TB3-06234

RAD File No. / N° de dossier de la SAR : TB3-06234 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXX XXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 17, 2013 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Rodney L. Woolf 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] XXXXX XXXXX (the Appellant), a citizen of Afghanistan, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD with a differently constituted panel. DETERMINATION [2] Pursuant to Section 111(1)(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 nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she fears returning to Afghanistan because of the risk of being killed by relatives of her husband. She alleges that her husband's nephews have threatened her and her husband with guns over a dispute involving the estate of her husband's late father. She alleges that, in early 2012, her husband's nephew, XXXXX, came to her home looking for money. She alleges that he discharged a gun in her home after another family member intervened. XXXXX was apprehended by the police and jailed. The appellant also alleged before the RAD that her daughter was murdered in 2009 by her daughter's former husband. She alleges that she fears her former son-in-law and his family will also harm her. [4] The Appellant traveled to Canada in XXXXX 2012 on a visitor's visa. In XXXXX 2013, her husband traveled to Canada. The Appellant alleges she learned from her husband that he was forced to withdraw the charges against XXXXX under threat of death; as a result, XXXXX was released from jail. [5] The Appellant filed for refugee protection on April 15, 2013. The Appellant's husband did not make a claim for refugee protection because he was precluded from doing so as a result of having abandoned a previous claim in 2000. The Appellant's application for refugee protection was heard on June 6, 2013. At her hearing, the Appellant further alleged that she also fears the Taliban. [6] In a decision of August 9, 2013, the RPD rejected the claim, finding that the Appellant is neither a Convention refugee nor a person in need of protection. The RPD found that the Appellant failed to provide credible, specific or persuasive evidence to support her allegations of persecution or as a person in need of protection. [7] The Appellant submits that the RPD erred in finding that there was no nexus to the Convention. The Appellant also submits that the RPD erred in finding that there is insufficient evidence to establish that the Appellant has a well-founded fear. The Appellant argues that the RPD failed to analyze all of the evidence before it in making this determination. She submits that the RAD should set aside the decision made by the RPD and, on the basis of the remaining evidence, accept her refugee claim. In the alternative, the Appellant requests that her claim be referred back to the RPD for re-determination. STANDARD OF REVIEW [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. The Appellant makes no submissions on the standard of review; however, she argues that the RPD's findings are unreasonable. [9] In Dunsmuir,1 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. In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,2 which take into account the list of factors in Dunsmuir.3 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. [10] 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 given the relationship between the RPD as a tribunal of the first instance and the RAD as an appellant administrative tribunal, the Newton factors are highly relevant. [11] These factors are: 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. [12] In considering the factors in Newton, the RAD has considered 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. [13] Both the RPD and the RAD derive their jurisdiction from the same statute: IRPA. The Act gives each Division similar powers, although their roles are not the same. It is the primary role of the RPD as a tribunal of first instance 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. [14] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact.4 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, in most cases, must conduct a hearing6 and assesses 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. [15] In contrast to the RPD's authority to assess a claim for protection, IRPA places some limitations on the RAD's ability to consider evidence. For instance, persons who are the subject of the appeal are limited in their ability to present evidence to the RAD. The RAD is not a tribunal of first instance but exists primarily to review the decision made by the RPD and, in the cases where new evidence is considered, to review those decisions in the context of that 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 is also limited by the conditions set out in IRPA. Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.8 [16] It's the RAD's view that, given the limitations imposed on the role of the RAD by IRPA, the presence of a right of appeal in and of itself does not warrant a correctness standard on all issues. Rather, 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 will be, in most cases, 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".9 [17] Dunsmuir also states that most questions of law are to be interpreted on a standard of reasonableness, except for certain narrow categories, such as constitutional questions, true questions of jurisdiction, questions of law that are of central importance to the legal system and outside the specialized area of expertise of the tribunal, and questions about the jurisdictional lines between tribunals. [18] However, unlike the situation in Dunsmuir, both the RAD and the RPD have similar expertise in the interpretation of IRPA. Although the RAD and the RPD have similar expertise in interpreting the enabling legislation, the RAD is given the ability to set aside a determination of the RPD and substitute a determination that, in its opinion, should have been made. This is a remedy that a court does not have in exercising judicial review of an administrative tribunal and tends to support a standard of correctness for questions of law. Also, both the RPD and the RAD are considered to have specialized knowledge. Therefore, errors of law within the expertise or mandate of the tribunals as well as questions of law of more general interest to the legal system are to be reviewed for correctness. Furthermore, the RPD's advantage of holding a hearing in all cases does not seem to provide a reason for the RAD to show deference on questions of law. [19] Additionally, under s.171(c) of IRPA, Parliament has given the RAD authority to review decisions of the RPD. Section 171(c) provides that decisions of a three-member RAD panel have "the same precedential value as a decision of an appeal court has for a trial court" for "the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division." Decisions of appeal courts are binding on questions of law. That is why this provision suggests a correctness standard. The provisions of IRPA suggest that the RAD is empowered to bring finality to the refugee protection process and, as such, is entitled to show less deference to the RPD in matters of errors of law. [20] For these reasons, the standard of correctness will be applied to errors in law. When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.10 [21] In the case at hand, the Appellant submits that the RPD erred in finding that there was no nexus to the Convention. The Appellant also submits that the RPD erred in finding that there is insufficient evidence to establish that the Appellant has a well-founded fear. The RAD finds that the objective risk assessment is determinative of both sections 96 and 97. As such, the RAD has focused on the determinative issue of well-foundedness of fear and need not consider the issue of nexus. In light of the foregoing, the RAD finds these alleged errors deal with issues of mixed fact and law and with the RPD's treatment of the evidence before it. [22] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual findings of the RPD. 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.11 ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [23] As provided for in s. 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of IRPA provides that the person may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [24] The Appellant submitted the following as new evidence: 1. Copies of passports of 12 of the Appellant's children 2. Identity documents from Germany of the Appellant deceased daughter XXXXX 3. Identity document of the Appellant's daughter XXXXX living in Germany [25] The RAD considered the Appellant's new evidence.12 The RAD finds that this evidence does not conform to the requirements of 110(4) of IRPA, as it is evidence that was reasonably available at the time of the RPD hearing, and the Appellant has not provided a persuasive argument why it was not available for the hearing. [26] The RAD considered whether or not the Appellant could have reasonably been expected to present the documents at the time of the rejection given that all of the documents were issued long before-in all cases years before-the RPD hearing. The RAD considered counsel's submissions that these documents had to be obtained from the various children in various countries. The RAD finds that this explanation is not sufficient as it does not fully explain why the Appellant could not have been reasonably expected to obtain and present theses document at the time of the RPD hearing. The RAD finds that the explanation does not indicate how or when the documents were obtained and through what means they were obtained. The explanation does not indicate what efforts, if any, the Appellant or her counsel made to obtain the documents before the hearing and rejection. More importantly, the Appellant has not explained how these documents provide evidence in support of her appeal. The lack of explanation makes it appear that the only reason they were submitted was due to concerns raised by the RPD panel member at the hearing. [27] If Appellant believes these documents are important in establishing that the Appellant is a Convention Refugee or a person in need of protection, the RAD finds that it would have been reasonable for the Appellant to present the documents at the time of the rejection. The Appellant was represented by experienced counsel at the hearing. The Appellant and her counsel had the opportunity to provide any documentary evidence or evidence related to her claim at the time of the hearing. They did not provide any additional documents. [28] For the reasons outlined above, the RAD finds that it is not persuaded that it would not have been reasonable for the Appellant to have provided theses documents at the time of the hearing and before the negative determination. As such, the RAD finds that the new evidence does not fall within the provisions of Section 110(4) of IRPA, and the RAD does accept them as new evidence. THE RPD'S FINDINGS Well-Foundedness of Fear [29] The RPD concluded that there was insufficient evidence to establish the claimant's fear was well founded. The RAD finds that the RPD's reasons were deficient in that they failed to provide a transparent analysis to support the decision. The RPD should have articulated its reasons more fully in order to justify its decision. However, in applying the standard of review, the notion of deference to administrative tribunal decision-making requires not only attention to the reasons offered, but, also, which could be offered in support of the decision made. Even if the reasons given are not adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.13 In this instance, while the RPD's reasons are not adequate in its assessment of the Appellant's well-foundedness of fear, there are, nevertheless, reasons which could be offered in support of the RPD's conclusion. In coming to this conclusion, the RAD considered all of the evidence in the record and listened to a recording of the hearing. [30] Although the RPD found that the Appellant was a credible witness, it is clear from the Appellant's testimony that her recollection of events was impaired by her inability to recall. The Appellant, on numerous occasions in her testimony, attempted to explain away her testimonial failings by stating that she had lost her "sense of memory" or that her memory was otherwise impaired. As such, the RAD finds that the Appellant's testimony cannot solely be relied upon to establish her allegations. [31] In addition, although the RPD found that the Appellant was credible, the RAD found that overall the Appellant's testimony was vague, convoluted and failed to adequately address the questions of the panel despite having been given numerous opportunities. In coming to these findings, the RAD was mindful of the claimant's age, education, gender and background. Her testimony concerning the allegations that her husband was denied access to his rightful inheritance was particularly vague. Thus, even though the RPD found that she was credible, the RAD finds that her testimony was not reliable because of its vagueness. Regardless, even if the Appellant was a reliable witness, the evidence she did provide in itself was insufficient to establish the well-foundedness of her fear. [32] The Appellant argues that the RPD failed to analyze all of the evidence before it in making its determination. The Appellant argues that the RPD overlooked documentary evidence about Afghanistan and failed to have regard for the totality of the evidence. However, the Appellant failed to specify where in the record this evidence is located and how this evidence could affect the determination of the RPD. [33] The Appellant also argues that there was evidence before the RPD panel that she is being targeted by family members of her former sons-in-law in Germany. However, the Appellant again fails to specify where in the record this evidence is located. The Appellant did not provide any persuasive evidence that she is being targeted. Rather, her testimony amounted to a speculation that daughters' former husbands would have an interest in her because they had murdered her daughter. In any event, no persuasive evidence was offered to suggest how the Appellant was at risk if she returned to Afghanistan given that her daughter's murderers were imprisoned in Germany. The RAD notes that the murder took place in 2009. The Appellant's testimony was that she was going to return to Afghanistan after visiting her daughter in Canada. No evidence was offered to suggest that, since she arrived in Canada, things had changed that placed her at risk in Afghanistan. [34] More importantly, however, the Appellant deferred to her husband's testimony to establish the well-foundedness of her fear. The Appellant's evidence was that she traveled to Canada to visit her daughter following the alleged shooting at her home. She alleges that it was her intention to return to Afghanistan following the visit with her daughter. It was not until she received information from her husband that she decided that it was not safe to return to Afghanistan. This was evidenced by the fact that the claimant did not file a refugee claim when she first arrived in Canada in XXXXX 2012, but only did so after her husband traveled to Canada in XXXXX 2013. [35] The Appellant's testimony demonstrated that her fear was based on the information her husband provided her after he arrived in Canada concerning threats from the Taliban and his nephew XXXXX family. However, the RAD notes that the RPD found that the Appellant's husband was not a credible witness and that his testimony in this regard was not credible. The RAD also notes that the Appellant does not contest the RPD's adverse findings with regard to the Appellant's husband's credibility. [36] In light of the RAD's analysis noted above, the RAD finds that the RPD's findings that there was insufficient evidence to establish the claimant's fear was well-founded is reasonable. [37] The RAD's findings with respect to the Appellant's well-founded fear apply also to section 97. That is, if the Appellant cannot establish a well-founded fear on the serious possibility test, then she cannot establish that she faces a danger of torture, or a risk to life, or of cruel and unusual treatment or punishment, on a balance of probabilities. The RAD finds its conclusion on the first issue is determinative, and, as such, the RAD need not deal with the issue of nexus. [38] On the basis of the totality of the RPD's findings affirmed in these reasons, the RAD finds that, given this evidence, the RPD reasonably concluded that the Appellant is neither a Convention Refugee nor a person in need of protection. On the basis of the totality of the RPD's findings, the RAD finds the Appellant has not established the basis of her claim and is therefore neither a Convention refugee nor a person in need of protection. [39] The RAD finds that the RPD's decision falls within the range of possible, acceptable outcomes defensible in respect to the facts and the law. DISPOSITION [40] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "L. Favreau" L. Favreau November 17, 2013 Date REFUGEE APPEAL DIVISION / PERSECUTION BY FAMILY MEMBERS / NEW EVIDENCE / ADEQUACY OF REASONS / FEMALE / CONFIRM THE DETERMINATION / AFGHANISTAN 1 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 IRPA, s. 110 (1). 5 IRPA, s. 107. 6 IRPA, s. 170. 7 IRPA, s. 110(3). 8 RAD Rule 57. 9 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 10 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 11 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 12 Appellant's Record, p. 51 13 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-06234