TB5-10817

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 : TB5-10817 TB5-10818 TB5-10819 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 28, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Tara Kyluik Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), and her two minor children, XXXX XXXX and XXXX XXXX (Minors), are citizens of Libya, and they appeal a decision of the Refugee Protection Division (RPD) dated April 30, 2015, rejecting their claim for refugee protection. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter to the RPD for re-determination by a differently-constituted panel. Background [3] The Appellant, a 37-year-old university graduate, married XXXX XXXX, a Canadian citizen and a XXXX XXXX. The Appellant alleged before the RPD that her mother-in-law disliked her as she wanted her son to marry someone else. Her husband came to Canada in 2010 for economic reasons, and the Appellants arrived in Canada in 2012. In 2014, she discovered that her husband married someone else. After this, they divorced and her husband terminated his sponsorship applications for permanent residence for the Appellants in Canada. Her husband also wanted her to return a piece of land in Libya that they had purchased in her name. She refused and his family started to threaten the Appellant's sister and brother-in-law in Libya. They accused her family of stealing the land and pressed related charges. They also threatened to harm the Appellant on her return to Libya and to take the children. [4] She fears that if she returns to Libya she will be harmed by her in-laws who will take her land, and take her children away from her and send them to Canada. She also fears that as a divorced woman she will be mistreated and will be unable to support herself and her children. As a single mother, she will be vulnerable to harm due to the general security situation in Libya. Finally, she believes her children may be abducted by criminals when they learn her husband is a XXXX in Canada. [5] The RPD found that the Appellants were neither Convention refugees nor persons in need of protection and they do not have a well-founded fear of persecution related to a Convention ground in Libya and that their removal to Libya would not subject them personally to a risk to life or to a risk of cruel and unusual treatment or punishment. There are also no substantial grounds to believe that their removal to Libya would subject them personally to a danger of torture. [6] The Appellants argue that the RPD erred by "...making unfounded conclusions on the evidence and veiled credibility findings." The Appellants also argue that the RPD erred as it applied western standards to the situation in Libya. The RPD also failed to properly consider the persecution of women in Libya, and speculated about how the Appellant's family of Islamic faith would behave, and failed to consider cumulative risks to the Appellants. [7] The Appellants request that the RAD allow the appeals and find that the Appellants are protected persons. In the alternative, the Appellants request that the RAD refer the matter back to the RPD for re-determination. [8] The Appellants provided documents to be considered as new evidence pursuant to section 110(4), and request that if there are any credibility issues regarding new documents that an oral hearing be held by the RAD under section 110(6) of the IRPA. Role of the RAD [9] The jurisprudence on the appropriate role of the RAD is still evolving and several questions have been certified. The Appellants cited Federal Court decision, Huruglica, which 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 claimant 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] This decision is generally accepted and followed, awaiting decision by the Federal Court of Appeal. Thus, I will be guided by the Huruglica decision, and arrive at my determination after a review of the totality of the evidence before me. Also, following Huruglica, I will recognize and respect the RPD's credibility findings where it enjoys a particular advantage. In a number of recent decisions, the Federal Court also confirmed that the RAD may show a certain level of deference towards the RPD's credibility findings. As outlined above, the Appellants allege that the RPD's decision contained errors concerning credibility and negative inferences, which are errors of fact. New Documents Submitted on Appeal [11] On appeal, the Appellants submitted an affidavit1 to be considered as new evidence pursuant to subsection 110(4) of the IRPA which states: 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. [12] The Appellants submit that the affidavit should be accepted as new evidence for "...fairness purposes and for the purpose of the Appellants being able to access a full fact-based appeal". The Appellants also submitted that "...the Appellant could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing. That is because she was unaware of the misunderstanding of the evidence". [13] The RAD accepts the document at page 71 of the Appellants' record. This is a declaration by XXXX XXXX who declares that he arranged the registration of the subject piece of land in the name of the Appellant. He explained that the registration office was closed for several months and finally the registration took place in the month of XXXX. He also declared that the Appellant's husband is accusing him of misunderstanding the husband's instructions regarding the land transfer. [14] The RAD has accepted this document as new evidence because the Appellants could not reasonably have been expected, under the circumstances, to have presented this evidence at the RPD hearing or prior to rejection of the claims. However, the RAD places little weight on this document for the following reasons: * It is neither a sworn testimony nor a statutory declaration; * There is no contact information about the author; and * There is no reference to the profession of the author. [15] The RAD does not allow the Appellants' request for an oral hearing since the RAD is allowing the appeal on merit. Issues [16] The Appellants' remaining issues are as follows: 1) Did the Panel err in making unfounded conclusions and veiled credibility findings? 2) Did the Panel err in applying western standards to the situation in Libya? 3) Did the Panel err in its consideration of the persecution of women in Libya, err in its analysis of the presence and influence of strict Islamic forces, or err in engaging in speculation of how those of the Islamic faith would behave? 4) Did the Panel err in failing to consider cumulative risk when assessing the Appellant's profile? [17] The RAD will focus on the issues of credibility and speculation on the part of the RPD. Failure to Make a Clear Credibility Finding [18] The Appellants submit at paragraph 28 in the Memorandum:2 Despite not raising credibility as an issue during the Panel's guidance to the Appellant's counsel for submissions, the Panel then spends a significant portion of the Reasons impugning Ms. XXXX testimony for inconsistencies, unreliability or cohesion. However, in error of the jurisprudence, the Member fails to clearly articulate whether she actually finds the Appellant overall not credible or simply parts of her story not plausible. [19] Having considered the totality of the evidence, the RAD agrees with the Appellants that the RPD made veiled credibility references and applied those credibility findings in rejecting the claim but did not make a clear credibility finding. The RAD finds that the RPD erred by not making a clear credibility finding even though the RPD's decision significantly rests on credibility issues. [20] The Federal Court has commented frequently that if the Board rejects a claim essentially because of a lack of credibility, as is the case in these appeals, clear reasons must be given. Those aspects of the testimony which appear not to be credible must be clearly identified and the reasons for such conclusions must be clearly articulated. For example, in Armson,3 Justice Heald stated at 157-158, "...the Board owed a duty...to give the reasons for rejecting the...refugee claim on the ground of credibility, in clear and unmistakable terms." [21] Moreover, the Court of Appeal in Addo4 stated that, "...where there is no clear adverse finding of credibility, a recitation in the reasons of the claimant's testimony will be deemed to be the Board's findings of the relevant facts." In Rahman,5 the Court stated that the Board is required to make clear findings as to what evidence is believed or disbelieved, and should go on to assess any evidence found to be credible. In the absence of a conclusion impeaching the credibility of the claimant as a whole, the Board cannot, by reference to a finding expressly limited to one incident or one aspect of the claimant's story, ignore other incidents or aspects of the claim.6 Speculation [22] The Appellants submit that the RPD engaged in speculation regarding how Muslims in Libya will behave. The Appellants submitted at paragraph 41 of the Memorandum that "Perhaps most dubious in this decision is the Member's statement that she is not persuaded that Islamic traditions are strictly practiced in Libya."7 [23] The Federal Court has stated that considerable caution is required when assessing the norms and patterns of different cultures and the practices and procedures of different police, political, and social systems.8 The RPD speculated about how the Appellant's siblings will behave towards her should she return to Libya. Where the Board finds a lack of credibility based on inferences, there must be a basis in the evidence to support the inferences. It is not open to Board members to base their decision on assumptions and speculations for which there is no real evidentiary basis.9 [24] The errors regarding credibility and speculation are serious enough for the RAD to quash the RPD's determination. The RAD will not consider the Appellants' other issues. [25] Based on the forgoing, I find that the RPD panel erred for the reasons mentioned above; therefore, this decision is not supportable. This RAD finds that credibility remains an issue and thus, the RAD is not in a position to make a determination that the Appellants are Convention refugees or persons in need of protection. CONCLUSION [26] The RAD refers the matter back to the RPD for redetermination by a differently constituted panel. [27] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. [28] This appeal is allowed. (signed) "Atam Uppal" Atam Uppal October 28, 2015 Date 1 Exhibit P-2, Appellants' Record, p. 71. 2 Exhibit P-2, Appellants' Record, Memorandum, p. 266, para. 28. 3 Armson v. Canada (Minister of Employment and Immigration) (1989), 9 Imm.L.R. (2d) 150 (F.C.A.). 4 Addo, Samuel v. M.E.I. (F.C.A., no. A-614-89), Mahoney, Hugessen, Gray, May 7, 1992. 5 Rahman v. Canada (Minister of Employment and Immigration) (1988), 8 Imm.L.R. (2d) 170 (F.C.A.). 6 Ariff, Mohamed Faiz Mohamed v. M.C.I. (F.C.T.D., no. IMM-1142-96), Noël, January 15, 1997. 7 Exhibit P-2, Appellants' Record, Memorandum, p. 271, para. 41. 8 Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.) 152; Ye, Zhi Bing v.M.E.I. (F.C.A., no. A-711-90), Stone, MacGuigan, Henry, June 24, 1992. 9 Frimpong v. Canada (Minister of Employment and Immigration) (1989), 8 Imm.L.R. (2d) 183 (F.C.A.); Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.); Vallejo, Juan Ernesto v. M.E.I. (F.C.A., no. A-799-90), Mahoney, Stone, Linden, March 26, 1993. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB5-10817 TB5-10818 TB5-10819