RAD Decision TB6-03419/20/21/22

Private Proceeding

Amendment

Reasons and decision

Edward Bosveld and Ken Atkinson, for the majority

Reasons and Decision

[1] XXXX XXXX XXXX XXXX (the principal Appellant), her husband XXXX XXXX XXXX (the associated Appellant), and their daughters XXXX XXXX XXXX and XXXX XXXX XXXX (the minor Appellants), citizens of Chile, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted no new evidence in support of their appeals. The Appellants ask the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either grant their claims for protection or refer the matter back to the RPD for redetermination.

[2] The principal Appellant has been designated as the representative of the minor Appellants.

Determination

[3] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are dismissed.

Background

[4] The Appellants alleged before the RPD that they found themselves in difficult financial circumstances in Chile. They obtained a large, high-interest loan from a loan shark but were unable to meet the payment requirements. The loan shark and his associates threatened to harm them, and they fled Chile. The Appellants entered Canada in XXXX of 2015 and initiated refugee claims in October of 2015.

[5] The Appellants’ applications for refugee protection were heard on December 8, 2015 and January 7, 2016. By a decision of February 19, 2016, the RPD rejected the claims. The panel found that the principal Appellants were not credible or reliable witnesses; their evidence was vague and contained inconsistencies and omissions. The RPD concluded that the events alleged by the Appellants did not occur. The panel went on to consider the issue of state protection, and found that the Appellants had not rebutted the presumption that adequate state protection is available to them in Chile.

[6] On April 18, 2016, the Appellants perfected their appeals to the RAD.^{Footnote 1} They submit that the RPD erred by finding them to lack credibility, and was also wrong to conclude that they can expect adequate state protection in Chile.

[7] On June 22, 2016, the Chairperson of the Immigration and Refugee Board made an Order, pursuant to section 163 of the IRPA and Rule 43(1) of the Refugee Appeal Division Rules (RAD Rules), that this proceeding be conducted before a panel of three members of the RAD. The Chairperson was of the opinion that the three-member panel should determine the RAD’s role in an appeal where the RPD’s findings of fact involve an issue of credibility, including determining what level of deference, if any, is owed to the credibility findings made by the RPD.

[8] On July 6, 2016, the Minister of Citizenship and Immigration (the Minister) gave the RAD notice of his intention to intervene in these appeals. On August 2, 2016, the Minister provided his Memorandum of Argument,^{Footnote 2} in which he argues that the RPD did not err in either its credibility findings or its conclusion with respect to state protection.

[9] On September 16, 2016 the Appellants replied to the Minister’s Memorandum.^{Footnote 3}

[10] On October 3, 2016, the Canadian Council for Refugees and the Canadian Association of Refugee Lawyers (CCR/CARL) made an application to participate in these appeals.^{Footnote 4}

[11] On October 6, 2016, the Quebec Immigration Lawyers Association (AQAADI) made an application to participate in these appeals.^{Footnote 5}

[12] On October 13, 2016, the United Nations High Commissioner for Refugees (UNHCR) provided written submissions with respect to these appeals and the issue of the RAD’s role.^{Footnote 6} On November 4, 2016 the Minister replied to the UNHCR’s submissions.^{Footnote 7}

[13] By decisions of December 12, 2016, the RAD granted the applications to participate made by CCR/CARL and AQAADI. 

[14] On January 23, 2017, both CCR/CARL and AQAADI provided written submissions with respect to these appeals and the RAD’s role.^{Footnote 8}

[15] On February 6, 2016 the Minister provided submissions in reply to those of CCR/CARL and AQAADI.

Analysis

Issues

[16] There are three issues to be determined in these appeals:

1. What is the RAD’s standard of intervention with respect to the RPD’s credibility findings relating to oral testimony?
2. Did the RPD err in finding that the Appellants lack credibility?
3. Did the RPD err in finding that adequate state protection is available to the Appellants?

What is the RAD’s standard of intervention?

[17] The determination of the role of the RAD is “purely and essentially a question of statutory interpretation;” such interpretation requires an analysis of the words of the IRPA, read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the IRPA and its object.^{Footnote 9}

[18] In Huruglica, the Federal Court of Appeal considered the purpose and object of the IRPA, the legislative scheme and sections 110 and 111, and the legislative history and evolution. The Court concluded that it is the role of the RAD to intervene when the RPD is wrong in law, in fact, or in fact and law; this translates into the application of a correctness standard of review.^{Footnote 10}

[19] The Court also recognized, however, that there may situations where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because such findings require an assessment of credibility or of the weight to be given to oral evidence. Huruglica considered a number of hypothetical scenarios, after which the Court concluded,

…it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.^{Footnote 11}

[20] The Chairperson’s Order establishing this panel responds to the Court’s invitation to the RAD to develop its own jurisprudence with respect to deference.

Does the RAD owe any deference to findings of the RPD?

[21] The Appellants, Minister, UNHCR, CCR/CARL, and AQAADI each provided extensive submissions on the subject of deference.

[22] The Appellants argue that the RAD owes no deference to the RPD except in matters relating to oral evidence; even in such areas, the RAD should not defer to the credibility findings of the RPD where those findings are not based exclusively on the testimony. The RAD has equal or greater expertise than the RPD, and has the power to substitute its own decision for that of the lower tribunal. The Appellants advocate for a principled, case-by-case approach in which the RAD first determines whether the RPD enjoyed a meaningful advantage in reaching a finding, and then determines the extent of that advantage. In their submission, such an advantage comes only from the RPD’s ability to see and observe witness testimony directly. The Appellants point out that deference does not imply complete resignation toward findings; even where deference is shown, the RAD must still conduct an independent assessment and satisfy itself with respect to the RPD’s reasoning process.

[23] The Minister submits that the RAD may show deference to findings of the RPD where the lower tribunal had a meaningful advantage in reaching such conclusions; it is for the RAD to determine on a case-by-case basis whether such advantage exists and the level of deference owed. As the RPD normally holds a full hearing, and sees and hears the witnesses give evidence, and as the RAD does not normally hold a hearing, the RPD is best placed to assess the credibility of allegations made and of explanations provided for omissions and inconsistencies. Findings with respect to witness confusion, failure to respond, evasiveness, inconsistences, and contradictions are entitled to deference, and findings relating to witness demeanour are entitled to a high degree of deference.

[24] The UNHCR submits that the RAD should have the jurisdiction to make its own determinations of credibility in appropriate cases, and to substitute such a determination where the RPD is found to have erred. If a refugee claim is rejected on the basis of a negative credibility finding, and the appellate tribunal is not able to assess all the facts and evidence, including the credibility findings, this would limit the effectiveness of the appeal. It is the UNHCR’s position that the RAD should be able to fully review the decisions of the RPD on the merits of the refugee claim. The RAD’s practice of conducting independent assessments of the evidence is in line with international standards and the UNHCR hopes that this panel will endorse this trend.

[25] CCR/CARL argue that the legislature intended the RAD to review all issues for correctness. The rationale for deference in judicial review is linked to the separation of powers between the legislative, executive, and judicial branches of government, and thus not directly applicable to the situation of the RAD. Had Parliament intended the RAD to exercise restraint with respect to certain findings of the RPD, it would have said so; instead, it specifically omitted any language requiring deference. The unqualified appellate jurisdiction bestowed on the RAD is virtually identical to that of the Immigration Appeal Division (IAD) of the IRB, and it is established law that the IAD shows no deference to its lower tribunal, the Immigration Division (ID).

[26] In the view of CCR/CARL, the RAD was intended to have the benefit of the full record developed through an inquisitorial process at the RPD. Deference afforded to trial courts by appellate courts occurs within the context of an adversarial system and has no application here. The RAD and the RPD are equally positioned to make credibility findings based on a complete fixed record, which is developed through an inquisitorial process at the RPD. While the RPD has the opportunity to observe the refugee claimant’s demeanour, CCR/CARL point out that demeanour evidence is of very little value in the culturally and linguistically complex environment of a refugee hearing, and should not attract deference. Further, once the RPD hearing has concluded and the record has been developed, the RPD has no meaningful advantage in assessing relevant knowledge or in considering evidentiary inconsistencies.

[27] The only meaningful advantage enjoyed by the RPD, in the submission of CCR/CARL, is its inquisitorial function, and this advantage disappears once the hearing is concluded and the record created. As such, the RAD should review all of the RPD’s findings for correctness.

[28] AQAADI cautions against importing concepts of deference from generalist courts, as the RAD is a specialized administrative tribunal. Refugee jurisprudence has developed separately from other law because of the unique circumstances of refugee claimants. Credibility assessments are challenging because of the cultural, social, moral, and religious differences between claimants, in addition to issues of age, gender, health, and language. Like CCR/CARL, AQAADI points to the perils of demeanour evidence, but also notes that demeanour findings by the RPD appear to be very rare.

[29] In AQAADI’s submission, the RPD’s real advantage does not concern the assessment of a claimant’s credibility as such, but arises from the RPD’s obligation to hold a hearing in every case, and thus to decide on the issues raised and the questions asked. However, the RAD has access to the audio recording of the hearing, which allows for an assessment of the dynamics in the hearing room and the tone between the parties. The RAD is the only safeguard for failed refugee claimants, and AQAADI argues that deference is not justified in these circumstances, and the standard of review should be one of correctness.

[30] In reply to CCR/CARL and AQAADI, the Minister submits that RAD deference to the RPD’s credibility findings is consistent with both jurisprudence and the statutory scheme. It is an error to compare the RAD to the IAD, which performs a different function and has different statutory powers. In the Minister’s submission, the inquisitorial nature of the RPD does not negate its advantage in assessing credibility, while the use of demeanour evidence is indeed acceptable in specific cases.

Statute and Jurisprudence

[31] In the RAD’s view, both the statutory provisions of the IRPA and the related jurisprudence establish that it is appropriate, in specific cases, for the RAD to show deference to some findings of the RPD.

[32] Section 110(3) of the IRPA requires that the RAD must normally proceed without a hearing; while section 110(6) allows for the possibility of a hearing, this is only to occur in the case of new evidence which meets the requirements of section 110(4). It is clear that the RAD is not to hold a hearing to re-consider the evidence heard by the RPD.  This is reinforced in section 111(2)(b), which provides that the RAD may refer a matter to the RPD for redetermination only if it cannot confirm the RPD’s determination or substitute a different determination without hearing evidence that was presented to the RPD.

[33] The legislation suggests that Parliament viewed the RPD as having expertise in determining certain matters. Where the RPD finds under section 107(2) that a claim has no credible basis, or under section 107.1 that a claim is manifestly unfounded, the rejected claimant has no appeal to the RAD: in such circumstances, credibility is assessed only by the RPD. In the RAD’s view, this signals a recognition of the RPD’s advantage in determining credibility, as does the fact that a decision in respect to a vacation or cessation proceeding also cannot be appealed to the RAD.^{Footnote 12}

[34] In effect, the present refugee determination scheme requires that the RPD see, hear, and question the refugee claimant, while the RAD must not do so unless new evidence is presented which meets the statutory requirements for admissibility. Further, section 110(4) sets out a somewhat restrictive test for the acceptance of such evidence.

[35] This stands in contrast to the IAD scheme. Section 175(1)(a) of the IRPA provides that the IAD must hold a hearing to consider an appeal. Unlike the RAD, the IAD is not restricted in accepting new evidence. There is no IAD provision similar to section 111(2)(b), which discourages the RAD from hearing evidence already presented, and nothing comparable to RAD jurisdictional restrictions arising out of section 107. To put it simply, the IAD will normally see and question an appellant, and has broad power to accept new evidence; the RAD will normally not see or question an appellant, and is restricted in its ability to accept new evidence and to hold an oral hearing. The RAD cannot, therefore, accept CCR/CARL’s argument that the RAD’s appellate jurisdiction is virtually identical to the IAD’s; in fact, it is substantially different, and it is not helpful to look to the IAD scheme in considering the issue of deference.

[36] The importance of seeing, hearing, and questioning a witness for the purpose of credibility determination is generally established in jurisprudence and specifically in refugee law. In the seminal Singh decision – which forms much of the backdrop to both the IRPA and the establishment of the IRB – the Supreme Court considered the assertion by failed refugee claimants that they did not have a fair opportunity to present their claims or to know the case to be met.^{Footnote 13} The Court held that

…where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person: see Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, at pp. 806-08 (per Ritchie J.) I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions.^{Footnote 14}

[37] In the RAD’s view, the provisions of the IRPA must be considered with this reasoning in mind. Credibility is normally to be determined on the basis of an oral hearing, and the refugee determination process set out in the IRPA ensures that, in almost all cases, the oral hearing takes place before the RPD and not the RAD. This, along with the bar against appeals by refugee claimants whose applications have no credible basis or are manifestly unfounded (fraudulent), reflects a recognition that the RPD is generally in an advantageous position to assess credibility.

[38] This principle has been consistently recognized by the Federal Court, both before and after the Court of Appeal’s judgment in Huruglica. In Akuffo, the Court found that there “appears to be a consensus that when no hearing is held before the RAD, the latter owes deference to the RPD’s credibility findings.”^{Footnote 15} In Balde, Justice Mosley observed that “the Court has been consistent that the RAD ought to defer to findings of fact or credibility made by the RPD but must also conduct its own analysis of those findings.”^{Footnote 16} Similarly, the Court held in Cyril that “this Court has instructed the RAD that it should defer to the RPD on matters of credibility.”^{Footnote 17}

[39] In Aaron,^{Footnote 18} the Court wrote that:

No oral hearing was requested before the RAD and no new evidence was submitted. The RPD was able to directly observe and ask questions over the course of two separate hearings. The RPD was unquestionably in a more favorable position to determine those credibility findings.

There is nothing wrong with the RAD deferring on issues of credibility to the RPD.

[40] In Ahi, the Federal Court observed that “there may be situations where the RPD enjoys an advantage over the RAD in assessing evidence.”^{Footnote 19} The Court held in Moya that:

…the jurisprudence has established that the RAD may defer to the RPD where the RPD has heard the witnesses directly, has had an opportunity to probe their testimony or has had some advantage not enjoyed by the RAD.^{Footnote 20}

[41] The Court also found the RAD to have erred where it made its own credibility determination without affording deference to the RPD’s credibility finding or explaining why it considered that finding to be wrong.^{Footnote 21}

[42] In Koech, Justice Kane stated that

The jurisprudence has established that the credibility findings of boards and tribunals that have heard the testimony and observed the demeanor of an applicant should be accorded significant deference (Aguebor v Canada (Minister of Employment and Immigration) , [1993] FCJ No 732 at para 4 (QL), 160 NR 315 (FCA); Lin v Canada (Minister of Citizenship and Immigration), 2008 FC 1052 at para 13, [2008] FCJ No 1329 (QL); Fatih v Canada (Minister of Citizenship and Immigration), 2012 FC 857 at para 65, [2012] FCJ No 924 (QL)). I see no reason to take a different approach to credibility findings that are confirmed by the RAD following its independent assessment of the evidence on the record or where the RAD defers to the RPD based on its first-hand assessment.^{Footnote 22}

[43] CCR/CARL argue vigorously that the inquisitorial nature of the RPD proceeding serves to create a record that is equally available to, and understood by, both RPD and RAD. No deference is warranted, in their submission, because the RPD has no advantage in making findings based on the record when the RAD is presented with the identical record.

[44] The RAD cannot accept this argument. This tribunal is simply not placed in the same position as the RPD only by virtue of having access to the record of the RPD proceeding. Much of what transpires in that proceeding is not as clear to the RAD as it is to the RPD. The RPD chooses which issues to raise, the lines of questioning, and the explanations to be requested. The RAD may listen to the audio recording and possibly read a transcript, but has no ability to ask questions or seek clarifications; it is bound by the RPD’s choices.

[45] Whether a witness’ pause in responding to a question is indicative of evasiveness, or is caused by the interpreter quietly consulting his dictionary, is clear to those in the hearing room but not to anyone listening to a recording.^{Footnote 23} Whether a claimant’s appearance corresponds to her identity documents cannot be ascertained from a paper record. Whether a witness is reluctant to answer questions or is struggling to understand the interpreter is best determined by a decision-maker in the hearing room. And, while the RAD shares the concerns raised by CCR/CARL with respect to the perils of demeanour evidence, it is of the view that the RPD may legitimately have regard to witness demeanour, though it is better if additional objective facts support a resulting credibility finding.^{Footnote 24}

[46] The Federal Court of Appeal observed that “there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears.”^{Footnote 25} For the reasons set about above, the RAD finds that there are indeed situations where it is appropriate to defer to some findings of the RPD.

Scope of deference

[47] In which circumstances is it appropriate for the RAD to show deference to findings of the RPD? It is clear that no deference is to be shown unless the RPD enjoys a meaningful advantage in reaching its conclusion.^{Footnote 26} Whether such an advantage exists is to be assessed by the RAD on a case-by-case basis,^{Footnote 27} and the RAD should state why the RPD has an advantageous position.^{Footnote 28}

[48] Many decisions of the Court, as well as those of the RAD, discuss issue categories at some length, referring to questions of fact, of law, and of mixed fact and law. This panel does not find those categories to be particularly helpful in considering the role of the RAD. The Federal Court of Appeal has made it clear that a standard of correctness is to be applied to all findings of the RPD, with the exception of those areas where the lower tribunal enjoys a meaningful advantage. Such an advantage cannot be determined by reference to issue categories; for example, the RPD may be in an advantageous position to make certain findings of fact, and not others, and the same is true for issues of mixed fact and law. In this panel’s view, it is more practical to determine deference by simply considering whether the RPD enjoyed a meaningful advantage in reaching the conclusion in question. Of course, the RPD will never have such an advantage in considering questions of law, as both tribunals are specialized and expert in the interpretation and application of the same home statute; however, other findings must be considered on a case-by-case basis to determine whether an advantage exists and, if so, whether it is meaningful.

[49] While each panel of the RAD must determine whether the RPD enjoyed an advantage in making a specific finding, this panel will nevertheless consider whether deference is appropriate with respect to various types of RPD findings.

Inconsistencies, contradictions, and omissions

[50] The RPD may enjoy a meaningful advantage in assessing inconsistencies, contradictions, and omissions if these involve oral testimony (see paragraphs 36-46, above). Where the RPD identifies an inconsistency between various parts of oral testimony, it is clearly in a better position than is the RAD to consider that discrepancy and any explanation for it. Not only does the RPD see the witness and hear the testimony, but it chooses the questions to ask. Similarly, where there is an inconsistency between oral and documentary evidence – for example, between a claimant’s testimony and the Basis of Claim (BOC) narrative – the RPD may well have a meaningful advantage for having seen the witness, heard the testimony, chosen the questions, and listened to the answers. Where the inconsistency is in the form of an omission, the RPD may have a meaningful advantage if the omission, or the explanation for it, is part of the oral testimony. The RPD has no advantage, however, in considering an inconsistency between documents – but if an explanation for the discrepancy is provided in oral testimony, the RPD may indeed have a meaningful advantage.

Demeanour

[51] Given the nature and complexity of the refugee hearing, the RPD should approach the matter of demeanour with caution. However, as discussed above, the Federal Court has held that the RPD can legitimately have regard to witness demeanour, and where it does so, it enjoys a meaningful advantage over the RAD, as neither audio recording nor transcript can negate the RAD’s disadvantage in not having seen the claimant testify. As will be discussed below, however, such findings must be supported by the evidence and reflect a comprehensible reasoning process.

Specialized knowledge

[52] Section 170(i) of the IRPA allows the RPD to take notice of any information or opinion that is within its specialized knowledge; Rule 22 of the RPD Rules sets out the process to be used when the RPD intends to introduce and apply its specialized knowledge. Section 171(b) of the IRPA provides that the RAD may also apply its specialized knowledge.

[53] Where the RPD panel properly relies on specialized knowledge that is not shared by the appellate panel, the RPD enjoys a meaningful advantage.

Relevant knowledge

[54] The RPD frequently assesses a refugee claimant’s level of knowledge with respect to religious or political views that are central to the refugee claim. The RPD enjoys no meaningful advantage in simply comparing that testimony to documentary evidence, as the RAD can engage in the same exercise on the basis of a transcript or recording. However, where the claimant has apparent difficulty in providing the testimony, or where the claimant is questioned about inconsistencies or an apparent lack of expected knowledge, the RPD may have a meaningful advantage arising out of its ability to see, hear, and question the witness (see paragraphs 36-46, above.)

Implausibilities

[55] The RPD may make a finding of implausibility where the facts presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by a claimant.^{Footnote 29} Implausibility findings are not based on contradictions, inconsistencies, or omissions, but on extrinsic criteria such as rationality and common sense, which involve the drawing of inferences.^{Footnote 30}

[56] In most cases, the RPD will enjoy no meaningful advantage over the RAD in making an implausibility finding. The RAD is equally able to draw inferences based on rationality and common sense, and to consider whether the facts presented are outside the realm of what could reasonably be expected or conflict with objective evidence.^{Footnote 31}

Inferences

[57] An inference is “a conclusion reached by considering other facts and deducing a logical consequence from them.”^{Footnote 32} The Federal Court has described an inference as a legal concept with the same meaning as a plausibility finding.^{Footnote 33} Just as the RPD does not generally enjoy a meaningful advantage in making findings of implausibility, it is not usually in an advantageous position to draw an inference, as the RAD is equally expert in considering other facts and deducing a logical consequence.^{Footnote 34}

Documents

[58] In most cases, the RPD enjoys no meaningful advantage over the RAD in considering documentary evidence, as the RAD is equally expert and able to review documents and make findings with respect to them.^{Footnote 35} However, where the refugee claimant has presented an original document to the RPD but that document is not before the RAD, the RPD may have a meaningful advantage in assessing the veracity of that evidence.^{Footnote 36} There may also be such an advantage where the RPD relies on specialized knowledge with respect to the document in question, or where the RPD questions a claimant about inconsistencies relating to a document and hears the explanation provided by the witness (see paragraphs 36-46, above.)

Oral hearing

[59] Where the RAD holds an oral hearing and therefore has the opportunity to see and hear witnesses, it is clearly at no disadvantage to the RPD in making findings arising from the subject matter of the hearing. However, as a RAD oral hearing is normally restricted in the issues to be addressed,^{Footnote 37} there may be RPD findings which are not considered in the RAD hearing and which warrant deference.

[60] There may be other circumstances in which the RPD enjoys a meaningful advantage in reaching a conclusion, and where it is therefore appropriate for the RAD to show deference to the lower tribunal. As with the findings discussed above, the RAD must consider, on a case-by-case basis, whether deference is appropriate, must explain how the RPD enjoyed a meaningful advantage, and must still undertake an independent review of the evidence.

[61] The RAD notes here that, while deference is appropriate with respect to certain credibility findings of the RPD, the RAD must nevertheless review the overall credibility determination on a standard of correctness. While the RPD may have a meaningful advantage in making specific credibility findings, it has no such advantage in considering the cumulative effect of those findings. For example, the RPD may conclude that a claimant is generally lacking in credibility, based on a number of credibility findings which warrant deference by the RAD. The RAD, applying the deferential standard set out here, might determine that each of those findings is reasonable. Despite this, the RAD may conclude that those findings are relatively minor and are not sufficient to rebut the presumption of truthfulness, and thus determine that, while the specific findings were not in error, the conclusion based upon those findings is incorrect.

[62] For similar reasons, the RPD enjoys no advantage in determining whether, based on the evidence, the claimants are Convention refugees, persons in need of protection, or neither. Even where deference is shown to all of the RPD’s findings, the RAD must consider whether it agrees with the determination that is based on those findings.

Degree of Deference

[63] Having determined that certain findings of the RPD may deserve deference, the RAD has considered the degree or depth of deference which is appropriate.

[64] While the Appellants make no specific submissions with respect to the degree of deference to be shown by the RAD, they do argue that the RPD’s credibility findings “are so unreasonable as to be perverse.”^{Footnote 38}   The Minister submits that the RAD may describe the degree of deference as a standard of reasonableness.^{Footnote 39} CCR/CARL argues that the RAD should review all of the RPD’s findings for correctness.^{Footnote 40} AQAADI submits that “there can be only one standard of intervention for the RAD, the standard of correctness.”^{Footnote 41}

[65] The courts have not consistently or conclusively determined the level of deference to be shown by the RAD. Conclusions have included a “variable standards of deference,”^{Footnote 42} a “measure of deference,”^{Footnote 43} a “certain level,”^{Footnote 1} a “certain degree,”^{Footnote 45} and “a high level.”^{Footnote 46} In Huruglica, the Federal Court used the phrase “recognize and respect;”^{Footnote 47} although this was not defined, the Court in Balde found that Huruglica “implicitly endorsed the standard of reasonableness.”^{Footnote 48} When it considered Huruglica, the Federal Court of Appeal referred to “a degree of restraint.”^{Footnote 49} The Federal Court subsequently endorsed “significant deference.”^{Footnote 50}

[66] Prior to the Court of Appeal’s decision in Huruglica, numerous judgements of the Federal Court held that it was an error for the RAD to employ a standard of reasonableness.^{Footnote 51} Other decisions, however, accepted the use of a reasonableness standard by the RAD when applied specifically to credibility findings of the RPD.^{Footnote 54} In Madava, rendered after the Court of Appeal’s decision, the Federal Court observed that “there are generally only two standards of review, that is reasonableness and correctness.”^{Footnote 53}

[67] While Huruglica establishes that the standard to be applied by the RAD is normally one of correctness, that matter did not deal with questions of credibility or findings where the RPD had a meaningful advantage. The Court of Appeal, while observing that deference by the RAD may be warranted with respect to some RPD findings, did not specify the degree of deference to be applied. The Federal Court, however, having considered the Court of Appeal’s decision, found that “the RAD should apply the standard of reasonableness when reviewing the RPD’s credibility assessment of oral evidence.”^{Footnote 54} Most recently, the Court, after having considered paragraph 103 of the Court of Appeal’s decision, stated that:

In my opinion, the paragraph quoted above means that the RAD must apply a correctness standard when reviewing decisions of the RPD which do not raise issues of the credibility of oral evidence. Credibility issues are subject to review on the standard of reasonableness.^{Footnote 55}

Deference in the RAD context: RAD Reasonableness

[68] What degree of deference is then appropriate here? As an aside, the RAD notes that the distinction between the various standards may not make much of a practical difference in the determination of a RAD appeal. It is difficult to conceive of a finding that is determined by the RAD to be unreasonable but is yet not a palpable and over-riding error,^{Footnote 56} or of a specific finding that would be upheld under one standard but faulted under another.

[69] In the Supreme Court’s judgment in Wilson, Abella J. observed that “to attempt to calibrate reasonableness by applying a potentially indeterminate number of varying degrees of deference within it, unduly complicates an area of law in need of greater simplicity.”^{Footnote 57} Cromwell J. concurred:

Reasonableness must, therefore, ‘be assessed in the context of the particular type of decision making involved and all relevant factors’: Catalyst Paper Corp., at para. 18. However, in my opinion, developing new and apparently unlimited numbers of gradations of reasonableness review — the margins of appreciation approach created by the Federal Court of Appeal — is not an appropriate development of the standard of review jurisprudence.^{Footnote 58}

[70] The RAD will assess reasonableness in the context of its particular role while attempting to avoid the development of a new gradation of that standard, which would undoubtedly lead to the generation of much more jurisprudence before the matter is finally considered settled law. This is not unlike the RAD’s approach to the admissibility of new evidence which meets the criteria in section 110(4): the RAD may apply the framework of analysis set out in Raza^{Footnote 59} and benefit from related jurisprudence, even though this was developed for a different context, but must modify that framework to make it appropriate for the RAD context.^{Footnote 60}

[71]  While the jurisprudence on RAD deference ranges wide and far, there are certain elements which consistently appear. The RAD may show deference where the RPD has a meaningful advantage, although the level of deference to be shown to credibility findings is not the same as that in judicial review.^{Footnote 61} Even where deference is warranted to an RPD finding, the RAD is required to undertake an independent review of the evidence upon which the finding is based. The standard of reasonableness is not an error unless the RAD applies that standard without engaging in the requisite independent analysis.

[72] Where deference to findings of the RPD is warranted, the standard of RAD reasonableness will be applied. While this standard relies on the extensive jurisprudence explaining and defining reasonableness, it is applied in a considerably different context than that of judicial review and is not the application of the judicial review standard. The RAD will apply a standard of correctness to all findings of the RPD, with RAD reasonableness applied as an exception only where the RPD enjoyed a meaningful advantage in making a finding.

[73]  In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome.^{Footnote 62}  Despite the difference between judicial review and a RAD appeal, it seems appropriate for the RAD to adopt those elements to its standard of RAD reasonableness.

[74] Even where the RAD is to show deference to findings of the RPD, those findings must still be the result of a comprehensible reasoning process. The RAD must be able to read the RPD’s decision and understand how the RPD’s conclusions were reached.

[75] Further, the outcome of that process must be a result that is based on and supported by the evidence that was before the RPD. For this reason, it is particularly important that, as repeatedly noted by the Federal Court, the RAD engage in its own review of the evidence in the RPD’s record, in order to determine whether the RPD’s finding is supported by that evidence. Unlike a court, the RAD is empowered to re-weigh that evidence, as necessary, as part of its independent assessment. As the Federal Court explained in the recent Guo judgment:

[I]t is not unreasonable for the RAD to defer to, agree with, or respect the RPD’s findings and conclusions, provided it is apparent from the RAD’s reasons (as it is in this case) that it exercised independent judgment, conducted its own assessment of the claim, and did not simply endorse the RPD’s findings and conclusions.^{Footnote 63}

[76] The RAD will not show deference to the RPD’s determination of the refugee claim. The RPD has no advantage, after having considered the evidence and made its findings, in calculating whether that evidence and those findings lead to a particular determination. Even where the RAD finds it appropriate to defer to all of the findings upon which the RPD’s decision is based, the RAD must nevertheless consider, after its independent assessment, whether it agrees that these findings support the determination of the refugee claim.

Did the RPD err in finding that the Appellants lack credibility?

[77] The RPD made various negative credibility findings, and concluded that the Appellants are generally lacking in credibility. The Appellants challenge those findings on appeal, arguing that they are “so unreasonable as to be perverse, and are made without regard to the evidence….”^{Footnote 64}

Death threat of XXXX 2015

[78] The Appellants’ shared Basis of Claim (BOC) narrative alleges that, on XXXX XXXX, 2015, the associated Appellant was threatened by two men after failing to repay the loan. One man, XXXX, told the associated Appellant that “they would give us one more week to pay the balance of the debt otherwise they would start by destroying our things and would end killing us.”^{Footnote 65}

[79] The principal Appellant testified to the RPD that neither she nor her husband contacted the police for help. She explained that, during the XXXX 2015 meeting, XXXX had warned her husband that if he did contact the police the whole family would face repercussions. The principal Appellant believed XXXX would kill the family if they went to the police.^{Footnote 66} The RPD asked why this death threat was not included in the BOC narrative; the principal Appellant first testified that she told her counsel of this and believed it was included. She then explained that she was confused when the narrative was prepared and was not well due to the trauma she had experienced.

[80] The RPD did not accept the Appellants’ explanation for this omission, and found her testimony on this subject to be vague and confusing. In the RPD’s view, this was an important allegation and should have been included in the narrative. The RPD also noted that the associated Appellant gave yet a different version of events: that XXXX had told him it would be useless to go to the police as the loan sharks had connections with the police, who would therefore do nothing to assist the Appellants. The RPD could not understand why the principal Appellant would provide a different version of the threat than did the associated Appellant, as he was at the meeting and she was not. The RPD made a negative credibility finding as a result of all of this contradictory evidence.

[81] The Appellants submit on appeal that the RPD made an egregious error here by engaging in a microscopic examination of the evidence. They point out that the narrative does refer to a death threat, and also includes reference to their reluctance to approach the police: “We did not consider moving to another part of Chile because this is a criminal organization that has the ability to locate us in any part of the country and has connections with the police.”^{Footnote 67} In their submission, there was no significant inconsistency or contradiction between their testimony and narrative: in both, they mentioned the death threats and their fear of going to the police. The RPD wrongly focused on small details and disregarded the associated Appellant’s explanation that XXXX both threatened him and told him it would be useless to go to the police.

[82] The Minister disagrees, submitting that there was a significant discrepancy in the Appellants’ evidence on this subject, and that the principal Appellant provided evolving explanations that were not credible.

[83] The Appellants and CCR/CARL argue that the RAD should show no deference to the RPD’s finding here, as there was no advantage enjoyed by the lower tribunal in reaching its conclusion. The RAD disagrees. The RPD questioned the Appellants and put the apparent omission and contradictions to them for explanation. The RPD chose which questions to ask and heard the Appellants’ replies, including their explanations for the evidentiary deficiencies. The RAD cannot, even by reviewing the transcript or listening to the audio recording, place itself in the same position as the RPD. This finding warrants deference.

[84] The RAD has carefully reviewed the evidence. While the RAD agrees with the Appellants that there was no significant inconsistency between the testimony of the principal and associated Appellants, it also finds that there is simply nothing in the BOC narrative about the Appellants being threatened with death if they would approach the police. They were threatened with death if they did not repay the loan, and they did not go to the police because they believed the agents of persecution had connections to the police. There is a significant difference between being threatened not to go the police and choosing not to go to the police because they have been corrupted by criminals. In fact, if the police were colluding with the loan sharks, there would be no apparent need for the criminals to prevent the Appellants from seeking police assistance. The inconsistencies here are not minor.

[85] The RPD’s finding here is based on the evidence, and is also the result of a comprehensible reasoning process. There was an inconsistency and omission, and the Appellants were given an opportunity to explain. The RPD found that the explanation was evolving and unsatisfactory, and this too is based on the evidence.^{Footnote 68}

[86] Having reviewed the RPD’s finding here on the standard of RAD reasonableness, the panel finds that the RPD did not err.

Connections to organized crime

[87] The Appellants alleged before the RPD that XXXX, the loan shark, was a member of a Colombian criminal organization; they submitted that this gave him tremendous resources and contacts throughout Chile, as well as influence with the police. The RPD found that the Appellants had not provided any credible or trustworthy evidence of this Colombian connection. The panel repeatedly asked the associated Appellant if he knew anything about the criminal organization with which XXXX was affiliated, and the Appellant replied that he did not, but yet later testified that XXXX was associated with a Colombian organization. The RPD found this testimony to be contradictory, and also found the Appellants’ evidence about a Colombian connection to be vague, confusing and speculative. The RPD concluded that the Appellants had not established that the agents of persecution were affiliated with a Colombian criminal syndicate.

[88] The Appellants argue on appeal that the RPD confused speculation with inference. The associated Appellant told the RPD that XXXX had a Colombian accent, and had done research and learned that Colombian organizations operated in the same way that XXXX did.^{Footnote 69} The Appellants point to objective evidence about the manner in which Columbian criminal groups operate, even inside Chile. In their submission, the RPD engaged in an overly vigilant and microscopic examination of the evidence.

[89] The RPD’s finding here is one of fact, and is largely based on the Appellants’ oral testimony. It was the RPD which questioned the Appellants about the alleged Colombian connection, and which considered the Appellants’ testimony in response. The RAD is at a disadvantage in considering that same testimony, and therefore will show deference to the RPD’s finding.

[90] The RAD does agree that the Appellants’ evidence here is better characterized as inference than speculation; however, this does not change the fact that there was no reliable evidence before the RPD about an actual association between the agents of persecution and Colombian criminals. That one associate of XXXX had a Colombian accent does not establish a connection to a Colombian crime organization, and the fact that such organizations operate in Chile in a manner similar to XXXX also does not prove that XXXX was connected to such an organization. The associated Appellant did not refer to the alleged Colombian connection when asked about the loan shark’s organization,^{Footnote 70} and this allegation is not included in the Appellants’ BOC narrative, which the Appellants could only explain as an “oversight.”^{Footnote 71}

[91] The RPD’s finding here was based on the evidence and was the result of a comprehensible reasoning process. The RPD reasonably concluded that the Appellants had not established the connection between the alleged agents of persecution and Colombian criminal organizations.

Persecution of minors

[92] The principal Appellant told the RPD that the minor Appellants would be murdered by XXXX and his associates upon return to Chile. However, she also testified that the minor Appellants had not been harmed while in Chile. The RPD concluded that, as the adults had borrowed the money, and as the daughters had not been previously harmed, there was insufficient evidence to support the allegation of future harm to the minors.

[93] The Appellants argue that the RPD’s reasoning here is illogical and therefore unreasonable. If the agents of persecution wished to frighten the Appellants, targeting the daughters would be an effective way to do so.

[94] It is unclear to the RAD why the RPD engaged in an analysis of risk to the minor claimants. The RPD clearly did not believe that the Appellants were targeted by loan sharks. As the panel had already concluded that none of the Appellants face a risk, it was unnecessary to analyze whether the minor Appellants face a different risk than do the adult Appellants.

Threatening phone calls

[95] The RPD considered the principal Appellant’s testimony that she received approximately twenty threatening phone calls. The RPD observed that these calls were not included in the BOC narrative; the principal Appellant explained that she informed her counsel of these calls, and also claimed that she may have missed this information due to stress and trauma. The RPD asked her which explanation was correct – had she provided the information to counsel, or had she forgotten the information? The Appellant could not recall. The RPD did not accept this explanation and made a negative credibility finding.

[96] The Appellants did not challenge this finding in their initial Memorandum. The Minister argues in his response that the RPD’s finding here was reasonable. In reply, the Appellants submit that the RPD mischaracterized their testimony. The principal Appellant never claimed that she told counsel about the calls – she simply said that, due to the trauma she had been through, she could not remember why these calls were not mentioned in the narrative. Further, they submit that the calls were evidence of a peripheral nature, as nothing came of them.

[97] The allegations about the twenty phone calls arose in the RPD hearing; the RPD member had the opportunity to determine the questions to be asked, to assess the resulting testimony, and to hear the principal Appellant’s explanation for the apparent omission. The RPD was in an advantageous position and its finding deserves deference.

[98] That finding must nevertheless be based on the evidence, and the RAD has carefully reviewed the transcript. The RAD finds that the RPD erred when it concluded that the principal Appellant’s explanation for this omission was contradictory. The transcript does not show that the Appellant claimed to have informed counsel of these calls.^{Footnote 72} However, this error is not fatal to the RPD’s finding here. The Appellants claim that they received a large number of threatening phone calls from the alleged agents of persecution; they did not include this important information in their BOC narrative, and could not explain why it was missing. This was not a peripheral matter. The RPD’s negative credibility finding on this subject is reasonable in view of this significant and unexplained omission.

Credit note

[99] The Appellants told the RPD that they signed a credit agreement with the loan shark. They did not provide a copy of this document in support of their claim; they explained that they left it in their apartment in Chile. They departed in a hurry and left many items behind. After arriving in Canada, they did not consider calling their landlord in Chile in an effort to obtain the document.

[100] The RPD noted that its Rules require a refugee claimant to provide acceptable documents in support of a refugee claim. It did not find it “reasonable… that the claimants would leave all their personal items at the apartment in XXXX and not take anything with them.”^{Footnote 73} The RPD also found it unreasonable that the Appellants had not attempted to obtain the document from their landlord, and made a negative credibility finding.

[101] The Appellants do not challenge this finding. The Minister argues that it was reasonable to expect the Appellants to have made some effort to obtain this document, given its significance to the core of the refugee claims. CCR/CARL argues that negative inferences cannot be drawn solely from a failure to produce corroborating documents.

[102] Does the RAD owe deference to this finding? CCR/CARL submit that the RPD’s conclusion was one of implausibility, and thus attracts no deference. In the RAD’s view, the RPD’s analysis here includes two separate conclusions. The RPD did not find it “reasonable” that the Appellants would flee from their apartment without their possessions. This is clearly a finding of implausibility, to which the RAD owes no deference. However, the RPD also faulted the Appellants for not seeking the loan document after their arrival in Canada. The RPD determined which questions to ask the Appellants, and heard and saw them provide an explanation for their failure to seek the document. This placed the RPD in an advantageous position vis-à-vis the RAD, and the finding therefore warrants deference.

[103] The RPD erred in finding it implausible that the Appellants would flee without the loan document. It is well established in law that implausibility findings should be made only in the clearest of cases.^{Footnote 74} It is not at all clear, in the RAD’s view, that a family fleeing to safety would think to take a loan agreement with them, especially as the agreement was between them and criminals who were now pursuing them.

[104] The RPD was, however, entitled to make a negative finding from the Appellants’ failure to produce corroborating evidence here. Rule 11 of the RPD Rules requires refugee claimants to provide acceptable documents establishing identity and other elements of the claim; where such documents are not provided, the claimants must explain why they did not provide them and what steps they took in an effort to obtain the documents.^{Footnote 75} While it is plausible that the Appellants left the loan agreement behind in their alleged flight to safety, they simply could not provide an explanation for their failure to make subsequent efforts to obtain the document. The Appellants were represented by experienced counsel, and the loan agreement went to the very heart of their claim. The RPD’s negative credibility finding here was based on the evidence, was the result of a comprehensible reasoning process, and was therefore not in error.

Similar fact situation

[105] The principal Appellant told the RPD that one reason she did not seek police assistance was because she knew of another local family which had borrowed from loan sharks, and the adult male in that family simply disappeared. The RPD found this testimony to be vague and confusing: the Appellant did not know the name of the family, or when this incident occurred, and the Appellants did not include this allegation in their narrative. The principal Appellant explained that she forgot to include this in the narrative because of the traumatic events she had gone through in Chile. The RPD found that the Appellants had not established with credible evidence that the similarly situated family existed.

[106] The Appellants point to objective evidence that crime cartels collude with police and carry out violent reprisals. The Minister submits that the Appellants’ evidence with respect to the similarly situated family was vague and lacking in detail.

[107] The RPD was in an advantageous position to consider this evidence: it came through oral testimony, and the RPD determined which questions to ask and saw and heard the Appellants respond. The RPD’s finding here warrants deference.

[108] The RAD has reviewed the record and concludes that the RPD’s finding is based on the evidence. The BOC form specifically directs refugee claimants to explain in detail “whether persons in situations similar to yours experienced such harm, mistreatment, or threats.”^{Footnote 76} Even though the principal Appellant testified about a similar-situated family that allegedly came to harm, and claimed that this knowledge made the Appellants reluctant to approach the police, such information was not included in the BOC narrative,^{Footnote 77} and the Appellants could not provide a sufficient explanation for this omission.

[109] The RPD’s finding is also the result of a comprehensible reasoning process. The panel explained the deficiencies in the evidence. It did not simply state that the Appellants’ evidence was vague and confusing, but gave specifics: the Appellants could not provide the name of the family, or when the incident occurred, and did not include the allegation in their BOC.

[110] Having reviewed the RPD’s finding on a standard of RAD reasonableness, the panel concludes that the RPD did not err with respect to the similar-fact evidence.

General credibility finding

[111] While the RAD has deferred to many of the RPD’s credibility findings, it must review the RPD’s overall credibility determination on a standard of correctness (see paragraph 61, above.) While the RPD had an advantage in reaching specific credibility conclusions, it has no such advantage in determining the cumulative effect of such findings on the Appellants’ credibility. Even where the RPD’s credibility findings are reasonable, the RAD must consider whether those findings support a broader credibility determination.

[112] The Appellants’ credibility problems go to the very heart of their claims. They provided inconsistent evidence with respect to death threats, threatening phone calls, the nature of the criminal organization, and similarly situated persons. They did not make an effort to provide a highly relevant document, and did not provide a reasonable explanation for this failure. While the principal Appellant repeatedly blamed inconsistencies and omissions on trauma and stress, the Appellants did not provide medical or psychological evidence to establish that they suffer from any condition which significantly impairs their ability to recall facts or provide testimony.

[113] The RAD notes that the RPD also made a negative credibility finding with respect to the principal Appellant’s testimony that her husband was assaulted by XXXX, as this key fact was not included in the BOC narrative and the Appellants could not provide a sufficient explanation for its omission.^{Footnote 78} The Appellants do not challenge this finding on appeal.

[114] Having carefully reviewed the evidence, the RAD reaches the same conclusion as did the RPD. The Appellants’ evidence is so inconsistent and contradictory that it is not possible to tell what is true and what is not. This general finding of a lack of credibility extends to all relevant information emanating from their testimony.^{Footnote 79} The Appellants have therefore failed to establish with credible or trustworthy evidence the allegations upon which their refugee claims are based.

Did the RPD err in finding that adequate state protection is available to the Appellants?

[115] The RPD found that the Appellants generally lack credibility. Having reviewed the evidence, the RAD has reached the same conclusion. As such, the Appellants have not established that they face any threat or danger against which they require state protection. It is not necessary for the RAD to review the RPD’s findings with respect to state protection, as these claims fail on the basis of credibility.

Conclusion

[116] In summary, the standard of intervention to be applied by the RAD in considering decisions of the RPD is as follows:

1. The RAD will normally apply a standard of correctness to all findings of the RPD.
2. Where the RPD enjoys a meaningful advantage in making a particular finding, the RAD may assess that finding using a standard of reasonableness, modified to apply to the RAD context.
3. Where the RAD finds that deference is warranted, it is obligated to explain how the RPD enjoyed a meaningful advantage with respect to the finding in question.
4. Where the RAD shows deference to a finding, it will nevertheless consider both the process and the outcome. The finding must be the result of a comprehensible reasoning process - the RAD must be able to read the RPD’s decision and understand how the RPD’s conclusion was reached. In considering the outcome, the RAD must assess whether the finding is based on the evidence in the record; in order to do so, the RAD must undertake an independent assessment of that evidence, which may include re-weighing the evidence as necessary.
5. The RAD will consider the refugee determination on a standard of correctness, even where it has deferred to some or all of the findings upon which that determination is based.

[117] Despite some errors, the RPD made a number of reasonable findings with respect to the Appellants’ lack of credibility. The RPD found that the Appellants are generally lacking in credibility; having reviewed the evidence, the RAD has reached the same conclusion. As these refugee claims must fail on the basis of credibility, the RAD has not considered the alternative issue of state protection.

[118] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are dismissed.

Maria De Andrade, concurring reasons.

I agree with my colleagues that the appeal must be dismissed. My reasons, which differ, in part, are as follows.

Alleged Facts

[119] The following facts appear in the female appellant’s Basis of Claim Form (BOC Form). In mid-XXXX 2014, the male appellant took out a usurious loan from someone by the name of XXXX, to pay the balance on his credit cards and lines of credit.

[120] On approximately XXXX XXXX, 2015, the appellants were unable to make the agreed-upon payment. The next day, someone by the name of XXXX contacted them to find out why there was a delay. A meeting was set up with the male appellant in a downtown XXXX café to discuss the situation. In the evening, the male appellant went to the café, where two men were waiting for him. One of the men introduced himself as XXXX. He demanded that the amount due be paid immediately. After a discussion, the appellants were granted a one-week delay to pay the balance of the amount borrowed; however, if they did not pay, the family would suffer the consequences and risk being killed.

[121] When he returned home, the male appellant informed his wife of his discussion with the two men. Fearing for their safety, the appellants abandoned their apartment, leaving behind the majority of their belongings, and went to XXXX to seek refuge. After talking with family members, they made the decision to come to Canada.

[122] It did not occur to the appellants to go live elsewhere in Chile given that the lenders allegedly had police connections and belonged to a criminal organization capable of finding them throughout the country.

[123] The appellants left Chile on XXXX XXXX, 2015. They arrived in Canada the next day and they were authorized to stay in Canada for six months. The appellants claimed refugee protection in November 2015.

Impugned decision

[124] The refugee protection claims were heard on December 8, 2015, and January 7, 2016. On February 19, 2016, the Refugee Protection Division (RPD) rejected the claims for refugee protection, concluding that the claimants did not discharge their burden of establishing a serious possibility of persecution or that it would be likely that they would be subjected to one of the risks set out in section 97 of the Immigration and Refugee Protection Act (IRPA), should they return to Chile.

[125] The refugee protection claimants fled criminal loan sharks. Since the RPD was of the opinion that the alleged facts have no nexus to one of the five Convention grounds, it analyzed the refugee protection claims under section 97 of the IRPA.

[126] The RPD found that the adult claimants are not credible and trustworthy witnesses. Their testimony was sometimes vague and did not make sense. The RPD noted some inconsistencies in the evidence as well as omissions of significant facts in their BOC Form with respect to their refugee protection claims. As a result, the RPD found the appellants to be generally lacking in credibility. It based its findings on the following points:

1. The appellants’ failure to file into evidence a copy of the agreement they allegedly made with XXXX XXXX undermined their credibility. Furthermore, the RPD found it unreasonable that the appellants did not make any effort to try to obtain a copy of the contract that they claim to have signed.
2. Inconsistencies in the evidence, particularly with respect to the treatment of the male appellant during the XXXX 2015 meeting and their reasons for not going to the police, undermined the appellants’ credibility. The RPD also noted that the female appellant’s testimony changed when she was asked to explain why the mistreatment her husband had been subjected to during that meeting was not mentioned in the BOC Form.
3. The RPD noted that the testimony provided by the female appellant and that provided by her husband differed with respect to the statements made by XXXX at the XXXX 2015 meeting. According to the RPD, their testimony was also different with respect to their reasons for not filing a complaint with the police.
4. The female appellant testified at the hearing that she and her husband did not contact the police because a father of a family who were the victims of a similar situation to theirs had disappeared. The RPD found the appellants’ testimony in this respect not credible because it was vague and contained no details. In addition, there was no mention of this in the narrative.
5. The RPD found that the omission in the BOC Form that the lenders’ representatives had called approximately 20 times to threaten them undermined the appellants’ credibility.
6. The RPD concluded that the appellants did not establish, on a balance of probabilities, that their alleged aggressors have ties to a criminal organization with inter-country links or have police connections.
7. The RPD is of the opinion that the medical certificates filed into evidence do not support the alleged facts, in particular the contract with the lenders.

[127] Alternatively, the RPD concluded that the appellants failed to discharge their burden of establishing that adequate state protection is not available to them. On this subject, the RPD considered that the appellants did not try to seek state protection, that their testimony is speculative regarding their aggressors’ alleged ties to a Colombian criminal organization and that the documentary evidence does not support a conclusion that the state is unable to provide them with adequate protection.

Issues

[128] The Refugee Appeal Division (RAD) must decide the following issues:

• What is the RAD’s role and what degree of deference does it owe, where applicable, to the RPD’s findings on the credibility of oral evidence?
• Did the RPD err in its assessment of the appellants’ credibility?
• Did the RPD err in concluding that the appellants did not meet their burden of proof regarding state protection?

1.  What is the RAD’s role and what degree of deference does it owe, where applicable, to the RPD’s credibility findings on the value of the oral evidence?

[129] This appeal involves two different questions. The RPD’s credibility findings are questions of fact. The other question is related to state protection. This is a question of mixed fact and law that requires the application of the standard of correctness (Huruglica).

[130] In addition to these two questions, following the Federal Court of Appeal decision in Huruglica,^{Footnote 80} the Chairperson of the Immigration and Refugee Board of Canada (IRB) ordered that a panel of three members of the RAD examine the degree of deference or restraint the RAD must show, where applicable, when examining the RPD’s credibility findings. In Huruglica, the Federal Court of Appeal was called on to consider the RAD’s role when it hears the appeal of an RPD decision. It concludes as follows:

[103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.

[131] For findings of fact or findings of mixed fact and law that rely on the assessment of credibility or the weight of oral evidence, Justice Gauthier states, at paragraphs 70 to 74 of Huruglica, that there may be cases where the RPD enjoys an advantage over the RAD. According to the Court of Appeal, the degree of deference owed to the RPD “ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.”^{Footnote 81}

Position of the parties

[132] With respect to the RAD’s role and the degree of deference that it should show to the RPD’s credibility findings, I will not reiterate the claims of the parties and the various intervenors, since these were amply summarized by my colleagues.

[133] Since an appeal before the RAD is a statutory remedy, its mandate and powers are defined in sections 110 and 111 of the IRPA.

[134] Although the legislator has set out the nature of the issues that can be submitted on appeal, and the remedial powers available to the RAD, it did not explicitly specify the standard of review the RAD should use when examining an RPD decision. The purpose of the standard of review analysis is to determine the degree of respect or restraint that is owed to a decision of a lower tribunal.

[135] In approaching the analysis of the degree of deference or restraint, I was interested in whether the RAD can be guided by the criteria set out by the Supreme Court of Canada when it decides the appropriate standard of review for each issue. In Dunsmuir,^{Footnote 82} the Supreme Court reduced the standards of review to two: the correctness standard and the reasonableness standard. The reasonableness standard commands a high degree of restraint; the majority states that it rests on the following principle:

[47] …certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.  Instead, they may give rise to a number of possible, reasonable conclusions.  Tribunals have a margin of appreciation within the range of acceptable and rational solutions.  A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[136] In reference to the standard of correctness, which requires no deference, the Supreme Court states that:

[50] … 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.

[137] The Federal Court asked the RAD to depart from the concepts and language developed in the judicial review context. In Huruglica, Justice Phelan states the following on this subject: “a standard of review analysis is not an appropriate analytical approach. One must look at such factors as the purpose of the appellate tribunal…, the statutory provisions, comparable expertise, and comparative appellate appeal regimes.”^{Footnote 83} On appeal from a first-level decision, Justice Gauthier, on behalf of the Federal Court of Appeal, states the following:

[47] The principles which guided and shaped the role of courts on judicial review of decisions made by administrative decision-makers (as set out in Dunsmuir at paras. 27-33) have no application here. Indeed, the role and organization of various levels of administrative decision-makers do not put into play the tension between the legislative intent to confer jurisdiction on administrative decision-makers and the constitutional imperative of preserving the rule of law.

[138] Professor Paul Daly is also of the opinion that the use of concepts developed in a judicial context “is a troubling development, which imposes an important limitation on the powers of appellate bodies.”^{Footnote 84} These statements by the Court and by Professor Daly bring me to say that, in order to avoid any controversy, the RAD should develop its own particular language. The RAD’s use of judicial review terms can, in some cases, lead to confusion.

[139] Judicial review based on the standard of reasonableness is a process built on the idea that “certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.” Conversely, in the refugee determination process, there is not a range of possible outcomes for a claim. If we are to give effect to the intention of the legislator, which is to allow refugee protection claimants to have a true appeal on the facts, the degree of deference—even with respect to credibility issues for which the RPD enjoys a meaningful advantage—should be lower than those of the standard of reasonableness defined in the judicial review context. In my opinion, the fact that the RPD’s decision-making process is understandable and intelligible is not an indication that the decision rendered is correct.

What does deference mean in the IRB context?

[140] Deference is “a way of behaving that shows respect for someone or something.”^{Footnote 85} In order to determine the degree of respect that the findings of fact made by the RPD decision-maker deserve, it is important to take into account the particular legislative context and the role attributed by the legislator to the IRB’s two decision-making bodies.

[141] In examining the role conferred by the legislator on the RPD, the Court of Appeal notes that the RPD plays a “primary role in the refugee claims determination process….” The RPD member determines the issues, holds hearings, plays an active role by questioning refugee protection claimants and makes the final determination regarding the well-foundedness of many refugee protection claims.^{Footnote 86}

[142] The legislator also created the RAD, an appeal tribunal within the IRB. The RAD “cannot engage in a form of judicial review.”^{Footnote 87} The Federal Court has recognized “the RAD’s specialized (if not overspecialized) function when it comes to refugee matters.”^{Footnote 88} The Federal Court also considers that the broad powers conferred by the IRPA allow “the RAD to dispose of the merits of appeals,”^{Footnote 89} and states that “[t]he idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA….”^{Footnote 90}

[143] The reasons leading to the creation of the RAD have been emphasized in many Federal Court decisions, as well as in the Federal Court of Appeal’s decision in Huruglica.

[144] In Spasoja, Justice Roy highlighted the comments of Peter Showler, the IRB chairperson at the time the preparatory work was being done for the creation of the RAD. When speaking before a parliamentary committee of the House of Commons, Mr. Showler stated:

[145] With respect to the more specific role of the RAD, the Federal Court of Appeal states:

[98] The RAD was essentially viewed as the safety net that would catch all mistakes made by the RPD, be it on the law or the facts.^{Footnote 91}

[146] In the absence of a clear statutory mandate to the contrary, appellate courts do not “rehear” or “retry” cases. They review for error.^{Footnote 92} The appeal to the RAD is not a de novo hearing. The RAD generally proceeds without holding a hearing. In Singh,^{Footnote 93} the Federal Court of Appeal indicates that this principle “is subject to an exception only where the documentary evidence ‘(a) […] raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) […] is central to the decision with respect to the refugee protection claim; and (c) […] if accepted, would justify allowing or rejecting the refugee protection claim.” Similarly, the RAD does not have the discretion to accept new evidence.

Should the RAD show deference to the RPD’s credibility findings?

[147] The jurisprudence that developed after the implementation of the RAD clearly established that the RAD must proceed with its own independent assessment of the evidence and determine whether the RPD rendered the correct decision given the evidence. If the RAD is of the opinion, with regard to the evidence on the record or any other additional evidence submitted under subsections 110(3) or 110(4) of the IRPA, that the RPD’s decision is erroneous, it has the means set out in section 111 of the IRPA to intervene.

[148] Professor Daly acknowledges that because of its privileged position, the RPD has [translation] “a slight advantage in assessing some factual evidence on the record, including the credibility of witnesses.”^{Footnote 94}

[149] Before the Court of Appeal decision was handed down in Huruglica, the Federal Court jurisprudence had established that the RAD may show a degree of restraint to the RPD’s findings, since the RPD had heard the witnesses directly, it had the opportunity to question them and it was able to observe them during their testimony.^{Footnote 95}

[150] In Denbel,^{Footnote 96} the Federal Court states the following: “If the RAD owed no deference to the RPD’s findings on the issue which the RPD is best placed to decide, the statutory scheme would involve unnecessary duplication. The RPD would have no raison d’être. This recommends RAD-to-RPD deference on issues of credibility.”

[151] Many Federal Court decisions rendered since the issuance of the Court of Appeal decision confirm this point of view. In Koech,^{Footnote 97} Justice Kane states:

The jurisprudence has established that the credibility findings of boards and tribunals that have heard the testimony and observed the demeanor of an applicant should be accorded significant deference. I see no reason to take a different approach to credibility findings that are confirmed by the RAD following its independent assessment of the evidence on the record or where the RAD defers to the RPD based on its first-hand assessment.

[152] This privileged position in which the RPD finds itself is also recognized in Aaron.^{Footnote 98}

Degree of deference in the RAD context

[153] In Rahal,^{Footnote 99} Justice Gleason highlights a passage from a Supreme Court decision regarding the degree of restraint that should be shown by an appeal body:

[27] In Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at paras 30-31, 337 DLR (4th) 385, the Court noted that the reasonableness standard is more deferential than an appellate review in the treatment afforded to reasonable legal findings, which if erroneous, will be set aside on appeal but not on judicial review. The Court also indicated that under both standards factual findings are to be afforded deference. As discussed below, however, the degree of deference for factual findings is less in an appeal than in a judicial review conducted under the reasonableness standard. (Emphasis added)

[154] In Khachatourian,^{Footnote 100} Justice Noël notes that the RAD should assume its appellate role and that the same level of deference may not be applicable to credibility findings in an appeal as in a judicial review. Justice Noël adds that an independent assessment or analysis of the evidence by the RAD would be necessary to permit some level of deference. In Balde,^{Footnote 101} Justice Mosley makes a similar statement: “The Court has been consistent that the RAD ought to defer to findings of fact or credibility made by the RPD but must also conduct its own analysis of those findings.”

[155] Determining the degree of deference is a risky topic. If I were to qualify the RAD’s standard of review when it examines the RPD’s credibility findings, I would say that it should not be a standard that limits its authority to intervene. Despite the RPD’s advantageous position in some cases, the RAD’s approach involves taking a step back in order to better proceed with an independent and careful analysis of the evidence before it in an effort to determine whether the RPD committed an error warranting the RAD’s intervention.

[156] Finally, the RAD must also fulfill its role, which is to [translation] “ensure consistency in decision-making” in refugee law matters.

Degree of deference on a case-by-case basis

[157] The arguments submitted by the parties and the intervenors lead me to consider in which situations the RPD has a meaningful advantage over the RAD, as well as the extent of this advantage in assessing the credibility of testimony.

[158] In current decisions of the Federal Court and the Federal Court of Appeal, it is indicated in which types of cases the RPD finds itself in an advantageous position in relation to the RAD and vice versa. For example, the Federal Court states that the RAD is as equally well-placed as the RPD to determine plausibility.^{Footnote 102} The Federal Court also finds that it is appropriate for the RAD to give deference to the RPD regarding the authenticity of a document when the RAD does not have the original documents.^{Footnote 102} That being said, I am also of the opinion that there is no need for me to further discuss situations that may present themselves before the RAD as I fear that talking in generalities or establishing categories could give rise to rigidity where the RAD is concerned. As Justice Gauthier states, the degree of deference owed to the RPD “ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.”^{Footnote 104}

[159] Although the RPD has an advantage in some situations, at the risk of repeating myself, this advantage does not shield it from all interventions by the RAD.

2.  Did the RPD err in its assessment of the appellants’ credibility?

[160] The RPD found that the refugee protection claimants were not credible or reliable witnesses. According to the RPD, several parts of their testimony did not seem true at all. At times, their testimony was vague and evasive and did not make sense. Furthermore, the discrepancies or inconsistencies between their testimony and their written statement, as well as omissions of significant facts in the BOC Form, undermined the claimants’ credibility.^{Footnote 105}

[161] Essentially, the appellants submit that the decision rendered is flawed because the RPD conducted a microscopic assessment of the evidence in order to find contradictions and to conclude that the alleged facts did not take place. Furthermore, the RPD failed to consider relevant evidence. Consequently, the RPD determination must be set aside.^{Footnote 106}

[162] Assessing credibility is a complex process in which, generally, the RPD has wide latitude because of its advantageous position. Moreover, this advantage that it has because it sees, questions and hears refugee protection claimants testify orally does not shield it from all interventions by the RAD, which must proceed with an independent assessment of the evidence in order to determine whether the RPD’s conclusions are founded and whether the error alleged was committed.

Omissions, contradictions and inconsistencies

Death threats and their reasons for not going to the police

[163] The RPD noted that, at the hearing, the appellants testified about significant facts that had not been mentioned in the narrative. More specifically, the RPD noted that the female appellant testified that when her husband had met the lenders in downtown XXXX, he was grabbed and pushed and threatened with reprisals if they filed a complaint with the police. However, those facts were omitted in the BOC Form according to the RPD.

[164] The RPD also noted that the male appellant’s testimony and the female appellant’s testimony differed as to their reasons for not filing a complaint with the police. The member observed that the female appellant had stated that she believed that XXXX would kill them if they filed a complaint; however, her husband testified that during the meeting XXXX had stated that it would be useless to file a complaint as he and XXXX had police connections.

[165] In their memorandum, the appellants submit that in concluding that they failed to mention in their BOC Form that they had received death threats in XXXX 2015, the RPD committed a flagrant error. According to the appellants, this is a perfect example of a situation in which the RPD conducted a microscopic assessment of the evidence in order to find that they lacked credibility.

[166] In support of their statements, the appellants refer the RAD to the following excerpt from the narrative:

… XXXX told XXXX that they would give us one more week to pay the balance of the debt otherwise they would start by destroying our things and would end killing us.

[167] With respect to the failure to mention that they did not approach the police out of fear that XXXX had police connections, the appellants argue that this is a simple detail.^{Footnote 107} In response to the Minister’s arguments that the failure to mention in the BOC Form that they were threatened with reprisals if they contacted the police is an important aspect of their claim,^{Footnote 108} the appellants admit that they did not specifically write that they were warned about the uselessness of approaching the police; however, they wrote that they received death threats.^{Footnote 109} The appellants refer the RAD to the following excerpt from their narrative.

We did not consider moving to another part of Chile because this is a criminal organization that has the ability to locate us in any part of the country and has connection with the police.

[168] As for the degree of restraint the RAD should show with respect to these findings, the appellants submit that the RAD is not less well-positioned than the RPD, given that it has the hearing transcript and that it has access to the recording of the hearing, which places it in a position that allows it to have direct evidence.^{Footnote 110}

[169] The Minister’s representative submits that the lack of credibility findings are not based solely on inconsistencies and omissions in the BOC Form. He points out that, at the outset, the RPD stated that the appellants’ testimony was sometimes vague and evasive and at times did not make sense. According to the Minister’s representative, observing a witness answer questions is an important element in assessing credibility.^{Footnote 111}

[170] The intervenors—the Canadian Association of Refugee Lawyers (CARL), the Canadian Council for Refugees (CCR) and the Quebec Immigration Lawyers Association (AQAADI)—compellingly submitted many arguments cautioning the RAD against taking into account the refugee protection claimant’s demeanour in assessing credibility.

[171] I carefully examined the hearing transcript, the decision rendered and the arguments presented by the parties. Assessing credibility is at the core of the RPD member’s work. Generally speaking, the RAD can show deference to the RPD’s findings because it has the advantage of seeing refugee protection claimants testify. However, this advantage held by the RPD does not prevent the RAD from proceeding with an independent assessment of the evidence in order to determine whether the contradictions raised by the RPD are real or whether the inconsistencies exist.

[172] In Ozdemir,^{Footnote 112} the Federal Court refers to a case that is similar with respect to some findings to the case at hand. The Federal Court states as follows: “Rather, the assessment of credibility was based on omissions and discrepancies between his Basis of Claim and his oral testimony.  Accordingly, the RAD was in as a good a position as the RPD to make its own determination of the applicant’s credibility based on the recording of the hearing, the documents, and the explanation offered to the RPD.”

[173] First, in this case, I am of the opinion that the differences between the appellants’ oral and written statements are not trivial. It is accurate to state that the appellants failed to write in their narrative that during the XXXX 2015 meeting, the male appellant was grabbed and pushed. I also note that their written statements giving their reasons for not going to the police are rather in connection with the uselessness of moving elsewhere in Chile. I share the Minister’s representative’s point of view that, in the case before us, this inconsistency in the evidence is important as it is in connection with state protection.

[174] With respect to the threats uttered during the XXXX 2015 meeting, although it is indicated in the narrative that the husband was threatened with reprisals or death, those threats appear to me to be connected with the failure to fulfill their payment obligations rather than an attempt to discourage them from filing a complaint with the police. I also noted that the female appellant’s testimony^{Footnote 113} differs from the narrative in that respect. As a result, I am of the opinion that it was open to the RPD to find that the omission of those facts and the inconsistences in the evidence undermined the appellants’ credibility. I reiterate that those inconsistencies between the appellants’ oral and written statements were not considered in isolation.

Demeanour

[175] I agree with the intervenors that one must be prudent in this area. Although a witness’s demeanour is not a crucial element, in R v. Gagnon,^{Footnote 114} the Supreme Court of Canada recognizes the following:

[20] Assessing credibility is not a science.  It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. 

[21] This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available.

[176] Certainly, those Supreme Court statements were made in a context different from that of refugees; nevertheless, the statements illustrate the complexity of assessing the credibility of a witness. Furthermore, although I share the view that the audio recording of a hearing is closer to the reality than a hearing transcript, it does not put the RAD on equal footing with the RPD, which had the opportunity to see the refugee protection claimant testify.

[177] In the refugee context, this importance of being heard orally by the person who renders the decision was recognized by the Supreme Court in Singh. Similarly, the Federal Court has stated on various occasions that it is open to the RPD to consider demeanour in the hearing room. Certainly, although it is permissible to consider the manner in which a refugee protection claimant testifies, IRB decision-makers, from either the RAD or the RPD, must be sensitive to the cultural and behavioural differences of the individuals who appear before them and to the fact that these people are usually testifying through an interpreter.

Threatening calls

[178] At the hearing, the female appellant testified that after they left XXXX to seek refuge in XXXX, they received approximately twenty threatening calls from people stating that they were calling on behalf of XXXX.^{Footnote 115} That information is not mentioned in the BOC Form. The female appellant was asked to explain herself; the RPD found that the explanations she provided were not reasonable. According to the RPD, the female appellant first stated that she informed her counsel of this fact. Then she changed her testimony and stated that because of the stress and the trauma they experienced in Chile, it is possible that they overlooked this fact.

[179] The appellants first submit that this is an omission of a peripheral fact. Then, they argue that the female appellant did not change her testimony.

[180] At page 29 of the December 2015 hearing transcript, there are excerpts from the female appellant’s testimony on this subject. I examined her statements carefully and I am not satisfied that the female appellant changed her testimony. When questioned as to whether she had mentioned in her BOC Form that she had received those 20 threatening calls, the female appellant first stated that she did not remember. When questioned as to why the calls had not been mentioned, the female appellant answered that she was not feeling well. However, I do not agree with the arguments that this is an omission regarding a peripheral element. Receiving approximately 20 threatening telephone calls from individuals allegedly connected to a criminal organization is not an insignificant fact. The Federal Court has recognized that it is open to the Board to draw negative inferences from a contradiction between the Personal Information Form and the testimony of a refugee protection claimant for which that person did not provide satisfactory explanations.^{Footnote 116}

[181] Consequently, the RPD could consider the fact that the appellants failed to indicate in their BOC Form that while they were seeking refuge in XXXX, their alleged aggressors had supposedly threatened them on a number of occasions. Again, it is important to note that this is not the only omission.

Case similar to theirs

[182] At the hearing, the female appellant testified that one of the reasons why they did not consider contacting the police was that they knew that a member of a family who did business with shark lenders had disappeared. The RPD found that her vague and evasive testimony, as well as the omission of this fact in the narrative, undermined the appellants’ credibility.

[183] I examined the female appellant’s testimony found at pages 26 and 27 of the transcript. In her testimony, she simply stated that rumours were circulating in XXXX that a member of a family who had used shark lenders had disappeared. When questioned about whether she had written this incident in the BOC Form, she answered that she did not remember.

[184] In my opinion, it was open to the RPD to consider the omission of this incident in the BOC Form. This was not an innocuous fact, as it was allegedly connected to one of the reasons why the appellants did not approach the authorities.

Inconsistencies in the testimony

[185] The RPD found that the appellants’ statements when they were questioned about the remarks made by XXXX during the late XXXX 2015 meeting were different. The RPD noted, among other things, that the male appellant had stated that XXXX had told him that it was useless to go to the police since he had connections,^{Footnote 117} while his wife apparently stated that she and her husband did not go to the police for fear of reprisals.^{Footnote 118}

[186] I agree with the appellants that the RPD’s analysis was microscopic. At the same time, that finding does not nullify the decision.

Burden of establishing that their aggressors had ties to a criminal organization

[187] At the hearing, the male appellant stated that XXXX and XXXX had ties to a Colombian criminal organization. The RPD found that the appellants did not credibly establish their allegations in that respect. According to the RPD, when they were questioned about the criminal organization to which XXXX and XXXX allegedly belonged, the appellants’ testimony was vague, confused and speculative at best.

[188] The appellants submit that the RPD erred in making such a finding. They argue that the RPD failed to consider all of the evidence they filed that could support their claims. Relying on the Federal Court’s decision in Zhang v. Canada (Minister of Citizenship and Immigration), 2008 FC 533, they argue that the member confused speculation with inference.

[189] First, it is well established in law that the Board is presumed to have reviewed all the evidence at its disposal and that the failure to refer to a particular piece of evidence does not mean that it did not take it into consideration.^{Footnote 119} In this case, in reading the hearing transcript, I noted that the member confronted the male appellant with the evidence that counsel had submitted regarding Colombian criminal organizations operating in various neighbouring countries. As a result, I am not satisfied that the RPD did not consider the newspaper articles submitted by the appellants.

[190] I considered the appellants’ testimony. The male appellant stated that he believed that XXXX belonged to a criminal organization because of its modus operandi, more specifically because of the death threats they received.^{Footnote 120} When asked to provide more detail, it is clear that the male appellant stated that he was unable to add anything else. It was only once he was confronted with the newspaper articles submitted, which mentioned the existence of Colombian criminal organizations, that the male appellant stated that he believed XXXX could have ties to those organizations. The male appellant then added that XXXX had a Colombian accent, but that XXXX did not.

[191] With respect for the arguments presented and after considering the entire record, I also find that the appellants’ testimony lacked detail. Consequently, the objective evidence, combined with their testimony, is insufficient to conclude that their aggressors had ties to a criminal organization with branches everywhere in the country.

Corroborating evidence

[192] The first factor the RPD identified as having undermined the claimants’ credibility is linked to the fact that they did not file a copy of the agreement they allegedly made with the lenders. The RPD also found it unreasonable that the appellants made no effort to try to locate a copy of the contract that they claim to have left in the apartment in XXXX.

[193] The appellants submitted no specific argument regarding the RPD’s finding to this effect.

[194] The Minister’s representative submits that given the importance of this document, it is reasonable to expect the appellants to make an effort to try to obtain it.^{Footnote 121}

[195] Intervenors CCR and CARL first submit that the jurisprudence has established that it is not permissible to draw a negative inference simply from the fact that a document corroborating the allegations has not been produced. They also submit that the RPD does not enjoy a true advantage for this type of finding, as a review of the transcript and the reasons for decision demonstrates that the RPD’s findings about the credit note are founded on an implausibility rather than on seeing the appellants.^{Footnote 122}

[196] I agree with intervenors CCR and CARL. The RPD does not enjoy a meaningful advantage in making this type of finding. Moreover, it should be noted that the RPD’s finding is not based solely on an implausibility. Rule 11 of the Refugee Protection Division Rules (RPD Rules) sets out the following:

The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.^{Footnote 123}

This requirement of the RPD Rules is set out in the Claimant’s Kit as well as in the BOC Form. In Pinedo,^{Footnote 124} the Federal Court states:

A panel cannot draw a negative inference from the mere fact that a party failed to produce any extrinsic documents corroborating his or her allegations, except when the applicant’s credibility is at issue (Ahortor v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 137 (FCT)

[197] However, in a case where the credibility of a claimant is at issue, the RPD may consider the lack of effort made by the claimant to obtain documents that would make it possible to establish his or her allegations. The Federal Court has given its opinion, on several occasions, on rule 7 of the RPD Rules, the former version of rule 11, the wording of which is nearly identical.^{Footnote 125} In Uppal,^{Footnote 126} the Federal Court states that:

Rule 7 emphasizes the importance of establishing the claimant’s identity and claim. It does not impose any absolute requirement upon a claimant to furnish such documents but it requires a claimant who does not furnish documents establishing identity and other elements of the claim to explain why they were not able to obtain them.

[198] In this case, although the RPD’s behavioural finding at paragraph 19 is questionable, the RPD was justified to draw a negative inference from the appellants’ lack of effort to try to obtain a copy of the agreement at the heart of the refugee protection claim. Refugee protection claimants have the burden of establishing, on a balance of probabilities, the facts in support of their claim. Although it is not necessary, physical evidence may, in some cases, prove useful. It should be noted that, in this case, that element was added to others considered by the RPD. I see no reason to question that finding, which takes into account the established legal principles.

[199] When considered as a whole, the various elements analyzed above lead me to conclude that the appellants did not establish, on a balance of probabilities, that they face a serious possibility of persecution on one of the five Convention grounds. They also did not establish that it is likely that they would be subjected to one of the risks set out in section 97 of the IRPA.

3.  Did the RPD err in concluding that the appellants did not meet their burden of proof regarding state protection?

[200] I agree with my colleagues that this question, although important, is not determinative in the outcome of this appeal. For the same reasons as them, I do not see the need to proceed further with the analysis of this question.

Conclusion

[201] For these reasons, I confirm the determination of the RPD that XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are not “Convention refugees” under section 96 of the IRPA or “persons in need of protection” within the meaning of section 97 of the IRPA.

[202] The appeal is dismissed.

Signed: M^e Maria De Andrade
Date: May 23, 2017