TB7-04826

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 : TB7-04826 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 August 28, 2017 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Abebe Worku 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 ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the Appellant), a citizen of Ethiopia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and refer the matter be to the RPD for redetermination. The Appellant has submitted new evidence pursuant to section 110(4) of the Immigration and Refugee Protection Act (IRPA) and is requesting an oral hearing under section 110(6) of the IRPA. DETERMINATION [2] Pursuant to sections 111(1)(c) and 111(2)(b) of the IRPA, the RAD refers this matter to the RPD for redetermination by a differently constituted panel. BACKGROUND [3] The Appellant alleges that she faces persecution in Ethiopia because of her support of the All Ethiopian Unity Party (AEUP) and her status as a small business owner in Ethiopia. [4] The Appellant's application for refugee protection was heard on January 6, and January 13 2016. In a decision of January 27, 2017, the RPD rejected the claim, finding the Appellant to be not credible and that she does not have a well-founded fear of persecution. ROLE OF THE RAD [5] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica1 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law. Justice Gauthier found that in Huruglica, where the credibility of the oral evidence before the RPD was not a determinative issue, a standard of correctness should be applied by the RAD when assessing RPD findings of fact or of mixed fact and law. [6] In light of the Court's ruling, when conducting an appeal of a determination by the RPD, the RAD will carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Where the credibility of the oral evidence before the RPD was not a determinative issue, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of the oral evidence before the RPD was a determinative issue, the RAD will defer to certain findings of the RPD where the RPD enjoyed an advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with an analysis of the record as a whole. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [7] Section 110(4) of the IRPA provides that persons who are 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. [8] It is for the persons who are the subject of the appeal to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of section 110(4). [9] The Appellant has provided an original copy of her business licence,2 a referral to a psychiatrist from a doctor in Canada,3 and a letter from her brother in Ethiopia. The business licence was before the RPD as a copy only. She submits that she had requested the original copy of the licence from Ethiopia, but that the state of emergency there had made it difficult for her family to forward the document. The RAD notes that the medical referral was obtained by the Appellant in support of her appeal based on her psychological condition. [10] The RAD has considered the Appellant's submissions4 on her new evidence. With respect to the original of the business licence that had been previously submitted as a copy, the RAD notes that the RPD has impugned her credibility due to the absence of an original. The RAD accepts the Appellant's explanation that she had been unable to obtain the document earlier because of the state of emergency in Ethiopia. The brother's letter highlights recent interest in the Appellant by Ethiopian authorities. The RAD notes that all three pieces of evidence post-date the RPD decision and finds the new evidence admissible. ANALYSIS The Appellant's Psychological Condition [11] In its Reasons and Decisions,5 the RPD made a number of comments with respect to the problems with the Appellant's testimony and drew a negative inference with respect to her credibility. In her submissions, the Appellant has highlighted some of the RPD comments which she indicates has helped her better understand her mental state. Some of the RPD's comments include: "She [the Appellant] often failed to testify in a clear, forthright manner. Her testimony was often inconsistent with her other evidence, and her explanation for the credibility issues put to her would sometimes evolve. At times the claimant simply failed to answer the questions put to her, even after multiple attempts to elicit a direct answer."6 [12] The Appellant has also made several significant statements7 in an affidavit: During the hearing at the Refugee Protection Division of my case I was not able to clearly understand and answer questions put to me. I confirm that I have assessed myself and realized that I have difficulty of remembering, understanding, and answering questions due to my mental health problems. I have explained my mental health problem to my physician and he has referred me to mental health specialist for assessment of my metal [sic] health regarding understanding and memory. [13] In reviewing the recording of the hearing, the RAD noted that the RPD member had to stop on several occasions when the Appellant's responses seemed unconnected to the questions being asked. At one point in the hearing, [52:00] the interpreter alerted the RPD member that the Appellant continually stated "I didn't understand" and that he was concerned that it could be viewed as problems with interpretation rather than the Appellant's inability to understand. When asked by the RPD, "What don't you understand?" the Appellant replied: "It's just me I'm not paying attention very well." [53:00] [14] The Appellant has requested additional time to allow for an assessment of her mental health or psychological condition. While her request and her references to her mental health could be seen as an attempt to overcome the deficiencies in her testimony, the RAD finds that a professional assessment of her mental health and psychological condition should be undertaken before a decision on her claim is made. CONCLUSION [15] The RAD finds that there is sufficient indication that an assessment of the Appellant's mental state and psychological condition needs to be completed before a final determination on the Appellant's refugee claim is made. [16] The RAD therefore exercises its discretion under section 111(1)(c) of the IRPA and refers the matter back to the RPD for redetermination by a differently constituted panel. RECOMMENDATIONS TO THE RPD [17] The RPD should ensure that a mental health professional has completed an assessment of the Appellant's mental capabilities and psychological functioning before conducting a hearing. (signed) "Anthony da Silva" Anthony da Silva August 28, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, p. 19. 3 Exhibit P-2, Appellant's Record, p. 22. 4 Exhibit P-2, Appellant's Record, at pp. 28, 30, and 31. 5 Exhibit P-2, Appellant's Record, RPD Reasons and Decisions at pp. 3-15. 6 Exhibit P-2, Appellant's Record, RPD Reasons and Decisions at p. 5, para. 13. 7 Exhibit P-2, Appellant's Record, Affidavit, at p. 20, points 4, 5, 6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-04826