TB4-04669

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 : TB4-04669 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 7, 2015 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Melinda Gayda Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, (the Appellant), a citizen of The Gambia, has appealed a negative decision of the Refugee Protection Division (RPD) issued orally on March 27, 2014. DETERMINATION [2] The Refugee Appeal Division (RAD) refers the matter back to the RPD for re-determination with the directions outlined below as per s. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA). Background [3] The Appellant is a citizen of The Gambia. The Appellant alleged that she was circumcised against her will when she was 15 years old. She alleges that it is customary in her ethnic group (Fulani) for women to be circumcised twice. The Appellant does not want to be circumcised because of a fear of death or injury. [4] The Appellant lived in the United States without status from early 2000s until 2010 or 2011. The Appellant travelled from The Gambia to Canada on XXXX XXXX, 2014 via Morocco. The Appellant was detained by CIC in Montreal as she travelled using a fraudulently obtained passport. The Appellant made her claim for protection on January 26, 2014. [5] The Appellant had a refugee determination hearing on March 27, 2013 at which time oral reasons were issued. In its reasons, the RPD found that the Appellant's allegations related to a fear of being circumcised a second time were not credible. The RPD made the following findings: a) The RPD found the Appellant's testimony not to be credible based on her sweeping statements which defied logic; her exaggeration of her knowledge of the situation in The Gambia and the danger she faces if returned to The Gambia. For example, the Appellant testified that there was no asylum in the United States, and that no African country produces death certificates. b) The RPD found that the Appellant's credibility was undermined by her failure to provide documents in support of her claim, such as her passport in The Gambia, and her birth certificate in Toronto, or death certificate of her sister. c) The RPD drew a negative credibility inference in relation to the Appellant based on omissions in her Basis of Claim (BoC) document and was unable to provide a reasonable explanation for the omissions; her failure to provide documentation in support of many of her allegations; and inconsistencies in her oral testimony. d) The RPD found the Appellant's allegation of a risk of a second circumcision in her tribe or in general in The Gambia was not supported in the documentary evidence, which it disclosed at the hearing. [6] Appeal pleadings were received on June 6, 2014. The pleadings were accompanied by an Application for an Extension of Time. The Assistant Deputy Chair considered and accepted the Application. As such, the Appeal was considered filed and perfected as of July 21, 2014. [7] The Appeal was accompanied by two affidavits (one from the Appellant and one from a lawyer and Team Manager at the Refugee Law Office) and a death certificate. Given that the matter is to be returned to the RPD for re-determination, the RAD did not address the admissibility of the evidence in this appeal. In the Appeal, counsel argued that the RPD erred by breaching the Appellant's right to a fair hearing. Specific errors included: a) The RPD breached the Appellant's right to a fair hearing by denying her the right to counsel, especially given that the Appellant did not waive her right to counsel as she repeatedly requested not to go forward without counsel. b) The RPD did not factor in the Appellant's limited sophistication, schooling, and literacy level which was evident at the hearing. c) The RPD breached the Appellant's right to a fair hearing by failing to acknowledge that, as an unrepresented person with limited literacy, the Appellant was unable to present her case including submissions, as such the credibility findings of the RPD were tainted. d) The RPD applied the procedural requirements to re-schedule a hearing in a rigid and technical manner and erroneously concluded that the Appellant had enough time to find a lawyer and that there were no exceptional circumstances that warranted an adjournment in proceedings. The RPD had the authority to interpret the RPD Rules flexibly. e) The RPD erred by expecting the Appellant to provide legal submissions on the country condition evidence, given her literacy concerns. f) The RPD erred by finding that the Appellant was not vulnerable, but excusing the Appellant from the hearing room to render the decision as the Appellant was too vulnerable to hear the oral decision. [8] The Appellant asks that the RAD set aside the RPD decision and refer the matter back to the RPD for re-determination. Analytical Approach [9] Counsel provided several sets of submissions regarding the issue of the Standard of Review. In its final submission, counsel indicated that the RAD is tasked with reviewing the evidence and determining whether the Appellant is a Convention refugee or a person in need of protection based on Huruglica1 decision. In assessing the Appeal, the RAD is directed by the Huruglica2 decision. In this decision, Justice Phelan had indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD's decision and come to an independent assessment of whether the Respondent is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD determination that, in its opinion, should have been made as per s. 111(b) of IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country condition evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. The RAD concurs with counsel on the approach to analysis and will assess the claim based on the guidance in the Huruglica decision. Analysis of the Evidence [10] In analyzing the appeal, the RAD focused on whether or not the Appellant's right to a fair hearing were breached. Upon review of the entirety of the evidence before it, the RAD finds that the Appellant's right to a fair hearing was breached by the RPD's failure to disclose documents to the Appellant before the hearing and denying the Appellant a reasonable opportunity to respond to the documents. The RPD found that the Appellant's subjective fear was not supported and was contradicted by the documentary evidence. The RPD did not indicate in its reasons what specific documentary evidence supported its findings. The RPD decision indicated that it may be amended to add footnotes or references to the statutes or case law. The reason disclosed on the record had not been amended to refer to documentary evidence. [11] In reviewing the transcript,3 the RAD noted that at the beginning of the hearing the RPD only entered 4 exhibits. These exhibits did not include the documentary evidence identified on the Exhibit List as "RPD - 5: Various documents on FGM in Gambia". The RAD notes that Exhibit 5 included four documents of approximately 30 pages.4 Near the end of the hearing,5the RPD provided the Appellant with the articles listed in Exhibit 5 with portions highlighted. The RPD adjourned for approximately 29 minutes, during which time the Appellant had the opportunity to review the documents. Upon return, the Appellant was asked if she needed anything clarified and the Appellant indicated that she did not understand one document. The RPD explained the contents. [12] The RAD is cognizant that RPD Rule 33 regarding disclosure of documents does not provide direction to the RPD regarding timely disclosure. Nevertheless, the RAD notes that the rules of natural justice require adequate notice of the case against a claimant and an opportunity to respond.6 Document disclosure is important for procedural fairness as it gives the applicant an opportunity to properly respond to the Board's concerns.7 After having reviewed the evidence in this case, the RAD finds that the RPD breached the Appellant's right to a fair hearing by disclosing documents at the hearing and by not providing the Appellant an adequate opportunity to prepare a response to the documents. [13] The RAD was concerned with the late disclosure of 30 pages of documents to the Appellant for several reasons. Firstly, the Appellant was not represented by counsel and had requested on two occasions during the hearing to stop until she could retain counsel. Having counsel present could have assisted the Appellant in understanding and commenting on the evidence and possibly disclosing evidence that would rebut the evidence provided by the RPD. Secondly, the Appellant was not a native English speaker, had limited education and literacy skills, and did not have an interpreter to assist her with any language difficulties. It was unreasonable for the RPD to expect the Appellant to be able to review the documents and fully understand them due to her educational background and lack of sophistication. Thirdly, the Appellant was not afforded sufficient time to read and consider the contents of the documents as 28 minutes was insufficient time for the Appellant to fully understand the contents of the documents and to consider the possible impact of the documents on her claim. Fourthly, the RAD noted if the RPD had disclosed the information to the Appellant before the hearing, the Appellant could have had the opportunity to present more recent evidence in support of her claim. [14] Given the concerns highlighted above, the RAD finds that the RPD breached the Appellant's right to a fair trial based on not providing the Appellant adequate notice (by virtue of timely disclosure of Exhibit 5) and a genuine opportunity to respond to the disclosure. [15] In addition to the issue of disclosure, the RAD also found that the RPD did not demonstrate sensitivity to the Appellant's particular situation as a woman who alleged FGM and who alleged vulnerability because of her lack of education, both at the hearing and in the reasons. The RAD is cognizant that case law establishes that there is no need for the RPD to specifically mention the Gender Guidelines8 in a decision, provided it adequately applies the principles enshrined in them.9 In the case at hand, the RPD failed to mention that he had applied the Gender Guidelines during the hearing or in his reasons. A review of the transcript and the reasons reveals that the RPD did not take the Gender Guidelines into account in a meaningful way with respect to the process of the hearing (denying adjournment to obtain counsel), as well as in its negative credibility findings which did not take into account the particular challenges of women who are victims of persecution based on their gender. For example, the RPD did not seem to understand the position of women in The Gambia and why a death as a result of FGM would not be reported or followed-up by police or medical authorities. The RPD appeared not to appreciate the difficulty the Appellant had in speaking about her FGM, or even the fact that the Appellant may not know the type of FGM she had. The RPD did not seem to understand the cultural and gender dynamic behind how the Appellant's mother could object to FGM but then allow her children to experience it. The RPD did not seem to understand how a cousin who is raised by the Appellant's mother can be referred to as a sister by the Appellant. The RPD questioned why a woman of 38 years could not just say no to FGM in The Gambia. [16] Similarly, the RAD finds that the RPD applied a narrow definition of a vulnerable person when assessing the application for a postponement in the proceedings and defined a vulnerable person as someone with mental incapacity. The RPD failed to appreciate that Guideline 810 definition of Vulnerable Persons includes women who have suffered gender-related persecution. The RPD should have made a greater effort in exploring the Appellant's allegations of vulnerability in its decision to deny the postponement request and should have provided more fulsome reasons for denying the request for postponement, citing the factors in the RPD Rules. [17] For the reasons highlighted above, the RAD finds that the RPD breached the Appellant's right to a fair hearing based on improper disclosure and insensitivity to the particular situation of the Appellant who feared persecution because of her gender, and the Appellant's potential status as a Vulnerable Person. [18] The RAD then considered whether or not the breach of procedural fairness required a new hearing. Given that the determination turned on the issue of the Appellant's credibility which was tied to her ability to present her case, and on the inconsistency between the documentary evidence and the Appellant's allegations, the RAD is not persuaded that the question was "hopeless or the outcome reached was inevitable" as per Mobil Oil.11 Direction [19] The RAD provides the following directions to the RPD: 1. Disclose documents to be used at the hearing to the claimant/counsel before the hearing. 2. The Appellant is directed to provide the RPD with medical evidence attesting to her history of and nature of the FGM procedure she experienced. This can be done through local community health centres that provide free medical services for refugee claimants (e.g. Unison Health). 3. The Appellant is to provide evidence of or evidence attesting to attempts to provide evidence of her female relative(s) who she alleges died from FGM. 4. If requested, the Appellant and/or counsel is directed to provide evidence in support of a Vulnerable Person application to the RPD before the hearing. 5. If the Appellant continues to allege incompetence by her former counsel in Montreal, she is to provide the RPD with evidence that a complaint has been made against counsel through an official body in Quebec, and provide counsel with an opportunity to respond. 6. The Appellant is to provide originals of all documents presented in support of the claim, e.g. birth certificate and death certificate of her father, so that the RPD can assess it, and proof of delivery of the death certificate. 7. The RPD is to consider the genuineness of the Appellant's father's death certificate in light of the fact that the Appellant indicated in her IMM-5669 and BoC that her father was born in 1929 and the death certificate indicates that her father died at 60 years of age in XXXX of 2014. In addition, the RPD is to consider the fact that the age of death "60" on the certificate appears to be written over. 8. RPD is to request further information from US officials regarding the Appellant's status or former status in the US. 9. The Appellant is to consider requesting assistance of an interpreter in her dominant language at the next proceeding either to interpret or to stand-by in case the Appellant does not understand or cannot explain herself in English. DISPOSITION [20] Based on a review of the totality of the evidence, the RAD finds that the RPD breached the Appellant's right to a fair hearing. As such, the RAD refers the matter back to the RPD for re-determination with the directions cited above as per s. 111 (1)(c) of IRPA. [21] The appeal is allowed. (signed) "Daniel McSweeney" Daniel McSweeney January 7, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Ibid. 3 Appellant's Record, Transcript, p. 5. 4 RPD's Record, Exhibit 5, 4 documents pp. 82 - 111. 5 Appellant's Record, Transcript, pp. 38 - 409. 6 Canada (Minister of Citizenship and Immigration) v. Dhaliwal-Williams, [1997] FCJ No 567 at para 7, 131 FTR 19. 7 Zheng, Fei v. Canada (Minister of Citizenship and Immigration), (F.C., no., IMM-1998-11), Mosley, November 25, 2011, 2011 FC 1359. 8 Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act, Women Refugee Claimants Fearing Gender-Related Persecution, Immigration and Refugee Board, Ottawa, March 9, 1993; Update, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant to section 159 (1) (h) of the Immigration and Refugee Protection Act. 9 Tsaiko, Lulu Lerato v. M.C.I. (F.C., no. IMM-804-12), O'Keefe, October 29, 2012, 2012 FC 1253. 10 Chairperson's Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB; Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act Effective date: December 15, 2006 Amended: December 15, 2012 11 Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04669