TB4-04621

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 : TB4-04621 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 16, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Nico G. J. Breed Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX (the Appellant), a citizen of Serbia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal and asks for an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and either find her to be a protected person or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. This appeal is allowed. Background [3] The Appellant alleged before the RPD that she was involved in an abusive marriage for twenty years. She claims she was sexually assaulted by a stranger in XXXX of 2013, and that her son was stabbed by a young man in XXXX of 2013. Upon return to Serbia, she fears harm at the hands of her abusive husband as well as from the man who harmed her son. [4] The Appellant's application for refugee protection was heard on February 17, 2014. By a decision of February 28, 2014, the RPD rejected the claim. It found that the Appellant was credible, but it determined that she no longer faces more than a mere possibility of harm at the hands of her abusive husband, that she is not at risk from the man who hurt her son, and that she had not rebutted the presumption of adequate state protection with respect to the sexual assault. [5] The Appellant submits that the RPD erred when it disregarded the fact that she was in an abusive marriage for over 20 years, in speculating about the actions of the police after her son was attacked, in focusing on that attack when it was not a basis for her claim, in misinterpreting evidence about state protection, and in focusing on the sexual assault while ignoring evidence regarding domestic abuse. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The Appellant asks the RAD to admit an undated note that she wrote after the rejection of her claim,1 as well as an undated, unsigned letter from her son, claiming that the Appellant's husband imprisons him and beats him daily,2 and her statutory declaration relating to both of these documents.3 [8] It is difficult to ascertain whether the note and letter arose after the rejection of the Appellant's refugee claim, as they are both undated. The Appellant's note states that she spoke to her son five times "after the trial", but the RAD cannot determine whether this was before the rejection of her claim. The RAD Rules require the Appellant to make full and detailed submissions about how any proposed new evidence meets the requirements of Section 110(4).4 The Appellant's brief submissions on her new evidence indicate that the incidents referred to "happened after the hearing".5 [9] The Appellant has not established that her note meets the requirements of Section 110(4), and it is therefore not admissible in this appeal. [10] The Appellant also seeks to provide as new evidence a letter from her son. While this too is undated, it is obvious that it was written after the rejection of the claim, as it speaks of an incident on XXXX XXXX, 2014. The letter therefore appears to meet the test in Section 110(4). This does not, however, require the RAD to admit the document into evidence without any further consideration. In Raza,6 the Federal Court of Appeal endorsed the principle that a document's "newness" cannot be tested solely by its date of creation; what is important is the event or circumstance sought to be proved by the evidence. [11] The contents of this document do not predate the rejection of the Appellant's refugee claim. The first paragraph of the letter includes this statement: "Ever since my mother left, there is some tension between me and my father. He has been beating and maltreating me." It goes on to detail many beatings and threats. While at least one of these happened after the rejection of the claim-the letter provides the date of XXXX XXXX XXXX 2014-the content of the letter is clearly not new, and the more recent events are simply a continuation of the abuse that started much earlier. The document clearly explains that the Appellant's husband has been abusive to their son since the Appellant left. This information predates the rejection of the Appellant's refugee claim, and she could reasonably have been expected to present this information to the RPD, as it speaks to the violent nature of her husband. Although the Appellant argues on appeal that this information "was not reasonably available to her", she does not explain why this is the case. [12] The RAD finds that the Appellant's son's letter is not new evidence as defined in Section 110(4) of IRPA, and it declines to admit it in this appeal. [13] The Appellant also submitted a statutory declaration, dated XXXX XXXX, 2014. In it, she repeated the basis of her claim and also the allegations contained in her son's letter and her own letter. Again, the affidavit indicates that she has been in contact with her son "since my refugee hearing", which does not establish that the evidence arose after the rejection of her claim. She declares that "my husband on various occasions told me to come back home", but she does not explain whether these occasions were after the rejection of her claim. While this document was sworn after the rejection of the refugee claim, the Appellant has not established that its contents are new, and it is therefore not admissible in this appeal. Application for an Oral Hearing [14] The Appellant asks that an oral hearing be held, pursuant to Section 110(6) of IRPA. [15] Section 110(3) of IRPA requires that 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. 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". [16] According to Section 110(6), upon which the Appellant relies, 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 Appellant, that is central to the RPD's decision, 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 relation to Section 110(4). [17] 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 raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [18] The RAD has not admitted any of the new evidence submitted by the Appellant in support of her appeal. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. Standard of Review [19] 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. [20] The Appellant concedes that the RPD should be given deference on questions of fact, as it is a tribunal of first instance but submits that the decision cannot be accepted if it is based on an erroneous finding of fact. [21] The Refugee 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.7 The Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.8 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.9 The RPD is therefore in an advantageous position when it comes to assessing credibility and making findings of fact. [22] One of the purposes of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...."10 In Newton, the Alberta Court of Appeal noted that a failure to show deference to the first-level decision-maker could undermine the integrity of such hearings, which would in effect be reduced to a type of preliminary inquiry.11 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 not consistent with the purpose of IRPA or its specific provisions in respect to appeals.12 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 holding an oral hearing, and this too suggests that deference be shown to the findings of fact made at the first level. [23] For these reasons, the RAD will show deference to the RPD on findings of fact, including credibility, and on findings of mixed fact and law.13 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 support the decision, the RAD must first seek to supplement them before it substitutes its own decision.14 [24] 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.15 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.16 [25] The RAD will not show deference to the RPD, however, on questions of law.17 Here, the lower and appellate tribunals have similar expertise with respect to questions of law, including those arising from their shared home statute, and this suggests that no deference is warranted. 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.18 A correctness standard on questions of law ensures universality in the application of the law.19 [26] 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 determine whether it agrees with the RPD on the matter.20 The RPD's Findings [27] The Appellant argues that the RPD made various errors in rejecting her claim. In the RAD's view, one such error is determinative of this appeal. [28] The Appellant told the RPD that she suffered abuse from 1993 until XXXX of XXXX, a period of about twenty years. Although she continued to live with her husband until September of 2013, the last incident of physical abuse was in XXXX of that year. She told the RPD that her husband knew she was trying to get a visa for Canada; while he prayed that she would not get it, he did not prevent her from leaving. She also testified that she had spoken to him by telephone since coming to Canada, and she assumed he knew their relationship was over. [29] Based on this evidence, the RPD concluded that the Appellant: ...does not face more than a mere possibility of persecution by him in the future as her evidence indicates that he is not seeking to stop her from leaving him and would not seek to harm her in the future. He sought to have her leave him in XXXX 2013, did not try to stop her from leaving him in XXXX 2013, and told her that he does not care if he sees her again. On a balance of probabilities, the evidence indicates that she is free to leave him as she wishes and he is not interested in pursuing her or seeking to harm her in the future.21 [30] The Appellant argues on appeal that the RPD ignored that she lived for twenty years in an abusive relationship, and it reached the absurd conclusion that, because her husband did not stop her from leaving, she only faces a mere possibility of persecution. In her submission, an abuser does not change his behaviour overnight. While the RPD mentioned the Chairperson's Guideline on Women Refugee Claimants Fearing Gender-Related Persecution,22 its analysis of the claim showed a lack of understanding, sympathy, and insight into the matter of domestic abuse. [31] The RPD's conclusion here was unreasonable. The panel found the Appellant to be credible when she alleged twenty years of violent abuse. The fact that the abuse stopped shortly before she left, and that the abuser did not prevent her from leaving, is not at all sufficient basis upon which to conclude that the danger of persecution has largely disappeared. It seems here that the RPD, despite evidence of the violent and unpredictable nature of the agent of persecution, assumed that he will act rationally and consistently in the future. The panel unreasonably concluded that, as the Appellant's husband did not abuse her for a period of some months, and he did not prevent her from leaving; he would not be interested in harming her in the future. The evidentiary basis for such a finding is flimsy; it seems to be the presumption that, when a long-term abuser briefly stops abusing, he will not return to his violent ways in the future. In the RAD's view, such a finding is simply unreasonable. [32] While the RPD made other findings, and the Appellant alleges further errors, it is not necessary for the RAD to consider these. The RPD unreasonably found that there is only a mere possibility that the Appellant will face future persecution at the hands of her husband, and this error is fatal to its rejection of the Appellant's refugee claim. [33] The Appellant asks the RAD to substitute its own determination that she is a Convention refugee. The RAD is in no position to do so. Although the RAD rejected the Appellant's proposed new evidence, it notes that such evidence, if accepted, could give rise to credibility concerns. Why was the information in the new evidence not provided to the RPD? If the husband still poses a risk to the Appellant, why does the new evidence say little about that? Further, there is a presumption that the authorities in Serbia can provide adequate state protection to the Appellant, and the Appellant did not approach the police for help with respect to the domestic abuse. The matter of state protection therefore requires further consideration. [34] This appeal is allowed, and the Appellant's refugee claim is returned to the RPD for redetermination. Although the RAD rejected the Appellant's proposed new evidence, she is not precluded from submitting this to the RPD in accordance with that Division's Rules. CONCLUSION [35] Pursuant to Section 111(1)(c) of IRPA, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently-constituted panel. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld July 16, 2014 Date 1 Appellant's Record, p. 18. 2 Appellant's Record, p. 21. 3 Appellant's Record, p. 14. 4 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 5 Appellant's Record, Page 72, Memorandum, para. 29-30. 6 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R., para. 16. The RAD's application of Raza to the assessment of new evidence was found to be reasonable in Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 7 IRPA, Sections 110(3) and 110(6). 8 Khosa, para. 89. 9 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 39. 10 IRPA, Section 3(2)(e). 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 80. 12 Iyamuremye, para 1. 13 Iyamuremye, paras. 39-40. 14 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 15 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 16 Dunsmuir, para. 47; Iyamuremye, para 3. 17 Iyamuremye, para. 2. 18 Dunsmuir, para. 50. 19 Khosa, para. 90. 20 Dunsmuir, para. 50. 21 RPD's Reasons, para. 9. 22 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-04621