her father. The pleadings did not specifically cite or make reference to the application of the Gender Guideline;27 however, a reading of the arguments points directly to the fact that the RPD disregarded evidence as to the Appellant's allegations that were rooted in her status as a woman. [40] Justice Shore has confirmed that the Gender Guideline is an instrument that is now firmly rooted in immigration decisions; its objective is to foster a consistent approach to claims by women who fear persecution by reasons of their gender.28 The RAD is cognizant that it is presumed that the RPD has implemented the Gender Guideline29 despite mentioning them in the reasons. The RAD finds, however, that this is not the case in this appeal. The RAD finds that the RPD did not assess the evidence presented by the Appellant based on the Gender Guideline. For example, the RPD did not consider the challenges that the Appellant might face as a woman in reporting the assaults by police to her employer or to police authorities. While the RPD might have come up with the same negative credibility finding on the Appellant's failure to report to police or to her employer, the Gender Guideline directs the RPD to consider the particular circumstance of the Appellant as a woman in making the findings. A reading of the Reasons and Decision as a whole indicate that the RPD failed to consider and apply the Gender Guideline in its analysis of the facts before it. As such, the RAD finds that the RPD's findings were not reasonable as they failed to take into consideration the particular situation of the Appellant, who alleged gender-based persecution at the hands of a workplace colleague, police, and her family. Credibility Concerns [41] The RAD found that the RPD's decision was not reasonable based on the errors cited above. The RAD did, however, find that the RPD raised several credibility concerns regarding the Appellant's evidence and claim which preclude the RAD from substituting the determination with a positive determination. In addition, the RAD's review of the totality of the evidence presented raises additional concerns which the RAD finds require further exploration and explanation by the Appellant. [42] For example, the RPD noted concerns with the Appellant's evidence and explanations regarding the issuance of her visa in Saudi Arabia. The record identified concerns with the residency of the Appellant's father in Saudi Arabia. In addition, no explanation was provided on the record as to why Canadian officials would process a student visa application in Saudi Arabia for a citizen of Egypt, rather than requiring the Appellant to apply at the visa office in Cairo. Perhaps, it would be helpful for the next hearing for the RPD to verify if the Appellant or her father were ever residents of Saudi Arabia and, if yes, during what periods. In addition, perhaps the RPD could obtain confirmation whether or not it would be possible for a person who had no status in Saudi Arabia, as the Appellant alleged, to have a student visa issued there. [43] The RPD cited concerns with the Appellant's letter of employment in its Reasons and Decision. The RAD concurs with the RPD that the Appellant's name and her title (XXXX XXXX) appear to be written in a different font than the remaining document. In addition, the RAD noted that the end date of the Appellant's employment (XXXX XXXX, 2013) did not conform to her BoC narrative which stated: "I submitted my resignation from my job and went to the airport from the place of work." This would mean that the Appellant worked up until XXXX XXXX, 2013, and not XXXX XXXX XXXX 2013. Given that the employment letter appears to be altered as evidenced by the different fonts, given the inconsistent end date, and given that the Appellant's allegations focused on incidents at work and on the way home from work, perhaps it would be helpful for the RPD to have the letter and its contents verified. [44] The RPD addressed the plausibility of the Appellant's allegations that she was told by a woman at the airport to go and stay with a person in London, who happened to have submitted a visa application with similar facts. The RPD plausibility findings in relation to this issue were not challenged in the appeal, and were reasonable in that they were supported by the evidence and fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. The RAD finds that this issue can have an impact on the assessment of the overall credibility of the Appellant at the next hearing. [45] The RAD also noted a potential inconsistency regarding her passport. The Appellant's BoC indicated that: "later on my friend was able to convince me. I applied for my passport without the knowledge of my father and sent it to my friend with some of the paperwork required by the travel procedures." This account occurs in the BoC after the alleged problems with police which began in XXXX of 2013. The Appellant's passport was issued on XXXX XXXX, 2011, which pre-dated the allegations in the BoC and which do not conform to the statement in the BoC that she obtained the passport after the incidents of persecution. In fact, the passport was issued in XXXX of 2011 which pre-dated the start date for her employment in the Appellant's letter (XXXX XXXX, 2011) and in her IMM5669 (2011/XXXX).30 This is of potential concern as the Appellant indicated the catalyst for her fear in Egypt and her need to leave the country on persecution which occurred as a result of her employment and her returning home late at night. [46] The Appellant was in possession of a genuine passport and a valid visa, as of XXXX XXXX, 2013. The Appellant alleged that she had been sexually assaulted by police starting in XXXX of 2013. The issue of delay in departure may become an issue in respect to the Appellant's subjective fear. [47] The Appellant's psychological assessment will be before the next RPD panel. The RPD may wish to explore the Appellant's motivation for obtaining the assessment, the credentials of the writer, and the Appellant's explanation for inconsistencies between the contents of the assessment and the BoC allegations. [48] The RAD considered whether it had the jurisdiction to substitute the decision as requested in the pleadings. Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: the Immigration and Refugee Protection Act. Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." While the Divisions have many of the same powers, their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.31 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing32 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [49] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD's ability to consider evidence. The RAD is not a tribunal of first instance but reviews decisions made by the RPD or considers the decision in light of new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.33 The RAD's authority to consider new evidence and hold hearings in the case of appeals brought by a refugee protection claimant, unless responding to evidence presented by the Minister, is limited to evidence that arose after the rejection of the 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.34 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.35 In the matter before it, the RAD has not accepted the new evidence provided, and therefore it does not have the jurisdiction to hold a hearing on the matter. [50] Given that the RPD's determinative findings highlighted by the RPD were found not to be reasonable, given the RPD's jurisdiction as a tribunal of first instance to hear claims, given that the RAD can only hold a hearing on new evidence which raises a serious credibility issue, given that no new evidence has been accepted in the appeal, and given the potential credibility concerns which require further analysis cited above, the RAD directs that the appeal be heard de novo. DETERMINATION [51] Based on the totality of the evidence before it, the RAD finds that the RPD's determination that the Appellant's allegations were not plausible was not reasonable. As such, the RAD refers the matter back to the RPD for redetermination, as per s. 111(1)(c) of IRPA. [52] The RAD allows the appeal. (signed) "Daniel McSweeney" Daniel McSweeney June 21, 2014 Date 1 Exhibit P-3, Appellant's Statement, 7 April 2014. 2 Appeal Pleadings, Transcript, pp. 367 - 405. 3 Appeal Pleadings, Psychosocial Assessment, XXXX XXXX, 2013, pp. 304 - 321. 4 Exhibit P-3, Appellant Statement, 7 April 2014. 5 Appeal Pleadings, pp. 142 - 147. 6 Appeal Pleadings, Psychosocial Assessment, XXXX XXXX, 2013, pp. 304 - 321. 7 Chairperson's Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB; Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act Effective date: December 15, 2006 Amended: December 15, 2012. 8 Appeal Pleadings, Psychosocial Assessment, XXXX XXXX, 2013, p. 308. 9 Appellant's Pleadings, BoC, Response to Question 2(a), p. 88. 10 Appeal Pleadings, Articles pp. 322 - 366. 11 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 12 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 13 Ibid. 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 Correa Juarez, Jazmin Alejandra v. M.C.I. (F.C., no. IMM-5-10), Kelen, September 10, 2010; 2010 FC 890, F.C.J. No. 1107. 16 Guideline 4, supra footnote 14. 17 Shahamati, Hasan v. M.E.I. (F.C.A., no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994. 18 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 19 Giron, Luis Fernando Soto v. M.E.I.) (1992), 143 N.R. 238 (F.C.A.) 152. 20 Najeebdeen, Mohamed Saly v. M.C.I. (F.C.T.D., no. IMM-5438-98), Lutfy, July 30, 1999. 21 Tubacos, Zoltan v. M.C.I. (F.C.T.D., no. IMM-1373-01), Kelen, February 28, 2002; 2002 FCT 225. 22 Guideline 4, supra footnote 14. 23 Owusu-Ansah, Charles Kofi v. M.E.I. (1989), 8 Imm. L.R. (2d) 106; 98 N.R. 312 (F.C.A.). 24 Owusu, Kweku v. M.E.I., (F.C.A., no. A-1146-87), Heald, Hugessen, Desjardins, January 31, 1989. 25 Polgari 011 ee: this peal. , Imre v. M.C.I. (F.C.T.D., no. IMM-502-00), Hansen, June 8, 2001; 2001 FCT 626. 26 Bains, Iqbal Singh v. M.E.I. (1993), 20 Imm. L.R. (2d) 296 (F.C.T.D.). 27 Guideline 4, supra footnote 14. 28 Abbasova, Olga Borisovna v. M.C.I., (F.C., No. IMM-2940-10), Shore, January 14, 2011; 2011 FC 43. 29 Guideline 4, supra footnote 14. 30 RPD's Record, IMM5669, Question 8, p. 2 of 4. 31 IRPA, s. 107. 32 IRPA, s. 170. 33 IRPA, s. 110(3). 34 IRPA, s. 110(4). 35 RAD Rule 57. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-02198