TB3-05974

RAD File No. / N° de dossier de la SAR : TB3-05974 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 XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 28, 2013 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Peter J Wuebbolt Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX a.k.a. XXXX XXXX (the Appellant), a citizen of Pakistan, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant submitted documents to be considered as new evidence in support of his appeal. DETERMINATION [2] Pursuant to Section 111(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee (CR) nor a person in need of protection pursuant to sections 96 and 97(1) of the IRPA. His appeal is dismissed. Background: [3] The Appellant, in his Basis of claim (BOC), stated that his name is XXXX XXXX born on XXXX XXXX, 1990 in Pakistan, and that he left Pakistan and came to Canada on XXXX XXXX, 2013. He is a homosexual and has been discriminated, harassed, threatened and assaulted by Pakistan's homophobic society. He also fears his family members who want him to marry his Uncle's niece. He is afraid that should he return to Pakistan, he will be persecuted or killed because of his sexual orientation. [4] The Minister intervened in this claim by submitting documentary evidence and stated in the Notice to Intervene,1 that biometric matches from the Canada Border Services Agency (CBSA) dated June 5, 2013,2 and June 6, 20133, undermine the claimant's credibility. The Minister is requesting that the Refugee Protection Division (RPD) find that he is not a CR or a person in need of protection. [5] Shortly after receiving the Minister's disclosure, but a few days prior to the hearing with the RPD, the Appellant submitted a new Basis of Claim (BOC). In the new BOC, the Appellant stated that his real name is XXXX XXXX, and that he was born on XXXX XXXX, 1985; and that he has been in Canada since XXXX 2010 when he came with his father. [6] The RPD rejected the claim and found that the claimant is not a credible witness, and his testimony at times did not have a "ring of truth to it," was vague regarding essential elements of the claim, and there were "substantial discrepancies and omissions between his original narrative and the BOC, and his amended narrative in the new BOC. There were also substantial discrepancies between his amended narrative and the new BOC, and the information in his Generic Application Form for Canada: Schedule A Background/Declaration and Schedule 12 Form - Additional Information - Refugee Claimants Inside Canada.4 [7] The RPD also found that there were major contradictions between the information in his original narrative and BOC, and his immigration records with respect to the timelines of the alleged key events of persecution, which form the basis of his claim. Further, the RPD found that his explanations for these discrepancies and omissions were not reasonable.5 [8] The Appellant testified at his hearing before the RPD that the information in the evidence filed by the Minister was correct, and told the RPD that "he had lied" in his original narrative and BOC to advance his claim so it would be accepted. The RPD, in its reasons paragraph 37, stated, "A general finding of a lack of credibility on the part of the claimant in this case can conceivably extend to all relevant evidence emanating from his testimony." [9] The Appellant states that the panel was erroneous in the assessment of the evidence, engaged in selective analysis of evidence, and followed perverse reasoning. Remedy Sought: [10] The Appellants want the RAD to allow his appeal and set aside the decision of the RPD and substitute its own positive determination in their refugee claims and find him a Convention Refugee or a person in need of protection. In the alternative, he is "requesting a full Refugee Appeal (RAD) hearing in a letter dated September 25, 2013. In the other alternative, he "requests a fresh Refugee Protection Division hearing." In a letter dated September 23, 2013, the Appellant also argues that if the RAD does not find the Appellant to be a Convention refugee or a protected person, it should hold an oral hearing pursuant to Section 110(6) of IRPA. [11] The Appellant provided three affidavits not including his own and emails from some friends and family and some pictures to be considered as new evidence. Admissibility of New Evidence: [12] "The Appellant advances this appeal on the basis that he has fresh evidence which was not available to him at the time of his Refugee Protection Division hearing on July 2, 20136". Admissibility of Evidence Submitted on Appeal [13] Section 110(4) of IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [14] The Appellants submitted, as new evidence, his own affidavit dated September 16, 2013. This document repeats the basis of the Appellants' refugee claims, as well as an explanation for his belief "that the best manner to proceed with his claim for refugee protection was to advance same with the use of a false name and false personal history. This was motivated by his concern with issues of re-availment, failure to claim elsewhere, and delay in claiming7". [15] The Appellant also submitted three affidavits from XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, and emails from his family and friends.8 [16] The three affidavits mentioned above were sworn after the rejection of the Appellants' refugee claims, however, they repeat the information that was already before the RPD as signed letters from these three individuals. Thus these three affidavits are not new evidence as the information contained in these did not arise after the rejection of the claim by the RPD. [17] The Appellant also provided affidavits from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and copies of 4 emails. The information in these affidavits and emails also did not arise after the rejection of their claim thus was reasonably available prior to the hearing and rejection. [18] In regards to the new documents mentioned above, the Appellant states in the Memorandum at paragraph 7 "It is as a result of these lies and misjudgments that certain evidence was not reasonably available to him or his counsel at the time of the July 2, 2013 hearing". [19] These documents -affidavits and emails - would have been available with reasonable effort and thus are not new evidence as contemplated by Section 110(4) and is therefore not are not admissible in this appeal. Application for an Oral Hearing [20] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. [21] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [22] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence accepted by the RAD pursuant to subsection 110(4), in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. This is not the case here and thus there will not be a new hearing before the RAD. Standard of Review [23] "The Appellant states that the panel was erroneous in the assessment of the evidence. This constitutes an error of law.9" The Appellants also states that the RPD engaged in selective analysis of evidence and followed perverse reasoning. These are questions of fact and not of law as the Appellant submits. [24] The Appellant did not make submissions on what is the appropriate standard of review to be applied here, where the appellate tribunal is to consider alleged factual errors made by the tribunal of first instance? [25] The IRPA sets out grounds for appeal as well as possible remedies the RAD may offer, it does not specify the standard of review to be applied by the RAD. [26] In Dunsmuir,10 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,11 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. [27] 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:12 (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. [28] A: 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.13 An appeal to RAD may be made by the subject of the RPD proceedings or by the Minister against decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact. 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. [29] These respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to the hearing of the claim where the decision maker hears the testimony of the claimant first hand and weighs all evidence before it. Where the RAD has accepted new evidence less deference may be owed to the RPD because the RPD was not in a position to have considered this evidence. [30] B: The nature of the question in issue: As stated earlier, this appeal raises the questions of fact. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.14 [31] C: 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. [32] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.15 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. [33] Subsection 111(1)(b) of IRPA, empowers the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made, and subsection 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [34] Subsection 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." [35] 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. [36] D: The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: As the Appellants point out, both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,16 and each can take notice of information and opinion within its specialized knowledge.17 In the area of fact finding and credibility assessment, the RPD holds a significant advantage because it holds a hearing,18 and gets testimony directly while the RAD in most circumstances review appeals by documentary evidence - the record of the RPD proceeding.19 Thus the RPD is owed deference on findings of fact particularly in respect to credibility,20 other than in certain situations where the RAD holds an oral hearing. [37] E: 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.21 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...." [38] The Newton factors address a situation which is more similar to the context of the RAD and the RPD. In the questions fact the Courts have held that triers of fact are better situated to make findings of fact at first instance.22 The RPD being the Trier of fact deserves significant deference. The deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.23 [39] Since, in this appeal, the question is one of fact and thus the appropriate standard of review is 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.24 Thus the RAD afforded the RPD with deference and considered the reasonableness of the errors pointed out by the Appellant. Analysis of the merits of the Appeal: [40] The determinative issue in this appeal is: did the RPD err in its assessment of facts which led to its negative credibility finding? [41] The RPD in its reasons stated the following: [15] The Board will now address a few of the discrepancies and omissions in this decision, as there were many. (a) He stated in his original narrative that his name was XXXX XXXX born on XXXX XXXX, 1990.25 However, the information in the biometrics indicates that his real name is XXXX XXXX, and that he was born on XXXX XXXX, 1985. The claimant also filed with the Board a fraudulent birth certificate under the name of XXXX XXXX to further his deception. (b) He did not indicate in his original narrative that he visited the U.S. However, the information in the biometrics indicates that he was registered as a special alien on XXXX XXXX, 2003 at the William P. Hobby Airport in Houston, Texas by an U.S. official upon his entry into the U.S. In addition, he applied for a U.S. non immigrant visa, for which he had been fingerprinted on XXXX XXXX, 2007 at the U.S. Embassy in Islamabad.26 (c) He stated in his original narrative that he left Pakistan and came to Canada on XXXX XXXX, 2013. However, the information in the biometrics indicates that he and his father came to Canada on XXXX XXXX XXXX 2010.27 In addition, the claimant applied for a visitor's record on XXXX XXXX, 2010, in order to attend a family wedding in Canada. The visa application was approved on XXXX XXXX, 2010, and his temporary resident status in Canada was extended to XXXX XXXX, 2010. In summary, he has been in Canada for three years and three months, not three months as he original maintained. (d) He stated in his original narrative that he entered Canada on a fraudulent Pakistani passport. However, the information in the biometrics indicates that he used his genuine passport [Passport Number XXXX XXXX- Date of Issue: XXXX XXXX, 2006 and Date of expiry XXXX XXXX, 2011]. (e) He stated in his original narrative that he came to Canada because he was being persecuted in Pakistan because he is gay. However, the documents filed by the Minister indicates that when the claimant applied for a temporary resident visa at the Canadian Embassy in Islamabad on XXXX XXXX, 2009, he stated that he was a proprietor of XXXX XXXX and that the purpose of his trip was tourism and to visit a friend in Toronto.28 (f) In his original narrative, he did not mention that he lived in Manchester, England from XXXX 2007 to XXXX 2009, where he was going to university [his brother also attended school]. The information in the biometrics indicates that he entered the U.K. with his genuine passport in XXXX 2007 [his U.K. visa was issued on XXXX XXXX, 2007 and expired on XXXX XXXX, 2010].29 He stated in his original narrative that during this time he was in Pakistan, and that he was expelled from school and working at the grocery store for his father and uncle. (g) In his original narrative, he stated that he was expelled from school in Grade 8 in 2006, because of an incident in which he touched another male student and afterwards he went to work for his uncle and father in a grocery store. However, in his amended narrative, he indicated that he attended the XXXX XXXX XXXX (England) from XXXX 2007 to XXXX 2009. In addition, he stated in his amended narrative that he was suspended from school in 2000 and then went back in four years to complete his secondary education. (h) He stated in his original narrative that in XXXX 2009, a neighbour saw him touching a fellow student. However, in his amended narrative, he stated that this incident occurred in XXXX 2003. [16] The above mentioned discrepancies and omissions are not exhaustive, as there were other examples in which he tried to deceive the Board. As mentioned above, the Board found that the claimant did not provide a reasonable explanation for these discrepancies and omissions. Because of the above substantial discrepancies and omissions, the Board doubts the veracity of all of the claimant's evidence, including whether he is gay, whether his family would force him to marry his Uncle's niece, and whether anyone wants to persecute him if he returned to Pakistan. [42] The RPD also stated in paragraph 13: In the Board's view, it is reasonable to assume, that when a claimant comes to Canada to ask for protection, that he or she will tell the truth as to their identities, how long they had been in Canada, whether they have recently been to any other countries... the claimant wilfully (sic) tried to deceive the Board. [43] The Appellant submits that the RPD erred in assessing the credibility and authenticity of the three letters that were provided in support of the Appellant's sexual orientation. The RPD addressed these letters, provided its reasons for arriving at its decision that "the Board allots very little probative value to them". The RPD clearly stated that these "were not notarized, and that the authors of the letters were not present at the hearing, so that they could be questioned by counsel and the panel. Further, there is no way for the Board to determine that the authors of these letters are who they say they are." The Appellant, in explanation, states in his memorandum at paragraph 8 "that in view of the shortage of time, he provided letters from his friends in Toronto, Ontario". I find that the RPD's finding was reasonable given all the facts before it, in particular the fact the Appellant was in Canada since XXXX 2010 and not 2013 as he alleged in his original BOC. Thus he was in Canada for more than three years and had adequate time to get all supportive documents in order. He is the author of his own misfortune that he chose to spend time to "lie" and "attempted to deceive the Board" rather than be honest. I thus find that the RPD was reasonable and provided intelligible and transparent reasons for its decision to give little probative value to the letters. [44] The Appellant submits that the RPD erred and did not give probative weight to the email from his sister (with a photo of his family members with the woman whom he was being forcefully engaged to in Pakistan) in support of his claim for refugee protection. The RPD stated in its reasons: "... the claimant provided a photo of three women. The claimant testified that one of the women in the photo was the woman that his family was forcing him to marry. In the Board's view, the photo shows three women and nothing more. The Board finds that this photo is not persuasive evidence to establish whether his family was forcing him into a marriage, and therefore puts no probative value to it". I find that the RPD assigned probative value as it found appropriate and provided clear and justifiable reasons for doing so. Therefore, the RPD acted in a reasonable manner in the assessment of this evidence before it. [45] The Appellant also submits that the RPD erred and did not given probative weight to the letter from the XXXX XXXX XXXX XXXX XXXX in support of his claim for refugee protection. The RPD stated in reasons: "The Board notes that these emails are generic and has to do with XXXX XXXX XXXX XXXX, and that the emails have no personal information about the claimant in them. The content of the emails does not indicate what relationship the claimant has with this organization, and does not shed any light as to whether he is gay or not. Therefore, the Board will allot no evidentiary weight to these emails". I disagree with the appellant and find that the RPD assigned probative value as it saw appropriate and provided clear and justifiable reasons for doing so. Therefore, the RPD acted in a reasonable manner in the assessment of this evidence before it. [46] The Appellant also stated that the RPD Panel erred "when he accepted the Appellant's true identity as being XXXX XXXX, yet continuously thereafter making negative credibility findings concerning the Appellant by relying on the Appellant's earlier self admitted untruthfulness". The RPD accepted his true name and nationality when the Appellant agreed with the RPD that the Minister's evidence was correct and credible, and that the Appellant had lied about his name, his age, how long he has been away etc. The evidence provided by the Minister about the above facts was from credible and objective sources. Therefore, I cannot find that the RPD erred by accepting those parts and rejecting other elements of the Appellant's narrative. The RPD identified and provided analysis on the following: * Failure to Claim Protection in the U.K where he lived for two years; * Re-availment; * Delay of three years and three months in making a Claim in Canada [47] Moreover, the RPD gave opportunity to the Appellant to provide explanation for these and other errors, omissions, inconsistencies etc and provided cogent reasons for its decision on each issue. [48] Based on the foregoing and a thorough review of the Record, I find that the RPD's determination that the Appellant is not credible falls within a range of possible, acceptable outcomes that is defensible in respect of the facts and law. Therefore, this appeal fails. Conclusion: [49] Pursuant to subsection 111(1)(a) of IRPA, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) 'Atam Uppal' Atam Uppal October 28, 2013 Date 1 Appellant's Record (AR) pp 55 to 62 2 RPD Record (RR) pp 82-85 3 RR pages 86-88 4 AR page 6, para 8 5 Ibid., para 9 6 Appellant's Record Page 110, paragraph 5 7 AR, Memorandum para. 6 8 AR pages 87 to 108. 9 AR Memorandum pgh 9 10 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 11 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 43. 13 IRPA, Sections 96 and 97. 14 Khosa, para. 89. 15 IRPA, Section 3(2)(a). 16 IRPA, Sections 170(g) and 171(a.2). 17 IRPA, Sections 170(i) and 171 (b). 18 IRPA, Section 170(b). 19 IRPA, Section 110(3). 20 Khosa, para. 89. 21 Newton, para. 80. 22 Khosa, para. 89. 23 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 24 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 25 Exhibit 2. 26 Exhibit 4. 27 Ibid. 28 Ibid. 29 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-05974