TB4-01391

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 : TB4-01391 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 14, 2014 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola 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, a citizen of Nigeria, has appealed a negative determination of the Refugee Protection Division (RPD) dated January 13, 2014. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD ) confirms the RPD's determination that the Appellant is not a Convention refugee nor is he a person in need of protection. BACKGROUND [3] Mr. XXXX (the Appellant) alleges that he fears death threats from his father-in-law, a village herbalist, and police who are cooperating with his father-in-law. The Appellant alleges that, before marrying his wife in 2010, his father-in-law informed him that he and his wife were required to participate in a seven-day ritual at the Osun River. The Appellant refused to participate in the ritual as he felt that this went against his beliefs as a Christian. [4] The Appellant discovered that his wife had breast cancer in XXXX 2013. On XXXX XXXX, 2013, the Appellant informed his family and his wife's family of his wife's diagnosis. The Appellant's father-in-law blamed the Appellant for the illness, as the Appellant had refused to participate in the ritual. The Appellant alleges that, two nights after the confrontation with his father-in-law, two men with their faces covered ran into his house, dragged him out of bed and beat him. These men threatened that the Appellant would die if his wife died. The Appellant alleged that he reported this incident to the police who refused to provide protection, as this was seen as a family matter. [5] The Appellant left Nigeria on XXXX XXXX, 2013. Immediately after his arrival in New York, the Appellant came to Canada by bus on XXXX XXXX, 2013. The Appellant alleges that he learned that his wife had been rushed to the hospital when he telephoned his sister on XXXX XXXX, 2013. The Appellant was informed on the morning of XXXX XXXX, 2013 by his father that his wife had died. Following the death, the Appellant was threatened with death by his father-in-law. [6] The Appellant fears that he cannot return to Nigeria, as his life is in danger. The Appellant also fears that the police would not provide him with protection, as he learned from his sister that the police had agreed to assist his father-in-law to deliver him upon his return to Nigeria. The Appellant made his claim for refugee protection in Toronto on October 25, 2013. [7] The Appellant had a refugee determination hearing on December 17, 2013. The RPD rendered a written decision on January 13, 2014 rejecting the claim. The RPD made several findings of fact, which it argued undermined the credibility of the Appellant's allegations. Firstly, the RPD drew a negative inference regarding the credibility of the Appellant, the veracity of his allegations, and the reliability of the affidavits presented by the Appellant's sister based on a concern with inconsistencies in the profile of the agent of persecution (the Appellant's father-in-law). The RPD found that the Appellant had exaggerated his father-in-law's power and position in Nigeria in an attempt to bolster his claim for refugee protection. The RPD also drew a negative inference from the omission of the Appellant's fear of the herbalist from his Basis of Claim (BoC) narrative and the fact that the Appellant's son was not subject to traditional rituals after his birth. The RPD also found credibility concerns with a laboratory report provided in support of the Appellant's wife's diagnosis and the Appellant's evidence and testimony regarding his employment with XXXX XXXX. [8] The RPD found that the Appellant lacked credibility and that this negative credibility finding extended to all relevant evidence emanating from his testimony. The RPD also found that it could not place weight on the documents provided from Nigeria given that country condition documents indicate that corruption is endemic in Nigeria, and the use of forged documents is widespread. Furthermore, information contained in genuine official documents is often false, inaccurate or cannot be relied upon. [9] The Appellant's counsel submitted pleadings on March 14, 2014, which indicated that the RPD made several errors of fact, and mixed fact and law. Counsel argued that the RPD made negative credibility finding on the issues that were not central to the claim. As such, the RPD erred in its finding of fact that the Appellant and his allegations were not credible, as this finding was based on marginal or tangential issues. Counsel argued that the RPD's approach demonstrated "zeal to find the Applicants unbelievable". Counsel argued that, even if numerous aspects of the Appellant's testimony were not credible, the RPD failed to properly consider credible evidence in regard to the claim. The RPD also erred in fact by finding that the documents submitted were not genuine based on the prevalence of fraudulent documentation in Nigeria. Counsel argued that the RPD erred by ignoring the evidence before it which corroborated the claim. Finally, counsel argued that the RPD erred in mixed fact and law by not performing a thorough analysis of the claim under section 97. [10] The appeal pleadings also contained new evidence which consisted of: a letter from the laboratory, Internet documents regarding the relationship between staphylococcus and cancer, and documents that clarify that the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [11] Counsel asked that the appeal be allowed based on the new evidence. In the alternative, the Appellant requests that the matter be referred back to the RPD for redetermination. Treatment of New Evidence [12] As outlined below, the RAD finds that the RPD's negative credibility findings regarding the Appellant's testimony regarding his employment and the content of the lab report were found not to be reasonable, and were not determinative of the claim. As such, the new evidence addressing these concerns was not relevant or material to deciding the appeal, and therefore it was not entered as evidence. STANDARD OF REVIEW [13] The RAD focused on three issues in assessing the appeal: a) Did the RPD err in its finding of fact that the Appellant exaggerated his father-in-law's power and position in Nigeria to bolster his claim? b) Did the RPD err in its credibility findings? and c) Did the RPD err by not performing an adequate s. 97 analysis? [14] In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,1 which take into account the list of factors in Dunsmuir.2 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. These factors include: 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. [15] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. [16] Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,3 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [17] 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. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [18] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;4 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA highlighted below. [19] 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.5 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 hearing6 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. [20] 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.7 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.8 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.9 [21] Given that the RPD has held a hearing on the totality of the evidence, given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD 's authority to consider new evidence is limited in IRPA, the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".10 [22] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".11 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.12 [23] Counsel argued that the RAD erred in mixed fact and law by not performing a thorough s. 97 analysis. Given the analysis above, the RAD affords the RPD with deference and considered the reasonableness of the determination for the alleged errors of fact, and the alleged error of mixed fact and law. ANALYSIS OF THE MERITS OF THE APPEAL [24] As outlined above, the RAD focused on three issues in assessing the appeal: a) Did the RPD err in its finding of fact that the Appellant exaggerated his father-in-law's power and position in Nigeria to bolster his claim? b) Did the RPD err in its credibility findings? c) Did the RPD err by not performing an adequate s. 97 analysis? ANALYSIS Exaggeration of Father-In-Law's Power [25] The RPD found that the Appellant exaggerated his father-in-law's power and position in Nigeria which was an attempt to bolster his claim. This finding was based on the Appellant's failure to mention in his BoC narrative that his father-in-law was a chief in his village, and was a leader of the People's Democratic Party (PDP). These facts came to light in the affidavit of the Appellant sister.13 In the pleadings, counsel argued that the RPD erred in its finding that the Appellant exaggerated his claim as the Appellant had the opportunity to expand on his evidence at the refugee hearing and cited case law which argued that members should not draw negative inferences in cases where claimants are merely adding details to what is already in the narrative. The RAD considered this line of argument and found that it does not apply in the case before it for the reasons highlighted below. [26] The Appellant was asked at the hearing to explain why he did not mention that his father-in-law was a chief or was a leader of the PDP party. He explained that he could not remember things as a result of his recent loss of his wife. The RPD found this explanation not to be sufficient given that it would have been expected that the Appellant's emotional state could not account for the omission in his BoC narrative of the fact that his father-in-law was a party leader for the ruling party in Nigeria. [27] The Appellant did not explicitly state in his BoC narrative the nature and source of his father-in-law's power. The record shows that the Appellant affirmed at the beginning of the hearing that the contents of his BoC narrative were complete, true and correct. The Appellant's narrative was significantly detailed, taking up 3.25 single-spaced typewritten pages. The narrative contained a significant level of detail; however, it only remotely referred to the agent of persecution's influence in the second last paragraph where he indicated: "He even boasted and said that the police will not be there to protect me because he had police friends in high rank." The Appellant closes his BoC narrative by indicating that the agent of persecution has contacts in high places. These statements did not explain why or how the agent of persecution had high ranking police friends or contacts in high places. In addition, the Appellant had the opportunity to make reference to the agent of persecution's role as chief and his political influence as a local leader of the PDP party in response to questions to 2b (who would harm you) and 2c (efforts to obtain state protection) in his BoC form. [28] The RAD concurs with the RPD that the profile of the Appellant's father-in-law was not an insignificant detail or a detail which could have been excluded from the BoC narrative. The entire claim is premised on the Appellant's fear of his father-in-law based on his power to make good on his threats, and the Appellant's argument that the agent of persecution could reach him throughout Nigeria as a result of his influence with police. The father-in-law's power came from his role as a chief, and his political influence. [29] The Appellant was represented by experienced counsel at the time that he submitted his BoC form and at the hearing. The Appellant did not provide any evidence to the RPD to attest to any memory or cognitive problems. The Appellant was not an unsophisticated man. In fact, he had completed post-secondary education, and he had over four years of experience in the workforce. Furthermore, the record shows that the Appellant did not provide any independent evidence that would establish his father-in-law's power and position in Nigerian society, the village, or with police, nor did he provide independent evidence to establish that his father-in-law's current existence, or that his influence extended beyond the city of Ilorin or Kwara State. [30] Given that establishing the profile and power of the agent of persecution was central to the claim and not merely a minor detail to be added at the hearing, the RAD finds that the RPD did not err in drawing a negative inference to the Appellant's failure to state that his father-in-law was a local chief and had a leadership role in the governing party of Nigeria in his BoC narrative. If the Appellant's father-in-law owed his influence to his role as a chief and his role in the PDP Party, it would be reasonable for the Appellant to have made reference to the nature and source of the agent of persecution's power in his BoC narrative. [31] Given that the omission goes to the heart of the claim, the RAD also finds that the RPD did not err in finding that the omission undermined the veracity of the Appellant's allegations. Individual Credibility Findings and Finding of a General Lack of Appellant's Credibility [32] The RPD made several findings of fact, which it argued undermined the credibility of the Appellant as a witness, as well as his overall credibility. For this analysis, the RAD has separated the credibility findings into two groups: findings that were determinative of the claim; and findings which were not determinative of the claim. Non-Determinative Findings [33] In the pleadings, counsel argued that the RPD made negative credibility findings on issues that were not central to the claim (the Appellant's fear of the herbalist, the content of the lab report, the Appellant's employment at XXXX XXXX, and the baptism of the Appellant's son), and therefore the RPD's credibility findings on these issues and the overall finding of a lack of credibility were not reasonable. The RAD carefully considered each of the RPD's findings noted in the preceding sentence. [34] While the RPD supported the negative credibility findings based on the evidence before it, the RAD concurs with counsel that the findings related to the lab report, the Appellant's employment, a fear of the herbalist, and the Appellant's son's baptism did not address the central issues of the claim. When viewed as a whole, the RAD finds that the negative credibility findings highlighted above cannot ground a reasonable finding of a general lack of credibility on the part of the Appellant. Given that these findings were not central to the claim, the RAD finds that the RPD's errors in fact related to the findings were not fatal to the overall determination. Given that the RPD based its negative credibility findings evidence before it, including the Appellant's explanations for the concerns, the RAD finds that there was not sufficient evidence before it to support counsel's argument that the RPD demonstrated zeal to find the Appellant not to be credible. [35] Given that the RPD's findings related to the above-noted issues were found not to be determinative of the claim and were found not to be reasonable, the RAD did not accept the lab report, information on staph infections and breast cancer, and employment documents as new evidence, as they were not relevant or material to the determinative issues of the appeal. Determinative Findings [36] The Appellant depended on the affidavits of his mother and sister, as well as his oral testimony to establish this aspect of the claim. The affidavit from the Appellant's sister14 made reference to the Appellant's father-in-law's position as chief and to his connections with politicians. As outlined above, the RPD reasonably found that the omission of these facts from the Appellant's BoC narrative undermined the credibility of his allegations. The Appellant's sister was not before the RPD, and therefore she could not be questioned on the credibility of her claims regarding the agent of persecution in her affidavit. In addition, the affidavit amounts to a declaration by the Appellant's sister, and there is no evidence that any of the alleged threats and influence of the agent of persecution were verified by the Commissioner of Oaths or supported with any independent evidence such as a police report. Given the inconsistency in the description of the agent of persecution in the Appellant's and his sister's evidence, the RAD finds that the RPD did not err in finding that the affidavit from the Appellant's sister was not reliable. [37] The Appellant's sister also provided evidence in the form of an email15 which indicated that the police were ready to assist the Appellant's father-in-law to perform the ritual. The RPD did not specifically comment on the email in its Reasons. The RAD noted that the email was signed by Juba Wunmi. The affidavit from the Appellant's sister was made under the name Juba Olubumi. The Appellant's BoC indicated that he has one sister named Juba Olubumi. The inconsistency in the name of the Appellant's sister undermines the credibility of the email, as it was in a name that did not conform to the affidavit or the name in the BoC. The source of the email has not been established given that the email was sent from a Hotmail account, which could be established by anyone. In addition, even if the email came from the Appellant's sister, the RAD finds that it would have been considered self-serving given that it was written as an "update" less than a week before the hearing and focused on the issue of the agent of persecution's involvement and influence with the police. The RAD finds that the email was an attempt to support the Appellant's argument that there was nowhere in Nigeria that the Appellant could not be reached, precluding an internal flight alternative (IFA) for the Appellant in Nigeria. The RAD finds that the email is self-serving and is to be provided no weight. [38] The RAD considered the affidavit of the Appellant's mother.16 In paragraph 14 of this affidavit, the Appellant's mother indicated that her son was told of the passing of his wife by his sister. This did not conform to the Appellant's BoC narrative which indicated that he had first been told by his father that his wife had died. The Appellant's mother could not be questioned regarding this inconsistency, and it would be unreasonable for the RAD to ask the Appellant to explain an inconsistency in a document his mother prepared. Nevertheless, the RAD finds that the issue of who informed the Appellant of his wife's passing was significant. The inconsistency in this allegation undermined the credibility of the affidavit and its contents in support of the Appellant's allegations. [39] The Appellant's mother's affidavit, at paragraph 11, indicates threats from the Appellant's father-in-law never stopped after the August 4, 2013 attack. The RAD noted that this is not consistent with the Appellant's BoC narrative, which does not list ongoing threats after August 4, 2013. In fact, the only mention of a threat after August 4, 2013 came after the Appellant's wife's death in XXXX. Again, the RAD finds the inconsistency between the Appellant's mother's affidavit and the BoC narrative and the Appellant's testimony undermined the credibility of the affidavit in support of the allegations, as well as the profile of the Appellant's father-in-law. [40] The RAD also noted that both the Appellant's mother's affidavit and his sister's affidavit indicate that they went to the police station to report the initial attack on the Appellant. The Appellant's narrative indicated: "I reported the incident to the police" and did not indicate that he was accompanied by anyone. Again, there is no way for these inconsistencies to be explored. Either the Appellant's narrative is incorrect or the contents of the affidavits did not conform to the Appellant's narrative. [41] In the pleadings, counsel correctly noted that the Appellant's credibility cannot be impugned based on the actions or inactions of a third party. The RAD notes, however, that this does not preclude a decision-maker from placing little or no weight on evidence provided by a third party, especially given that the third parties are not present to explain concerns with their evidence. Furthermore, the RAD notes that, while an appellant cannot be impugned for the actions of a third party, the credibility of an appellant can be impugned as a result of providing fraudulent or self-serving evidence in support of a claim. [42] Based on the concerns cited above, the RAD finds that the RPD did not err in finding that the affidavit of the Appellant's sister was not reliable, and in placing no weight on the personal documents provided by the Appellant in support of his claim. Other Credibility Concerns [43] During the hearing, the Appellant was asked when he last spoke to his father-in-law. The Appellant responded that it was before he left Nigeria. The RPD questioned the Appellant as to why he indicated in the last line of the second page of his narrative that his father-in-law had told him after his wife's death that he would suffer spiritually and physically, and that there was nowhere he could be safe in Nigeria. The Appellant denied mentioning this conversation in the narrative. Later, when questioned by his counsel, the Appellant indicated that his father-in-law told those things to his sister who passed the information along to him. [44] The RPD's Reason and Decision did not comment on this inconsistency. The RAD, however, finds that the inconsistency is significant in the analysis of the Appellant's credibility. As outlined above, the Appellant affirmed at the beginning of the hearing that his personal information form was complete, true and correct. The Appellant did not make any amendments to his narrative. The Appellant provided two explanations: a flat-out denial of making the statement in his BoC, and then indicating that his sister had relayed the information to him. The RAD finds the inconsistent explanations undermined the Appellant's credibility as a witness as well as the alleged ongoing threats, especially given that the Appellant was represented by counsel and affirmed that everything in his BoC narrative was complete, true and correct. [45] Counsel argued in paragraph 26 of the pleadings that the RPD ignored the psychological evidence which speaks to the state of mind of the Appellant. The RAD noted that no psychological evidence was presented at the hearing or formed part of the RPD's record. As such, the RPD did not err in not commenting on psychological evidence which was not before it. Findings Regarding Fraudulent Documents in Nigeria [46] In its Reasons for Decision, the RPD noted that because of corruption in Nigeria, the use of forged documents is widespread, and therefore the RPD placed little weight on the documents provided in support of the claim. Counsel argued that the RPD ignored documents which corroborated the Appellant's claim while using some documents to impugn the credibility of the claimant, which amounted to an error. The RAD noted that, in its Reasons and Decision, the RPD made its finding regarding personal documents after finding that the Appellant and his sister's affidavit were not credible as they relate to the central aspects of the claim-the profile of the agent of persecution and the credibility of the alleged threats. As noted above, the RAD identified additional concerns with the e-mail from the Appellant's sister and the affidavit from his mother, which further undermined the documents in support of the agent of persecution and the allegations. Given that the RPD reasonably found that the Appellant's evidence which went to the heart of the claim was not credible, and given the documentary evidence regarding fraudulent documents, the RAD finds that the RPD's finding not to place weight on the supporting documents was not an error. Even if the remaining documents were credible, they did not go to the heart of the claim, and therefore they were not material or relevant. Overall Credibility [47] The RPD found that the individual discrepancies, contradictions and omissions in the evidence presented by the Appellant, when viewed as a whole, supported a finding of a lack of credibility. Counsel argued that the RPD erred in its findings of fact, as it related to the Appellant's credibility. The RAD concurred with counsel that some of the RPD's credibility findings were not reasonable; however, the RAD finds that the RPD did not err in its findings of fact which were determinative of the claim, namely, the profile and the power of the agent of persecution, and the credibility of the alleged threats. For the reasons cited above, the RAD finds that the RPD made a reasonable finding that the Appellant was not credible. The RPD's findings in this regard were clear and justified by the evidence and fell within a range of possible, acceptable outcomes, which are defensible in respect of the facts and law. Section 97 Analysis [48] The Appellant framed his claim as an issue of persecution based on his religious identity, and therefore he established a nexus to a Convention ground. A review of the record demonstrates that the Appellant did not allege a fear of harm under s. 97. In fact, counsel, in his submissions, did not argue or review evidence that would support a s. 97 claim for the Appellant other than the allegations of persecution. [49] The RPD found that the Appellant's allegations were not credible using the s. 96 test (serious possibility of persecution) which presented a much lower threshold than the s. 97 test. Given that the Appellant's allegations were found not to be credible using the lower threshold, given that no separate or discrete argument was made or evidence presented in support of a fear of harm under s. 97, the RAD finds that the RPD did not err in law or mixed fact and law in failing to perform a thorough s. 97 analysis. SUMMARY AND DETERMINATION [50] Based on the totality of the evidence before it, the RAD finds that the RPD's finding that the Appellant and his allegations were not credible was reasonable. The RPD did not err by not performing a s. 97 analysis. As such, based on section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection. [51] The RAD dismisses the appeal. (signed) "Daniel McSweeney" Daniel McSweeney May 14, 2014 Date 1 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 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 IRPA, s. 110 (1). 5 IRPA, s. 107. 6 IRPA, s. 170. 7 IRPA, s. 110(3). 8 IRPA, s. 110(4). 9 RAD Rule 57. 10 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 12 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 13 Exhibit RPD-1, RPD's Record, pp. 58 - 60, Affidavit of XXXX XXXX, Exhibit C-14. 14 Exhibit RPD-1, RPD's Record, pp. 58-60, Affidavit of XXXX XXXX, Exhibit C-14. 15 Exhibit RPD-1, RPD's Record, E-mail to the Appellant from XXXX XXXX, Exhibit 9, dated December 11, 2013. 16 Exhibit RPD-1, RPD's Record, pp. 47-49, Affidavit from XXXX XXXX, Exhibit C-20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-01391