VB9-01374

RAD File / Dossier de la SAR : VB9-01374 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 24, 2020 Date de la décision Panel James Sloan Tribunal Counsel for the person who is the subject of the appeal Dean D Pietrantonio Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Kamal Gill Conseil du ministre REASONS FOR DECISION [1] The Respondent is an 81-year-old Sunni Muslim woman from Iraq. In 2005, after her daughter received a death threat in Baghdad, she (the daughter) took up a new job in Bahrain. The Respondent and her husband moved to Bahrain in 2006; they were able to reside there by virtue of their daughter's employment. In XXXX2013, the Respondent and her husband obtained Canadian visitor visas and travelled to Canada on XXXX XXXX XXXX2013. She and her husband signed their Basis of Claim (BOC) forms on February 27, 2014. The Respondent's husband, a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, has been found ineligible to make a refugee claim and is not part of this appeal.1 [2] The Respondent claims that she will be persecuted i) on political grounds because she is from a family XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX; ii) on religious grounds as a Sunni Muslim with perceived links to the Ba'athist Party; and iii) because of her membership in a particular social group, i.e. elderly women in Iraq. [3] A hearing was held to consider the Respondent's claim and, by means of a decision dated June 19, 2016, she was found by the Refugee Protection Division (RPD) of the Immigration and Refugee Protection Board of Canada (Board) to be a Convention refugee. The Minister (Minister or Appellant) successfully appealed the decision to the Refugee Appeal Division (RAD) on the grounds that her subjective fear had not been adequately assessed and the RAD sent the matter back to the RPD for redetermination by a second panel. [4] In a second RPD decision, dated April 20, 2017, the RPD again found that the Respondent was a Convention refugee. Once again, the Minister successfully appealed the matter to a second panel of the RAD, again largely based on the inadequacy of the assessment of subjective fear. By a decision dated March 2, 2018, the RAD sent the matter back to the RPD for redetermination by a third panel. [5] By means of a third decision, dated January 21, 2019, the RPD found that the Respondent was a Convention refugee. The Minister now appeals the decision of the third panel of the RPD to me. For the reasons that follow I allow this appeal and refer the matter back to a differently constituted panel of the RPD so that the claim may be reheard. STANDARD OF REVIEW [6] In my review of the RPD's decision, I will apply a standard of correctness.2 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.3 ANALYSIS [7] The RPD found: 1) that due to the Respondent's religion as a Sunni Muslim, "amplified" by her perceived connected to the Ba'ath party, there is a serious possibility that she will persecuted by Shia militia; 2) because she is a member of a particular social group, i.e. a woman in Iraq who is "progressive" and is too old to be expected to conform with the Iraqi view that women are weak, she faces a serious possibility of discrimination amounting to persecution if she returns. In addition, the RPD held: 3) that the Respondent had a subjective fear of persecution (and that possible indicators that she lacked subjective fear-failure to claim elsewhere, refoulement to Iraq, delay in claiming in Canada-were reasonably explained); 4) that there was no state protection reasonably available to her, in view of her religion and her gender; and 5) that, there was no viable internal flight alternative (IFA). [8] The Appellant makes a variety of arguments primarily relating to its claim that the RPD's assessment of the country condition evidence was selective and misleading or that the RPD disregarded important factual information about the Respondent (that she was retired, that she was not of fighting age, etc.) that make the country condition evidence inapposite in her case. [9] In reply, the Respondent states, through her counsel, that i) she disputes "each and every argument" put forward by the Appellant; ii) she relies on the evidence in the record, including her written submissions; and iii) "the appellant's proceeding against the Respondent is being carried out in bad faith with ulterior purpose and is an abuse of process."4 A statement that a respondent disagrees with every argument or he believes the RPD was biased made without any support or argument, is of no value. It is not, of course, my role to create arguments for the Respondent-especially one who is represented. The Respondent's memorandum does not meet the requirements of RAD Rule 10(3)(d), which requires that a response to a Minister's appeal include a "memorandum that includes full and detailed submissions regarding...the grounds on which the respondent is contesting the appeal...."5 Nevertheless, in considering the matter, I note that I have had regard to the Respondent's submissions to the RPD dated November 29, 20186 and December 13, 20187-as well as the balance of the record. [10] Based on my review of the record, I find that the RPD's finding that the Respondent faces a serious possibility of persecution on return to Iraq is correct. [11] Normally, where I reach a finding that the RPD was correct in its analysis regarding the existence of a serious possibility of persecution, I would outline my reasoning and address the Appellant's arguments as to how the RPD erred and, to the extent they have been made, the Respondent's arguments in response. Having done so, I would then determine if I was satisfied that the Respondent had rebutted the presumption of state protection and whether a viable IFA existed for her. Only then would I be in a position to find that the Respondent was a Convention refugee, pursuant to paragraph 111(1)(a) of the IRPA. [12] However, in this case, because the RPD's analysis of state protection is very limited (three paragraphs)8 and its consideration of IFA is perfunctory (one sentence), I am unable to make a finding that state protection is lacking or that a viable IFA is not a possibility. In order to make such a determination, submissions must be made on these important issues. [13] The IRPA does, of course provide that I may receive submissions by holding a hearing. However, my ability to convene a hearing is limited.9 While IRPA makes provision for me to hold a hearing in order to make a finding as to whether the RPD's assessment of the Respondent's credibility is correct, it does not allow me to hold a hearing to address other issues, such as state protection or the possible existence of an IFA. Subsection 110(6) provides that I am only able to hold a hearing where three conditions in relation to the credibility of the new evidence are met. The new evidence must: a) raise a serious issue with respect to an appellant's credibility; b) be central to the decision with respect to his or her refugee protection claim and c) if accepted, justify allowing or rejecting his or her claim. A hearing on the issues of state protection and IFA is not envisaged by the IRPA. [14] I note that in some cases where a new issue arises at appeal, it may be appropriate for the RAD decision-maker to seek submissions from an appellant and/or the Minister. In this case, however, given the fundamental in nature of the issues of state protection and IFA, I find that they are best assessed by a hearing, rather than by correspondence. [15] Because I am not in a position to find that the Respondent is a Convention refugee under paragraph 111(1)(a) of IRPA or that she is not a Convention refugee under paragraph 111(1)(b) without hearing evidence, I must make the referral described in paragraph 111(1)(c) of IRPA. I refer the matter to a differently constituted panel of the RPD in order that these important issues may be assessed. Because the matter is to be heard anew, I can see no benefit to providing my reasoning as to the existence of a serious possibility of persecution; indeed, by providing my reasoning I may only serve to confuse the future assessment of this claim. [16] Given that this matter first came before the Board over six years ago, in February 2014, I find it regrettable that the matter must now return to a first-level decision maker. I am aware that the Respondent, who is elderly and has some health issues, has been required to appear before the RPD no fewer that three times previously and that appearing a fourth time will lead to considerable inconvenience and renewed anxiety. Moreover, given the length of time that has elapsed (and will elapse), it is difficult to see how this matter could be said to meet the expressed desire of the Government of Canada for the efficient resolution of refugee claims. However, for the reasons set out, I return the matter to the RPD for reassessment. CONCLUSION [17] Pursuant to paragraph 111(1)(c) of the IRPA, I return the matter to a differently constituted panel of the RPD in order that the claim may be reassessed. (signed) James Sloan James Sloan September 24, 2020 Date 1 On May 26, 2015, the Immigration Division of the Board issued a deportation order for the Respondent's husband, due to his former position XXXX XXXX XXXX XXXX XXXX XXXX. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar, 2016 FCA 93, at para 103. 3 Ibid., at paras 69-74. See also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 4 Exhibit P-1, Respondent's Record, Respondent's memorandum, at p. 2. The third and final paragraph of the Respondent's memorandum states "The Respondent requests that the RAD dismiss the appeal and confirm the determination of the RPD." (Ibid.). 5 Refugee Appeal Division Rules, SOR/2012-257). 6 Exhibit RPD-1, RPD Record, Exhibit 22, at pp. 600-613. 7 Ibid., Exhibit 24, at pp. 622-625. 8 Ibid., at pp. 23-25, paras 51-53. 9 As the Federal Court of Appeal held in Singh: "Parliament's departure from the principal of a paper-based appeal...was limited." (Canada (Minister of Citizenship and Immigration) v. Singh, Parminder, 2016 FCA 96, at para 51). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-01374 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français