TB3-02448

RAD File No. / N° de dossier de la SAR : TB3-02448 TB3-02449 TB3-02450 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXX XXXXX XXX XXXXX XXXXX XXX XXXXX XXXXX XXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 5, 2013 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Arthur I. Yallen Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXXX XXXXX, and XXXXX XXXXX, (the Appellants), citizens of Russia, appeal a decision in which the Refugee Protection Division (RPD) denied their claims for refugee protection. They have submitted no new evidence in support of their appeal. They ask that the Refugee Appeal Division (RAD) return their claims to the RPD for redetermination by a differently-constituted panel. DETERMINATION [2] The RAD finds that, despite some unreasonable findings by the RPD, its overall decision falls within a range of possible, acceptable outcomes defensible in regard to the facts and the law. The RAD confirms the decision of the RPD. BACKGROUND [3] The Appellants allege that they fled Russia because of persecution resulting from their religion and ethnicity. The adult female Appellant was born into a Muslim family, which opposed her marriage to the male Appellant and her conversation to the True Orthodox Christian faith. [4] The Appellants' True Orthodox congregation began having problems in 2004 because it was not a registered church. The following year, the adult Appellants began having problems with Muslims; the male Appellant was attacked, and the Appellants began receiving threatening phone calls. They left Ossetia and moved to Moscow, where they encountered additional problems because of their Caucasian appearance. When the female Appellant returned briefly to Ossetia in XXXXX of 2009, she was attacked by her parents' neighbours. In XXXXX of 2010, the male Appellant XXXXX attacked in Moscow because of his religion and his ethnicity. [5] In XXXXX of 2011, a member of the Appellants' church was attacked and hospitalized; that summer, their priest was detained and abused by police, and a complaint to the prosecutor's office brought no results. In XXXXX of 2012, the male Appellant and his brother were attacked because of their ethnicity, and in XXXXX of 2012, the female Appellant was attacked. [6] The Appellants fled to Canada, where they sought refugee protection. Their claims were heard on March 4, 2013. In a decision of March 20, 2013, the RPD rejected their refugee claims. Although it accepted that the Appellants are of the True Orthodox religion, it found they were otherwise generally lacking in credibility. The RPD found that the Appellants are neither Convention refugees, persons in need of protection, nor in danger of torture. [7] The Appellants argue that the RPD improperly questioned the Appellants, confusing them and attempting to elicit contradictory evidence; that the RPD engaged in a microscopic examination of minutiae and strained to find inconsistencies where none existed; that the RPD misstated the Appellants' evidence in its reasons; that the RPD asked the Appellants to add details that are not in their Basis of Claim (BoC) forms, and then held this evidence against them; and that the RPD made unsupported negative credibility findings about oral evidence and documents. The Appellants also submit that the RPD improperly assessed country condition evidence before it, evidence which should reasonably have led the RPD to the conclusion that True Orthodox believers are persecuted in Russia. [8] The Appellants argue that the RPD was patently unreasonable in its treatment of the Appellants' claims and the evidence, and ask that the RAD set aside the decision and refer the matter to the RPD for redetermination by a differently-constituted panel. Standard of Review [9] The Appellant argues that the RPD made errors in its decision. The alleged errors concern credibility and plausibility and are therefore questions of fact. [10] The Appellants submit that the standard of review in this matter is one of reasonableness, and point out that the review of the adequacy of reasons must consider whether the decision as a whole-both the reasons and the result-is reasonable.1 [11] 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. [12] 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 Khosa3, 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 extracted from the legislation. [13] 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. [14] 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 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 decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [15] The nature of the question in issue. In this appeal, the question in issue is one of fact, which favours a deferential standard of review.6 [16] 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. [17] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.7 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. [18] In the context of an appeal to 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. [19] 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." [20] 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. [21] 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,8 and each can take notice of information and opinion within its specialized knowledge.9 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,10 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.11 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will frequently not 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,12 other than in situations where the RAD holds an oral hearing and there has opportunity to consider evidence first-hand. [22] 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.13 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...." [23] When the Newton factors are applied to this appeal, they provide more clarity than does Dunsmuir in respect to the appropriate standard of review. 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.14 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 RAD, as the RPD proceedings would be reduced to little more than preliminary inquiries. [24] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The appropriate standard of review in this appeal is one of reasonableness. [25] Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in regard to the facts and the law.15 ANALYSIS [26] The Appellants take issue with many of the credibility findings made by the RPD. Specifically: Persecution Faced by True Orthodox Believers [27] The Appellants argue that the RPD failed to properly assess the risk to True Orthodox Christians, and aside from any errors made by the RPD in assessing credibility, this in itself is fatal to the RPD decision. Although the Appellants concede that there was little evidence before the RPD dealing specifically with the True Orthodox church, there was a great deal of objective evidence about the poor treatment of religious minority groups by government officials and by the Russian Orthodox Church (ROC.) Given this evidence and the fact that the True Orthodox church is a minority religious group, it was unreasonable for the RPD to conclude that the Appellants, as members of the church, do not have a well-founded fear of persecution because of their religion. [28] The RPD considered whether the members of the True Orthodox church are at risk of persecution, and asked counsel to identify objective evidence referring specifically to that religious group, though he was unable to. The RPD considered evidence that other religious groups-such as Jehovah's Witnesses, Muslims, Protestants, and Jews-face problems. The RPD also noted that the Appellants, despite their religious affiliation, were able to obtain medical care, housing, and employment. Having considered the Appellants' general lack of credibility, and the lack of information about the problems faced by the True Orthodox church, the RPD found there was not a serious possibility that the Appellants would be persecuted upon return to Russia. [29] The Appellants have now identified one passage in the evidence that was before the RPD which states that authorities acting under the influence of the Russian Orthodox Church sometimes prevented Orthodox churches not belonging to the ROC, including the True Orthodox, from obtaining or maintaining buildings for worship. [30] It is for a refugee claimant to establish the elements of his claim with acceptable documents, or to explain what steps were taken to attempt to obtain such documents or why they are not available.16 In this matter, the Appellants provided little documentary evidence about the True Orthodox Church to the RPD, and they submitted no new evidence about the Church to the RAD in support of their appeal. [31] As the Appellants point out, there is a large volume of evidence discussing the oppression of minority religions in Russia. In this context, the RAD finds it remarkable that there is almost no reference to the treatment of the True Orthodox church. The one reference identified by the Appellants refers to actions "sometimes" taken against churches not belonging to the ROC and is related to obtaining or maintaining church buildings. In contrast, evidence relating to other religious minorities speaks of actions such as the illegal destruction of a church building with bulldozers, the censorship of religious materials, and the arrest and detention of believers.17 [32] In the Appellants' submission, the RPD should have considered the True Orthodox church as being subject to the same mistreatment as other religious minorities. In the RAD's view, this argument cannot succeed. The male Appellant described to the RPD how the True Orthodox church came to exist: after the Communist revolution, some Russian Orthodox priests agreed to submit to the authority of the new government, while others did not. Those who refused to work with the Communist government founded the True Orthodox church, which was then repressed by the communists.18 If the Appellant's evidence is accurate, the True Orthodox church is a unique religious minority. It has shared roots with the Russian Orthodox Church, and the issue which led to their division-submission to the Communist regime-no longer exists, at least not in its historical form. In this context, it would be speculative to conclude that the relationship between the True Orthodox church, the ROC, and government officials is similar to the relationship experienced by other religious minority groups such as Jews, Muslims, and Protestants. Given the amount of available documentary evidence on issues of religious persecution in Russia, and given that the True Orthodox church has apparently existed for almost a century, it is reasonable to expect that, if there is persecution, this would be reflected in objective evidence. [33] The relative silence of the documentary evidence does not in itself establish that members of the True Orthodox church are not at risk. However, given the abundance of evidence regarding the mistreatment of religious minorities in Russia, and the Appellants' own lack of credibility, as will be discussed below, it was reasonable for the RPD to conclude that the silence of the documents in respect of the True Orthodox church indicates that such believers do not face the same risk of persecution as do other religious minorities.19 The RPD's conclusion on this subject falls within a range of possible, acceptable outcomes defensible in fact and law. Police Threats against the Male Appellant [34] The RPD noted the male Appellant's testimony that his problems started in 2004, and that police threatened him because of his faith during that year. This is not included in his BoC, and the RPD dismissed his explanation that he had just briefly stated his problems in that document. As the issue of state protection is an important one, and as the claim was based on religious and ethnic persecution, the RPD made a negative credibility finding on the Appellant's failure to include the police threats in his BoC. [35] The Appellants argue that the RPD distorted their testimony on this subject. They point out that their BoC forms indicate that their church members started having problems in 2004 because their church was not registered, and they had to change service locations more often. The Appellants submit that, if they were having problems with registration, then the people who were causing these problems must be the police or another authority responsible for enforcing registration. In fact, the Appellants argue before the RAD that the police did not really threaten them; they only said they would not protect them. [36] Finally, the Appellants also point out that 2004 was eight years before they left the country, and the 2004 incident was not the main reason they departed. In the Appellants' view, any inconsistencies were minor, and the RPD should not make negative credibility findings on the omission of elaborative details. [37] The instructions contained in the BoC are very detailed. A refugee claimant is directed to explain why he is claiming refugee protection and to "explain everything in order, starting with the oldest information and ending with the newest. INCLUDE EVERYTHING THAT IS IMPORTANT FOR YOUR CLAIM."20 Further instructions direct the claimant to give details of how they or their family have been harmed, mistreated, or threatened by any person or group, and yet further directions have the claimant give details of what happened when they approached the authorities for help. There is no length restriction on the required answers, and indeed the Appellants provided a narrative that is more than four typewritten pages long, with significant detail predating the year 2000. [38] According to the transcript provided by the Appellants, the male Appellant did indeed testify that the police "started threatening us," and then he continued to state that the police warned "if we would not stop practicing our faith or if we would not part from our faith, they are just going to watch in silence how Muslims are going to destroy us." This warning was repeated "a couple of times."21 [39] The allegation that the police warned the Appellants that they would be destroyed while the police stood by is very significant to the Appellants' refugee claim. Given the very specific instructions to the BoC, and in the context of the Appellants' lengthy narrative, it was not unreasonable for the RPD to make a negative credibility finding from the omission of the police warning or threats. The RAD's analysis is not concerned with whether the RPD made the correct finding in the circumstances, but whether the finding falls within a range of possible, acceptable outcomes defensible in fact and law. The RAD finds that the RPD's conclusion on this subject falls within such a range. Skinhead Threats against the Male Appellant [40] The RPD considered the male Appellant's testimony about an attack by skinheads. He testified that they called him a "low-life" and told him to get out of there, and that they were fed up with him, but did not say anything else. The RPD noted that the BoC claims that the skinheads threatened to kill him, and yet he could not seem to remember this death threat in the hearing. [41] The Appellants submit that the difference between the oral evidence and the BoC is minute and thus cannot be the basis for a negative credibility finding. [42] The RAD disagrees. The existence of contradictions or inconsistencies in the evidence of a claimant or witness is a well-accepted basis for a finding of lack of credibility.22 This incident happened in the months before the Appellants decided to flee the country. The BoC clearly states that the assailants "threatened to kill" the male Appellant.23 There is a significant difference between being called names and having one's life threatened. The RAD has reviewed the transcript, and it shows that the male Appellant was not only asked what his assailants said, but was also asked, "Did they say anything else to you?"24 Despite these questions, he did not remember that his life was threatened. The inconsistency in the Appellant's evidence is not minute, and the RAD finds that the RPD's credibility conclusion was reasonable. Efforts to Seek Police Help [43] The RPD asked the male Appellant whether he went to a police supervisor after officers failed to help him. He replied that he did but the RPD noted this information is not in the BoC form. The Appellant was given an opportunity to explain, and he replied that he did not realize he should testify only about what is in his BoC and that he might have omitted some details because he is emotional. [44] The RPD also noted that the BoC claims the police would not accept the attack happened for ethnic reasons, while the Appellant's testimony claimed the police told him to get out of there because they were fed up. [45] The Appellants argue that the RPD unreasonably expected a perfect recollection by the Appellants. The male Appellant could have stated only what was in his BoC, but instead he told the panel everything he could remember, which was more than the contents of his BoC. The RPD improperly made a credibility finding against a witness who provided additional evidence. The Appellants further submit that the explanations given by police-that they are fed up, and that they were prejudiced by the victims' ethnicity-are in fact the same. The police were fed up with "them," and "them" refers to Ossetians. [46] In the RAD's view, the problem here is not that the male Appellant's oral evidence went beyond the contents of his BoC. The difficulty is that an important piece of information is missing from that BoC. Although the instructions clearly direct a refugee claimant to provide information about attempts to seek state protection, including "whom you approached for help; what steps you took; and what happened as a result,"25 the Appellants did not include their alleged approach to a superior officer to complain about the conduct of the police. Although the Appellants signed that their BoC forms were complete, true, and correct, and confirmed this in the hearing, the narrative in fact omits something that is important to their claims and to the issue of state protection, and the Appellant did little to explain this omission. [47] The RAD also sees a significant difference in the police refusing to accept that the attack was ethnically-motivated and the police saying they are fed up with "them." The Appellants' argument, as the RAD understands it, is that there is little difference between the police being prejudiced by ethnicity and the police being fed up by "them," which the Appellants suggest must refer to Ossetians. To accept that argument, however, the RAD would have to ignore the Appellants' BoC narrative. It does not claim that the police were prejudiced by ethnicity. It alleges that "the police... were not accepting the fact that [the victims] had been beaten because of our Ossetian background."26 In other words, the police did not believe the attack was ethnically motivated. This is simply at odds with the Appellants' oral testimony that the police were fed up, and it was reasonable for the RPD to draw a negative inference from this contradiction. [48] The Appellants failed to include in their BoC forms significant information about an attempt to seek state protection, and gave contradictory evidence about the important matter of the police response. The RAD finds that the RPD's resulting negative credibility finding was reasonable. Physical Assault of the Female Appellant [49] The female Appellant told the RPD how she was beaten by her father after he discovered her relationship with the male Appellant. The RPD asked the female Appellant whether she was ever beaten by anyone else, to which she replied in the negative. However, she later testified that she was beaten by her former neighbours. When confronted with the apparent contradiction, she explained that she thought the question about being beaten by anyone else was in relation to the time prior to the beating by her father. [50] The Appellants argue that the RPD distorted their testimony by referring to one incident, then asking a broad question which the Appellant would reasonably conclude was about that specific incident. When the Appellant explained why she answered as she did, the RPD perversely refused to accept the explanation, despite the unclear question. The Appellants argue that the RPD was overzealous and straining to find inconsistencies. [51] The RAD has reviewed the transcript, and it does not support the Appellants' argument. The RPD did question the female Appellant about being beaten by her father.27 The questions then moved to medical treatment, contact with her family in subsequent years, her relationship with her mother and sister, and threats from Muslim extremists. The RPD member then asked, "You told me how your father beat you, were you ever beaten by anyone else?" to which the female Appellant replied "no".28 The RAD fails to see how this question, considered in context, was misleading. The RPD refers to previous testimony about a beating, then asks if the female Appellant was ever beaten by anyone else. "Ever" sets the time frame as widely as possible-not just up to the time of the beating by her father-and "anyone else" is also extremely broad. The Appellants argue that the female Appellant reasonably understood the question to be something like, "Prior to being beaten by your father, were you beaten by anyone else?" Neither the context nor the wording of the question supports such an interpretation. [52] The female Appellant was asked a question which reasonably invited her to testify about other alleged beatings, and instead she answered that there were none. This is a significant contradiction in her evidence, and the RPD was entitled to make a negative credibility finding. The RAD finds that the RPD's conclusion was a reasonable one. The Female Appellant's Exchanges with the Police [53] The RPD considered the female Appellant's testimony that she approached the police in XXXXX of 2009, and the police said she has to figure out her family vendettas herself. The RPD noted that the BoC does not refer to the police making the comment about vendettas, and made a negative credibility finding. [54] The Appellants submit that the RPD's conclusion on this subject was perverse. It stands to reason that some words must have been exchanged between the Appellant and the police, and since the BoC does not contain details of the conversation, any testimony about such an exchange would have led the panel to make a negative credibility finding, and this is unreasonable. [55] The Appellants' BoC narrative alleges that "the police did not investigate this incident regardless of the fact that I had identified my attackers."29 To warrant an adverse credibility finding, a discrepancy must be sufficiently serious and must concern matters relevant to the issues being decided.30 In the RAD's view, there is no serious inconsistency between the BoC and the oral testimony. Whether the police told the Appellant that they would not investigate or whether the police told her to figure out the problem herself is not a sufficiently serious difference on which to base an adverse finding. The RAD finds that the RPD decision on this subject is not justifiable and is therefore unreasonable. Seeking help from the Prosecutor's Office [56] The Appellants' BoC narrative claims that church members provided a group complaint to the police about their priest being assaulted; it also alleges that the complaint was made to the prosecutor's office. When the female Appellant testified, however, she was asked if she forwarded the complaint to anyone other than the police, and she replied in the negative, and did not speak of the prosecutor's office. The RPD made a negative credibility finding from this apparent contradiction. [57] The Appellants argue that the RPD's question was understood by the female Appellant as asking whether she personally forwarded the complaint to anyone else, and she made clear that "personally, myself, I did not contact anyone else." The Appellants argue that the answer made sense when considered in the context of the questions in that part of the hearing. [58] The RAD has reviewed the transcript and agrees with the Appellants. The female Appellant explained how a group, of which she was part, signed a statement and brought it to the police. She was asked if she went anywhere else than the police, and she replied, "Personally myself, no." The next question was, "Well, did you forward your complaint to anyone else?" She replied, "No." The word "you" in that question could reasonably have been understood to refer either to the complaining group, of which the Appellant was part, or to her personally. Given that in her previous answer she had clearly understood "you" as referring to herself and not the group, it was not reasonable for the RPD to find a contradiction when she understood a subsequent question to refer to "you" in the singular as well. When questioned about the apparent contradiction, the Appellant explained, "I meant that personally, myself, I did not contact anyone else." While the RPD referred to this explanation, and rejected it, it gave no rationale for this rejection. The Appellant explained that she understood the question to refer to her personally, and the RPD was thus obligated to explain why it did not believe this explanation before making a negative credibility finding. [59] The RAD finds that the RPD's credibility finding on this matter was not justifiable, transparent, or intelligible, and was thus unreasonable. The Female Appellant's contact with her Family [60] The female Appellant testified that she left home to live with the male Appellant in XXXXX of 2001, but the RPD found that her testimony about subsequent family contact was shifting and inconsistent. She said the next contact was in 2004, when she met her brother at a market. She said she tried to make contact during that time period, but her father prohibited all members of the family from having contact with her. However, she subsequently testified that she had contact with her mother and sister during that time. The RPD noted that the BoC alleges that she was threatened and insulted by her family during this time period, something which she did not refer to in her oral evidence. When confronted with this, the Appellant explained that her father did threaten her, but she did not know how to say it correctly in the hearing. The RPD rejected this explanation, noting that the Appellant had ample opportunity to refer to being threatened, had the assistance of a Russian interpreter in the hearing, and was obviously able to express the threats in her written BoC. [61] The Appellants submit that the Appellant told the RPD that she could not remember the specifics of her contacts with family during the period from 2001 to 2004. The Appellants argue that the RPD confused a memory issue with a credibility issue and ignored the fact that the questions related to happenings of many years ago. [62] The RAD has reviewed the transcript of the RPD's questions on this subject, and the female Appellant's evidence is indeed unclear and contradictory.31 She said that the first time she had contact after 2001 was in 2004, when she met her brother at a market, and that she tried to contact her family during those years, but her father prohibited all contact. She then said she had contact with her mother during that time period, and she then said that she had contact with her sister. When reminded of her BoC, she then claimed that her father threatened revenge. Although the Appellants argue that she told the panel she could not remember the specifics of her family contact during this time period, this general lack of recollection is not reflected in the transcript, though on a few occasions she indicated she did not remember specific facts, such as whether her mother or sister said anything else during that time, or who besides extremists threatened her. [63] Whether and how the female Appellant's family shunned her during a three-year time period is a significant element of her story, particularly since her allegations of past persecution involve her family. There is a significant difference between the Appellant's BoC and her oral testimony when it comes to the important matter of contact with and threats from her family during a three-year period. She was given an opportunity to explain, and the RPD considered her explanation and rejected it with reasons that were justifiable, transparent, and intelligible. The RAD finds that the RPD conclusions on this matter were reasonable. The Female Appellant and the Doctor [64] The female Appellant testified that, after her father beat and injured her, she was forced to stay in her bedroom for weeks, and only saw her mother and sister. She saw no one else. [65] The Appellants argue that, according to the transcript, the RPD did not give the Applicant a chance to respond to the question. In their Memorandum, the Appellants set out the following testimony:32 Board: So during those weeks that you were forced to stay indoors, did you see anyone? Female Applicant: My mom dropped by my room, sister came, we used to communicate. Board: Anyone else? You say in your narrative that the doctor was called. Female Applicant: Yes, the doctor came to see me. [66] The RAD notes that the excerpt set out in the memorandum does not reflect the transcript filed by the Appellants, which has the following:33 B[oard]: So during those weeks that you were forced to stay indoors, did you see anyone? F[emale] C[laimant]: My mom dropped by my room, sister came, we used to communicate. B: Anyone else? F.C.: You say in your narrative that the doctor was called. B: Yes, the doctor came to see me. There are obvious problems with the portion of the transcript set out above, as it has the female claimant asking questions and the Board member answering them. The RAD has reviewed the recording of the proceeding and determined that the Appellants' transcript omits an important answer. When the RPD asked "Anyone else?" the female claimant answered with "No," after which the RPD followed with, "You know, you say in your narrative that the doctor was called." [67] The Appellants' memorandum does not accurately cite the transcript created by the Appellants, and the transcript in turn omits a key answer by the female Appellant. The Appellants argue that the RPD did not give the female Appellant a chance to answer the question, but the recording indicates that this is simply not the case. The female Appellant was asked whether anyone besides her mother and sister visited her while she was confined to her bedroom, and she answered in the negative. This is actually consistent with her earlier testimony about not receiving medical treatment, but is inconsistent with her narrative and other aspects of her oral testimony. [68] Whether or not the female Appellant required and received medical treatment when confined by her father is a significant part of her story. The RPD's conclusion that the Appellant's evidence on this subject was contradictory is supported by the recording, and the RPD's credibility finding on the matter is justifiable, transparent, and intelligible. Knowledge of the Muslim Faith [69] The RPD observed that, though the female Appellant was born into and raised in the Muslim religion, she had little knowledge of Islam. Despite repeated opportunities, the Appellant could not say much about the Qur'an, Muslim customs, and the history and foundation of Islam. [70] The Appellants point out that the Federal Court has warned the RPD against subjecting refugee claimants to a quiz of random religious facts. The female Appellant was never truly a believer in or follower of Islam, and she renounced the religion more than a decade ago. The Appellants argue that the RPD engaged in a microscopic examination of the evidence in order to make a credibility finding. [71] The Court has indeed cautioned the RPD against holding a refugee claimant to an unrealistically high standard of religious knowledge.34 It has, however, also upheld the RPD's negative finding on religious identity where the refuge claimant could not demonstrate more than a superficial knowledge of the religion.35 [72] The female Appellant wrote at the beginning of her BoC narrative that, "even though the religion practices were not allowed during Soviet times our family secretly kept Muslim traditions and we brought up due to Muslim traditions."36 She testified that her family "followed Muslim traditions, prayed at home, and celebrated the holidays."37 She allegedly experienced severe problems because her Muslim family was opposed to her relationship with a Christian man and her subsequent conversion. In this context, it is not unreasonable to expect the female Appellant to have some detailed knowledge of Islam. Even if she detested the religion, she was raised in it, and her family was committed enough to their religion to practice it even when such practice was outlawed. [73] The RPD's questions were not trivial, nor did the Board engage in a microscopic examination of religious knowledge. The transcript makes clear that the female Applicant had a remarkably limited knowledge of the religion she claimed to be raised in: B: Well, what do Muslims believe in? F.C.: In Allah. B: Anything else? F.C.: I mean what in particular because I haven't read anything for a long time now. B: What can you tell me about the Koran? F.C.: Koran is a holy book. B: What else? F.C.: I don't know what else in particular, what else can be told. [74] The female Appellant alleges that she was raised in a repressive household where Islam was practiced, even when illegal. The RPD asked her broad questions, but she could not demonstrate more than a superficial knowledge of the religion. [75] The RAD's analysis of the RPD's credibility finding is not concerned with whether it is correct, or whether the RPD reached the same conclusion the RAD would have on the same evidence. The RAD must determine whether the RPD's conclusion is reasonable. The RAD finds that the RPD's credibility finding on the female Appellant's knowledge of Islam falls within a range of possible, acceptable outcomes defensible in fact and law. Medical Documents [76] The RPD considered three medical documents submitted by the Appellants, all of which were hand-written and, according to the male Appellant, obtained from one doctor. The RPD noted objective evidence about the manner in which an individual can obtain medical records from Russia, and observed that the Appellant could not explain how he was able to obtain records in a different way. In particular, the Appellants did not pay any administrative fees, simply telephoned a doctor in Russia, did not know how the doctor obtained the excerpts, and provided no authorizing documents. One excerpt has no date, all excerpts lack security features, and each is in different penmanship and signed by a different person, even though the Appellants say they made the request to one doctor. For these reasons, the RPD gave the documents little weight. [77] The Appellants submit that the RPD took objective evidence about hospital charts and medical books and applied that information to the hand-written excerpts, which are neither charts nor medical books. The RPD therefore incorrectly applied the objective evidence to the Appellants' documents. [78] The RAD has carefully reviewed the Response to Information Request (RIR) cited by the RPD on this subject.38 While some of that RIR does indeed deal specifically with medical books and hospital charts, the document also deals generally with "medical documentation" and the privacy of medical information. Nothing in the RIR supports the Appellants' testimony about how they obtained their medical excerpts; instead, the objective evidence indicates that Russia has measures in place to protect health information, and that there are formal procedures by which an individual, including an individual abroad, can obtain medical documents. [79] In the context of this objective evidence, and given that the documents were hand-written, in different penmanship and with different signatures, had no security features, and that one document was undated, it was not unreasonable for the RPD to give them little weight, particularly in light of the Appellants' inability to explain why they were able to obtain these documents with a simple telephone call to a Russian doctor. CONCLUSION [80] The RPD made many negative credibility findings about the Appellants' evidence. While some of these were indeed unreasonable-on the female Appellant's exchange with the police and on the matter of the complaint to the prosecutor-the RAD must consider the RPD's decision in its entirety. The RPD identified and thoroughly explained various serious credibility problems which touched on many important areas of the Appellants' claims, before making a finding that the Appellants were generally lacking in credibility. Even when the unreasonable findings are removed, the RAD finds that the RPD had sufficient reasonable credibility concerns on which to base its determination. The RPD's decision falls within a range of possible, acceptable outcomes defensible in respect to the facts and the law. [81] For the reasons given above, the RAD confirms the RPD's decision that the Appellants are neither Convention refugees nor persons in need of protection and dismisses their appeal. (signed) "Edward Bosveld" Edward Bosveld July 5, 2013 Date 1 Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62. 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 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 IRPA, Section 3(2)(a). 8 IRPA, Sections 170(g) and 171(a.2). 9 IRPA, Sections 170(i) and 171 (b). 10 IRPA, Section 170(b). 11 IRPA, Section 110(3). 12 Khosa, para. 89. 13 Newton, para. 80. 14 Khosa, para. 89. 15 Dunsmuir, para. 47. 16 Refugee Protection Division Rules, Rule 11. 17 Appellants' Memorandum, p. 647. 18 Appellants' Record, Transcript, p. 28. 19 Bodokia, Nicoloz v. M.C.I. (F.C.T.D., no. IMM-325-00), Blais, March 22, 2001; 2001 FCT 227. 20 Appellants' Record, Basis of Claim, p. 73, emphasis in original. 21 Appellants' Record, Transcript, p. 30, Lines 121-125. 22 Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 (F.C.A.). 23 Appellants' Record, Basis of Claim, p. 86. 24 Appellants' Record, Transcript, p. 42, Lines 334 to 346. 25 Appellants' Record, Basis of Claim Form, p. 74. 26 Appellants' Record, Basis of Claim Form, p. 86. 27 Appellants' Record, Transcript, p. 51. 28 Appellants' Record, Transcript, p. 54. 29 Appellants' Record, Basis of Claim, p. 85. 30 Lai, Kam Ming v. M.E.I. (1989), 8 Imm. L.R. (2d) 245 (F.C.A.). 31 Appellants' Record, Transcript, p. 53, Lines 527-552. 32 Appellants' Memorandum, p. 639. 33 Appellants' Record, Transcript, p. 52, Lines 512-515. 34 Wang, Mao Qin v. M.C.I. (F.C., no. IMM-461-11), Beaudry, September 2, 2011; 2011 FC 1030. 35 Khaliqi, Rahmat v. M.C.I. (F.C., no. IMM-2857-08), Heneghan, February 26, 2009; 2009 FC 202. 36 Appellants' Record, Basis of Claim, p. 82. 37 Appellants' Record, Transcript, p. 49. 38 RPD Record, Exhibit 5, item 3.2, RIR RUS103841.E. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB3-02448 TB3-02449 TB3-02450 RAD.25.02 (April 9, 2013) Disponible en français