TB5-03539

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 : TB5-03539 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 May 7, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Melissa Singer 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 ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of Lebanon, 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 grant her appeal and annul the decision of the RPD or to return the matter to the RPD to be reconsidered by a differently-constituted panel. 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 as a widowed woman of the Shia Muslim faith, with no male to protect her in Lebanon, she would face persecution at the hands of the DAESCH, the Islamic State of Islam. More details may be read in the Appellant's Basis of Claim (BOC) form and in the testimony at her hearing. [4] The Appellant's application for refugee protection was heard on November 14, 2014 with an oral decision being rendered that same day. A written copy of the oral negative decision was produced on December 4, 2014. [5] The Appellant submits that the RPD failed in its inherent duty to appoint a designated representative (DR) for the Appellant as requested by counsel at the hearing. [6] The Appellant submits that the RPD committed a material error of fact in the appreciation of evidence. [7] The Appellant submits that the RPD committed numerous errors in the evaluation of the Appellant's credibility. [8] The Appellant submits that the RPD failed to consider the claim on a sur place basis. ANALYSIS Role of the RAD [9] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [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 [Appellant] 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. [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 an "overriding and palpable error." [10] The RAD acknowledges that the Appellant argues that the RPD's decision is "fraught with palpable and overriding errors." Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [11] The Appellant argues that the RPD failed in its inherent duty to appoint a DR for the Appellant as requested by counsel at the hearing. The Appellant argues that due to her very limited education, she is unable to understand the pith and the substance of the questions put to her during the course of the hearing. She further argues that she was confused at the hearing. The RAD has listened to the audio from the hearing and paid very close attention to the exchange on this issue between the Appellant's counsel and the panel and then the questions of the panel put to the Appellant in the panel's investigation into the issue. The panel recessed the hearing for a few moments and upon her return, advised the Appellant that, before getting into the main questions, the panel would ask a few questions which were of an assessment nature. It is true as the Appellant argues, that the RPD failed to mention the request in its Decision and Reasons however; the RPD did, on the record, advise counsel that she was not going to appoint a DR at that time as the Appellant answered the questions coherently and was aware of the nature of the proceedings. [12] The Immigration and Refugee Board (IRB) appoints a DR where the person who is the subject of the proceedings is a child under the age of 18 (a minor); or is an adult who is unable to appreciate the nature of the proceedings. The RPD found that the Appellant did understand the nature of the proceedings and as the Appellant was not under the age of 18 years, the RPD should not appoint a DR. A low level of education is not a reason to have a DR. [13] Further, counsel, in her submissions at the hearing spoke to the credible testimony of the Appellant. Counsel said in her submissions that the Appellant testified in "a clear and concise manner despite her short comings. Her credibility should not be adversely affected. She has testified in a credible manner."2 Counsel's submissions at the hearing support the decision of the RPD in regards to the Appellant's ability to appreciate the nature of the proceedings. Therefore, the RAD finds that the RPD did not fail in its inherent duty to appoint a DR. [14] The Appellant argues that the RPD committed a material error of fact in the appreciation of evidence. Specifically, the RPD made reference to in its Decision and Reasons to a killing which occurred on October XXXX, 2014. The RPD referred to the victim of the killing as a sibling of the Appellant while in fact the victim was the Appellant's cousin. The Appellant is correct that this error is an error of fact. However, the actual relationship between the Appellant and the victim is not material to the claim. Whether the victim was a sibling or a cousin does not impact the claim in any way. The victim was in the military which placed him in a high profile position to become a target for terrorists. If he was a sibling or a cousin, he would still be in the same military profile as a target, a profile the Appellant does not share. So, even though the RAD agrees that the RPD committed an error of fact, that fact is not material to the claim and therefore is not fatal to the claim. [15] The Appellant argues that the RPD committed numerous errors in the evaluation of the Appellant's credibility. The Appellant argues that the RPD inferred a negative credibility because the Appellant, upon questioning from the panel, adjusted her testimony regarding the male presence in Lebanon. The panel considered the Chairperson's Guidelines3 regarding female refugee claimants. The panel considered these guidelines when she asked the Appellant questions regarding her return to Lebanon. The Appellant had testified that should she return to Lebanon, she would have no male protection because her husband is deceased and she had no male children. The panel asked the Appellant why she would need a male to protect her. The Appellant then testified that she did not mean that she needed protection but only that she wanted to stay in Canada in order to be close to her daughter.4 The Appellant argues that the RPD erred by inferring a negative credibility here by construing this exchange as simply an adjustment or rectification in her testimony. The RPD did not infer negative credibility at this issue but rather wrote only that, in regards to the Appellant's desire to be close to her daughter, "And, madam, that is understandable. However, it cannot have me conclude that you have established a reasonable possibility of persecution in Lebanon because you are a single woman."5 Here, the RPD is simply saying that insufficient evidence has been disclosed to allow the RPD to conclude that there is a possibility of persecution of this Appellant in Lebanon. The RAD agrees with the RPD. [16] The Appellant argued that there is discrimination against women in Lebanon and consequently the Appellant has a nexus because the discrimination she faces "is equivalent to persecution." The Appellant goes on to say "The peril she faces in this case is linked to her marginalization in society as a single widowed woman in XXXX, Lebanon."6 The RPD addressed this issue in its Reasons, referring to the National Documentation Package,7 which was Document 3 in the RPD evidence list, which speaks to discrimination in Lebanon against women. The panel could not find sufficient evidence in the Appellant's circumstances to conclude that the discrimination she may suffer would amount to the level of persecution. Article 8 of the Lebanese Constitution asserts the equality of rights and duties of all citizens, regardless of gender. [In contrast to neighbouring countries, Sharia law is not held up as the main source of legislation.] Lebanon ratified the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) in 1997 with reservations to Article 9(2), regarding nationality; several subparagraphs of Article 16(1), related to personal status laws; and Article 29(1), on the settlement of disputes. Lebanon has published CEDAW in the official Gazette, giving it primacy over national laws, one of the few Arab countries to do so. The country has not yet ratified the Optional Protocol.8 Discrimination: Women suffered discrimination under the law and in practice. Social pressure against women pursuing some careers was strong in some parts of society. Men sometimes exercised considerable control over female relatives, restricting their activities outside the home or their contact with friends and relatives. In matters of child custody, inheritance, and divorce, personal status laws provide unequal treatment across the various confessional court systems but generally discriminate against women. For example, Sunni civil courts apply an inheritance law that provides a son twice the inheritance of a daughter. Religious law on child custody matters favo[u]rs the father in most instances. Nationality law also discriminates against women, who may not confer citizenship to their spouses and children, although widows may confer citizenship to their minor children. By law women may own property, but they often ceded control of it to male relatives due to cultural reasons and family pressure. The law provides for equal pay for equal work for men and women, but in the private sector there was discrimination regarding the provision of benefits. Although they composed the majority of the resident population, women made up only 14 percent of the workforce and only 8 percent of senior officials and managers, according to the World Economic Forum. Only 25 percent of women, compared with 75 percent of men, were in the formal labo[u]r force, and these women earned on average less than 25 percent of what men earned. The Women's Affairs Division in the Ministry of Social Affairs is the highest-level governmental organization dealing with women's issues. The division undertook some projects to address sexual or gender-based violence, such as providing counseling and shelter for victims and training ISF personnel to combat it in prisons. In 2012 women were commissioned as ISF officers for the first time.9 [17] The RAD agrees with the RPD. The documentary evidence is insufficient to cause the RAD to conclude that the level of discrimination which the Appellant may suffer will reach such as a level as to be considered as persecution. The RAD finds that the Appellant would not face a serious possibility of persecution in Lebanon because of her gender and single status. [18] The Appellant argues that the failure of the Appellant to produce proof or evidence of sectarian violence in XXXX should not be fatal. The Appellant argues that the evidence is compelling in that there is no reasonable expectation of national protection in Lebanon given the armed groups, armed conflicts and bombings. However, the Appellant must prove that she is or will suffer persecution for a Convention ground or that she would be targeted specifically in order to be successful in her claim. The fact that everyone in Lebanon is subject to the same issues of armed groups, conflicts and bombings is an unfortunate generalized risk. The Appellant has failed to show that she would be a specific target (Sec.97) or that she will face persecution for a Convention reason or ground. The RPD did not err in its findings here. The RAD finds that the Appellant has no nexus to the Convention and does not meet the requirements of Section 97 of the IRPA, either. [19] The Appellant argues that the RPD failed to consider the claim on a sur place basis. It may be true that the RPD did not write specifically in regards to a sur place claim however; the RAD has looked at this issue carefully. Things may have changed in Lebanon since the Appellant left the country however; it is the Appellant's duty to present evidence in support of her claim which is something she has failed to do. The RPD read through the evidence and found that even with a nexus based on her religion, she would face discrimination but not persecution. The RPD could not find sufficient evidence for a Section 97 claim, either. The RAD has looked at the documents closely and cannot find any grounds on which the RAD could agree with the Appellant. There is insufficient evidence to convince the RAD that a sur place claim exists. Even if the RAD agreed that things have changes substantially in Lebanon, the Appellant must still provide evidence that those changes would be sufficient to put her fate at a serious possibility of persecution. The Appellant must also show that if there is a risk to her life upon return, that risk must not be a generalized risk, but a personalized risk, in order to succeed under section 97. The Appellant has failed to do this. The RAD finds that there is no sur place claim in this case. Disposition [20] The RAD has found that the RPD decision will stand. There has been insufficient evidence presented or otherwise disclosed to convince the RAD that the Appellant has or would face anything more than discrimination due to her religion, or would face personalized risk should she return to Lebanon. CONCLUSION [21] Pursuant to Section 111(1)(a) of the 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) "David Lowe" David Lowe May 7, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Audio recording of the hearing at minute 53.10. 3 Guideline on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993, Update: November 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. 4 Audio of hearing at minute 25:10 5 Exhibit RPD-1, RPD's Record, Reasons and Decision (oral), page 5, at top paragraph (unnumbered). 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum, page 9, section 4, at para. 3. 7 RPD-1, RPD's Record, National Documentation Package (NDP) for Lebanon (March 14, 2014), item 2.1. 8 RPD-1, RPD's Record, National Documentation Package (NDP) for Lebanon (March 14, 2014), item 5.3. 9 RPD-1, RPD's Record, National Documentation Package (NDP) for Lebanon (March 14, 2014), item 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03539