Docket: IMM-3459-16
Citation:
2017 FC 196
Ottawa, Ontario, February 16, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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IMANOV BELEK
(a.k.a BELEK
IMANOV)
(a.k.a. IMINOV
BAHTIYAR YUNUSOVICE)
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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]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c-27 [Act or IRPA] of an Immigration and Refugee Board of Canada Refugee Appeal
Division’s [RAD or Board] July 25, 2016 negative decision [Reasons]. For the
reasons explained below, I am dismissing this judicial review.
I.
Background
[2]
The Applicant is a 43-year-old citizen of the
Kyrgyz Republic [Kyrgyzstan]. He is seeking protection in Canada because he
fears extortionists in his home country, whom he says are both state and
non-state actors. The Applicant says he was beaten by extortionists on three
occasions between 2013 and 2014, during which time he suffered serious injuries
requiring hospitalization.
[3]
The Applicant fled to Canada on September 7,
2014 and made a refugee claim, which was dismissed by the Refugee Protection Division
[RPD] on February 26, 2015. The RPD’s decision was upheld by the RAD on June
17, 2015 [RADI], against which the Applicant successfully argued a judicial
review before Justice Zinn in Belek v Canada (Citizenship and Immigration),
2016 FC 205 [Belek]. The reconsideration resulted in a second RAD
refusal, dated July 25, 2016 [RADII].
[4]
Part of RADII addressed ‘new’
evidence, namely (i): a short letter from a witness; and (ii) medical reports
detailing injuries sustained by the Applicant’s wife and son during the attack.
RADII rejected the evidence, this time on the basis of credibility (whereas
Justice Zinn ruled that RADI had improperly rejected it because it focussed on
what the evidence did not corroborate, as opposed to what it did: Belek at
paras 21-22). The main issue before this Court is therefore whether RADII’s
rejection of the evidence was reasonable.
[5]
RADII agreed that while the evidence was
admissible under subsection 110(4) of IRPA (under which RADI had refused its
admission), the letter and medical reports lacked credibility, a factor which
the recent decision in Canada (Citizenship and Immigration) v Singh,
2016 FCA 96 [Singh] established may be considered pursuant to the
earlier test developed in Raza v Canada (Citizenship and Immigration),
2007 FCA 385 at para 13 [Raza].
[6]
In making its negative credibility findings,
RADII noted that the witness’ letter was not in the form of a sworn statement,
affidavit or statutory declaration, provided no details about the timing of the
incident, and made no mention of the specifics of the “egregious”
confrontation and subsequent hospitalization. RADII concluded that the letter
was not credible, and refused its admission as new evidence.
[7]
As for the hospital records, the Board noted
that the hospital name and contact information was not present. Rather, only
the Ministry information is contained in the letter. The RADII found these
alleged hospital documents to be inconsistent with similar reports provided for
the RPD hearing (which did include hospital details and contact information).
RADII also considered its statement that the family members “had been frightened and beaten by unknown oriental people”,
but gave the author no weight given it was based on self-reporting. The Board
further noted that there was no mention of the authorities being contacted,
given (i) that it would have been a requirement of hospital authorities under
the circumstances; (ii) the author’s comments about the alleged perpetrators;
and (iii) statements made in the Basis of Claim [BOC] form regarding prior
police involvement post-beatings. RADII also noted being “fettered” by the lack of an original.
[8]
As with the witness statement, RADII found on a
balance of probabilities that the medical documents lacked credibility, gave no
weight to them, and did not admit them into evidence. Given the refusal to
admit the new evidence, the RAD also refused to grant an oral hearing.
[9]
The Applicant challenges the reasonableness of
these two findings (rejection of evidence and denial of an oral hearing).
II.
Analysis
[10]
I concur with the parties that Issue A – the
rejection of evidence – attracts deference and is reviewable on a standard of
reasonableness (Singh at para 29), as does Issue B – a procedural ruling
on an oral hearing: see Ketchen v Canada (Citizenship and Immigration),
2016 FC 388 at para 20 [Ketchen].
A.
Rejection of New Evidence
[11]
Under subsection 110(4) of the Act and pursuant
to the Federal Court’s decision in Singh at para 34, the RAD must accept
new “evidence (a) that arose after the rejection of the
claim; (b) that was not reasonably available; or (c) that was reasonably
available, but that the person could not reasonably have been expected in the
circumstances to have presented, at the time of the rejection.” However,
that is not the end of the inquiry: the RAD can also consider factors relating
to credibility, relevance, newness and materiality that Raza countenanced
with respect to Pre-Removal Risk Assessments [PRRA]: see Singh at paras
39-49, particularly at para 44:
Indeed, in my view it would be difficult to
argue that the criteria set out by Justice Sharlow in Raza do not flow just as
implicitly from subsection 110(4) as from paragraph 113(a). It is difficult to
see, in particular, how the RAD could admit documentary evidence that was not
credible. Indeed, paragraph 171(a.3) expressly provides that the RAD “may
receive and base a decision on evidence that is adduced in the proceedings and
considered credible or trustworthy in the circumstances.” It is true that
paragraph 110(6)(a) also introduces the notion of credibility for the purposes
of determining whether a hearing should be held. In that regard, however, it is
not the credibility of the evidence itself that must be weighed, but whether
otherwise credible evidence “raises a serious issue” with respect to the
general credibility of the person who is the subject of the appeal. In other
words, the fact that new evidence is intrinsically credible will not be
sufficient to warrant holding a hearing before the RAD: this evidence would
still be required to justify a reassessment of the overall credibility of the
applicant and his or her narrative.
[12]
Mere receipt of new evidence does not mean that
it will be believed, and/or admitted. The Federal Court of Appeal found that
credibility was one basis upon which to exclude this evidence (see also Issa v Canada (Citizenship and Immigration), 2016 FC 807 at para 20; and Tuncdemir v
Canada (Citizenship and Immigration), 2016 FC 993 at paras 35-37 [Tuncdemir]).
[13]
As noted above, significant deference is owed to
the Board in areas of acceptance of new evidence, which after Singh
undoubtedly include credibility findings, which are not made in a vacuum. If
the RAD can, in oral hearings it convenes, receive and base decisions “on evidence that is adduced in the proceedings and
considered credible or trustworthy in the circumstances” (IRPA paragraph 171(a.3)), it may, conversely, reject
evidence that lacks credibility and trustworthiness (Tota v Canada (Citizenship
and Immigration), 2015 FC 890 at para 44).
[14]
It is notable that the Applicant did not
challenge the credibility findings of the RAD in these proceedings. The
credibility findings made with respect to the new documents, which are the
subject of these proceedings, are made in light of the totality of the
evidence, including Affidavits and other materials on the file, and the
background of the case, including a fraudulent claim made abroad already noted
(and admitted) by the RPD (see: Tuncdemir at paras 35-37). In RADII, the panel referenced
the BOC, Affidavits, and other documentation that had been submitted to the RPD
and RADI. In short, the RADII credibility findings were not made in a vacuum.
[15]
With regard to the witness letter, the Applicant
argues that RADII committed the same reviewable error as had RADI in focussing
on what the letter did not say, as opposed to what the letter did say, and drew
a negative inference against the credibility of the letter accordingly. The
Respondent argues that this was a fair assessment of the evidence per the Raza
factors, with which I agree: Singh at para 44 is explicit in its
acceptance of credibility as a factor.
[16]
While other decision makers may have ruled
differently, I find it was open to and reasonable for RADII to conclude that
where the beating was so serious as to cause the alleged injuries documented
(i.e. to the skull and chest) and where hospitalization was required, something
would have been mentioned in that regard by the woman who witnessed the
incident.
[17]
I further find it reasonable for the RAD to have
doubted the credibility of the letter, when scant mention was made of the
upshot of the beating, none made of hospitalization (or at minimum, the
ambulance that allegedly came to pick up the victims), as opposed to the
balance of the description of the incident, which in its totality stated: “I was a witness to the beating of [the Applicant’s spouse
and son]. Unknown oriental people spoke very rudely with [the spouse], yelling
and insulting her.”
[18]
While I do not agree with the Board that
witness’ letter is “internally inconsistent” because
it mentions a beating, and then recounts insults to the wife, I do not find
that this finding alone renders the credibility finding unreasonable in its
totality. There were certainly other bases upon which the RAD came to that
conclusion regarding lack of credibility.
[19]
I also find that the RAD’s assessment of the
hospitalization records to be reasonable, in light of the various credibility
issues it raised, including inconsistencies with the original hospital records presented,
lack of any contact detail, and lack of originals. Given the lack of clarity of
the new records received, I find nothing unreasonable about the panel’s feeling
“fettered”, which I read to mean “hampered” by the lack of an original. Similarly, I
find the other credibility findings to be reasonable in the context of the
evidence presented.
B.
Denial of an Oral Hearing
[20]
If the tripartite test under subsection 110(6)
of IRPA is met, the Board may grant an oral hearing. The granting of an oral
hearing is not the rule; it is the exception, and may be granted or denied
subject the Board’s discretion (Biftu Adera v Canada
(Citizenship and Immigration), 2016 FC 871 at para
57). Here, given that RADII rejected the evidence on the basis of credibility,
it effectively had no new evidence on which to hold a hearing. Its finding, in
that light, was also reasonable.
III.
Conclusion
[21]
In light of the above, this application for
judicial review is dismissed.
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