TB3-09194

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 : TB3-09194 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 31, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael Loebach 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 XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute it with a determination that she is a Convention refugee or person in need of protection. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she is a stateless Palestinian, who was born and raised in Jerusalem. In 2005 she married a Palestinian man who is a citizen of both Jordan and Canada, and together they have two children, who are Canadian citizens. In XXXX of 2012, the Appellant and the children moved to Canada, where she applied for permanent residency with her husband as sponsor. However, when she told her husband that she wants to separate from him, he threatened and abused her, and he told her he would take the children to Kuwait with him. [4] After her husband promised to mend their relationship, she joined him in Kuwait in XXXX of 2013, but she feared for her safety. After less than two weeks, she went to her family in Israel, where a lawyer advised her that she would not be able to secure custody of her children under Israeli law. In XXXX of 2013, she returned to Canada without her husband, and he then threatened to kill her, take the children, and blow up her parents' home. She reported this and past abuses to Canadian police, and a court order was issued forbidding her husband from contacting her. He has since returned to Canada, and the family's custody issues are before the courts here. The Appellant filed a refugee claim, alleging a fear of losing her children, her freedom, and her basic human rights, and also of being forced to practice a religion she does not believe in. [5] The Minister of Citizenship and Immigration (the Minister) intervened in the Appellant's refugee claim before the RPD, submitting that she is a permanent resident of Israel and is therefore excluded from refugee protection by virtue of Article 1E of the refugee Convention. [6] The Appellant's application for refugee protection was heard on June 17, 2013. By a decision of December 3, 2013, the RPD rejected the claim. It found that the Appellant is a former habitual resident of Israel and can return there, and that she has not rebutted the presumption of adequate state protection in that country. [7] The Appellant submits that the RPD erred in finding that she can return to Israel, and in concluding that she can expect adequate state protection in that country despite her specific circumstances. ANALYSIS Nature of the Appeal Proceeding [8] The Appellant argues that this is a de novo proceeding. In her submission, this is evidenced by the right to file new evidence and by the RAD's jurisdiction to not only set aside decisions of the RPD, but to substitute its own decisions in their place. [9] In Newton v. Criminal Lawyers' Trial Association, 2010 ABCA 399, the Alberta Court of Appeal considered the relationship between administrative tribunals and administrative appellate tribunals. The Court considered whether the appellate tribunal-in that case, the Law Enforcement Review Board-properly chose to conduct a hearing de novo when considering an appeal against the decision of the administrative tribunal of first instance-in that case, a presiding police officer. That Board considered various provisions of its enabling legislation, including those which gave the Board power to admit new evidence, and it concluded that it should embark on a de novo hearing and that, in fact, it was compelled to do so absent the agreement of the parties to do otherwise.1 [10] The Court disagreed, finding that neither the fresh-evidence provisions nor other sections of the Board's enabling legislation signalled an intention to require a de novo hearing in each appeal. The RAD notes that relevant sections of IRPA are similar to the legislative provisions considered in Newton. Section 110(3) of IRPA provides that: Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal.... [11] Subsection (4) states that: On appeal, 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. [12] Subsection (6) gives the Refugee Appeal Division the discretion to hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; that is central to the decision with respect to the refugee protection claim; and that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] IRPA neither states nor signals that an appeal to RAD is a de novo hearing of the Appellant's refugee claim, and, in fact, the provisions set out above indicate otherwise. Appellants bringing their case to the RAD have a restricted right to bring new evidence.2 The RAD is required to proceed without a hearing,3 unless there is new evidence which meets the requirements set out in Section 110(6). The effect of these restrictions on new evidence would be a de novo hearing where an Appellant is limited in her ability to present evidence to support her claim, despite having gained a new hearing of that claim. The RAD also notes that, in situations where it holds an oral hearing, the Rules require that a notice be prepared setting out the issues that will be raised at the hearing. The hearing is restricted to matters relating to those issues, an approach not at all consistent with a de novo hearing.4 [14] Having considered the Court's reasoning in Newton, as well as a plain reading of IRPA, the RAD finds that this appeal cannot result in a de novo hearing of the Appellant's refugee claim. Standard of Review [15] The Appellant challenges the RPD's finding that she can return to Israel, and this raises a question of fact. She also submits that the RPD erred in its analysis of state protection, and this raises questions of mixed fact and law. [16] 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. [17] The Appellant argues that the nature and jurisdiction of the RAD are completely distinct from that of the Federal Court; as the RAD is a de novo appeal, the standard of review applied by the Court to decisions of the RPD is not applicable here. In the Appellant's submission, the RAD is a specialized tribunal with specific expertise in refugee law, with the power to issue precedential decisions that are binding on the RPD. The RAD has jurisdiction to not only set aside decisions of the RPD, but to substitute its own determination. The Appellant submits that the RAD must render its own independent de novo decision on the merits of the claim, and that the appropriate standard of review is therefore one of correctness. Despite this, the Appellant also takes the position that the RPD's state protection analysis is unreasonable. [18] In Dunsmuir,5 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. As the Appellants suggest, Dunsmuir has limited applicability to the RAD, which is not a reviewing court but rather an administrative appellate body. In Khosa,6 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [19] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:7 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [20] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.8 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [21] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [22] The nature of the question in issue: This appeal raises a question of fact, and such questions have generally, in both the appellate court and judicial review contexts, attracted a deferential standard of review.9 The Appellant also raises questions of mixed fact and law. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.10 The issue of state protection has also been found, in the judicial review context, to be reviewable on a standard of reasonableness.11 [23] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [24] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.12 Section 3(2)(e) of IRPA identifies one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [25] In the context of an appeal to the RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [26] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [27] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [28] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,13 and each can take notice of information and opinion within its specialized knowledge.14 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,15 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.16 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,17 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [29] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.18 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [30] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in these appeals, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact and of mixed fact and law. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions in issue here are ones of fact and of mixed fact and law, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.19 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [31] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to RPD on matters of fact and of mixed fact and law. 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.20 [32] The appropriate standard of review in this appeal 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.21 The RPD's Findings [33] The Appellant submits that the RPD made various errors in rejecting her refugee claim. [34] Status in Israel: The RPD noted that the Appellant does not hold citizenship in any country, and that she had a significant period of residence in both Kuwait and Israel. The panel observed that the Appellant traveled to and from Israel between 2005 and 2013, that when she went to Israel in XXXX of 2013, she gained entry without any difficulty, and that she was issued a travel document and visa while in Israel, which remain valid. The RPD found that the Appellant has failed to establish that she is unable to return to Israel. [35] The Appellant argues on appeal that her ability to return to Israel is not clear. Her marriage is not recognized in Israel; her children have no status there, and there was evidence before the RPD that residency may be revoked if the "centre of one's life" is outside of Israel, and that centre for the Appellant is her children, who are Canadian. [36] The RAD has reviewed the evidence that was before the RPD in respect to the Appellant's status in Israel. She does not dispute that she holds a travel document, including an entry visa, that is valid until XXXX of 2015.22 Objective evidence in the RPD's record indicates that permanent resident status is obtained on the basis of birth in Jerusalem where the child is born to a parent residing there.23 Israeli regulations provide that a permanent residency permit expires if the permit holder leaves Israel and settles in another country, which is defined as staying outside of Israel's borders for at least seven years, receiving a permanent residency permit in another country, or becoming a national of another state.24 None of these conditions appears to apply to the Appellant. [37] The Appellant points to evidence, also before the RPD, that residency status is conditional on proof that her "centre of life" lies within Israel.25 Since her children are Canadian citizens, she argues, it is clear that the centre of her life is outside of Israel, and, as such, her status in Israel is not clear. [38] In the RAD's view, it was reasonable for the RPD to conclude that the Appellant continues to have permanent resident status in Israel. She is entitled to such status by virtue of her birth in Jerusalem, has repeatedly entered Israel without difficulty, and holds a travel document allowing her to again re-enter the country. She has not been outside of Israel's borders for seven years, or obtained permanent residency or citizenship in another country. The "centre of life" concern raised by the Appellant appears to be applicable to permanent residents who have relocated outside of the boundaries of East Jerusalem.26 Further, this "centre of life" policy was amended in 2000 to allow permanent residents to maintain their status, even while living abroad, if they renewed their exit permits on time.27 The RAD is aware of no evidence suggesting that a permanent resident's children must reside with her, or that her marriage must be recognized in Israel, in order for permanent residency to be maintained. [39] The RPD did not err in finding that the Appellant, as a permanent resident of Israel, is able to return to that country. [40] State protection in Israel: The RPD noted that it is for the Appellant to provide clear and convincing evidence of Israel's inability to protect its citizens. It considered objective evidence about violence against women in Israel and the protection available to them, including the Appellant's acknowledgement that she could obtain a restraining order against her husband in Israel. The RPD found that there are various government agencies and programs available to someone in the Appellant's situation, and it specifically considered services available to Arab women. Having considered the evidence, the RPD found that the Appellant had not rebutted the presumption of state protection in Israel. [41] The Appellant argues on appeal that the RPD failed to understand what adequate state protection means, and that the panel assessed the legislative and procedural framework instead of the operational adequacy of those steps. She points to objective evidence of a lack of resources for programs dealing with domestic violence, particularly in the case of programs assisting Arab women. The Appellant also relies on evidence reporting that some activists are of the opinion that police do not respond adequately to honour killings. In her submission, the RPD failed to consider whether the authorities are able to protect her. [42] The Federal Court and the Federal Court of Appeal have repeatedly stated that it is an error for the RPD to focus on the efforts made by a government to protect its citizens without considering whether those efforts have actually translated into adequate state protection.28 Here it would have been better if the RPD's reasons had incorporated a more detailed analysis of the evidence in respect to the outcomes of the Israeli state's efforts to protect women from domestic violence. However, in the RAD's view, even where 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.29 [43] The evidence indicates that services including crisis intervention, legal assistance, and shelters are provided to women in domestic abuse situations, and there are shelters and legal assistance specifically intended for Arab women.30 There are reports that police made arrests, and that the courts imposed lengthy prison sentences, in cases of honour killings. A spokesperson for an Arab women's group stated that, in the past, police viewed honour killings as an "Arab problem", but they are now doing a better job due, in part, to increased public awareness of the issue.31 An organization for Arab victims of domestic abuse, which receives government funding, assists women victims as they deal with the legal system.32 Another objective source reported that government effectively enforced rape laws, and that thousands of complaints of domestic violence were referred for prosecution.33 This evidence indicates that not only are the Israeli authorities making serious efforts to provide protection to victims of domestic abuse, but that those efforts have concrete results. [44] The Appellant also argues that the RPD failed to consider her specific circumstances-including that she fears harm at the hands of her husband, his family, and her own brother, and that she is at risk of an "honour" killing. The RAD disagrees. The RPD clearly noted that the Prevention of Family Violence Law allows for a protection order against any family member who behaves violently toward other family members. While the objective evidence suggests that women from some communities, including Muslims, are reluctant to report domestic abuse,34 the RPD considered the Appellant's specific situation, including her study of law in Israel and her willingness to seek protection against her husband in Canada, before concluding that she would be capable of accessing available protection. [45] The RPD's conclusion that the Appellant had not rebutted the presumption of adequate state protection falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law. [46] For reasons set out above, the RAD finds that the RPD did not err in its treatment of the Appellant's status in Israel, or its analysis of the protection available to her there. CONCLUSION [47] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld March 31, 2014 Date 1 Newton v. Criminal Lawyers' Trial Association, 2010 ABCA 399, para. 22. 2 IRPA, Section 110(4). 3 IRPA, Section 110(3). 4 Refugee Appeal Division Rules, Rules 56(1) and 57(1). 5 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 6 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 7 Newton, para. 43. 8 IRPA, Sections 96 and 97. 9 Khosa, para. 89. 10 Khosa, para. 89. 11 Andoni v. M.C.I., 2012 FC 516, para. 35. 12 IRPA, Section 3(2)(a). 13 IRPA, Sections 170(g) and 171(a.2). 14 IRPA, Sections 170(i) and 171 (b). 15 IRPA, Section 170(b). 16 IRPA, Section 110(3). 17 Khosa, para. 89. 18 Newton, para. 80. 19 Khosa, para. 89. 20 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 21 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 22 RPD's Record, pp. 309-311, Travel Document and Entry Visa. 23 RPD's Record, p. 365, "42 Years of Occupation," p. 20. 24 RPD's Record, p. 366. 25 RPD's Record, p. 150, Residency Rights of Palestinians in East Jerusalem. 26 RPD's Record, p. 152. 27 RPD's Record, p. 153. 28 Henguva v. Canada (Citizenship and Immigration), IMM-9735-12, 2013 FC 912. 29 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 30 RPD's Record, Exhibit 15, National Documentation Package for Israel (May, 2013), Item 5.1, pp. 4-5. 31 Ibid., Item 5.2, p. 3. 32 Ibid., Item 5.4, p. 2. 33 Ibid., Item 2.1, p. 16. 34 Ibid., Item 5.7, p. 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-09194