TB5-04060

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 : TB5-04060 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 June 24, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Luwam Lily Tekle 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), is a citizen of Ukraine. The Appellant appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant requests that the RAD set aside the determination of the RPD and substitute a decision that the Appellant is a convention refugee or a person in need of protection. If unable to do so, the Appellant requests, in the alternative, that the RAD hold a hearing on the basis of the new evidence submitted pursuant to sections 110 (4) and 110 (6) of the IRPA. In an alternate alternative, the Appellant asks that the RAD refer the matter back to the RPD for redetermination. DETERMINATION [3] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD allows the appeal and refers the matter back to the RPD for redetermination. Memorandum of Appeal [4] The Appellant submits that the panel erred by failing to analyze risk to the appellant under section 97. [5] Did the Panel make a valid credibility finding regarding the Appellant's sexual orientation. [6] Were the Panel's credibility finding sufficiently material to question the Appellant's sexuality, and were the Panel's credibility findings unreasonably drawn. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [7] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected in the circumstances, to have presented at the time of the rejection of the claim. [8] The Appellant has tendered several documents, as proposed new evidence in support of her appeal. The RAD will deal with only one of these documents, a notarized letter from a certified Ukrainian medical Doctor, as this document becomes determinative in the RAD decision. [9] The sworn affidavit of XXXX XXXX, a foreign trained medical doctor from Ukraine, was submitted as new evidence. This document was submitted to overturn the negative credibility finding of the RPD regarding the medical documentation submitted for the RPD hearing. The author of the affidavit gives her medical qualifications as well as her practice and experience in Ukraine in dealing with medical issues, including medical booklets. In her opinion, using her extensive experience in handling Ukrainian medical booklets, the Medical Booklet #XXXX, that was submitted as documentation for the RPD hearing, matches the norms of the Ministry of Health in Ukraine, is valid, and belongs to XXXX XXXX. BA CKGROUND [10] The Appellant states that she cannot return to Ukraine because of her sexual orientation. At the age of 13, the Appellant realized that she was different from her fellow friends because she had a sexual attraction to her girlfriends. In the XXXX of 2006, the Appellant had her first sexual experience. In XXXX 2009, the appellant began a sexual relationship, but kept this relationship secret from her family. In XXXX 2010 after a New Year's celebration, the Appellant and her friend were caught being intimate in her friend's room. As a result of this discovery, the Appellant was sent to Canada by her father in XXXX 2010. During her stay in Canada, the Appellant had several sexual partners. On XXXX XXXX, 2012, the appellant went to Ukraine to celebrate her sister's 30th birthday. A girl that the Appellant met at the birthday party began a sexual relationship. When celebrating her friend's birthday party on XXXX XXXX, 2013, the Appellant's girlfriend's ex-boyfriend accosted them and assaulted her. Although there were witnesses, the investigator made negative comments regarding her sexuality. When the Appellant complained to the prosecutor's office in Ukraine, no action was taken, finding that the police had acted appropriately. After returning to Canada on XXXX XXXX, 2013, the Appellant awaited her girlfriend's arrival in Canada. When her girlfriend was unable to acquire a legal visa to come to Canada or the United States of America, the claimant applied for refugee status. [11] The appellant's Refugee Appeal was heard on February 25th, 2015. In a decision on March 31, 2015, the RPD rejected the appeal stating, "Having considered all the evidence, the panel determines that for reasons of credibility, the claimant's claim fails. She has not satisfied the burden of establishing a serious possibility to prosecution on a convention ground, or that, on a balance of probabilities; she would be personally subjected to a danger of torture or face a risk to life, or face a risk of cruel and unusual treatment or punishment, if she were to return to Ukraine." ROLE OF THE RAD [12] The Appellant, quoting much case law, describes a variety of approaches that could be taken by the RAD. One of the submissions quotes Huruglica1 as a reference and submits that the RAD must review all aspects of the RPD's decision and come to an independent assessment of whether the Appellants are Convention refugees or persons in need of protection. [13] The RAD concurs with this aspect of the Appellant's submissions, and finds that the Federal Court decision, in Huruglica,2 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. The RAD, subject to different instructions based on questions before the Federal Court at this time, will follow the decision in Huruglica. 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." [14] 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 person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. Merits of the Appeal and Disposition [15] The RPD made three credibility findings during the RPD hearing. One of those findings was that the medical booklet referred to above in new evidence, lacks credibility, and placed no weight on the booklet or certificate as to evidence of her injuries. [16] Given the documentation submitted under new evidence, the RAD agrees that the credibility finding regarding the Medical Booklet was in error. Given that the RPD referred to this booklet as a means of discounting the alleged beating at the hands of her girlfriend's ex-boyfriend, the RPD's findings in discounting the incident were also in error. [17] The RPD's two remaining credibility findings are insufficient to allow the negative decision to be made regarding the Appellant's alleged sexuality, and subsequent fear of return to Ukraine. [18] The RPD found that the Appellant's testimony regarding the police and their behavior at the alleged incident was not credible. The RPD also made reference to documentation that indicated fraudulent documents, especially police documents were a "booming" business. [19] The RPD did not make a finding as to the claimant sexuality. Common-law dictates that by not making this finding, the Appellants testimony, that she is a lesbian, should be taken as fact. [20] The RPD made reference to the police and their behavior regarding their treatment of lesbian or gay people in the Ukraine. No fulsome discussion of the issue of state protection for the Appellant or the potential of persecution under section 97 were addressed in the decision. [21] According to section 111 (2) (b) of IRPA, the RAD is unable to substitute its own decision without hearing evidence that was presented to the RPD. CONCLUSION [22] Under Section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. The appeal is allowed. (signed) "Robert Garner" Robert S. Garner June 24, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-04060