VB6-00546

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 : VB6-00546 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 Appeal considered / heard at Vancouver, BC Appel instruit à Date of Decision September 13, 2016 Date de la décision Panel Rena Dhir Tribunal Counsel for the person(s) David Matas Conseil(s) du (de la/des) who is (are) the subject of Barrister and Solicitor personne(s) en cause the appeal Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "appellant"), a citizen of Tanzania, appeals the January 27, 2016 determination of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on January 27, 2016 with a Notice of Decision being sent to the appellant on February 12, 2016. The RPD found that the appellant is neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (the "Act").1 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] The appellant was represented before the RPD by the same counsel as before the RAD. The Minister has not intervened before the RPD or the RAD. [4] The appellant does seek to present "new" evidence2 to the RAD pursuant to subsection 110(4) of the Act. [5] A transcript of the RPD oral hearing has not been included in the appellant's record (AR). BASIS OF CLAIM (BOC) [6] According to the allegations set out in the appellant's BOC form and statement,3 the appellant is a national of Tanzania and Somalia. After the death of her father, the appellant was sent to Tanzania to live with her grandfather in 2000. She was mistreated by her grandfather when in 2010 she was forcibly circumcised and then forced her to marry an old man in 2012. The appellant was sexually abused by her husband. [7] The appellant's husband and the appellant obtained a US visa to visit the US. However, the appellant travelled to the US on her Tanzanian passport with the US visa in XXXX of 2015. The appellant arrived in Canada in XXXX 2015 and made her claim for refugee protection. [8] The RPD's reasons stated that the appellant's case for refugee protection was rejected based on the issue of state protection. GROUNDS OF APPEAL [9] The appellant's submissions as to the grounds of this appeal can be summarized as follows:4 * Did the RPD member engage in a faulty analysis of identity by finding that the appellant is a Tanzanian citizen? * Did the RPD member engage in a faulty analysis through the application of the wrong standard of proof requiring the appellant to have sought adequate state protection? CONSIDERATION OF NEW EVIDENCE [10] 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. [11] The appellants are required to provide full and detailed submissions as part of their memorandum and provide explanations for how the proposed new evidence meets the requirements of subsection 110(4), and how it relates to their claims.5 [12] Once the 'new evidence' has been accepted by the RAD, the RAD is also guided by the recent Federal Court of Appeal (the "FCA") case, Singh.6 In Singh, the FCA has said: [64] In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers. In any case, the issue seems rather academic to me, to the extent that the implicit criteria from Raza do not truly add to the wording of subsection 110(4) but are necessarily implied. Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case. [13] In Singh,7 the FCA also said: [54] [. . . ] The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected. [14] The RAD will assess the evidence on 'newness' as outlined in subsection 110(4). If it passes this test, the RAD will go on to assess the 'new evidence' on credibility and relevance before admittance of such evidence for the RAD appeal. [15] The appellant has submitted one document as new evidence pursuant to subsection 110(4) of the Act: * Tanzanian Citizenship Act, 1995.8 [16] Counsel for the appellant submits that this document "seeks to provide clarification to the Division member's understanding of how citizenship is obtained by naturalization in Tanzania". The appellant has not provided an explanation for why this document was not before the RPD at the time of the hearing. I note that identity is always an issue at every hearing before the RPD. Not only that, the appellant stated many times in her RPD record that she is a citizen of Tanzanian. I find the appellant has failed to provide persuasive evidence or a reasonable explanation for why this information was not before the RPD. Such evidence which contradicts the findings of the RPD does not make it new evidence. Most importantly, the issue of the appellant not being a citizen of Tanzanian was never before the RPD. Therefore, I decline to admit this document as new evidence. [17] Considering that the document has not been accepted as 'new evidence' by the RAD, I do not find that it is necessary to continue with any further analysis of this document. ORAL HEARING [18] The appellant has not requested an oral hearing pursuant to subsection 110(6) of the Act. REMEDY SOUGHT [19] The appellant has requested that the RAD, under paragraph 111(1)(b) of the Act, set aside the determination of the RPD and substitute a positive determination. In the alternative, the appellant requests that the RAD, under paragraph 111(1)(c), 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] The appellant has not provided submissions on the role of the RAD for this appeal. [22] In the FCA decision for Huruglica Justice Gauthier states: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.9 [23] In Youkap,10 the Federal Court (the "Court") confirmed that the RAD may show a certain level of deference towards the RPD's finding when credibility issues are involved, and that the RAD must conduct an independent assessment of the evidence as a whole. Furthermore, the RAD has a duty of deference regarding the credibility findings of the RPD as the RPD has had the opportunity to hear the witness.11 This has also been stated by the recent FCA decision, Huruglica,12 where Justice Gauthier states: [11] [. . .] These respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [14] Turning to the expertise and advantageous position of the RPD versus that of the RAD, the RAD underlined that the RPD always has the advantage of seeing and questioning refugee claimants, while the RAD will infrequently have this opportunity. This "suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility, other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand"[: . . .]13 [24] In this appeal, and taking into consideration the recent FCA decision in Huruglica,14 with respect to findings of fact (and mixed fact and law), which raise no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Otherwise, where an issue concerning credibility of oral evidence is evident, I will be applying the points set out in Huruglica15 which is to conduct an independent assessment of all the evidence to determine whether the appellant is a Convention refugee or a person in need of protection, while giving 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 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 [25] The appellant submitted a number of arguments to establish that the RPD's determination is erroneous and should be set aside by the RAD. I do not agree with all these arguments, and I am of the opinion that I do not need to address them all given that I am setting aside the determination of the RPD and substituting a determination that, in my opinion, should be made following my own assessment of the evidence submitted before the RPD and the RAD. Identity [26] The appellant submits that the RPD member erred in her identity assessment in finding her to be a Tanzanian citizen. I note that the appellant was represented before the RPD by the same counsel as she has before the RAD. I also note that the appellant lists on her BOC that she is a citizen of Tanzania by registration as of XXXX XXXX, 2012.16 She states this in the generic application form for Canada as well17 and again on the IMM 5669 form.18 Again, the appellant was questioned at the Winnipeg Inland office by a CBSA officer where she stated that she is also a citizen of Tanzania.19 At no time during the RPD hearing or after, did the appellant state that she is not a citizen of Tanzania. However, the appellant submits, before the RAD, that the RPD erred in finding her a citizen of Tanzania. This issue was never before the RPD and thus, I will not be making a determination on this issue for this RAD appeal. I have, however, reviewed the RPD member's findings on identity. [27] In this case, the RPD member found that the appellant is a citizen of Tanzania based on the following: 1) The appellant's recollection of going to an office with her grandfather in 2012 where she was fingerprinted. 2) The appellant's successful acquisition of an American visa in her Tanzanian passport from the American Embassy. 3) The appellant had no problems entering the U.S. with her Tanzanian passport. 4) The appellant's own declaration that she is a citizen of Tanzanian on her refugee claim forms in Canada. 5) The appellant's testimony regarding her obtaining citizenship in Tanzania. 6) The appellant's biometric data-match in the U.S., and her marriage certificate from Tanzania. [28] The Courts have said that: A refugee claimant must therefore prove that he or she has a well-founded fear of persecution in all countries of nationality before he or she can be conferred refugee status in Canada.20 Consequently, the RPD is not required to consider the fear of persecution or availability of protection in the second country of citizenship, once it has been determined that the claimant does not have a well-founded fear of persecution in the first.21 [29] I have reviewed all the evidence before the RPD and the RAD. Given this evidence, I have no reasons to disagree with the RPD member's identity assessment and findings. State Protection [30] The appellant submits that "she was forcibly circumcised by her grandfather, she was married against her will, she lived in oppressive and abusive circumstances and that she was nothing more than 'property' to her husband. She also testified that her husband is rich and knows people around the city. Further, she testified that corruption is prevalent in Tanzania and that she never went to a doctor or the police after being subject to violence by her husband."22 The appellant further submits that her "testimony is consistent with the information in the National Documentation Package. The legal principals outlined in Ward and Avila, clearly establish that the level of corruption in a country will have an impact on whether it was reasonable for a claimant to seek or expect state protection, the Division member failed to recognize how impractical this would be in reality. This was a legal error."23 [31] The RPD member finds:24 It is clear that the claimant suffered under the oppression of her grandfather and husband and experienced a great deal of violence. But in this case, I find that she has not rebutted the presumption of state protection. Although a claimant is expected to seek assistance from the police, the claimant did not do so. She testified that she did not do so because she would be expected to pay a bribe for police to take her complaint. She also explained that because her husband is a wealthy man, he could have easily bribed police who would then close her case. She was confident that her husband's power would hamper her ability to obtain protection. I do not find that the claimant's failure to seek state protection is reasonably explained. I acknowledge that the claimant's husband is wealthy and corruption is prevalent in Tanzania. Many documents in the National Documentation Package (NDP) indicate it is a problem. However, it is not sufficient to establish that police are more likely than not to provide the claimant with protection. I find that state protection in Tanzania is adequate and open to the claimant today. There are numerous legal and human rights services available to assist the claimant in seeking justice, notwithstanding the corruption. [32] I have reviewed all the evidence before the RPD and the RAD in its entirety, including the objective evidence pertaining to the issues raised by the appellant on violence against women in Tanzania. The Federal Court has made it clear in a number of cases that when assessing the credibility of a claimant, it is important to remember that all of the evidence, both oral and documentary, must be considered and assessed, not just selected portions of the evidence.25 I find that the RPD Member has not adequately assessed all the evidence before her in finding the appellant has state protection in Tanzania. The RPD member cites item 5.3,26 from the NDP of Tanzania and the RPD member notes that this report states that "gender-based violence is prevalent in Tanzania and women are conditioned to accept it."27 However, the same report also notes that "Sources indicate that Tanzania does not have a law that specifically addresses domestic violence."28 This country report29 notes that: According to sources, violence against married women is addressed in the Law of Marriage Act (2002) (HDT 2011, 6; McCleary Sills et al. Mar. 2013, 12). Article 66 states that, "[f]or the avoidance of doubt, it is hereby declared that, notwithstanding any custom to the contrary, no person has any right to inflict corporal punishment on his or her spouse" (Tanzania 1971). According to the ICRW report, a definition of "'corporal punishment'" is not provided in the Law of Marriage Act, and so it is "open to interpretation and excludes non-physical forms of violence" (McCleary Sills et al. Mar. 2013, 12). The same source states that the law is "not specific on the penalty for non-compliance," it does not recognize marital rape or provide legal protection for unmarried women against violence, and completely excludes some forms of economic violence (ibid.). [33] The RPD member also notes in her decision30 that: The U.S. Department of State (DOS)31 report states that the government continued its National Plan of Action for the Prevention and Eradication of Violence against Women and Children.32 It confirms police maintained a gender and children's desk in every region to support victims and address relevant crimes. The courts recognized domestic violence as grounds for divorce, according to the DOS. However, the DOS indicates that police did not always investigate gender-violence cases. This is reiterated in the Amnesty International report.33 However, as stated, the Tanzania Women Lawyers Association, Legal and Human-right Centre, and Women's Legal-Aid Centre, as well as numerous shelters and safe-homes offer legal advice and legal-aid to vulnerable women, and, in my view, could assist [the claimant] in obtaining justice and reporting corruption to authorities. I find that the level of corruption does not negate the claimant's duty to pursue protection, which is at an adequate level. [34] I do not agree with the RPD member's assessment of the objective evidence. It is clear that the country documents note that corruption plays a big role in whether state protection is effective for the appellant. The same US DOS34 report used by the RPD member to make her findings notes that: Three of the most widespread human rights problems in the country were security force use of excessive force resulting in deaths and injuries; mob killings and injuries; and gender-based violence, including rape, domestic violence, and female genital mutilation/cutting (FGM/C). Other major human rights problems included harsh and life-threatening prison conditions, lengthy pretrial detention, some restrictions on religious freedom, restrictions on the movement of refugees, official corruption, restrictions on political expression, child abuse, discrimination based on sexual orientation, and societal violence against persons with albinism. Trafficking in persons, both internal and international, as well as child labor were also problems. In some cases the government took steps to investigate and prosecute officials who committed abuses, but generally impunity in the police and security forces was widespread. [35] In determining whether protection is adequate, it is important to analyze not merely whether a legislative and procedural framework for protection exists, but also whether the state, through the police or other authorities, is able and willing to effectively implement that framework. (Elcock,35 Torres,36 Wisdom-Hall37) A state must engage in serious efforts to protect its citizens at the operational level. (Velazquez,38 Williams39) [36] No government is expected to provide perfect protection of all its citizens at all times and even though the Government of Tanzania may be making efforts to protect women, those efforts have not yet translated into effective state protection and, as a result, the RAD finds that protection would not be reasonably forthcoming for the appellant. It is clear from the objective evidence before the RPD and the RAD that state protection is not forthcoming for the appellant. I concur with the appellant that the RPD member has erred in her assessment of the country reports when making her state protection analysis. CONCLUSION [37] Accordingly, having reviewed all the evidence before the RPD and the RAD,40 while giving deference to the RPD on credibility, the RAD finds that all elements required by section 96 of the Act have been met in this case. The appellant has a nexus to the Convention ground of membership in a particular social group being women subjected to domestic abuse in Tanzania. I also find that the appellant has rebutted the presumption of state protection and of internal flight alternative in consideration of the country conditions and the appellant's own circumstances. REMEDY [38] For all these reasons, I set aside the determination of the RPD and substitute a determination that should have been made, namely, I determine that the appellant is a Convention refugee as per paragraph 111(1)(b) of the Act as she would face a serious possibility of persecution should she return to Tanzania. (signed) Rena Dhir Rena Dhir September 13, 2016 Date 1 Immigration and Refugee Protection Act, S.C., 2001, c. 27. 2 Exhibit 2, Appellant's Record (AR), pages 7-31. 3 Exhibit 3, Refugee Protection Division Record (RPDR), Basis of Claim form (BOC). 4 Exhibit 2, AR. 5 Refugee Appeal Division Rules, SOR/2012-257, section 3(3)(g)(iii). 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 7 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 8 Exhibit 2, AR, page 8-31. 9 Canada (Citizenship and Immigration) FC. Huruglica, 2016 FCA 93. 10 Youkap v. Canada (Minister of Citizenship and Immigration), 2015 FC 249. 11 Koffi v. Canada (Minister of Citizenship and Immigration), 2016 FC 4. 12 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 13 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 14 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 15 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 16 Exhibit 3, RPDR, BOC, pg. 14. 17 Exhibit 3, RPDR, pg. 22. 18 Exhibit 3, RPDR, pg. 32. 19 Exhibit 3, RPDR, pg. 55. 20 Dawlatly, George Elias George v. M.C.I. (F.C.T.D., no. IMM-3607-97), Tremblay-Lamer, June 16, 1998. 21 Harris, Dorca v. M.C.I. (F.C.T.D., no. IMM-1652-97), Teitelbaum, October 31, 1997. 22 Exhibit 2, AR, Memorandum. 23 Exhibit 2, AR, Memorandum. 24 Exhibit 3, RPDR, Member`s Decision. 25 Owusu, Kweku v. M.E.I. (F.C.A., no. A-1146-87), Heald, Hugessen, Desjardins, January 31, 1989. 26 Exhibit 3, RPDR, NDP Package, Tanzania, Item 5.3. 27 Exhibit 3, RPDR, NDP Package, Tanzania, Item 5.3. 28 Exhibit 3, RPDR, NDP Package, Tanzania, Item 5.3. 29 Exhibit 3, RPDR, NDP Package, Tanzania, Item 5.3. 30 Exhibit 3, RPDR, Member's Decision. 31 Exhibit 3, RPDR, NDP Package, Tanzania, Item 2.1. 32 Exhibit 3, RPDR, NDP Package, Tanzania, Item 2.1. 33 Exhibit 3, RPDR, NDP Package, Tanzania, Item 2.2. 34 Exhibit 3, RPDR, NDP Package, Tanzania, Item 2.1. 35 Elcock (Milkson), Joan Theresa v. M.C.I. (F.C.T.D., no. IMM-2985-98), Gibson, September 20, 1999. 36 Torres, Betsabe Del Carmen Balmaceda v. M.C.I. (F.C., no. IMM-2009-04), Pinard, May 10, 2005; 2005 FC 660. 37 Wisdom-Hall, Tanesha v. M.C.I. (F.C., no. IMM-4581-07), Hughes, May 28, 2008; 2008 FC 685. 38 In Velazquez, Rafael Sotelo v. M.C.I. (F.C., no. IMM-6581-10), Near, June 27, 2011; 2011 FC 775, the Court stated: "Case law does support the contention that serious efforts by a state will only translate into adequate state protection where there is the capacity to implement policy changes at an operational level." 39 In Williams, Mishka Matika v. M.C.I. (F.C., no. IMM-735-11), O'Reilly, October 6, 2011; 2011 FC 1134, the Court stated: "When examining whether a state is making serious efforts to protect its citizens, that protection must be evaluated at the operational level, particularly in cases of violence against women." 40 Exhibit 3, RPDR, CD- Oral Hearing. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB6-00546 RAD File No. / N° de dossier de la SAR : VB6-00546