VB5-02992

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 : VB5-02992 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 at Vancouver, BC Appel instruit à Date of decision October 27, 2015 Date de la décision Panel Douglas Fortney Tribunal Counsel for the person(s) who is(are) Jacques Despatis Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause 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 national of Ethiopia, appeals a decision of the Refugee Protection Division (the "RPD") rejecting her claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (the "Act"),1 the Refugee Appeal Division (the "RAD") orders that the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection be set aside and that the matter be returned to the RPD for redetermination by a different RPD Member without further instruction. The appeal is allowed. BACKGROUND [3] In her claim for refugee protection, the appellant alleged that she and her Canadian born daughter would be persecuted by her parents in law if they were to return to Ethiopia. The appellant alleged that her husband's family insists that her daughter be circumcised. The appellant refuses to allow this. However, while her husband is also opposed to his daughter's circumcision, he is allegedly unable to oppose his parents out of respect for tradition. [4] The appellant alleged that the threat of her daughter's circumcision represents a form of persecution as she fears that her refusal to allow this and to have stayed in Canada without her in-laws permission will result in severe punishment for her. She also alleged that the prospect of circumcision for her Canadian born daughter represents a form of psychological persecution for her. [5] The RPD heard the appellant's refugee protection claim on April 10, 2015. The RPD's reasons for the decision were rendered in writing with a Notice of Decision dated May 12, 2015. The RPD's reasons stated that the appellant's claim for refugee protection was rejected. The RPD found that the determinative issue was credibility. [6] The appellant is represented for this appeal by the same legal counsel as at her RPD hearing. SUBMISSIONS [7] Counsel for the appellant has identified the following grounds for this appeal: * That the RPD member erred in her credibility finding. * That the RPD member erred in utilizing North American principles without taking account of social and familial reality in Ethiopia and the particular circumstances of the appellant. [8] The appellant has requested that the RAD set aside the determination of the RPD and find that the appellant is a Convention refugee or a person in need of protection or, in the alternative, order that the RPD refer the matter back to a different Member of the RPD for redetermination with such directions that the RAD considers appropriate. [9] The Minister has not intervened in this appeal. Consideration of New Evidence [10] No new evidence has been presented for this appeal. Application for an Oral Hearing [11] The appellant has not requested an oral hearing at the RAD. [12] Subsection 110(3) of the Act requires that the RAD proceed without a hearing, on the basis of the RPD Record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the appellant. [13] According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the appellant, that is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [14] When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence,2 in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the appellant, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [15] As no new evidence has been accepted in support of this appeal, the RAD must proceed without a hearing. STANDARD OF REVIEW/ROLE OF THE RAD [16] 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. I will now consider the broader issue of the role of the RAD when conducting an appeal of a determination by the RPD. [17] Initially, the RAD followed the Supreme Court of Canada (the "Supreme Court") case, Dunsmuir v. New Brunswick3 as the leading case on the standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing administrative decisions: reasonableness and correctness. The standard of correctness applies to questions of law, while the standard of reasonableness applies to questions of fact and mixed fact and law. [18] In recent months, the Federal Court (the "Court") has issued several somewhat differing decisions on the role of the RAD when conducting an appeal of the RPD determination. These decisions include the recent Court cases Iyamuremye,4 Eng,5 Alvarez,6 and Huruglica,7 among others. [19] In Iyamuremye, the Court found that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. [20] That said, the Court finds that in assessing the reasonableness of the decision, the RAD should, at the very least, have reviewed the evidence that was presented before the RPD and conducted an independent assessment of all the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had properly considered the evidence and reasonably justified its conclusion.8 [21] In Alvarez, Justice Shore said that, the Court is of the view that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts.9 Justice Shore also stated that, when analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or mis-assessed the facts to the point of making a palpable and overriding error.10 Justice Shore also stated that, the RAD must perform its own assessment of all the evidence in order to determine whether the RPD relied on a wrong principle of law or mis-assessed the facts to the point of making a palpable and overriding error.11 [22] In Huruglica, Justice Phelan found that the RAD erred in reviewing the RPD's decision on the standard of reasonableness and concluded that 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." Justice Phelan also states that, "that notion may well justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Where there is no adverse finding of credibility, the policy rationale for deference is not sustainable. [23] Justice Phelan found that the RAD "must review all aspects of the RPD's decision and come to an independent assessment . . . . Where its assessment departs from that of the RPD, the RAD must substitute its own decision." Justice Phelan also found that 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 a 'palpable and overriding error.' [24] In this appeal, I have conducted a review covering all aspects of the RPD's decision and have conducted my own 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 where the RPD enjoys a particular advantage. As well, it is clear from the many recent Court cases that have been previously mentioned, 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] As stated earlier, the determinative issue in the RPD decision was credibility. [26] In the RPD reasons, the member first identifies the appellant's allegations of the prevalence of circumcision in Ethiopia as a significant credibility issue. The RPD member referred to unspecified documentary evidence indicating that, while female circumcision still exists in Ethiopia, it is illegal and practiced primarily in remote regions and among groups of poor, uneducated people. As the appellant and her husband are middle-class educated individuals who have always lived in the capital and frequently traveled internationally, the RPD member found that the appellant did not meet this profile and therefore found that her credibility was undermined. [27] As noted above, the RPD member referred to documentary evidence without any reference as to where such information was found. On the other hand, the appellant submitted various country documents into evidence in the RPD record which are not referred to in any way by the RPD member. For example: one country report about female genital mutilation (FGM) states that: FGM remains a serious concern in Ethiopia and has affected 23.8 million women and girls, making it the second highest country in Africa by affected numbers. This is due to FGM being carried out across the majority of regions and ethnic groups. . . .12 [28] According to a UN report submitted into evidence by the appellant at the RPD hearing: [The UN Committee on the Elimination of Discrimination against Women] is also very concerned that female genital mutilation and sexual domestic and other forms of violence against women are underreported going to cultural taboos and victims lack of trust in the legal system, and that criminal law provisions are not consistently enforced because of insufficient allocation of funds, lack of coordination among the relevant actors, low awareness of existing laws and policies on the part of law enforcement officials, lack of capacity to apply the law in a gender sensitive manner and discriminatory societal attitudes.13 [29] Another country document entered into evidence in the RPD record states: Most families whose girls have FGM do so because those around them sustain and promote the practice. Important influencers such as parents, grandparents, community leaders and in some cases religious leaders support FGM and it is interwoven with social acceptability, marriageability and beliefs but what is normal and healthy. However, FGM is a human rights violation, a severe form of violence against girls and women and breaks several UN conventions.14 [30] The RPD member stated that FGM in Ethiopia was practiced primarily in remote regions and among groups of poor, uneducated people. However, country documents entered into the RPD record indicate that: In Ethiopia, the prevalence of FGM decreases with the level of a woman's education, with 64% of those having secondary education or higher having undergone FGM, compared with 70.8% and 77.3% respectively for women with primary or no education.15 [31] In consideration of the documentary evidence filed by the appellant coupled with the lack of a reference to country documents made by the RPD member, I find that the RPD member erred in her negative inference as to the appellant's credibility that was linked to her finding that the appellant did not fit the profile of those subject to the risk of FGM in Ethiopia. Based on the documentary evidence, I find that there is a satisfactory credible documentary evidence to confirm that FGM in Ethiopia cannot simply be characterized as being practiced primarily in remote regions and among groups of poor, uneducated people. [32] In paragraphs 8 to15 of the RPD reasons, the RPD member refers to the appellant's testimony that her husband while not wanting his daughter to be circumcised may feel obligated to bow to his family's wishes. The appellant testified that her husband encouraged her to return to Canada so that his daughter would not be circumcised. The RPD member found these allegations to be contradictory and not overly credible particularly considering that the persecutors are his family members. The RPD member then goes on to state that the appellant or husband would be able to prevent his family members from circumcising his daughter or have access to assistance from authorities or neighbors. [33] Counsel submits that the RPD member erred in utilizing North American principles without taking account of social and familial reality in Ethiopia and the particular circumstances of the appellant. As noted above, I have already found that the RPD member erred in finding that the appellant did not fit the profile of those subject to the risk of FGM in Ethiopia. The RPD member's assessment of the appellant's family and their role in pursuing FGM for the appellant's daughter has been inevitably colored by her earlier assessment that the appellant and her family did not meet the profile of those at risk of FGM in Ethiopia. In assessing the behavior of the appellant's family pursuing FGM for her daughter, the RPD member does seem to be approaching their behavior from a North American perspective. This does not reflect the documentary evidence that family and societal leaders often continue to support FGM in Ethiopia. [34] In paragraphs 14 to 15 of the RPD reasons, the RPD member considered the appellant's return to Ethiopia in XXXX 2014 after the birth of her daughter. The RPD member found that the appellant's return to Ethiopia after the birth of her daughter was not consistent with that of an individual who fears that she and her daughter will face persecution thus undermining the credibility of her allegations of persecution. However, there is no indication that the appellant knew the sex of her child before the birth. It is therefore conceivable that the risk of FGM for her daughter had not been fully considered by the appellant prior to her return to Ethiopia. In the appellant's Basis of Claim (BOC) Form, there is no indication that the risk of FGM had been identified prior to the child's birth. It appears to have been raised only in XXXX 2014 after a visit to the grandmother of the appellant's husband. I therefore find that the RPD's member's conclusion that the appellant's behavior was inconsistent with that of a person in fear of persecution for her or her daughter and subsequent negative inference as to credibility to be unwarranted in these circumstances. [35] In paragraphs 16 to 17 of the RPD reasons, the RPD member considered the appellant's subsequent return to Canada in XXXX 2015 seeking medical care when her daughter was ill. While in Canada, her parents-in-law were threatening to proceed with the circumcision. After speaking to a border services officer, the appellant sought refugee protection. The RPD member found that if the risk of circumcision were real, the appellant would have left for Canada not only for medical reasons but also to save her daughter from circumcision. The RPD member found that the appellant's behavior was completely inconsistent with that of a mother who seriously believes that her daughter will be the victim of circumcision. [36] According to the appellant's BOC and transcript of the hearing provided in the appellant's record, the appellant testified that she returned to Canada for medical assistance for her daughter after suffering an apparent negative reaction to a vaccination which could not be treated in Ethiopia. While her daughter's illness was the immediate trigger in returning to Canada, her testimony and BOC narrative indicate this was also when family pressure for circumcision for her daughter was increasing. Based on these circumstances, I find that the RPD member's conclusion that the appellant's behavior was completely [RAD emphasis] inconsistent with that of a mother who seriously believes that her daughter will be the victim of circumcision is not supported by the evidence. Simply put, is not implausible for the circumstances for the appellant's return to Canada to have happened in the manner alleged by the appellant. [37] In analyzing the RPD reasons, I find there is a significant shortcoming in the RPD reasons that was not addressed by the appellant. The appellant is the refugee claimant, not the Canadian born daughter who is a Canadian citizen. It is not clear from the BOC, the transcript of the RPD hearing or the RPD reasons exactly what constitutes a well-founded fear of persecution under a Convention ground or that the appellant is personally at risk to her life or to cruel and unusual treatment or punishment. The appellant fears that her Canadian born daughter would be subject to FGM should they return to Ethiopia. The appellant alleged that this would constitute psychological torture for her but there does not seem to be any allegation in her BOC that she personally would be subject to physical harm by her husband's family. The transcript of the RPD hearing contained in the appeal record fails to demonstrate that the examination by the RPD member and counsel fully explored this crucial aspect of the appellant's claim for refugee protection. The RPD reasons also do not demonstrate that the appellant's own case for refugee protection was fully analyzed. [38] Based on the evidence before me, it would appear that this claim for refugee protection was rather based on the risk of FGM posed to the Canadian born child. This would be a clear violation of the child's human rights. In such cases the Canadian born child can legally remain in Canada but the question becomes whether the child would accompany the appellant if she were removed to Ethiopia. The appellant's wish to protect her Canadian born child from the risk of FGM is certainly laudable but seeking refugee protection for the Ethiopian mother may not be the appropriate legal solution. The information on file does not indicate to me if the appellant has applied for permanent residence from within Canada on humanitarian and compassionate, taking into account the best interests of the Canadian born child. In addition there is the possibility of applying for pre-removal risk assessment prior to the appellant's removal from Canada. [39] Having considered the issues as discussed above, I find to be unreasonable the RPD Member's negative credibility findings as to the appellant's central allegations relating to her fear that her Canadian born daughter is subject to the risk of FGM should the appellant and her daughter return to Ethiopia. Based on all the above, the RPD decision is hereby set aside as the RPD Member's credibility assessment is the determinative factor in this decision. [40] Having concluded that the RPD determination must be set aside; would it be appropriate for the RAD in this case to substitute the RPD determination with one that finds that the appellant is, in fact, a Convention refugee or a person in need of protection? I find that I am unable to do so for the following reasons. [41] I have found that the RPD Member's credibility findings were unreasonable as to central allegations by the appellant. If I were to attempt to assess the credibility of the appellant's allegations and further test the documentary evidence, it would be necessary for me to hear his viva voce evidence. To do so would require the RAD to hear evidence that was presented to the RPD. I also find that it would not be appropriate for the RAD to attempt to assess the credibility of such evidence simply on the basis of the audio recording of the RPD hearing and without giving the appellant an opportunity to explain. In any event, as the appellant has not sought to introduce documentary evidence under subsection 110(4) of IRPA, there is no basis upon which a hearing might be undertaken by the RAD under subsection 110(6) of the Act. DECISION [42] Pursuant to paragraph 111(1)(c) of the Act, the RAD orders that the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection be set aside and that the matter be returned to the RPD for redetermination by a different RPD Member without further instruction. The appeal is allowed. (signed) "Douglas Fortney" Douglas Fortney October 27, 2015 Date 1 Immigration and Refugee Protection Act (the "Act"), S.C. 2001, c. 27. 2 Subsection 110(4) of the Act: 110(4) Evidence that may be presented - On appeal, 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 the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 3 Dunsmuir v. New Brunswick, 2008 SCC 9. 4 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 5 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 6 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 7 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 8 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494, para. 41. 9 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 27. 10 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 28. 11 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 33. 12 RPD record, p. 80. 13 RPD record, p. 136. 14 RPD record, p. 80. 15 RPD record, p. 101. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB5-02992 RAD File No. / N° de dossier de la SAR : VB5-02292