Docket: IMM-5921-14
Citation:
2015 FC 784
Ottawa, Ontario, June 24, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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ABDUL BASIT
FIDA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant’s challenge to the decision of the
Refugee Appeal Division [RAD], which confirmed the negative decision of the
Refugee Protection Division [RPD], must be dismissed.
[2]
Mr. Fida is from Pakistan and claimed protection
in Canada on the basis of his sexual identity as a homosexual. The RPD did not
believe him; it found that there was insufficient credible evidence to
establish that he was a gay man or had suffered the experiences he claimed.
[3]
Among other areas of concern, the RPD noted in
its decision that the applicant had failed to provide any corroborative
evidence of his sexual identity or the events relating to that alleged sexual
identity which formed the basis of his fear:
The panel finds that it is not reasonable
that he did not provide corroborating documents in the form of affidavits from
these individuals considering he lives with his uncle and since Jawad Jamal and
his wife were directly involved in the events alleged by the claimant. The
panel draws a negative inference regarding his lack of efforts to corroborate
central elements of his claim.
[4]
Included in his appeal to the RAD were the
precise three affidavits that the RPD complained had not been produced. The
applicant asked the RAD to accept them as evidence in his appeal.
[5]
The RAD noted the restriction on the
acceptance of new evidence found in subsection 110(4) of the Immigration and
Refugee Protection Act, SC 2001, c 27, which provides: “On appeal, the person who is the subject of the appeal may
present only evidence that arose after the rejection of the claim or that was
not reasonably available, or that the person could not reasonably have been
expected in the circumstances to have presented, at the time of the rejection.”
[6]
The RAD observes that “if
the statutory requirements have been met, the panel must then consider the
factors in Raza [2007 FCA 385]” [emphasis added]. There are many cases
before this court addressing whether the RAD is to consider and apply the Raza
test to new evidence; however, that issue does not arise in this case because
the RAD explicitly finds that the requirements of subsection 110(4) of the Act
had not been met. The applicant urges that this was unreasonable.
[7]
The applicant was asked at his RPD hearing why
he did not have affidavits of the sort at issue to corroborate his evidence.
He responded that he did not know that he could submit this kind of evidence.
He submits that his lack of knowledge that such documents would be important is
corroborated by the fact that he was now providing them in response to the
decision of the RPD. The RAD did not accept that explanation.
With due respect, the RAD disagrees. The
Appellant had the services of competent counsel at the time of the RPD
hearing. Moreover, the BOC and kit provided to the Appellant explains the
process which includes the instructions to submit corroborative evidence to
support the allegations. The Appellant had the opportunity to do so at the
time of the RPD hearing [held on June 3 and 20, 2013] and up until the time
that the RPD rejected the claim on October 3, 2013. He failed to do so, and
therefore all of the “new” documentation does not meet the statutory
requirement, as these documents could reasonably have been available at the
time of the RPD hearing. The RAD particularly notes the affidavit from the
Appellant’s uncle in Canada, who could have come forward in person and
testified as a witness at the RPD hearing.
[8]
Decisions of the RAD are reviewed by this court
on the standard of reasonableness, save for questions of law. I find that the
RAD’s assessment that the “new” evidence did not
meet the requirement of subsection 110(4) of the Act was reasonable; moreover,
it is the very decision this court would have reached on these facts. The
court takes particular note of the fact that there was no request made by
either the applicant or his counsel at the RPD hearing to adjourn in order that
the affidavits could be obtained, nor was there any request made to tender them
following the hearing. Moreover, the decision of the RPD was rendered more
than three months following the last hearing date, but the affidavits were
produced only when the negative decision was rendered and the RPD was functus.
In short, there was no effort made to provide them until the decision was made
rejecting the applicant’s claim.
[9]
It should not come as a surprise to a claimant
or to his lawyer that proving sexual identity may well require more than simply
the sworn testimony of the claimant: see for example Ferguson v Canada
(Minister of Citizenship and Immigration), 2008 FC 1067.
[10]
There is a further submission made by the
applicant that the RAD failed to apply the proper test when reviewing his
credibility. The RAD examined the various findings of the RPD upon which it
based the finding that the applicant was not credible. It is clear from the
decision that it conducted its own independent analysis of that evidence. In
fact, two of the bases upon which the RPD relied were found by the RAD not to
have been a reasonable assessment of the evidence. Notwithstanding the omission
of those exceptions, the RAD agreed with the RPD on the others and concluded
that there was insufficient credible evidence upon which to make a positive
determination that the applicant was a homosexual or had experienced the events
in Pakistan that he claimed. That finding was reasonable based on the evidence
that supported it.
[11]
The applicant submitted in his written material
that the RAD Member was biased. There is no evidence whatsoever offered by the
applicant or found in the record to support even a suspicion of bias.
[12]
Neither party proposed a question for
certification, nor is there one on the facts before the court.
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