MB6-02544

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 : MB6-02544 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision AMENDÉ Person who is the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision April 24, 2017 Date de la décision Panel Me Veena Verma Tribunal Counsel for the person who is the subject of the appeal Me Dan M. Bohbot 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 [1] XXXX XXXX, a citizen of Albania, appeals a decision of the Refugee Protection Division (RPD) rendered orally on March 22, 2016, rejecting his claim for refugee protection. The Appellant requests to admit new evidence and requests an oral hearing before the Refugee Appeal Division (RAD). He requests that the RAD set aside the RPD's decision and substitute it for its own determination that he is a person in need of protection. In the alternative, he requests that his claim be returned to the RPD for redetermination by a differently constituted panel. I. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (the Act), the RAD refers this matter to a differently constituted RPD panel for redetermination. The appeal is allowed. II. BACKGROUND A. Basis of Claim [3] The Appellant claims that if he returns to Albania, he faces a risk to life or cruel and unusual punishment by a loan shark and the loan shark's clan. According to his Basis of Claim (BOC) form, the Appellant's father required surgery, and the doctor demanded 2,000 euros in order to perform the procedure. On XXXX XXXX, 2012, the Appellant borrowed the money, with a monthly interest rate of ten percent, from XXXX XXXX, a loan shark in the city of XXXX. The Appellant claims that the XXXX family is influential in XXXX XXXX [4] Mr. XXXX confronted the Appellant on XXXX XXXX, 2013 with a gun to his head, physically assaulted him, and threatened to kill him if he did not pay him back with interest by the end of the month. The Appellant fled to the village of XXXX XXXX where he lived in hiding for two months, but eventually returned in the evenings to his parents' house in XXXX. Thereafter, the Appellant went to Italy from XXXX 2014 until the end XXXX XXXX 2014. MrXXXX XXXX also confronted the Appellant's father and told him that he will kill the Appellant if he did not repay the money. [5] The Appellant states that he did not go to the police because Mr. XXXX had links with the police, and corruption is widespread. The Appellant left Albania in XXXX 2015. He made an unsuccessful refugee claim in Germany, and arrived in Canada on November 2, 2015. B. RPD Decision [6] The RPD determined that the central elements of the Appellant's testimony were credible, but nevertheless rejected his claim. The RPD found that the Appellant failed to establish a nexus with a Convention ground under s. 96 of the Act, and he did not face a risk to his life on a balance of probabilities under ss. 97(1) of the Act. The RPD did not find the risk of being pressured, threatened, harassed, or "physically mistreated" as being a risk contemplated under ss. 97(1) of the Act. The RPD went further to state that the Appellant had failed to establish the absence of an internal flight alternative, and he failed to rebut the presumption of state protection. C. The Appellant's Grounds for Appeal [7] The Appellant does not contest the RPD's finding under s. 96, and therefore, his appeal focuses only on the RPD's analysis under s. 97(1) of the Act. The Appellant submits that the RPD made several errors as follows. First, the RPD erred by making contradictory findings with respect to the credibility of the Appellant's testimony. Second, the RPD erred in law by stating that only the risk of death was covered by s. 97, and failing to assess the risk of cruel and unusual treatment or punishment. Third, the RPD erred in the assessment of an IFA and state protection in Albania. [8] The Appellant perfected his appeal on June 10, 2016. On June 13, 2016, the Appellant filed additional written submissions arguing that the RPD denied the Appellant natural justice by excusing the interpreter when it rendered its oral decision. The Appellant did not make an application for late written submissions as required under Rules 29 and 37 of the Refugee Appeal Division Rules (RAD Rules). These Rules state that late written submissions require an application setting out whether the appellant, with reasonable effort, could have provided the written submission with the appellant's record. I note that the Appellant's record was filed in advance of the deadline for perfection which was June 13, 2016, and while the natural justice argument came after the filing of the Appellant's record as contemplated in Rule 29, it nevertheless came in on the deadline for perfection. In light of the tight time lines required to perfect an appeal, I will allow the late written submission pursuant to Rules 29(1) and 53(c) of the RAD Rules. [9] The Appellant filed documents with his appeal record that were not before the RPD relating to threats his father received from Mr. XXXX XXXX III. ADMISSIBILITY OF NEW EVIDENCE ON APPEAL A. Legal Test for Admissibility [10] Subsection 110(4) of the Act provides that new evidence will only be admitted where that evidence: (1) arose after the rejection of the claim by the RPD; (2) was not reasonably available; or (3) was reasonably available, but that the person could not reasonably have been expected in the circumstances to have presented the evidence at the time of the rejection. The RAD has no discretion to admit evidence unless it falls under one of these three statutory categories.1 [11] If the new evidence meets the statutory requirements of ss. 110(4), the next step is to consider the criteria as set out by the Federal Court of Appeal in Singh.2 The Federal Court of Appeal held that, in addition to the clear language of the statute, the implicit conditions for the admissibility of new evidence include: credibility, relevance, and newness.3 [12] The RAD Rules state that the Appellant's memorandum must include full and detailed submissions regarding how any documentary evidence the appellant wishes to rely on not only meets the requirements of ss. 110(4) of the Act, but also how that evidence relates to the appellant.4 [13] The Appellant requests that the following new evidence be admitted on appeal: 1. the National Documentation Package (NDP) for Albania dated May 13, 2016; 2. the Affidavit of the Appellant sworn on June 8, 2016; 3. MoneyGram dated XXXX XXXX, 2016; and 4. Facebook message from the Appellant's father dated XXXX XXXX XXXX 2016. B. Decision on the Admissibility of the New Evidence [14] I find that the documents listed above are admissible under ss. 110(4) of the Act because they contain evidence that arose after the RPD rejection, and the documents are credible, relevant and new. My reasons follow. 1. National Documentation Package (NDP) for Albania dated May 13, 2016 [15] The NDP for Albania dated September 30, 2015, was before the RPD.5 The Appellant submits on appeal the updated NDP dated May 13, 2016, released after the RPD rejection. As this document package arose after the RPD rejection and was not reasonably available at the time of the RPD rejection, the NDP meets the statutory conditions of ss. 110(4) of the Act. [16] Federal Court jurisprudence is clear that it is incumbent on the RPD to examine the most recent sources of information in assessing the evidence even in cases where the updated country reports are not filed by the applicant.6 I believe the same principle applies for the RAD.7 A refugee claim requires a forward-looking assessment of the claimant's risk.8 Therefore, the RAD should look at the most recent country conditions when reviewing the RPD decision and assessing the risk of persecution or harm for an appellant. I find the NDP released on May 13, 2016, is new, relevant and credible, and, therefore, admissible under ss. 110(4) of the Act. 2. Affidavit of the Appellant, MoneyGram, and Facebook message from Appellant's father [17] The Appellant's affidavit describes facts and incidents that occurred after the RPD rendered its decision on March 22, 2016, and provides submissions on why these documents were not presented before the RPD decision was "signed" on May 6, 2016. [18] I believe it is necessary to clarify the relevant date when considering the admission of new evidence on appeal before the RAD. Subsection 110(4) of the Act refers to the admission of evidence either after or at the time of the rejection. The RPD rendered its oral decision and reasons on March 22, 2016 which is also the date when the decision came into effect.9 The RPD member did not "sign" his decision on May 6, 2016, rather this is the date on which the RPD Registrar sent the Appellant the Notice of Decision, pursuant to Rule 67 of the Refugee Protection Division Rules, and a written transcript of the decision. In other words, the date of the rejection, and the relevant date in assessing the new evidence under ss. 110(4) of the Act, is March 22, 2016, not May 6, 2016. [19] The Appellant states in his affidavit that on XXXX XXXX, 2016, he wired money to his father under the name of XXXX XXXX. He attached to his affidavit as an exhibit the MoneyGram receipt for the transfer. He states that he used a pseudonym in case the MoneyGram authorities in Albania advised Mr. XXXX about the money transfer. The Appellant further swears in his affidavit that on XXXX XXXX, 2016, Mr. XXXX visited his father looking for the Appellant and threatening to be violent if he was not paid the 11,000 euros owed to him. The father paid Mr. XXXX the money that the Appellant wired him. Mr. XXXX stated that he would return for more money. The Appellant's father sent a Facebook message, attached as an exhibit to the Appellant's affidavit, confirming this event in writing on XXXX XXXX, 2016, at the request of the Appellant's lawyer. [20] The new evidence relates to events that occurred after the date of the RPD rejection and consequently arose after the rejection of the claim. Therefore, the new evidence meets the statutory requirement under ss. 110(4) of the Act. I have no reason to doubt the authenticity or credibility of the documents. I find that the documents are relevant to the forward-looking assessment of the Appellant's risk if he is returned to Albania. Therefore, I allow the Appellant's affidavit, the MoneyGram, and the Facebook message to be admitted as new evidence under ss. 110(4) of the Act. IV. REQUEST FOR ORAL HEARING [21] The Appellant requests an oral hearing pursuant to ss. 110(6) of the Act should the RAD have any outstanding issues concerning the Appellants' credibility. [22] There are limited circumstances under which a hearing may be held before the RAD. Subsection 110(6) of the Act states that the RAD may hold an oral hearing only if the new evidence presented on appeal raises a serious issue with respect to the credibility of the Appellant; is central to the decision with respect to the refugee claim; and, if accepted, would justify allowing or rejecting the refugee claim. [23] The Appellant was found credible on the central elements of his claim before the RPD. The new evidence is consistent with the allegations before the RPD, and therefore, I do not find that the new evidence raises a serious issue with respect to the credibility of the Appellant. As one of the elements of ss. 110(6) has not been met, the request for an oral hearing is denied. IV. SCOPE OF THE RAD APPEAL [24] The Appellant made no submission on the standard of review. [25] The Appellant has a statutory right to appeal to the RAD from a decision of the RPD on questions of law, fact or mixed law and fact.10 The standard of review on such questions is correctness, where there is no issue of credibility of oral evidence.11 In defining this standard of review, the Federal Court of Appeal in Huruglica held that the legislative purpose of the RAD is to serve as a "safety net" that would catch all mistakes made by the RPD.12 This requires the RAD to carry out its own independent analysis of the RPD record to determine whether, as submitted by the Appellant, the RPD erred.13 The RAD as a true specialized appeal tribunal must come to its own conclusions based on a fresh review of the evidence.14 [26] In the present case, there is no issue of credibility of the oral evidence. Therefore, I will review the RPD decision applying the correctness standard. After carefully considering the RPD decision, I will carry out my own analysis of the record to determine, as submitted by the Appellants, if the RPD erred. Having done this, I will provide a final determination, either by confirming the RPD decision or setting it aside and substituting my own determination of the merits of the refugee claim. It is only when I am of the opinion that I cannot provide a final determination without hearing the oral evidence presented to the RPD that the matter will be referred back to the RPD for redetermination.15 V. ANALYSIS A. Issues [27] The RPD correctly found that the Appellant's claim had no nexus to a Convention ground under s. 96 of the Act. The Appellant concedes that there is no nexus and, therefore, the claim should only be considered under s. 97 of the Act. [28] While the Appellant has raised several issues on appeal, I find that the determinative issue is whether or not the RPD applied the correct test under ss. 97(1)(b) of the Act. I find that the RPD erred by stating that ss. 97(1)(b) only applied to cases where the risk of harm is death, and failing to consider the question of cruel and unusual treatment or punishment. My reasons follow. B. Section 97 [29] The RPD found the Appellant's narrative to be credible, namely, he borrowed money from Mr. XXXX to pay for his father's medical care; he failed to reimburse Mr. XXXX; Mr. XXXX threatened the Appellant and his parents; and, on one occasion, Mr. XXXX physically assaulted the Appellant.16 [30] At the outset of the RPD's s. 97 analysis, it states the legal test as follows (emphasis added): Under this section, you have four elements that you need to establish: firstly, that what you fear is a risk or a danger contemplated by section 97(1); secondly, you need to establish that it is more likely than not that what you fear will take place; thirdly, you need to establish that you fear something that will happen to you personally, not something that will happen to another person; and fourthly, you have to establish that your risk is different from the risks that people your country generally face.17 [31] At this stage, the RPD correctly set out the elements that the Appellant must meet. However, the RPD's error arises later in the decision when it defines the "risk or a danger" as only meaning death. Specifically, the RPD found that "the risk of being pressured, threatened, maybe even physically mistreated, but constantly being harassed" was not a risk contemplated under ss. 97(1) of the Act.18 The RPD held that "[i]n my mind, such a risk does not rise to a sufficiently serious threat to your existence that it renders it the type contemplated in that section."19 Finally, the RPD later states, "the risks of being threatened, pressured, maybe even physically mistreated by punching you, are not the type of risks that section 97(1) of the Act aims."20 [32] Based on this finding, the RPD only considered the Appellant's claim as one relating to a risk of death. The RPD found that the Appellant was not at risk of death because Mr. XXXX is seeking repayment and he will be unable to collect if he kills the Appellant. As well, the RPD found Mr. XXXX's behaviour was incompatible of someone interested in killing him because there were long periods in his narrative that spans almost three years where Mr. XXXX had an opportunity to kill him but chose not to. The RPD found that Mr. XXXX's behaviour is consistent with someone who wants to be reimbursed and "is ready to put pressure on that person, including making threats to scare that person."21 [33] The Appellant submits that the RPD erred by failing to assess the risk of cruel and unusual treatment or punishment under s. 97 of the Act. [34] The relevant portions of s. 97 follows: * 97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally ... (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, ... [35] Section 97(1)(b) contemplates three risks: (1) risk to life; (2) cruel and unusual treatment; and (3) cruel and unusual punishment. While the RPD addressed the risk to life under section 97(1)(b), the decision is silent on the risk to cruel and unusual treatment or punishment the Appellant might face if returned to Albania. This was an error. [36] While the protection of cruel and unusual treatment or punishment has historically been limited to penal or quasi-penal contexts, the law has been evolving that allows for a broader interpretation.22 The Supreme Court of Canada held that "in its modern application, the meaning of 'cruel and unusual treatment or punishment' must be drawn 'from the evolving standards of decency that mark the progress of a maturing society.'"23 [37] The Federal Court in Muhameti24 recently rejected the argument that the risk to cruel and unusual treatment or punishment can only arise from the conduct of the state itself. In this case, the court held that "facing a risk under paragraph 97(1)(b) does not require the risk derives from state actors but rather that the person will face such a risk if they cannot receive state protection, in addition to the other requirements under that provision". Therefore, the fact that Mr. XXXX is not a state actor does to preclude a further analysis under ss. 97(1)(b) of the Act. [38] There are two parts to ss. 97(1)(b) analysis. First, is the risk described by the Appellant one that constitutes punishment or treatment? Without commenting on whether the risk may be characterized as punishment, I find that the risk in the present case may be characterized as treatment. The definition of treatment as observed by the Supreme Court of Canada includes "a process or manner of behaving towards or dealing with a person or thing."25 In this context, I find that physical assault, death threats, and harassment fall within the scope of treatment. The next question is whether the treatment is "cruel and unusual." [39] The term "cruel and unusual treatment or punishment" is also found in s. 12 of the Canadian Charter of Rights and Freedoms, and therefore, jurisprudence arising from the interpretation of this provision is relevant when looking at ss. 97(1)(b) of the Act. In R. v. Smith, the Court concluded that cruel and unusual treatment is that which is "so excessive as to outrage [our] standards of decency."26 [40] The test for what constitutes cruel and unusual treatment includes considering "whether the treatment in question is unacceptable to a large segment of the population, whether it accords with public standards of decency or propriety, whether it shocks the general conscience, and whether it is unusually severe and hence degrading to human dignity and worth."27 The Federal Court has held that where cumulative harassing and discriminatory treatment may be serious enough to constitute persecution, it would be unreasonable to conclude that this conduct would not also constitute cruel and unusual treatment.28 I find that the RPD failed to apply these above noted considerations in the present case. [41] The facts in Muhameti are analogous to the present one where the RPD found that there was no risk to life for the claimants because the agents of persecution only physically assaulted them when they had every opportunity to kill them. The court ultimately held that the RPD's failure to consider the question of risk to cruel and unusual treatment or punishment was a reviewable error and returned the matter for reconsideration.29 [42] For all of these reasons, I find that the RPD erred by failing to consider whether physical assault and persistent death threats constituted cruel and unusual treatment or punishment in the present case. C. Credibility [43] While not raised by the Appellant, I also note that the RPD erred on the test to be applied in the assessment of the Appellant's credibility. The RPD highlights reasons to doubt the Appellant's credibility, but finds that the test calls for "serious" reasons to doubt and it did not have such reasons which should be held against the Appellant.30 I find that this is an incorrect statement of the cardinal rule in Maldonado which states: "When an applicant swears the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness." [44] I am unable to reassess the Appellant's risk for cruel and unusual treatment or punishment because I find that the evidence is incomplete regarding the Appellant's reasons for delay to claim when he was being threatened over a period of approximately three years and the failure to make a refugee claim while in Italy. Therefore, I find that the matter must be returned to a differently constituted RPD panel for reconsideration. VI. CONCLUSION [45] I find the decision of the RPD to be wrong in law. I am unable to confirm or set aside the RPD decision without hearing evidence that was presented to the RPD with respect to the facts relating to the possibility of cruel and unusual treatment or punishment under ss. 97(1)(b) of the Act. [46] Pursuant to ss. 111(1)(c) of the Act, I refer this matter to the RPD for redetermination by a differently constituted panel with the following direction: Reassess the Appellant's claim under ss. 97(1)(b) of the Act with respect to a risk to life as well as a risk to cruel and unusual treatment or punishment. This includes reassessing an internal fight alternative and state protection, if the RPD finds the Appellant credible. [47] The appeal is allowed. Veena Verma Me Veena Verma 24 April 2017 Date /ajh/cos 1 Singh v. M.C.I., 2016 FCA 96, paras 34-35, 63, 74. 2 Singh v. M.C.I., 2016 FCA 96. 3 Singh, supra note 1, paras 38-49, 74. 4 Rule 3(3)(g)(iii), Refugee Appeal Division Rules, SOR./2012-257. 5 RPD Record, p. 138, National Documentation Package (NDP) for Albania, September 30, 2015. 6 Sivapathasuntharam v. M.C.I., 2012 FC 486, para 22. 7 Zhang v. M.C.I., 2015 FC 1031, para 54. 8 Ibid. 9 Rule 68(1)(a) of the Refugee Protection Division Rules, SOR/2012-256. 10 Sections 110 and 111 of the Immigration and Refugee Protection Act. 11 M.C.I. v. Huruglica, 2016 FCA 93, para 103. 12 Ibid., para 98. 13 Ibid., para 103; Marin v. M.C.I., 2016 FC 847, para 32; Bersie v. M.C.I., 2016 FC 900, para 17. 14 Marin, ibid.; Bersie, ibid. The Federal Court of Appeal in Huruglica held that the functions of the RAD must not be confused with the role of courts on judicial review of decisions made by administrative decision-makers or appellate courts: paras 46-49. 15 Huruglica, supra note 11. 16 Appellant's Record, RPD Decision, pp. 6-7. 17 Ibid., p. 8. 18 Ibid., p. 9. 19 Ibid. 20 Ibid., p. 10. 21 Ibid. 22 Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. (SCC), pp. 609-611; Chiarelli v. Canada (M.E.I.), [1992] 1 S.C.R. 711, p. 735; A.B. v. M.C.I., 2009 FC 640, para 30. 23 R. v. Smith, 1987 CanLII 64 (SCC), para 84, citing Trop v. Dulles (1958), 356 U.S. 86, 78 S. Ct. 590 at p. 101. See also A. B. v. M.C.I., ibid. 24 Muhameti v. M.C.I., 2016 FC 519, paras 17-18. 25 Chiarelli v. Canada, supra note 22; Rodriguez, supra note 22, pp. 609-611. 26 Supra note 23. 27 Canadian Doctors for Refugee Care v. Canada (Attorney General), 2014 FC 651, para 614; See also Charkaoui v. M.C.I., 2007 SCC 9 (CanLII), para 96. 28 A. B. v. M.C.I., supra note 22, para 31. 29 Supra note 24, para 18. 30 Appellant's Record, RPD Decision, p. 6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB6-02544 2