TB3-05207

RAD File No. / N° de dossier de la SAR : TB3-05207 TB3-05208 TB3-05209 TB3-05210 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 8, 2013 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Maria L. Capulong 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 XXXX XXXX XXXX and XXXX XXXX XXXX (the Appellants), citizens of Afghanistan, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have not submitted new evidence in support of their appeals, and they do not request an oral hearing. The Appellants ask that the Refugee Appeal Division (RAD) allow their appeals and either find them to be Convention refugees or refer the matter back to the RPD for redetermination. DETERMINATION [2] These appeals are allowed. Pursuant to Section 111(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers these claims to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [3] The Appellants alleged before the RPD that they owned farmland in Afghanistan and were opposed to the Taliban's demand that poppies be grown on that land in order to produce opium. As a result, the Taliban beat the man who was farming their land and kidnapped and abused the man's daughter. The principal Appellant made a complaint to the police, but they did not help him. After leaving the police station, he was attacked and held for three days, during which time, he was beaten, threatened, and starved. Upon release, he went to another police station to seek help, but that evening, his home was attacked by a group of men, and he and his family went into hiding before leaving Afghanistan on XXXX XXXX, 2013. They arrived in Canada on XXXX XXXX XXXX 2013 and made refugee claims on February 25, 2013. [4] The Appellants' applications for refugee protection were heard on April 26, 2013. By a decision of June 6, 2013, the RPD rejected those claims. The panel found that the principal Appellant's testimony was not credible with respect to the central allegations of his claim. The RPD also considered the testimony of the female Appellant, and concluded that the one incident she alleged did not constitute persecution under Section 96 of IRPA or a risk to life or of cruel and unusual treatment or punishment under Section 97. [5] The Appellants submits that the RPD was overly microscopic in analysing evidence, and misstated evidence that led to unreasonable findings of fact; erred in law by making implausibility findings that are not supported by evidence; failed to consider corroborating evidence; and erred in its analysis of persecution for the female Appellant's refugee claim. ANALYSIS Standard of Review [6] The Appellants submit that the RPD erred in its analysis of credibility and the treatment of the evidence before it, and these allegations raise questions of fact. [7] The Appellants make no submissions on the standard of review to be applied to the RPD's decision. They do allege "unreasonable findings of fact" on the part of the RPD, which suggests a deferential standard, and they suggest that the Board "erred in law" in making implausibility findings, which suggests a standard of correctness for such findings.1 [8] 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. [9] In Dunsmuir,2 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, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,3 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. [10] 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:4 (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. [11] 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.5 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. [12] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, 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. [13] The nature of the question in issue: In this appeal, the question in issue is one of fact. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.6 While the Appellants suggest that the RPD erred in law by making unsupported plausibility findings, the RAD notes that, in the judicial review context, questions of plausibility have also been subject to a deferential standard of review.7 [14] 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. [15] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.8 Section 3(2)(e) of IRPA identifies as 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. [16] 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. [17] 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." [18] 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. [19] 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,9 and each can take notice of information and opinion within its specialized knowledge.10 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,11 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 proceeding.12 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,13 other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand. [20] 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.14 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...." [21] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, 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. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The question in issue is one of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.15 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 and credibility 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 the RAD, as the RPD proceedings would be reduced to little more than preliminary inquiries. [22] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD, including findings of implausibility. The notion of deference to administrative tribunal decision-making requires 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.16 [23] The appropriate standard of review in this appeal 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.17 The RPD's Findings [24] The Appellant argues that the RPD made a number of errors in its decision. [25] Was the RPD microscopic, or did the RPD misstate evidence? The RPD found that the principal Appellant's evidence was not consistent in respect to the alleged beating of the farmer and the kidnapping of the farmer's daughter. The Appellants submit that their testimony remained consistent throughout the hearing-that the alleged incidents occurred on the same day but at different times. They concede that the principal Appellant was inconsistent about the month of the incident, but he maintained a range between October and November. The Appellants ask the RAD to note that the use of dates is not as common in Afghan culture as it is in the West. The Appellants also contest the RPD's finding that the principal Appellant testified that the farmer was beaten when the Taliban returned his daughter. [26] The RAD has carefully reviewed the Appellants' evidence on this matter. Their BoC narrative states that: In XXXX of 2012 I received a call from XXXX, the wife of the farmer running the farm and she told me to come right away. I went in about a week because I wasn't well. Upon arriving there I saw that the land was still filled with opium flowers. I went to the farmer, XXXX, and I couldn't believe the tragedy. XXXX had told the member of the Taliban running the drug ring there that he couldn't be part of this operation, and that he needed the plants removed or he would remove it themselves. At that moment the XXXX took the farmer's 11 year old daughter forcefully and left. Then they returned within 15 minutes without the daughter and beat the farmer to a bloody bath and told him that they would keep the daughter for a few days and then return her. They did return her but she wasn't the same, she was sexually and physically assaulted for a few days. I was furious and I felt like it was my fault. When I saw XXXX he still have the bruises from the beating....18 [27] The RAD understands the narrative to allege that, in XXXX of 2012, the principal Appellant learned that the Taliban had kidnapped the farmer's daughter, beat the farmer minutes later, and returned the daughter after a few days. According to the BoC, the kidnapping and the beating took place on the same day, though it does not state the day or even the month when this occurred, only the month in which the principal Appellant learned of this. The narrative makes it clear that the farmer was beaten around the time his daughter was taken, not when his daughter was returned. [28] In his hearing, the principal Appellant testified that he "saw XXXX in a very bad state." When asked if he remembered the date, he replied, "It was the second week of XXXX 2012." The panel asked him, "And do you know when they captured [XXXX] daughter and raped her?", and he replied, "I think it was in the month of XXXX towards the end of XXXX which could be towards XXXX so somewhere between XXXX or let's say early XXXX or mid-XXXX XXXX" The principal Appellant was asked when XXXX was beaten, and the principal Appellant replied, "It was early XXXX or late XXXX somewhere in between, yes in XXXX XXXX"19 [29] The RPD asked the principal Appellant why he had apparently provided two different dates, and the Appellant then testified that "When they returned his daughter, they hit XXXX XXXX]." When the panel asked, "But still... earlier you said they kept his daughter for three or four days.... So that is still then two different occasions, two different dates...." and the Appellant replied, "When they returned his daughter, that's when they hit him."20 [30] The principal Appellant's counsel asked him when XXXX daughter was kidnapped. The Appellant replied, "It was prior to me arriving there; it was a week before to me arriving there." As the RAD understands the evidence, this placed the kidnapping in or around XXXX of 2012. The Appellant also told his counsel that XXXX was beaten on the same day his daughter was kidnapped.21 [31] In the RAD's view, the principal Appellant gave inconsistent and unexplained testimony about an important matter. While his BoC narrative claims that the farmer was beaten on the same day his daughter was kidnapped, his oral testimony suggests otherwise. He testified that the daughter was kidnapped in XXXX, or perhaps as late as mid-XXXX, and shortly afterward he placed XXXX beating in late XXXX or early XXXX. His testimony in response to counsel's questions places both events in XXXX XXXX and it makes little sense that he would earlier have placed the kidnapping as early as XXXX. His narrative indicates that the farmer was beaten on the same day his daughter was taken; his oral testimony claimed that the beating took place when the daughter was returned after being kidnapped for three or four days. The actual dates matter little; what is important here is that the principal Appellant's testimony placed the kidnapping and beating in two different time periods, when his narrative claims they happened on the same day. These are not incidents that happened many years prior to the Appellants' refugee hearing; their claims were heard in April of 2013, and the inconsistent evidence was about serious events that allegedly happened only six months earlier. [32] The RPD also found an inconsistency in the Appellants' evidence about whether opium flowers were present on the land when the principal Appellant arrived. The Appellants challenge this finding, submitting that there was no contradiction, only an elaboration in the principal Appellant's testimony. [33] The principal Appellant's BoC narrative states that, "Upon arriving there I saw that the land was still filled with opium flowers."22 In the refugee hearing, he was asked why the Taliban was angry with XXXX, and he replied, "Because he had got rid of the poppies." When confronted with his earlier testimony that there were still flowers on the land, he then claimed, "Yes, he destroyed some of them were remaining he had not destroyed all of them all together." When asked to explain why his BoC does not include the alleged removal of some of the flowers by XXXX, he replied, "It could have been forgotten."23 [34] While the Appellants argue that the oral testimony was simply an elaboration on the BoC, the RAD disagrees. There is a significant difference between the allegation, in the BoC, that the land was filled with flowers, and the principal Appellant's oral testimony that XXXX had provoked the Taliban by getting rid of the flowers. While the principal Appellant attempted to remedy this inconsistency by claiming that both versions are true-some flowers remained, while XXXX had removed others-this is consistent with neither the BoC narrative nor the principal Appellant's initial oral testimony. [35] The RPD also found inconsistencies between the principal Appellant's BoC and his testimony about an alleged attack on his home by the Taliban. The panel found that the narrative indicates that leader XXXX XXXX had identified himself while knocking on the door, while the principal Appellant's testimony indicated that he knew it was XXXX because he recognized his voice. The Appellants submit that the only omission from the BoC was that there was knocking on the door at the time of the attack, which is a minute detail in the context of a horrible attack. [36] The Appellants' BoC narrative alleges, "That night we had an attack on our house, it was horrible. We heard our windows break and we ran out of the back of the house. We hid in the back of our neighbour's house hoping not to be found. We heard yelling, screaming, and lots of gun shots."24 In his oral testimony, the principal Appellant explained that there was knocking on the door, and he refused to open the door, as he recognized XXXX XXXX voice.25 He was asked why this information was not included in his narrative, and replied, "I thought you would be asking about...I didn't write all the details."26 [37] The Appellants submit to the RAD that "the men who was at the Appellants' home that night of the attack knocked at the door is not as a significant information as the fact that they yelled, screamed and fired gun shots at the Appellants' home."27 The RAD disagrees. The Appellants allegedly fled Afghanistan because they fear XXXX XXXX and his associates. In this context, it is reasonable to expect that they would include in their BoC narrative the fact that XXXX was involved in an attack on their house. When they failed to do so, and yet confirmed that their narrative was complete, true, and correct, this gave rise to valid credibility concerns. [38] The RAD cannot accept the Appellants' argument that the RPD's credibility findings discussed above were microscopic or based on misstated evidence. However, as will be discussed below, the RPD failed to consider the principal Appellant's psychological state and functioning when assessing his testimony and credibility, and this failure renders all of the RPD's credibility findings unreasonable. [39] Did the RPD make unreasonable plausibility findings? The Appellants argue that the panel did so throughout its decision. [40] The RPD did not "find it reasonable that the farmer's word that the flowers were going to be removed would have been sufficient reassurance to the claimant, as the farmer had already planted the flowers without his knowledge or permission." In the RPD's view, it was not plausible that the principal Appellant would not have returned to the farm or communicated with the farmer for five months following the discovery of the poppy flowers, as he had been shocked upon finding the flowers and was worried about their presence.28 The Appellants submit to the RAD that the RPD did not consider their explanation: that the principal Appellant expected the farmer to comply with his orders, as he has known the farmer for over ten years and is his landlord. They also argue that the panel disregarded the principal Appellant's explanation that he had been sick, which delayed his travel to view the land. [41] Citing Giron,29 the RPD noted that it is entitled to make reasonable findings based on implausibilities, common sense and rationality. However, the RAD observes that the Federal Court has also cautioned that implausibility findings should be limited to the "clearest of cases:" A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992) at 8.22]30 [42] Here the RPD found it implausible that the principal Appellant did not return to his land earlier to check whether the poppies were being grown, especially in light of the fact that the farmer had already planted poppies without his permission. In the RAD's view, this is simply not the clearest of cases and not a situation where the RPD could reasonably make a plausibility finding. It did not consider the Appellant's testimony that he had known the farmer for many years and trusted him to destroy the poppies, or that he had planned to go even before he received a telephone call from the farmer's wife. The RPD's finding here is not justifiable, transparent, or intelligible, and is therefore unreasonable. [43] The RPD also found it implausible that XXXX XXXX and his men did not try to enter the Appellants' house or break down the doors and instead knocked and fired their guns. In the RAD's view, the Appellants cannot be expected to know why the agents of persecution acted as they did, and the RPD does not make it clear why it was implausible for the assailants to remain outside of the house. Perhaps they were afraid that the occupants of the house were armed. Perhaps they knew or assumed that the Appellants had left. Perhaps their intention was to terrorize, but not kill, the Appellants. The RAD cannot know what was in the minds of XXXX and his associates, nor can the Appellants, nor could the RPD. Findings of implausibility should only be made in the clearest of cases, and the RPD erred by making such a finding in respect to this evidence. [44] Did the RPD fail to consider evidence? The Appellants argue that the RPD did not consider two letters, one from XXXX and one from the principal Appellant's brother-in-law, nor did the RPD explain why these letters were not considered. They also argue that the RPD erred when it failed to consider a psychological assessment which discusses the principal Appellant's psychological state and which reports a diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [45] The RPD is not required to refer to each and every piece of documentary evidence before it. However, the more important the evidence not specifically mentioned and analyzed in the Board's reasons, the more willing the Federal Court is to find that the RPD made an erroneous finding of fact without regard to the evidence,31 and the same reasoning seems applicable to the RAD's review of the RPD's reasons. [46] In the RAD's view, when the RPD reaches a conclusion that is related to or contradicted by a particular document, the RPD should explain its reasons for giving little or no weight to that evidence. [47] The RPD made reference to and accepted the Appellants' identity documents, but did not acknowledge or discuss the letters. It disbelieved the Appellants' allegations about forced cultivation of opium on their land, but did not address a letter from XXXX which may corroborate those allegations.32 The RAD notes that the letter itself may raise further credibility concerns-it may be inconsistent with other evidence about whether XXXX destroyed the flowers, or whether he was beaten-but finds it unreasonable that the RPD did not consider whether the letter, or a similar letter from the principal Appellant's brother-in-law, corroborated the Appellants' allegations. [48] The Appellants also presented to the RPD an assessment which speaks to the principal Appellant's psychological functioning.33 It reports that he tries to avoid thoughts of Afghanistan and is overwhelmed with negative emotions when he does think of what happened to him and his family there. He is fearful, has flashbacks, and is easily startled. He was diagnosed as suffering from XXXX, with daily symptoms including avoidance and hyper-arousal. [49] The RPD rejected the claims of the principal Appellant and his sons because it did not believe the evidence of the principal Appellant. There is no indication in the RPD's reasons that it considered the principal Appellant's psychological state or functioning when it found him to be generally lacking in credibility. The RPD is entitled to make a credibility finding based on the evidence before it, and the panel may reject a psychological report if it has a reasonable basis to do so. However, it is unreasonable for the RPD to impugn a refugee claimant's credibility without considering whether his evidentiary difficulties can be fully or partly explained by his psychological condition. [50] Did the RPD err in finding that the female Appellant did not experience persecution? The RPD considered the female Appellant's evidence that she started a poetry circle for women, and as a result, someone broke the windows of their home and painted the message "education is not for women." The panel found that this one incident did not constitute persecution, and that the female Appellant did not present any evidence that she would face a serious possibility of persecution should she return to Afghanistan. [51] The Appellants argue that the panel erred in failing to consider that the female Appellant is an Afghan woman who strongly believes in promoting women's rights and equality. As the RPD did not question the credibility of the female Appellant's views or activities, it was required to determine whether she has a well-founded fear of persecution in Afghanistan based on her gender and political opinion. [52] The RAD agrees. The Federal Court of Appeal has repeatedly emphasized that it is the well-foundedness of a fear of future persecution that is to be considered; a refugee claimant does not need to prove any past persecution to establish a risk of future persecution.34 Whether or not the incident experienced by the female Appellant was persecutory, the RPD was required to assess a risk of future persecution, as it did not doubt the veracity of her claim to "have always believed in women empowerment" and to have convened meetings which discussed women's rights.35 In assessing the risk of future persecution, the RPD could be expected to consider objective evidence that was before it. For example: Human rights activists reportedly face threats and harassment. Defenders of women's rights have faced discrimination and intimidation by the authorities. They also face systematic violence and threats at the hands of anti-Government armed groups, local warlords and militias. Women who are vocal in defense of their own rights are sometimes perceived as questioning Islamic values, and may, as a consequence, face death threats and intimidation by the Taliban and other conservative elements.36 [53] It was necessary for the RPD to consider the female Appellant's profile and risk of future persecution in light of such objective evidence, and its failure to do so constitutes an error. DISPOSITION [54] While there were indeed some significant contradictions and inconsistencies within the Appellants' evidence, the RPD unreasonably made adverse credibility findings without considering the principal Appellant's psychological condition. The RPD also erred in making unreasonable implausibility findings, in failing to explain how it considered corroborating evidence, and in failing to consider evidence of the risk of future persecution for the female Appellant. As a result of these errors, the RPD's decision does not fall within a range of possible, acceptable outcomes defensible in respect of the facts and the law, and cannot stand. CONCLUSION [55] Pursuant to Section 111(c) of IRPA, the Refugee Appeal Division sets aside the decision of the Refugee Protection Division and refers the Appellants' refugee claims to the Refugee Protection Division for re-determination by a differently-constituted panel. These appeals are allowed. (signed) "Edward Bosveld" Edward Bosveld November 8, 2013 Date 1 Appellants' Record, p. 306, Memorandum, para. 16. 2 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 Newton, para. 43. 5 IRPA, Sections 96 and 97. 6 Khosa, para. 89. 7 Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), at pp. 316 and 317. 8 IRPA, Section 3(2)(a). 9 IRPA, Sections 170(g) and 171(a.2). 10 IRPA, Sections 170(i) and 171 (b). 11 IRPA, Section 170(b). 12 IRPA, Section 110(3). 13 Khosa, para. 89. 14 Newton, para. 80. 15 Khosa, para. 89. 16 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 17 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 18 Appellants' Record, p. 75, Basis of Claim, Narrative, Lines 77-84. 19 Appellants' Record, p. 25, Transcript. 20 Appellants' Record, p. 29, Transcript. 21 Appellants' Record, p. 49, Transcript. 22 Appellants' Record, p. 74, BoC Narrative, lines 73-74. 23 Appellants' Record, p. 26, Transcript. 24 Appellants' Record, p. 77, BoC narrative, lines 132-135. 25 Appellants' Record, p. 38, Transcript. 26 Appellants' Record, p. 41, Transcript. 27 Appellants' Record, p. 314, Memorandum, para. 35. 28 RPD's Reasons, para. 11. 29 Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.) 30 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776, para. 7. 31 Dessie v. Canada (Citizenship and Immigration) 2011 FC 1497, para. 7-8. 32 Appellants' Record, p. 144. 33 Appellants' Record, pp. 166-172. 34 Saliban v. Canada (1990), 11 Imm. L.R. (2d) 165 (F.C.A.). 35 Appellants' Record, pp. 92-93, BoC Narrative, Lines 23, 24, and 31. 36 RPD's Record, p. 191, National Documentation Package for Afghanistan (February 2013), Item 1.5, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, p. 13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-05207 TB3-05208 TB3-05209 TB3-05210