MB5-03398

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. / No de dossier de la SAR : MB5-03398 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX a.k.a. XXXX XXXX and a.k.a. XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision March 29, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Alain Joffe Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION I. INTRODUCTION [1] XXXX XXXX, a.k.a. XXXX XXXX and a.k.a. XXXX XXXX, the appellant, a citizen of Libya, is appealing against the decision of the Refugee Protection Division (RPD). She submits that the RPD committed a number of errors in rejecting her refugee protection claim. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the RPD's determination and substitutes a determination that, in light of the most recent documentary evidence, must be made, that is, that XXXX XXXX is a refugee within the meaning of section 96 of the IRPA. III. BACKGROUND A. Summary of alleged facts [3] In her memorandum, the appellant presents the facts as follows: - she is a citizen in her fifties, is a mother of a family, is practically illiterate, and has diabetes and high blood pressure; - she has a well-founded fear of persecution should she return to live in Libya today given the civil war there and the fact that XXXX of the 2011 Libyan revolution are systematically being targeted; - her claim is a "refugee sur place" claim given the progressive outbreak, after her last departure for Canada, of a civil war involving various armed factions.1 [4] In addition to her BOC Form,2 the appellant, then referred to as the claimant, filed documents in evidence before the RPD.3 B. RPD decision [5] The hearing took place on April 7, 2015, before the RPD and the decision to reject the refugee claim was rendered on July 3, 2015.4 [6] The RPD did not believe the claimant's allegations: [8] A number of credibility problems were raised during the hearing. The panel therefore does not believe the allegations at the heart of this claim for refugee protection, including the claimant's allegation that she fears for her safety, and does not consider the claimant's testimony to be trustworthy on several elements of her claim for refugee protection. [9] The panel is aware that the claimant does not have much education. However, the credibility problems raised in this refugee protection claim are such that they cannot be explained by a lack of education on the claimant's part.5 C. Grounds of appeal and decision sought [7] In her memorandum, the appellant essentially submits that the RPD's assessment shows a lack of understanding of the situation in Libya, that the RPD did not ask the right questions and that the RPD did not consider her personal circumstances as a woman living in a context where Islamic culture is more prevalent. She also submits that her life is truly in danger in her country, which is currently plagued by killings, mass murders, rapes, incidents of torture, abductions, ransacking, looting and destruction of XXXX XXXX XXXX XXXX associated with the events of the 2011 Libyan revolution, XXXX XXXX XXXX XXXX XXXX XXXX.6 [8] The appellant is asking the RAD to allow the appeal, to set aside the RPD's determination and to substitute it with a positive determination or, in the alternative, to refer the matter to the RPD for re-determination with appropriate directions.7 IV. APPROACH TO BE TAKEN IN THIS APPEAL [9] In her memorandum, the appellant does not specify what approach must be used in this appeal, but contends that the RPD's determination is patently unreasonable, as it never understood her refugee protection claim based on a fear that arose after she arrived in Canada and erroneously relied on purported omissions and contradictions as well as on a lack of profile tracing her fear back to the time of the 2011 Libyan revolution.8 [10] In Huruglica, Justice Phelan finds that the RAD must conduct an independent assessment of the claim for refugee protection in order to arrive at its own opinion and that it is not necessary, in order to trigger this remedial power, that the RAD must find an error by the RPD on some standard of review basis.9 The Federal Court of Appeal will soon be ruling on these issues.10 [11] In this case, I am of the opinion that I must assess the most recent relevant evidence11 and come to my own conclusions as to whether, at the time of this appeal, the appellant has a well-founded fear of persecution in her country, if she had to return to live there. V. ANALYSIS OF THE MERITS OF THE APPEAL [12] In light of the most recent documentary evidence and the appellant's personal circumstances and after a close reading of her memorandum, I find that the appellant has established a well-founded fear of persecution should she return to live in Libya. I will explain. [13] The Office of the United Nations High Commissioner for Refugees (UNHCR) document, which discusses refugee protection claimants from Libya specifically, contains the following recommendations: 26. All claims of nationals and habitual residents of Libya seeking international protection should be processed in fair and efficient procedures in accordance with international and regional refugee law. For individuals whose claim had been rejected previous to recent events, the current situation may, depending on the individual circumstances of the claim, give rise to changed circumstances, which need to be considered if a new asylum claim is submitted. Claims for international protection of persons having been directly affected by developments since 2011 may need to be given particular attention, including, inter alia, claims submitted by political and human rights activists, members of the judiciary and law enforcements officers, women engaged in the public sphere, humanitarian workers, bloggers and media professionals, members of ethnic and religious minorities, individuals of (real or perceived) diverse sexual orientations and gender identities, and members of tribes/families or individuals perceived in support of one of the conflict parties or the former Gaddafi regime. Persons with these and other profiles may be in need of international protection in accordance with the 1951 Convention, for reason of real or imputed political opinion, or for reasons related to other 1951 Convention grounds. Claims need to be considered on an individual basis, carefully taking into account the particular circumstances of each case. . . . 28. UNHCR commends any measure taken by States to suspend forcible returns of nationals or habitual residents of Libya, including those who have had their asylum claim rejected. UNHCR urges all States to suspend forcible returns to Libya, including Tripoli, until the security and human rights situation has improved considerably. Given the volatility of the situation, the fragmentation of control and the plethora of armed groups, UNHCR considers that, in the current circumstances, the relevance and reasonableness of criteria for an internal flight or relocation alternative are unlikely to be met.12 [14] The recent report of the Secretary-General on the United Nations Support Mission in Libya describes the situation in Benghazi, where the appellant is from, as follows: 32. In Benghazi, the ongoing conflict shifted into an urban war of attrition in which neither side has been able to make additional significant territorial gains. Operation Dignity forces remain in control of large parts of eastern and northern Benghazi, while the Benghazi Revolutionaries' Shura Council, a coalition of local Islamist groups and Ansar al-Sharia, maintain control over neighbourhoods in the west and south of the city. The Council has increasingly relied on snipers, improvised explosive devices and suicide attacks, while Operation Dignity forces continued to conduct air attacks on Council positions. Mortar and Grad rocket attacks have reportedly caused the deaths of at least 20 civilians throughout the city since March. . . . 40. In Benghazi, the reported indiscriminate shelling of residential areas by all sides to the conflict, including Operation Dignity and the Benghazi Revolutionaries' Shura Council, resulted in the death and injury of civilians, including children and medical workers, while also causing damage to civilian infrastructure. The Benghazi Medical Centre was shelled on at least three occasions during the reporting period. The warring parties failed to guarantee safe passage for civilians, reportedly leaving a number of people trapped in combat zones in Benghazi. UNSMIL also received reports of the deliberate destruction of property by armed elements associated with Operation Dignity.13 [15] Also according to the report, fighters on all sides abducted and detained civilians on the basis of their identity, family and perceived political affiliations, and people fear for their lives.14 [16] Persecution is generally defined as the serious interference with a basic human right,15 and the word "persecute" means to harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently.16 While it is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the case law indicates that discrimination must be serious or systematic enough to be characterized as persecution.17 In drawing on two decisions of the Supreme Court of Canada, Justice Bédard states that before finding that persecution exists, there is a need to consider whether a basic right was violated and then verify whether the violation was repetitive or systematic.18 [17] Although refugee protection claimants have to establish their case on a balance of probabilities, they do not, however, have to prove the persecution would be more likely than not. In other words, the evidence must not necessarily show that a refugee protection claimant has suffered or will suffer persecution. Indeed, as I understand the case law in that regard, what the evidence must show is that the claimant has a well-founded fear of persecution for one of the reasons specified in the IRPA.19 Moreover, to conclude that there is a reasonable fear of persecution, or in other words, a reasonable chance or serious possibility of persecution, there need not be more than a 50% chance (i.e., a probability), but there must be more than a minimal possibility,20 given that there is no intermediate ground between the two limits.21 Lastly, in a refugee protection claim, it is important to understand what the alleged fear in relation to the future is. In other words, the test for establishing a well-founded fear of persecution is forward-looking.22 [18] In this case, the appellant's fear is that she will possibly be found, beaten, raped or killed, since, in the past, she publicly demonstrated in favour of the Libyan revolution, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. According to the documentary evidence, not only is the conflict intensifying in Libya, with Benghazi particularly affected, but fighters are also attacking people simply on the basis of their perceived political opinion. In such context, I am of the opinion that the appellant has established that she has a well-founded fear of persecution if she had to return to live in Libya. VI. CONCLUSION [19] For these reasons, I set aside the RPD's determination and substitute a determination that, in light of the most recent documentary evidence, must be made, that is, that XXXX XXXX is a refugee under section 96 of the IRPA. [20] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette March 29, 2016 Date IRB translation Original language: French 1 Appellant's memorandum, September 2, 2015, page 303 of the appeal record. 2 The Basis of Claim Form (BOC Form) is reproduced at pages 22 to 32 of the RPD record. 3 The list of those documents is reproduced at pages 157, 158 and 159 of the RPD record. The documents themselves are reproduced at pages 160 to 214 of the RPD record. 4 RPD reasons and decision, pages 12 to 21 of the RPD record. 5 Idem, paragraphs 8 and 9, page 12 of the RPD record. 6 Appellant's memorandum, paragraphs 69 to 73, pages 331 and 332 of the appeal record. 7 Idem, page 332 of the appeal record. 8 Idem, paragraphs 1 and 58 to 66, pages 303 and 327 to 330 of the appeal record. 9 Huruglica v. Canada (Minister of Citizenship and Immigration), No. IMM-6362-13, Phelan, November 7, 2014; 2014 FC 799, at paragraph 47. 10 Minister of Citizenship and Immigration v. Huruglica, No. A-470-14, the hearing of which took place on September 29, 2015. 11 Even though subsections 110(3), (4) and (5) of the IRPA do not mention the RAD's ability to present new evidence in an appeal, I am of the view that, in this case, given the developing situation in Libya, under section 165 of the IRPA, it would be helpful to the proceeding if the relevant elements of the latest version of the National Documentation Package on Libya were assessed. 12 Immigration and Refugee Board of Canada (IRB), National Documentation Package on Libya, November 30, 2015, Document 1.10: United Nations High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to Libya - Update I, October 2015, 16 pages, at pages 13 and 14, citations omitted. 13 Idem, Document 1.5: United Nations, Security Council, Report of the Secretary-General on the United Nations Support Mission in Libya, S/2015/624, 13 August 2015, 15 pages, at pages 5 and 7. 14 Idem, paragraph 46, page 8. 15 Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), Mosley, [2004] F.C.J. No. 316, 2004 FC 282, at paragraph 29, as cited by the Honourable Justice Zinn in Warner v. Canada (Minister of Citizenship and Immigration), March 23, 2011, No. IMM-4283-10; 2011 FC 363, at paragraph 7. 16 Rajudeen v. Canada (Minister of Employment and Immigration), (1984), 55 NRF 129 (FCA), as cited by the Honourable Justice Zinn in Warner v. Canada (Minister of Citizenship and Immigration), March 23, 2011, No. IMM-4283-10; 2011 FC 363, at paragraph 7. 17 Ramirez v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1888, 88 F.T.R. 208, at paragraph 8, as cited by the Honourable Justice Zinn in Warner v. Canada (Minister of Citizenship and Immigration), March 23, 2011, No. IMM-4283-10; 2011 FC 363, at paragraph 7. See also the assessment of the Honourable Justice Near on the same subject in Mallampally v. Canada (Minister of Citizenship and Immigration), February 27, 2012, No. IMM-5626-11; 2012 FC 267, at paragraphs 22 to 24. 18 Portuondo Vasallo v. Canada (Minister of Citizenship and Immigration), Bédard, May 31, 2012, No. IMM-8526-11; 2012 FC 673, at paragraph 15. 19 Parampsothy v. Canada (Minister of Citizenship and Immigration), No. IMM-421-12, Mandamin, August 16, 2012; 2012 FC 1000, at paragraph 24. See also Mugadza v. Canada (Minister of Citizenship and Immigration), No. IMM-1324-07, Mandamin, January 30, 2008; 2008 FC 122, at paragraphs 20 to 22. 20 Idem. 21 Florea v. Canada (Minister of Citizenship and Immigration), No. IMM-5443-04, Lemieux, November 3, 2005; 2005 FC 1472, paragraphs 21 to 24. Arrinaj v. Canada (Minister of Citizenship and Immigration), No. IMM-224-04, O'Keefe, May 31, 2005; 2005 FC 773, paragraph 43. 22 Emezieke v. Canada (Minister of Citizenship and Immigration), No. IMM-4453-13, Locke, September 29, 2014; 2014 FC 922, paragraph 30. James Hathaway and Michelle Foster, The Law of Refugee Status. Second Edition, Cambridge, Cambridge University Press, 2014, 693 pages, pages 161 to 169. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-02462 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-03398 2