TB5-11322

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 : TB5-11322 TB5-11323 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 21, 2016 Date de la décision Panel Deborah Morrish Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister Craig Gloster Conseil du ministre REASONS FOR DECISION [1] The Minister appeals a decision of the Refugee Protection Division allowing the claims for refugee protection of XXXX XXXX(the principal Respondent) and her minor daughter XXXX XXXX XXXX XXXX, against Hungary. The Minister has submitted new evidence in support of the appeal. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the determination of the Refugee Protection Division (RPD) and substitutes the determination that, in its opinion, should have been made, namely, that XXXX XXXX and her minor daughter XXXX XXXX XXXX XXXX are neither Convention Refugees pursuant to s. 96 of the IRPA nor persons in need of protection pursuant to s. 97 of the IRPA. Background [3] The persons who are the subject of the appeal (hereafter referred to as "the Respondents") alleged before the RPD that they are citizens of Hungary who fear persecution by from skinheads, the Guarda, racists and other neo-Nazi groups and paramilitary groups. They also fear the policies of the Jobbik Party in parliament and their supporters and fear her former common-law spouse. The Respondents left Hungary on June XXXX, 2015. They came to Canada claiming refugee protection on June 11, 2015. An RPD hearing was held on three sittings on July 24, July 30 and August 10, 2015. The RPD rendered oral reasons for decision at the last sitting on August10, 2015, later provided a Notice of Decision and a transcript of the reasons dated September 9, 2015. [4] The RPD considered the issues of credibility and state protection and found that there would be a serious possibility of persecution if they were to return to Hungary as a result of their Roma ethnicity, as members of a particular social group and as victims of domestic violence. [5] The Minister submits that the Respondents have voluntarily returned to their country of origin and, therefore, the appeal should be allowed and the RAD should substitute a negative determination. [6] The Minister provided a written notice of appeal, an Appellant's Record and an Application for Extension of Time to File and Perfect an Appeal to the Respondents by international courier on October 27, 2015. In its decision regarding the Application for Extension of Time to Perfect, the RAD found that the delay of eleven days was reasonably justified. The RAD also noted that the Minister had shown a continuous intent to appeal the RPD's decision which disclosed an arguable case. There was no apparent prejudice to the Respondents in allowing the extension as there had been no response from them. [7] The Minister requests that the RAD exercise its discretion in accordance with ss.111(1)( b) by setting aside the determination of the RPD and substituting a decision that, in its opinion, should have been made, namely, that the persons are not Convention refugees or persons in need of protection. [8] The Minister is of the opinion that the principal Respondent's decision to re-establish herself in Hungary reveals that she does not genuinely fear returning to her alleged country of persecution. In light of her actions immediately following the conferral of Convention refugee status by the RPD, the Minister submits that the principal Respondent was not credible, on a balance of probabilities, when she declared that she feared returning to Hungary. While the Minister acknowledges the principal Respondent's evidence that her decision to return to Hungary is at least in part a result of her mother's ill-health, the Minster submits that the following new facts challenge any presumption of truthfulness from which she may have benefitted: (a) The principal Respondent returned to her country of alleged persecution to reside there permanently a mere three weeks following receipt of the RPD decision; (b) Despite claiming in her narrative that her daughter was abused at school she informed CBSA officials less than a week after receipt of the RPD decision that she was prepared to simply enrol her daughter in a different school; (c) Despite claiming in her narrative that she and her daughter feared her former common-law spouse who lived in Budapest and that there was no safe place for her in that city, she informed CBSA officials less than a week after receipt of the RPD decision that her common-law partner's whereabouts were unknown to her and that she intended to return to Hungary to live with her mother in Budapest. [9] The Minister is of the opinion that in light of this evidence, the principal Respondent was not a credible witness before the RPD, on a balance of probabilities, that she does not genuinely fear returning to Hungary and that she is neither unable nor unwilling to avail herself of Hungary's protection. [10] The Minister also submits that the RPD member was unclear about the RPD Rules when confronted with the principal Respondent's request to withdraw her claim. Similarly, there were no reasons provided as to why the RPD might have refused to accept the Respondents' withdrawal pursuant to RPD Rule 59. [11] In summation, the Minister submits that the RPD's failure to analyze, or even mention, the principal Respondent's testimony that she wished to withdraw her refugee claim in order to return to Hungary, nor her request for the panel to render a negative decision, demonstrates that the RPD made its credibility assessment without regard for the evidence. The Respondents were properly served with the Minister's appeal and have not responded to date. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [12] Subsection 110(4) of the IRPA provides that 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 expected in the circumstances to have presented, at the time of the rejection. [13] As provided for in ss. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and person who is the subject of the appeal. However, new evidence provided by the Minister, who is the appellant in the case at hand, is not subject to the statutory requirements of ss. 110(4), the language of which makes it clear that this subsection applies to the person who is the subject of the appeal. Therefore, the RAD finds that pursuant to ss. 110(3), the Minister may present documentary evidence on appeal and is not subject to the conditions imposed by ss. 110(4). Also, pursuant to s. 171(a.2) of the IRPA, the RAD is not bound by any legal or technical rules of evidence. Furthermore, s.171(a.3) of the Regulations under the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. Having considered the evidence provided by the Minister on appeal, the RAD finds these documents are both credible and relevant to the appeal. The Minister has also complied with RAD Rule 9(4) which requires that any supporting documents and the Appellant's Record must be accompanied by proof that they were provided to the person who is the subject of the appeal. [14] The new evidence put forward in the Minister's appeal record is as follows: (a) Exhibit M-1: An email dated September 18, 2015 from a Canada Border Services Agency (CBSA) hearings officer , confirming that the respondents made a claim for refugee status in Canada on June 11, 2015, and that they were granted refugee protection on September 9, 2015. The email then goes on to state: "They are voluntarily returning to their country of alleged persecution and they have purchased their airline ticket and it is confirmed for XXXX September XXXX, 2015." The email also includes the flight itinerary. Attached to the e-mail are the respondents' passports, Voluntary Departure-Confirmation forms, a copy of the airline ticket and the Acknowledgment of Receipt of Documents form. (b) Exhibit M-2: A Statutory Declaration by the principal Respondent which states, in part: My initial reasons for claiming refugee status in Canada have changed and I advised the Refugee Protection Division member at the last hearing that I intended to go back to Hungary as soon as possible as my mother was in a car accident the week prior. My intention upon returning to our country of nationality is to establish ourselves there and live there permanently. Should my mother recover from the accident, as I am the only child, I will be her primary caregiver. My mother is unable to travel as she has severe asthma as well as, injury sustained as a result of the car accident. In addition, I will find a new school for my daughter to attend. I am aware that the Minister of Public Safety may make an application to cessate my refugee status that was granted to me on September 9, 2015. I hereby serve notice that I will not oppose this application and agree for the Minister to use this statutory declaration as evidence for their cessation application. Furthermore, I waived my right to atend the hearing in person in respect to this matter and request this cessation application be dealt with in an expedited basis, as I wish to return to Hungary as soon as possible. An Interpreter's Declaration is appended. (c) Exhibit M-3: Notes taken by the CBSA Hearings Advisor during an interview with the principal Respondent, dated September 15, 2015. The principal Respondent elaborates on her statements made in the Statutory Declaration. What is the Role of the RAD? [15] The RAD is guided by the Federal Court in Huruglica,1 wherein Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [16] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Respondents are Convention refugees or persons in need of protection. ANALYSIS OF THE MERITS OF THE APPEAL [17] The Minister asks that the RAD set aside the positive determination of the RPD and substitute a determination that, in its opinion, should have been made. The Minister asks that the RAD find that the principal Respondent falsely informed the RPD panel that she had a genuine subjective fear of return to Hungary with her minor daughter, and otherwise was not a credible witness. This material omission creates errors of fact in the RPD's decision which caused the RPD to err in accepting the principal Respondent, on a balance of probabilities, as a credible witness. [18] However, the Minister's evidence contradicts the principal Respondent's alleged fear of returning to her country of origin, as shown by her decision to permanently re-establish herself in Hungary shortly after she was granted refugee protection in Canada. The Minister submits that the new evidence raises serious questions about her credibility. [19] The RAD finds that the RPD's decision does not address the principal Respondent's testimony that she wished to withdraw her refugee claim in order to return to Hungary. Neither does it mention her request that the panel render a negative decision. The Minister is of the opinion that silence on evidence of such central import to a claim for refugee protection amounts to an erroneous finding of fact, without regard to the evidence, which renders unintelligibly the reasons for decision with respect to the issue of credibility. [20] The Minister submits, and the RAD has confirmed, that the following is reflected in the audio recording of the sitting of the RPD hearing which took place on July 24, 2015: * The RPD member pointed out to the principal Respondent that she had provided absolutely no supporting documentation to corroborate her claim that she contacted police an alleged 60 to 70 times, and actually had no supporting documents for anything (59:00 - 1hr:03). [21] The audio recording of the sitting of the RPD hearing which took place on August 10, 2015, reflects the following: * The principal Respondent informed the panel three times that her mother was in hospital and that she wished to return to Hungary (1:50, 3:00, 3:50). * The principal Respondent stated that there was no reason to continue her refugee hearing as she wanted to go back to Hungary by all means (4:45). * The principal Respondent requested that the panel render a negative decision, saying that she would like for her claim to be refused (12:00, 13:05). * The member explained that a decision to withdraw her refugee claim would mean that she was no longer pursuing it and that her claim was finished. The principal Respondent stated that she understood. When asked if that was what she wished to do, the principal Respondent answered "Yes" (13:50 - 14:30). * Rather than accept the Respondent's application to withdraw her refugee claim, the presiding Member took a short recess. Upon returning to the hearing, the presiding Member stated that she was accepting the claim (15:10 - 16:00). [22] The RAD finds that the RPD erred in ignoring the principal Respondent's request to withdraw her refugee claim and by failing to provide any analysis of her desire to return home. [23] The Minister does not request an oral hearing, nor do the Respondents. [24] The Respondents were provided with the Appellant's Record and the RPD's Record by courier to their address at XXXX XXXX XXXX XXXX XXXX XXXX XXXX, Budapest, Hungary. The Appellant's Record was served on October 27, 2015 and the RPD's Record on January 8, 2016. To date there has been no response. [25] The new evidence that the principal Respondent is no longer at risk given that she has returned to Hungary, that she has stated that her child will not be at risk as she will change schools and her evidence that she is no longer aware of the whereabouts of her abusive common law spouse lead the RAD to substitute its decision for that of the RPD. [26] Furthermore, the unintelligibility of the RPD's credibility findings is compounded by the RPD's acknowledgement that the principal Respondent had not provided any supporting documentation to corroborate her claim that she personally faced a forward-looking risk of persecution in Hungary. CONCLUSION [27] The RAD substitutes the positive determination by the RPD by a negative determination. The Respondents are neither Convention refugees pursuant to s. 96 of the IRPA nor persons in need of protection pursuant to s. 97 of the IRPA. (signed) "Deborah Morrish" Deborah Morrish March 21, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-11322 TB5-11323