VB6-00522

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 : VB6-00522 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 July 29, 2016 Date de la décision Panel Rena Dhir Tribunal Counsel for the person(s) who is (are) Amina Osuoha-Muhammad 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"), appeals the January 28, 2016 determination of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on January 7, 2016 with a Notice of Decision1 being sent to the appellant on February 2, 2016. The RPD found that the appellant is neither a Convention2 refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act ("IRPA" or the "Act").3 DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(c) of IRPA, 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. The appeal is allowed. BACKGROUND [3] Counsel for the appellant before the RAD is the same as she had at the RPD. The Minister has not intervened before the RPD or the RAD. [4] A transcript4 of the RPD oral hearing has been included for this RAD appeal. [5] The appellant does seek to present "new"5 evidence to the RAD pursuant to subsection 110(4) of IRPA. BASIS OF CLAIM [6] According to the allegations set out in the appellant's Basis of Claim form (BOC),6 the appellant was forced into a marriage to an older man by her father. The man had four other wives. The appellant was physically and sexually abused by her husband and his son. The appellant eventually escaped and met a man named XXXX who gave her shelter. The appellant fell in love with XXXX and had two children with him. [7] In 2005, the appellant and XXXX were attacked and their son was killed. The appellant was returned to her husband until 2010 when XXXX was able to help her escape again. Their daughter was born in 2013. [8] XXXX was attacked again in 2014 and the appellant was taken away to her husband again. The appellant was beaten, stabbed, and sexually assaulted by her husband and his sons and left for dead on the side of the street. A stranger rushed her to the hospital in XXXX where she was treated for her injuries. The appellant worked for a while in XXXX until people she had met helped her flee Cameroon. [9] The appellant travelled to Canada in XXXX of 2015 and made a claim for refugee protection in August of 2015. [10] The RPD's reasons stated that the appellant's case for refugee protection was rejected based on the issue of credibility. GROUNDS OF APPEAL [11] The appellant's submissions as to the grounds of this appeal can be summarized as follows:7 * Did the RPD member make erroneous findings of fact in perverse and capricious manner and proceed to base its decisions on such findings? * Did the RPD member err in selectively giving weight to some of its findings of fact but not to others? * Did the RPD member err in failing to consider the appellant's counsel's submissions? REMEDY SOUGHT [12] The appellant has requested8 that the RAD, under paragraph 111(1) (b) of the Act, set aside the determination of the RPD and substitute a determination that the appellant is a Convention refugee or person in need of protection. Alternatively, the appellant requests, under paragraph 111(1) (c) of the Act, that the RAD allow the appeal and refer the matter to the RPD for redetermination by a differently constituted Panel. CONSIDERATION OF NEW EVIDENCE [13] 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. [14] The appellant is 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.9 [15] Whether or not the RAD is to accept the 'new evidence', the RAD is guided by the recent Federal Court of Appeal (the "FCA") case, Singh.10 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. [16] In Singh,11 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. [17] The RAD will assess the evidence on 'newness' as outlined in subsection 110(4) and the FCA guidance. If it passes this test, and the RAD enters the 'new evidence', the RAD will go on to assess the 'new evidence' on credibility and relevance before admittance of such evidence for the RAD appeal. [18] The appellant has submitted the following two documents as new evidence for her RAD appeal pursuant to subsection 110(4) of the Act: 1. Letter12 from the XXXX of the XXXX Canadian Foundation dated March 7, 2016; 2. Letter13 from a Canadian doctor dated February 29, 2016. [19] The appellant submits that Document 1 corroborates the appellant's testimony that she was re-connected to her common-law spouse, XXXX, through a member of the church. The appellant further submits that this letter was not before the RPD as she did not expect the RPD member "will take such an erroneous and capricious approach in assessing the credibility of her testimony."14 I note that the evidence of how the appellant was reunited with XXXX was before the RPD member through the appellant's testimony. I find there is nothing new in the letter that was not before the RPD Member. Thus, I do not find this is new evidence but rather corroborative evidence to validate what the appellant had testified to at the RPD hearing. I also note I would have expected the appellant to provide this to the RPD either at the RPD hearing or before a decision was rendered by the RPD. The appellant's arguments above do not provide 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. Therefore, I decline to admit either of this Document 1 as new evidence. [20] As for Document 2, the Canadian doctor's letter, states that the appellant has a scar. The information in the letter is vague and although it describes a pre-existing injury, there is no further information on the appellant's condition or cause of injury. The information regarding the scar was already before the RPD member. Again, I find there is nothing new in the letter that was not before the RPD Member. The appellant submits that this medical certificate was not before the RPD member as the she could not expect "that the RPD will callously dismiss a medical report issued by a subsisting medical clinic that is tendered in evidence without any attempts to verify its authenticity even though it had the medical clinic's contact information on it." Again, such evidence which contradicts the findings of the RPD does not make it new evidence. Therefore, I decline to admit Document 2 as new evidence. [21] Considering that neither of the documents has been accepted as 'new evidence' by the RAD, I do not find that it is necessary to continue with any further analysis of these documents. [22] The appellant has not requested an oral hearing. ROLE OF THE RAD [23] 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. [24] 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.15 [25] In Youkap,16 the Federal 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.17 This has also been stated by the recent FCA decision, Huruglica,18 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 unfrequently 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:" . . .19 [26] The appellant submits20 that . . . the RAD is entitled and, in fact, obliged to scrutinize the RPD's erroneous findings of fact and negative inferences of credibility that resulted in the denial of her application for Convention refugee status and/or a person in need of protection. [27] In this appeal, and taking into consideration the recent FCA decision in Huruglica,21 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 Huruglica22 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 [28] The appellant submits23 that the RPD member made unreasonable or erroneous credibility findings. The appellant points out many areas where she finds the RPD member erred in her credibility findings in coming to the final determination. 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 that the matter be returned to the RPD for redetermination by a different RPD member. I have conducted an independent assessment of all the evidence before the RPD and the RAD, including reading the transcript24 of the RPD oral hearing in its entirety. [29] As noted in my analysis below, I find the RPD member has failed to accurately assess the evidence in coming to these adverse credibility findings. Erroneous Findings of Fact and Negative Inferences on Credibility [30] The appellant submits25 that the "RPD was over-vigilant in its approach to the appellant's evidence, conducting microscopic examination of her testimony and finding inconsistencies that had no rational relationship to her credibility". The appellant further submits26 that the RPD erred in the following credibility findings: 1. Absence of death certificate for appellant's deceased son. 2. Appellant's lack of details regarding her persecutor at the initial stages of her testimony. 3. Discounting the entirety of the appellant's medical evidence. [31] The RPD member begins her analysis by stating:27 The presumption before this panel is that the claimant's testimony is true; however, this can be rebutted in appropriate circumstances, such as inconsistencies, omissions, embellishments and undetailed testimony. [32] The RPD member then made adverse credibility findings which are mentioned in the appellant's memorandum. I have completed my own independent assessment of all the evidence before the RPD and the RAD. With respect to the issue of the appellant not providing the RPD with a copy of her deceased son's birth certificate, I find I disagree with the RPD member that this is cause for an adverse credibility finding that undermines the appellant's overall credibility. I also note that the RPD member states in her decision that the appellant was able to provide a birth certificate for her daughter. This is incorrect. The appellant has not provided birth certificates for either of her children. However, I note in the testimony, the appellant testified28 that she only had a birth certificate for her second child but never for her first child. When the RPD asked why she did not have a birth certificate for her first child, the appellant testified29 that when her husband's men attacked her and XXXX, and killed their first child, all their belongings were scattered and she was taken back to her husband's village. The appellant did testify30 that she did not know how she could obtain the birth certificate again. I note that the RPD member did not pursue the questioning further nor did she comment on the appellant's explanation on this topic in the RPD decision. [33] As for the RPD member's finding on the appellant's inability to provide details on her persecutor earlier in the hearing versus later in the hearing, I do not find that this is critical to the overall credibility assessment of this refugee claim. The RPD member has also not referred to any specific details that she was looking for when questioning the appellant. I do not find that this credibility finding undermines the overall credibility of the appellant. [34] I note many other credibility findings in the RPD decision such as the appellant's inability to provide details on places she had lived in in Cameroon, limited knowledge of XXXX and his personal circumstances, etc. Through a careful examination of all the evidence, I find the adverse credibility findings made by the RPD member are microscopic. From my review of the transcript of the RPD hearing, the appellant did provide answers to the RPD Member's questions concerning these credibility issues outlined in the RPD member's decision. I note that the appellant did provided explanations for the issues outlined by the RPD member in her decision. I find the RPD Member did not provide a clear explanation for why she did not find the appellant's explanations reasonable. The Courts have said that "if the RPD believes only some of the claimant's story, it is obliged to say what parts it rejected and why.31 It is not enough to say that the evidence is not believed, since this creates an appearance of arbitrariness. 32 [35] I find the RPD member's negative credibility findings involve minor concerns which reflect a microscopic analysis of the evidence. Medical Report [36] The RPD member also made a finding that the medical report is fraudulent. The RPD member finds:33 The corroborative evidence of the medical treatments received by her, are not probative in establishing her allegations. The photographs of random scarring, could be anywhere on anyone and do not support the claimant's allegations of forced marriage and abductions. Further, the photographs of her in a surgical room, undergoing some medical treatment that she is awake for, on her left breast, could be anything including a routine procedure. The medical report is easily manufactured and objective evidence is that fraudulent documents come from Cameroon. [37] This finding is problematic as the RPD member does not provide further explanations as to how she came to this finding. There is no persuasive evidence put forth by the RPD member in her decision or in her questioning to support that the medical report is fraudulent. Where there is insufficient evidence to call into question the authenticity of a document it is not open to the Board to conclude it is not genuine.34 The Court has determined that . . . where the claimant provides personal documentary evidence or medical reports, specific to and corroborative of his claim, it is not sufficient to simply make a blanket statement, without explanation, that no probative value was assigned to this evidence because of a general lack of credibility on the part of the claimant."35 Where there is conflicting evidence, the RPD is entitled to choose the documentary evidence that it prefers, provided that it addresses the contradictory documents and explains its preference for the evidence on which it relies. I agree with the appellant that the RPD member erred in her assessment of the medical report and did not adequately explain why she gave no weight to it. Conclusion [38] The appellant cites Yener36 where the Court said; [68] It is clear that the Board erred when assessing the credibility of Mr. Yener's assertions. It selectively chose to give weight to certain elements and discredited others. The Board clearly erred in neglecting to bring together all the elements of Mr. Yener's narrative, the country conditions, and Canada's legislative framework for refugee status. [39] I find this is true in the case of the appellant. The RPD member failed to comment on the credibility of the appellant's allegations of being persecuted by her husband which is the basis for her refugee claim. I find that the RPD member failed to adequately assess the evidence before her on the essential elements of the claim. Thus, I find the RPD member's continued reliance on using microscopic credibility findings to assess the overall claim is an error. She has not adequately established how all the negative credibility findings are linked to come to the final determination in finding the appellant lacks overall credibility. The 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.37 I find that the RPD member has not adequately assessed all the evidence before her in finding the appellant to not have a serious possibility of persecution. [40] Accordingly, having reviewed all the evidence before the RPD and the RAD, including the RPD oral hearing in its entirety,38 I find the appellant has accurately identified errors in the RPD member's assessment of the claim. I considered whether I could substitute the RPD determination by doing an independent assessment of the claim, but I find I cannot do so without hearing evidence that was presented to the RPD member. REMEDY [41] For all these reasons, I set aside the determination of the RPD and refer the matter of the claim of XXXX XXXX XXXX to the RPD for redetermination by a differently constituted Panel as per paragraph 111(1) (c) of the IRPA. (signed) "Rena Dhir" Rena Dhir July 29, 2016 Date 1 Exhibit 3, Refugee Protection Division Record (RPDR). 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Immigration and Refugee Protection Act (the "Act"), S.C., 2001, c. 27. 4 Exhibit 2, Appellant's Record (AR), Transcript. 5 Exhibit 2, AR, New Evidence. 6 Exhibit 3, RPDR, Basis of Claim (BOC). 7 Exhibit 2, AR. 8 Exhibit 2, AR, Memorandum. 9Refugee Appeal Division Rules, SOR/2012-257, section 3(3)(g)(iii). 10 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 11 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 12 Exhibit 2, AR, New Evidence, pg. 205. 13 Exhibit 2, AR, New Evidence, pg. 206. 14 Exhibit 2, AR. 15 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 16 Youkap v. Canada (Minister of Citizenship and Immigration), 2015 FC 249. 17 Koffi v. Canada (Minister of Citizenship and Immigration), 2016 FC 4. 18 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 19 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 20 Exhibit 2, AR, Memorandum. 21 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 22 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 23 Exhibit 2, AR, Memorandum. 24 Exhibit 2, AR, Transcript. 25 Exhibit 2, AR, Memorandum. 26 Exhibit 2, AR, Memorandum. 27 Exhibit 3, RPDR, Member's Decision. 28 Exhibit 2, AR, Transcript, pg. 94. 29 Exhibit 2, AR, Transcript, pg. 94. 30 Exhibit 2, AR, Transcript, pg. 95. 31 Ramirez, Ana Gabriela Espriella v. M.C.I. (F.C.T.D., no. IMM-2540-98), McKeown, April 20, 1999. 32 Guzman, Luis Martinez v. M.C.I. (F.C.T.D., no. IM-472-97), Nadon, December 22, 1997. 33 Exhibit 3, RPDR, Member's Decision. 34 Gyimah, Joycelyn v. M.C.I. (F.C.T.D., no. IMM-1011-93), Gibson, November 10, 1995; Kashif, Zakria Mohammed v. M.C.I. (F.C.T.D., no. IMM-760-02), Pinard, February 18, 2003, 2003 FCT 179; Hadjalaran, Zyulhan Ismail v. M.C.I. (F.C.T.D., no. IMM-6134-99), Campbell, July 18, 2000. 35 Lahpai, Aung Gam v. Canada (Minister of Citizenship and Immigration), 2001 FCT 88. 36 Yener v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. NO. 472. 37 Owusu, Kweku v. M.E.I. (F.C.A., no. A-1146-87), Heald, Hugessen, Desjardins, January 31, 1989. 38 Exhibit 2, AR, Transcript-RPD Oral Hearing. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB6-00522