 
RAD.2 5.02  (February 7, 2014 ) 
 
 
 
Immigration and   
Refugee Board of Canada  
 
Refugee Appeal Division  
 Commission de l’immigration  
et du statut de réfugié du Canada  
 
Section d’appel des réfugiés  
 
 
 
RAD File No. / N° de dossier de la SAR  : TB4 -03368  
TB4 -03372  
 
 Private Proceeding / Huis clos  
 
 
Reasons and  decision  Motifs et décision  
 
 
Person(s) who is(are)  
the subject of the appeal  XXXX XXXX XXXXXXXX XXXX 
XXXX XXXX XXXX XXXX XXXX 
XXXX XXXX XXXX XXXX 
XXXXXXXX XXXXXXXX XXXX 
XXXXXXXX XXXX XXXX XXXX 
XXXX XXXX XXXX XXXX XXXX 
XXXX XXXX XXXX X XXXXXXX 
XXXX XXXX XXXX XXXX XXXX 
XXXX XXXX XXXX XXXX XXXX 
XXXX   Personne(s) en cause  
   
   
Appeal considered / heard at  Toronto, Ontario  Appel instruit à  
   
   
Date of decision  July 23, 2014  Date de la décision  
   
   
Panel  XXXXXXXXXXXXXX  Tribunal  
     
   
Counsel for the person(s) who 
is(are)the subject of the appeal  XXXXXXXXX . Weppler  
Barrister and Solicitor  Conseil(s) du (de la/des)   
personne(s) en cause  
   
   
Designated Representative(s)  N/A  Représentant(e)(s) désigné(e)(s)  
   
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Counse l for the Minister  N/A  Conseil du (de la) ministre  
 
2014 CanLII 94387 (CA IRB)
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 Reasons and Decision  
[1] XXXX XXXX  and XXXX XXXX  (the Appellant s), citizen s of Saint Kitts and Nevis , 
appeal a decision of the Refugee Protection Division (RPD) denying their claim s for refugee 
protection.  They have submitted no new evidence in support of their  appeal s. T he Appellant s ask 
the Refugee Appeal Division (RAD) to set aside the determination of the RPD and find them to 
be Convention refugees.  
DETERMINATION  
[2] Pursuant to Section 111(1)(a) of the Immi gration and Refugee Protection Act  (IRPA), t he 
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  
[3] The Appellant s alleged before the RPD that t he female XXXXXXXXX witnessed members of a 
criminal gang placing marijuana plants in a house near her home.  She reported this to the police 
and soon afterward began to receive threatening phone calls and messages.  On one occasion , the 
XXXXXXXXXX h eard XXXXXXX walking at the back of their house.  Both XXXXXXXXXX went into hiding —
the male Appellant to St. Maarten, and the female XXXXXXXXX stayed with a friend in St. Kitts.  She 
continued to receive threatening phone calls and also was sent a lewd, threatening me ssage via 
Facebook.  Both XXXXXXXXXX fled to Canada, and since their arrival , they learned that the gang 
members are searching for them.  
[4] The Appellants’ applications for refugee protection were heard on January 30, 2014 and 
March 3, 2014.  By a decision of M arch 14, 2014, the RPD rejected the ir claims.  The panel found 
that the Appellants were generally lacking in credibility and concluded that they had not 
established their claims with credible or trustworthy evidence.  
[5] The Appellant s submit that the RPD  erred  in its assessment of their credibility.  
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 ANALYSIS  
Nature of Appeal  
[6] The Appellants take the position that this appeal constitutes a de novo  proceeding, as they 
have a statutory right to appeal, as the RAD has broad powers to substitute its own findings for 
that of the RPD, and as the RAD has jurisdiction to consider appeals on questions of fact, law, 
and mixed fact and law.  
[7] In XXXXXX v. Criminal Lawyers ’ Trial Association , 2010 ABCA 399 , the Alberta Court of 
Appeal considered the relationship between adminis trative tribunals and administrative appellate 
tribunals. The Court considered whether the appellate tribunal —in that case , the Law 
Enforcement Review Board —properly chose to conduct a hearing de novo  when considering an 
appeal against the decision of the administrative tribunal of first instance —in that case , a 
presiding police officer. That Board considered various provisions of its enabling legislation, 
including those which gave the Board power to admit new evidence, and it concluded that it 
should emba rk on a de novo  hearing, and that , in fact , it was compelled to do so absent the 
agreement of the parties to do otherwise.1 
[8] The Court disagreed, finding that neither the fresh -evidence provisions nor other sections 
of the Board’s enabling legislation signa lled an intention to require a de novo  hearing in each 
appeal. The RAD notes that relevant sections of IRPA are similar to the legislative provisions 
considered in XXXXXX.  Section 110(3) of IRPA provides that:  
Subject to subsections (3.1), (4) and (6), the  Refugee Appeal Division must 
proceed without a hearing, on the basis of the record of the proceedings of the 
Refugee Protection Division, and may accept documentary evidence and written 
submissions from the Minister and the person who is the subject of th e appeal...  
[9] Subsection (4) states that:  
On appeal, the person who is the subject of the appeal may present only evidence 
that arose after the rejection of their claim or that was not reasonably available, 
or that the person could not reasonably have been e xpected in the circumstances 
to have presented, at the time of the rejection.  
                                                                 
 
1 XXXXXX v. Criminal Lawyers’ Trial Association , 2010 ABCA 399 , para. 22.  
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 [10]  Subsection (6) gives the Refugee Appeal Division the discretion to hold a hearing if, in its 
opinion, there is documentary evidence referred to in subsection (3):  
(a) that raises a s erious issue with respect to the credibility of the person who is the subject of 
the appeal;  
(b) that is central to the decision with respect to the refugee protection claim; and  
(c) that, if accepted, would justify allowing or rejecting the refugee protection cla im. 
[11]  IRPA  neither states nor signals that an appeal to RAD is a de novo  hearing of the 
Appellant’s refugee claim , and in fact the provisions set out above indicate otherwise . An 
Appellant bringing an appeal to the RAD has a restricted right to bring new evi dence .2 The RAD 
is required to proceed without a hearing,3 unless there is new evidence which meets the 
requirements set out in Section 110(6). The effect of the restrictions on new  evidence would be a 
de novo  hearing where the Appellant is limited in the ability to present evidence to support the 
refugee claim , despite having gained a new hearing of that claim . The RAD also notes that, in 
situations where it holds an oral hearing, the Rules require that a notice be prepared setting out the 
issues that will  be raised at the hearing.  The hearing is restricted to matters relating to those 
issues, an approach not at all consistent with a de novo  hearing.4  
[12]   Having considered the Court’s reasoning in Newton , as well as a plain reading of IRPA, 
the RAD finds that  this appeal cannot result in a de novo  hearing of the Appellant’s refugee claim .  
Standard of Review  
[13]  Although IRPA sets out grounds for appeal as well as possible remedies, it does not 
specify the standard of review to be applied by the RAD.  
[14]  The Appellant s argue that the RAD should show little deference to the findings of the 
RPD, as both Divisions belong to the same tribunal, as an appeal to the RAD is a full appeal, and 
as the RAD has broad power to substitute its own findings for those of the RPD.  
                                                                 
 
2  IRPA, Section 110(4).  
3  IRPA, Se ction 110(3).  
4  Refugee Appeal Division Rules , Rules 56(1) and 57(1).  
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 [15]  The R efugee Protection Division’s principal role is to hold hearings to determine whether 
refugee claimants are Convention refugees or persons in need of protection.  The RAD must, 
conversely, proceed without a hearing except in certain circumstances.5 The Court s have 
consistently held that triers of fact are better situated to make findings of fact at first instance.6 
The RPD has an opportunity to see and question the refugee claimant, while the RAD is 
infrequently in a position to do so.  An appeal body normally  should not substitute its own 
reasoning for that of the first -level tribunal which had the benefit of hearing oral testimony.7 The 
RPD is therefore in an advantageous position when it comes to assessing credibility and making 
findings of fact.   
[16]  One of the  purpose s of IRPA is to “establish fair and efficient procedures that will 
maintain the integrity of the Canadian refugee protection system....”8 In Newton , the Alberta 
Court of Appeal noted that a failure to show deference to the first -level decision -make r could 
undermine the integrity of such hearings, which would in effect be reduced to a type of 
preliminary inquiry.9 A failure to show deference to the RPD on questions of fact would have a 
similar effect on the first -level refugee hearing, and this is no t consistent with the purpose of 
IRPA  or its specific provisions with respect to appeals.10 In the RAD’s view, IRPA clearly signals 
that an appeal is not to be a de novo  hearing of the refugee claim, as the RAD is restricted in 
accepting new evidence and ho lding an oral hearing, and this too suggests that deference be 
shown to the findings of fact made at the first level.  
[17]  For these reasons, the RAD will show deference to the RPD on findings of fact, including 
credibility, and on findings of mixed fact and la w.11 The notion of deference to administrative 
tribunal decision -making requires a respectful attention to the reasons offered or which could be 
offered in support of the decision made. Even if the reasons given do not seem wholly adequate to 
                                                                 
 
5  IRPA, Sections 110(3) and 110(6).  
6  XXXXX,  para. 89.  
7  Iyamuremye, Oscar v. M.C.I.  (F.C., No. IMM -5282 -13), XXXXX, May 26, 2014; 2014 FC 494 , para. 39.  
8  IRPA, Section 3(2)(e).  
9  XXXXXX v. Criminal Trial Lawyers’ Association , 2010 ABCA 399, para. 80.  
10 XXXXXXXXXX, para 1.  
11 XXXXXXXXXX, paras. 39 -40. 
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 support the de cision, the RAD must first seek to supplement them before it substitutes its own 
decision.12  
[18]  The appropriate standard of review for questions of fact and of mixed fact and law is one 
of reasonableness.  Reasonableness is concerned mostly with the existence of justification, 
transparency, and intelligibility within the RPD ’s decision -making process, but also with whether 
the decision falls within a range of possible, acceptable outcomes which are defensible in respect 
of the facts and the law.13 In considering  the reasonableness of the decision, the RAD must review 
and independently assess the evidence that was before the RPD, and determine whether the RPD 
properly considered that evidence and reasonably justified the conclusions drawn from it.14 
[19]  The RAD will no t show deference to the RPD, however, on questions of law. 15 Here , the 
lower and appellate tribunal s have similar expertise with respect to questions of law, including 
those arising from their shared home statute, and this suggests that no deference is war ranted. It is 
an appropriate function for the RAD to ensure that the RPD is applying the correct law; this 
approach promotes just decisions and avoids inconsistent application of the law.16 A correctness 
standard on questions of law ensures universality in the application of the law.17 
[20]  For these reasons, the RAD will review questions of law on a standard of correctness.  The 
RAD will not show deference to the RPD’s reasoning process on such issues, but will undertake 
its own analysis of the question to determi ne whether it agrees with the RPD on the matter.18 
The RPD’s Findings  
[21]  The Appellant s argue that  the RPD erred in its credibility findings.  These submissions 
raise questions of fact, to be reviewed on a standard of reasonableness.  
                                                                 
 
12 Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),  2011 SCC 62 
(December 15, 2011) para. 12.  
13 XXXXXXXX,  para. 47; in XXXXX , para 4, the “range of reasonable outcomes.”  
14 XXXXXXXX,  para. 47; XXXXXXXXXX, para 3.  
15 XXXXXXXXXX, para. 2.  
16 XXXXXXXX,  para. 50.  
17 XXXXX , para. 90.  
18 XXXXXXXX,  para. 50.  
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 [22]  The Facebook post  - The fem ale Appellant told the RPD that she was threatened by gang 
members, who sent her a lewd picture via the Facebook social networking website.  She testified 
that she showed this message and picture to a friend.  The RPD asked for a copy of the message 
and pict ure, and the Appellant testified that she had deleted it. The panel noted that a supporting 
letter, from the friend who had allegedly seen the message, made no mention of it.  The RPD drew 
a negative inference from the Appellants’ failure to produce the evi dence and from the lack of 
mention of the evidence in the supporting letter.  
[23]  The Appellants argue on appeal that the RPD made an unreasonable finding here, as they 
provided the RPD with an entirely plausible explanation.  They submit that it was unreasonabl e for 
the panel to expect a woman to leave such an offensive post on her Facebook or to save a copy.  
[24]  Had the RPD made a negative credibility finding only with respect to the Appellants’ 
inability to produce the Facebook material, this might indeed have be en unreasonable.  However, 
the panel considered two issues together.  First, the Appellants could not provide a copy of the 
threatening message; second, there was no mention of the Facebook threat in a supporting letter 
provided by a friend who was allegedly  shown the material.  It was not unreasonable for the RPD, 
having considered both of these concerns,  to make a negative credibility finding.  
[25]  The Appellants argue, in the alternative, that this could not be considered as a 
determinative issue in their claims . The RAD agrees.  It is clear from the RPD’s reasons, however, 
that this was not treated as a determinative issue, but rather as one of a number of credibility 
concerns that cumulatively formed the basis of a global credibility finding.  
[26]  Re-availment  - The RPD noted that the female Appellant left St. Kitts on several occasions 
and travelled to St. Maarten, but she returned again to St. Kitts, despite allegedly fearing for her 
life there.  She explained that she needed to earn money in St. Kitts in order to fl ee, but the RPD 
rejected this explanation as implausible, and it drew a negative inference with respect to the 
Appellants’ subjective fear and their credibility.  
[27]  The Appellants submit that this was an unreasonable finding.  They could not have sought 
refuge e protection in St. Maarten, which was also dangerous for them.  They challenge the panel’s 
observation that travel between St. Kitts and St. Maarten costs money and was therefore 
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 inconsistent with the female Appellant’s goal of saving money to flee.  It was  unreasonable, they 
argue, for the RPD to expect a woman in fear of her life to avoid visiting her husband over the 
course of approximately five months.  Further, they submit that the RPD unreasonably concluded 
that they would have been able to flee St. Kit ts earlier had they not spent money on travel to and 
from St. Maarten.  
[28]  The RPD’s finding here was a reasonable one.  The Appellants claimed that they feared for 
their lives in St. Kitts, had decided to flee to North America, and needed to raise the money t o 
make their escape.  The female Appellant’s travel to St. Maarten and back is not consistent with 
this alleged fear, as on more than one occasion she voluntarily returned to the place where she 
allegedly feared for her safety.    
[29]  Lack of an address in hidin g - Although the female Appellant claimed that she went into 
hiding at a friend’s house for about five months, she did not record this address in the forms that 
accompanied her refugee claim.  She told the RPD that she misunderstood the meaning of the 
quest ion asking for her places of residence, but the RPD rejected this explanation, noting that the 
Appellant has eleven years of education and that she did not seek to correct this answer prior to 
the hearing, even though the male Appellant made corrections to  his Basis of Claim (BoC) form.  
[30]  The Appellants argue on appeal that the female Appellant explained the omission during 
the hearing , and it was therefore unreasonable for the RPD to make a negative credibility finding.  
[31]  The RAD has reviewed the immigration f orms referred to by the RPD.  The form in 
question asks the refugee claimant to list “all addresses where you have lived since your 18th 
birthday or in the past 10 years, whichever is more recent.”  While the male Appellant listed the 
address at which he was  allegedly in hiding, the female Appellant did not.19 In fact, she listed a 
single address in St. Kitts, and reported that she lived there from 2003 until XXXX  of 2013, when 
she left for Canada.  The female Appellant is educated ; she was represented by couns el, and her 
co-claimant provided his address for the period he allegedly spent in hiding.  In this context, it was 
reasonable for the RPD to make a negative credibility finding with respect to this omission.  
                                                                 
 
19 RPD ’s Record, pp.  42 and 135.  
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 [32]  The Appellants also argue that this matter does n ot go to the heart of their claims and 
should not be determinative.  The RAD agrees.  This was not a determinative finding, however; it 
was one of a number of credibility concerns that cumulatively led to a global credibility finding.  
[33]  Interview with immigrat ion officials  - The RPD noted that, although the XXXXXXXXXX 
allegedly fled to Canada for their safety, they did not tell Canadian immigration officials about 
this fear at the port of entry.  The Appellants told the panel that they did not tell the truth to 
immigration officials because they wished to speak to a lawyer first, and the RPD rejected this 
explanation as unreasonable.  
[34]  The Appellants submit on appeal that they were randomly questioned by border security 
officials upon their arrival in Canada, and t hey did not understand what was happening.  They had 
no knowledge of the refugee process and did not know they could claim refugee status.  
[35]  In the RAD’s view, it is not material whether the XXXXXXXXXX knew how to claim refugee 
status.  They fled to Canada for  safety; when they arrived, and the male Appellant was asked for 
the purpose of his visit, he was “unable to articulate why he had travelled to Canada” and stated 
that he was travelling for vacation to visit a friend, though he had trouble giving details a bout that 
friend.20 Only when he was ordered to leave Canada did he bring up his alleged fear in St. Kitts.  
In light of this evidence, it was reasonable for the RPD to make a negative credibility finding with 
respect to the XXXXXXXXXX’ failure to be forthri ght with the immigration officials of a country to 
which they had fled for protection.  
[36]  The RPD’s specific credibility findings, as well as its global credibility determination, are 
reasonable.  The RPD’s rejection of the Appellants’ refugee claims falls wi thin a range of 
possible, acceptable outcomes that are defensible in respect of the facts and the law.  
                                                                 
 
20 RPD ’s Record, pp.  85-93. 
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 Request for an Oral Hearing  
[37]  The Appellants ask the RAD to order an oral hearing , pursuant to Section 110(6) of IRPA .  
[38]  Section 110(3) of IRPA requires tha t the RAD proceed without a hearing, on the basis of 
the RPD ’s record, while allowing the RAD to accept documentary evidence and submissions 
from the Minister and the Appellant s. The person who is the subject of the appeal may, pursuant 
to Section 110(4), present “only evidence that arose after the rejection of their claim or that was 
not reasonably available, or that the person could not reasonably have been expected in the 
circumstances to have presented, at the time of the rejection.”  
[39]   According to Secti on 110(6), upon which the Appellants rely, the RAD may hold a 
hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious 
issue with respect to the credibility of the Appellants, that is central to the RPD's decisi on, and 
that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, 
where there is no evidence from or in response to the Minister, the documentary evidence referred 
to in Section 110(3) must be understood in relati on to Section 110(4).  
[40]  When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a 
hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the 
RAD may hold a hearing if that new evidence ra ises a serious issue with respect to the credibility 
of the Appellants, is central to the RPD ’s decision, and that, if accepted, would justify allowing or 
rejecting the refugee protection claim.  
[41]  The Appellants have not submitted any new evidence in support  of their appeals. As such, 
the RAD must proceed without a hearing, and the Appellants’ request for an oral hearing is 
denied.  
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 CONCLUSION  
[42]  Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the 
Appellant is neither a Conven tion refugee nor a person in need of protection.  This appeal is 
dismissed.  
 
 
(sign ed) “XXXXXXXXXXXXXX”  
 XXXXXXXXXXXXXX  
 July 23, 2014  
 Date  
 
2014 CanLII 94387 (CA IRB)

