VB4-03400

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 : VB4-03400 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal (Also Known As XXXX XXXX XXXX) Appeal considered at Vancouver, BC Appel instruit à Date of decision March 16, 2015 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) Simon Trela Conseil(s) du (de la/des) the subject of the appeal personne(s) 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 XXXX, also known as XXXX XXXX XXXX (the "appellant"), a citizen of Eritrea, appeals the October 08, 2014 determination of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on October 06, 2014 with a Notice of Decision being sent to the appellant on October 29, 2014.1 The RPD found that the appellant is neither a Convention2 refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (the "Act" or "IRPA").3 DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(b) of the Act, the Refugee Appeal Division (the "RAD") sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely, that XXXX XXXX XXXX is a Convention refugee pursuant to section 96 of the Act. BACKGROUND [3] Counsel for the appellant before the RAD is the same counsel she had at the RPD. The Minister has not intervened before the RPD or the RAD. [4] A transcript of the RPD proceedings has not been included in the Appellant's Record (AR). As well, although a CD was provided with the Refugee Protection Division Record, the CD does not contain any audible recording of the RPD hearing. Thus, there is no available recording for the RPD hearing for this RAD appeal. [5] The appellant does seek to present "new" evidence to the RAD pursuant to subsection 110(4) of the Act.4 Basis of Claim [6] According to the allegations set out in the appellant's Basis of Claim Form (BOC),5 the appellant is a widow from Eritrea. Her son and daughter now live in Canada. In 2008, the appellant's son decided to flee Eritrea to avoid having to join the national military service. The appellant was forced to either have her son return to Eritrea or pay $50,000 Nakfa. She was not able to pay this amount and as a result she was deprived of all her rights such as travelling outside of the country. The appellant had asked for an exit visa in 2012 to travel to Sudan but was rejected by the immigration authorities. [7] In 2001, her daughter abandoned the national service so that she could look after her newborn baby. Since then, her daughter has been living in a hidden place in the capital city, Asmara. [8] The appellant states that since she left Eritrea, her home has been closed and this will alert others that she is not in the country. Then, the authorities will come to know that she is outside the country and will put her name on a black list. [9] The appellant left Eritrea with a valid one-month exit visa on XXXX XXXX, 2013. The appellant stayed in Canada on her XXXX month visitor visa and then made a claim for refugee protection in July 2014. [10] The appellant has included in her amendment to the BOC that she has joined the Holy Trinity/Eritrean Orthodox Church in Canada. She alleges this church is illegal in Eritrea and if this information was discovered by the Eritrean authorities, she would be subjected to further persecution. CONSIDERATION OF NEW EVIDENCE [11] Subsection 110(4) of the Act 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 they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The appellant has submitted four documents6 as new evidence pursuant to subsection 110(4) of the Act: (1) Immigration and Refugee Board National Documentation Package - Eritrea - September 30 2014 (2) Updated Immigration and Refugee Board National Documentation Package - Eritrea - March 14 2014 (3) Response to Information Request, ERI104941.E - IRB National Documentation Package - Eritrea - September 30 2014 (4) IRB National Documentation Package - Eritrea - Document title: Information on the treatment of failed asylum seekers/returnees upon return to Eritrea [13] According to the provisions of subsection 110(4) of the Act, the person who is 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. [14] The appellant has not made any submissions as to how these documents constitute new evidence for the purposes of this appeal, nor has the appellant submitted why these documents should be admitted as new evidence. When introducing new evidence to RAD, the appellant is required to follow rules found in IRPA: Rule 3(3)(g)(iii): how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant. [15] I note that the appellant, nor her counsel, has provided any submissions on the new evidence. However, I have closely examined all the documents listed above. I find documents 2 and 4 are not admissible. Document 2 is listed as an update but it is not clear what the update is from my review of this evidence. Document 4 is dated February 8, 2013 and there is no evidence as to how this document should be considered as new evidence as this is dated before the RPD hearing date. Therefore, I decline to accept documents 2, and 4 as new evidence for this appeal. [16] I have decided to accept documents 1 and 3 despite the fact that the appellant did not provide any submissions. Document 1 is a list of a more recent Immigration and Refugee Board (the "IRB") National Documentation Package which is dated post-RPD hearing. Document 3 is referred to in the appellant's memorandum and I also note that this document is dated after the RPD hearing date. I also find that this document is relevant to the argument of the sur place claim put forward in the RAD appeal memorandum. I therefore accept documents 1 and 3 as new evidence. [17] As the new evidence accepted for this RAD appeal relates to country conditions only, I find that it is not necessary to consider whether to hold an oral hearing as per subsection 110(6) of the Act. Grounds of Appeal [18] The appellant's submissions7 as to the grounds of this appeal can be summarized as follows: Did the RPD err in her conclusion in regards to the appellant's fear of returning to Eritrea after she made a refugee claim in Canada? Did the RPD err in her conclusion regarding the appellant's fear of returning to Eritrea due to her religious activities in Canada? REMEDY SOUGHT [19] The appellant has requested that the RAD admit the proposed evidence of the appellant, allow an extension of time to file the Record, and order an oral hearing. However, the RAD will decide, after reviewing all the evidence, under subsection 111(1) of the Act, to either confirm the determination of the RPD, set aside the determination and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for redetermination by a differently constituted panel. ROLE OF THE RAD [20] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [21] RAD, being a new division, has struggled with the standard of review to be used in RAD appeals based on several Federal Court cases that have differed in their approach of what standard should be used. Initially, RAD followed the Supreme Court of Canada (the "Supreme Court") case Dunsmuir8 as the leading case on standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing decisions of administrative tribunals: unreasonableness and correctness. The standard of correctness applies to questions of law, while the standard of reasonableness applies to questions of fact, and mixed fact and law. [22] In recent months, the Federal Court has issued differing decisions on the role of RAD when conducting an appeal of the RPD determination. These decisions include the Federal Court cases Iyamuremye,9 Eng,10 Alvarez,11 Huruglica,12 Njeukam,13 Yetna,14 Wahgmo,15 Alyafi,16 among others. [23] The Federal Court in Iyamuremye addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness: That said, the Court finds that in assessing the reasonableness of the decision, the RAD should, at the very least, have reviewed the evidence that was presented before the RPD and conducted an independent assessment of all the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had properly considered the evidence and reasonably justified its conclusion.17 [24] In Alvarez, Justice Shore said that: "the Court is of the view that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts."18 Furthermore, Justice Shore stated that "[w]hen analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error."19 Justice Shore also said in Alvarez that "the RAD must nonetheless perform its own assessment of all the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error."20 [25] In Huruglica, Justice Phelan found that the RAD erred in reviewing the RPD's decision on the standard of reasonableness and concluded that 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."21 Justice Phelan also states that, "that notion may well justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative. Where there is no adverse finding of credibility, the policy rationale for deference is not sustainable."22 [26] Justice Phelan also found that the RAD's role should be to determine whether the RPD decision is wrong rather than look at whether it was a reasonable decision. Justice Phelan emphasized that the RAD's mandate is to conduct a fact based review. The RAD, Justice Phelan said: "Must review all aspects of the RPD's decision and come to an independent assessment... Where its assessment departs from that of the RPD, the RAD must substitute its own decision." Furthermore: 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 a "palpable and overriding error."23 [27] Counsel for the appellant has not provided any submissions on the role of the RAD in this appeal. [28] The Huruglica decision is the most thorough of all the recent cases and the first one where the Federal Court has certified a question for the Federal Court of Appeal. Again, I refer to paragraphs 54 and 55 of Huruglica which read as follows: [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.24 [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 a "palpable and overriding error."25 [29] Following the Huruglica decision, many other cases have followed the Huruglica approach in what the role of the RAD should be in assessing an appeal. There is another line of authority that suggests that the standard that RAD should apply is that of "palpable and overriding error" (Eng,26 Alvarez,27 Spasoja28). In Alyafi,29 Djoussou,30 and Siliya,31 the Federal Court notes that there are two competing approaches in the Federal Court jurisprudence and that the RAD Member is free to decide which approach to follow. [30] In Kanga, the Federal Court held: Furthermore, even where there is divided Federal Court authority on a point of law, I do not agree that the Board is required to explain why it has adopted one view over the other. Presumably, Federal Court jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law.32 [31] In this appeal and taking into consideration the Federal Court decisions regarding the role of the RAD, I will be applying the points set out in Huruglica. In this appeal, I have reviewed all aspects of the RPD's decision and have conducted my own independent assessment of all the evidence to determine whether the appellant is a Convention refugee or a person in need of protection, while giving a certain deference to the RPD's findings regarding the appellant's credibility and any other issues where the RPD enjoys a particular advantage. As well, it is clear from the many recent Federal Court cases that have been previously mentioned, all agree that the standard of correctness should be used for any error of law found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [32] The appellant submits that the RPD Member "did not properly interpret the National Documentation Package".33 The appellant refers to a document that notes that failed asylum seekers are subjected "torture, cruel, inhuman, and degrading treatment or punishment."34 [33] The RPD Member found: 35 It was raised in submissions that the claimant may face more than a mere possibility of persecution as a member of a particular social group. This particular social group represents those persons who are or are perceived to be failed asylum seekers returning to Eritrea. Counsel has submitted that the claimant would be persecuted by authorities following a negative determination from Canadian authorities. The panel has reviewed the objective evidence on this matter and finds that it is not objectively founded in the particular claimant's context. The objective evidence speaks to the treatment of persons who are forcibly returned or deported from the second country to Eritrea. The objective evidence also speaks to the treatment by authorities of those persons returning to Eritrea after they have left irregularly. The claimant did not leave Eritrea irregularly; she travelled on a passport which is still valid. Further, at this time it would be speculative to say that she will be deported as the claimant would in affect be under a departure from 30 days from the decision whereby the person voluntarily departs Canada; afterwards the departure order becomes a deportation order. Considering the evidence before the pane, that the claimant did not irregularly depart from Eritrea and it is speculative to say that the claimant would be forcibly returned to Eritrea, and that the objective evidence does not indicate that anyone returning to Eritrea is persecuted, consequently the panel finds that there is insufficient evidence before this panel to support the finding that she would be targeted by authorities for this asylum claim. [34] I have reviewed the evidence before me in its' entirety. Unfortunately, the compact disc recording of the RPD hearing was not available for this RAD appeal. However, I do not find it is necessary to hear the testimony in this appeal. I have given more weight to the country documents before me that relate to the appellant's situation. [35] In particular, the country documents note: The US Department of State's Country Reports on Human Rights Practices for 2013 indicates that 'in general, citizens had the right to return," but those who either broke the law while abroad, are infected with a contagious disease, or had their refugee application rejected by a foreign country 'had their visas and visa requests to enter [Eritrea] considered with greater scrutiny.'36 [36] As part of the appellant's new evidence which was accepted by RAD, the document notes that according to Amnesty International:37 * [a]ny Eritrean refugee who is deported to Eritrea faces imprisonment. * Eritreans who are returned to the country after having their refugee application rejected are arbitrarily arrested and detained without charge. [37] Furthermore, according to the same country report: According to the UN Special Rapporteur on the situation of human rights in Eritrea, failed refugee claimant who are repatriated to Eritrea "usually disappear upon their return". The UN Special Rapporteur added that failed refugee claimants and asylum seekers are subjected to "torture, cruel, inhuman and degrading treatment or punishment." 38 [38] In another country report, which was before the RPD Member, it notes that: The forcible and supposedly voluntary return of Eritrean citizens to their country of origin or to third countries, despite warnings from UNHCR and other international organizations, is also a cause for grave concern. Returnees and failed asylum seekers face disappearance and detention.39 [39] In a similar case before the Federal Court, a citizen of Iran feared returning to his home country as a failed refugee claimant. The Board found that "the claimant, as an English language tutor, has a good cover to tell Iranian border police in his wanting to be away from Iran to improve and perfect his mastery of English. Canadian authorities do not advise Iranian authorities that a returnee from Canada is a failed refugee applicant and there is no evidence that anybody in Iran even knows the claimant is away."40 [40] The case before the RAD is slightly different in that the appellant left her home country legally. However, I note that although the appellant left Eritrea legally, she would be returning after violating the country's laws regarding exit restrictions. Despite her valid passport, and regardless of whether she returns under a departure order or a deportation order, she has overstayed her one month exit visa. I find that there is more than a mere possibility that she will be questioned for overstaying her exit visa requirement. [41] The RPD Member, in the case of the appellant, did not suggest that the appellant lie to the Eritrean authorities. However, the RPD Member did find that the appellant would be issued a departure order and could voluntarily leave Canada and return to her home country; thus, she would not be forcibly returned. However, the question still remains what would happen if the appellant was asked why she did not return within her one month exit visa requirement and consequently, what would the appellant provide for an explanation. [42] I acknowledge that the country documents before the RPD Member did not provide as much information as we have now, before the RAD, on failed asylum seekers returning to Eritrea. However, taking into account context of the human rights record of Eritrea and the rigid exit laws, I find that the appellant would be at risk of harm. Upon the appellant's return to Eritrea, she cannot be expected to give false information if she is asked why she did not return within the one month period. [43] As indicated by the Federal Court in the case of Donboli, "It is not an answer to suggest that (Mr. Donboli) could avoid any risk of persecution by dissembling to the Iranian authorities. The need to lie is more consistent with a fear of persecution than the consequence of application of a law of general application."41 Moreover, considering the evidence before the RPD and RAD, I note that the appellant is likely to be asked why she overstayed her one month exit visa. I further find that it can be presumed that the claimant would truthfully provide the information about her having made a refugee claim in Canada. Thus, in my review of the evidence, I find that there is more than a mere possibility that the appellant would be perceived to be anti-government and would face persecution for her actions outside of her home country. [44] Since the state is the agent of persecution, I do not find state protection or an internal flight alternative are acquirable options for the appellant in her home country. REMEDY [45] For all these reasons, I set aside the determination of the RPD and substitute the negative determination with a positive determination, and find that the appellant is a Convention refugee. The appeal is allowed. (signed) "Rena Dhir" March 16, 2015 Date 1 Exhibit 3, Refugee Protection Division Record (RPDR). 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Immigration and Refugee Protection Act, S.C., 2001, c. 27. 4 Exhibit 2, Appellant's Record (AR), New Evidence. 5 Exhibit 3, RPDR. 6 Exhibit 2, AR. 7 Exhibit 2, AR. 8 Dunsmuir v. New Brunswick, 2008 SCC 9. 9 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494. 10 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 11 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 12 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 13 Njeukam v. Canada (Minister of Citizenship and Immigration), 2014 FC 859. 14 Yetna v. Canada (Minister of Citizenship and Immigration), 2014 CF 858. 15 Wahgmo v. Canada (Minister of Citizenship and Immigration), 2014 FC 923. 16 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952. 17 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494 at para. 41. 18 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702 at para. 27. 19 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702 at para. 28. 20 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702 at para. 33. 21 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799 at para. 54. 22 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799 at para. 37. 23 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799 at para. 55. 24 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799 at para. 54. 25 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799 at para. 55. 26 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 27 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 28 Spasoja, Francisca v. Canada (Citizenship and Immigration), 2014 FC 913. 29 Alyafi v. Canada (Citizenship and Immigration), 2014 FC 952. 30 Djoussou v. Canada (Citizenship and Immigration), 2014 FC 1080. 31 Siliya v. Canada (Citizenship and Immigration), 2014 FC 120. 32 Garcia Kanga v. Canada (Citizenship and Immigration), 2012 FC 482. 33 Exhibit 2, AR, Memorandum. 34 Exhibit 2, AR, Memorandum. 35 Exhibit 3, RPDR, Member's Decision. 36 Exhibit 3, RPDR, National Documentation Package (NDP), March 14 2014, United States Department of State Report, Item 2.1. 37 Exhibit 2, AR, New Evidence, RIR, ERI104941.E, September 10 2014. 38 Exhibit 2, AR, New Evidence, RIR, ERI104941.E, September 10 2014. 39 Exhibit 3, RPDR, NDP Package, March 14 2014, Item 2.6. 40 Donboli v. Canada (Minister of Citizenship and Immigration), 2003 FC 883. 41 Donboli v. Canada (Minister of Citizenship and Immigration), 2003 FC 883. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-03400