TB4-09405

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 : TB4-09405 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 January 14, 2015 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard Wazana Barrister & Solicitor 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), a citizen of St. Lucia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD, and find the Appellant to be a Convention refugee or, in the alternative, refer the matter back to the RPD for re-determination by a differently-constituted panel. [3] The Appellant is not relying on any evidence as per Section 110(4) of the Immigration and Refugee Protection Act (IRPA).1 The Appellant is not requesting a hearing pursuant to Section 110(6) of the IRPA. The Minister is not intervening in the appeal. DETERMINATION [4] Pursuant to Section 111 (1)(c) of the IRPA the RAD refers the matter to the RPD for re-determination, before a differently-constituted panel. This appeal is allowed. BACKGROUND [5] The Appellant is a citizen of St. Lucia. The Appellant fears her common-law partner XXXX upon return to St. Lucia. The Appellant is a victim of domestic abuse. [6] The details regarding the Appellant's allegation are included in her Basis of Claim (BoC) form narrative.2 Additional details were provided by the Appellant at the hearing. [7] The Appellant arrived in Canada on XXXX XXXX, 2013 with a valid visitor visa. She filed her claim for refugee protection on January 20, 2014. [8] The Appellant's application for refugee protection was heard on March 5, 2014. In a decision of August 18, 2014, the RPD rejected the claim. MERITS OF THE APPEAL [9] The RPD found that some of the Appellant's evidence was not reliable.3 The RPD found that her delay in claiming was indicative of a lack of subjective fear.4 The RPD found that the Appellant suffered abuse up to 2012; despite that finding, the RPD found that the evidence did not establish forward looking prospective risk of harm if the Appellant were to be returned to St. Lucia.5 [10] The Appellant submits that the RPD erred by concluding that there was no evidence of prospective risk.6 The Appellant submits that the RPD dismissed much of the Appellant's corroborating evidence, including the details in her BoC narrative.7 The Appellant submits that the RPD ignored the Gender Guidelines and the Appellant's Psychological report in concluding that the Appellant lacked subjective fear.8 ANALYSIS [11] In assessing the appeal the RAD is guided by the recent Huruglica9 decision which outlines the approach that the RAD should take as an appellate body in reviewing the first level decisions of the RPD. Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD determination that, in its opinion, should have been made as per s. 111(b) of IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country conditions evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [12] The RAD adopts and applies the Huruglica case law in this appeal. The RAD considers the case law submitted10 and referred to in the Appellant's Memorandum.11 The RAD's Findings Gender Guidelines and reports by the Appellant's doctor and the clinical social worker [13] Since the claim involved gender-related violence, the RPD stated in its reasons that it considered the Gender Guidelines.12 The RPD also stated in its reasons that it acknowledged and accepted the assessment and findings of the Appellant's doctor and the clinical social worker.13 The Appellant submits that the RPD ignored the Gender Guidelines and the Appellant's Psychological report in concluding that the Appellant lacked subjective fear.14 Failure to claim upon arrival at the airport, and delay in claiming [14] The RPD found that the Appellant's failure to claim at the airport upon arrival and the ten-month delay in claiming showed a lack of subjective fear. The RAD reviewed the totality of the evidence adduced in this case, including the audio recording of the proceedings. [15] Regarding the Appellant's failure to claim at the airport upon arrival, the evidence in this case shows the precarious situation the Appellant was in while being questioned/examined by the authorities at the airport upon arrival in Canada. The Appellant's host was not there to receive her. The Appellant was being questioned/investigated for possession of drugs. Although the Appellant had a visitor visa to Canada, the authorities suspected that the Appellant might seek refugee protection in Canada because she had cousins who had claimed refugee protection in Canada. It is true that the Appellant did file for protection in Canada eventually; however, this cannot be held against her if her explanation for not filing for protection at the airport upon arrival in Canada is deemed, on a balance of probabilities, to be satisfactory. [16] The Appellant's explanation for not filing for protection upon entry to Canada was that she did not know about the refugee process, and that she could not open up to strangers about the abuse that she had incurred in St. Lucia. The RPD found her explanation to be not satisfactory. [17] Regarding the ten-month delay in claiming, the Appellant's explanation was that she met a woman at her Bible studies class, and that after that woman disclosed her own history of abuse to the Appellant, the Appellant got the courage to open up to her. The Appellant testified that after hearing her story, that woman advised her that she could apply for refugee protection. The RPD did not find her explanation for the ten-month delay in claiming to be satisfactory. [18] The RAD considers the Appellant's explanations for not filing for protection at the airport upon arrival, and why she waited for ten months before she filed her claim for refugee protection in the context of the totality of the evidence adduced in this case. [19] The Appellant is a victim of domestic/sexual abuse. Based on the totality of the evidence adduced in this case, and in consideration of the Gender Guidelines and the Appellant's medical reports, the RAD finds the Appellant's explanations for not claiming refugee protection at the airport upon arrival, and thereafter the ten-month delay in claiming are reasonable. In regard to these issues, the RAD finds the Appellant's testimony is also consistent with the documentary evidence submitted15 and is supported by the findings in the reports by the Appellant's doctor16 and the clinical social worker.17 Therefore, the RAD does not concur with the RPD that the Appellant's failure to file for refugee protection at the airport upon arrival in Canada and the ten-month delay in claiming undermine her credibility. [20] Relating to the above, the RAD finds the assessments by the Appellant's doctor and the clinical social worker (emphasis added) show the difficulties the Appellant has experienced in talking to strangers and in providing information about the abuse she had incurred in St. Lucia. The RAD finds the audio recording of the proceedings shows that the RPD member continued to ask the Appellant questions regarding why she had not disclosed to the authorities upon entry to Canada that she feared returning to St. Lucia. The Appellant answered repeatedly that she was told by her aunt to tell the authorities that she was coming to Canada for a visit, and that she did not know about the refugee process, and further that she could not open up to strangers about the serious abuse that she had suffered in St. Lucia. The RAD finds in consideration of the Gender Guidelines, as well as the assessments by the Appellant's doctor and the clinical social worker, which the RPD member accepted, the RPD member was wrong in relentlessly pursuing the line of questioning, i.e., why she had not told the authorities upon entry to Canada that she was in fear of returning to St. Lucia, and why she had ten-month delay in filing her claim for refugee protection. [21] The RAD finds the RPD member accepted that the Appellant had been a victim of the alleged abuse up until 2012. Further, the RPD member stated in its reasons that it considered the Gender Guidelines and the reports by the Appellant's doctor and the clinical social worker. Based on the recording of the RPD's proceedings and a review of the RPD's reasons, the RAD finds the RPD did not engage the reports by the Appellant's doctor and the clinical social worker and did not appropriately apply the Gender Guidelines in questioning the Appellant and/or in assessing the credibility of the Appellant's evidence. Therefore, the RAD finds the RPD erred. [22] The RAD is of the view that the Gender Guidelines and the psychological report must be considered from the prospective of the overall hearing process, including the totality of the testimony given by the Appellant. The RAD finds the RPD did not appropriately engage the Appellant's psychological assessment, and did not appropriately apply the Gender Guidelines in questioning the Appellant at the hearing and thereafter, in the assessment of the Appellant's evidence and subsequently, in making the credibility findings. Therefore, the RAD finds the RPD erred. [23] The Appellant submits that the RPD erred in finding that the Appellant has not established prospective risk,18 and that the RPD ignored/misconstrued the Appellant's corroborating evidence.19 Abuse by Shawn and the prospective risk [24] The RPD found the Appellant not to be credible regarding her allegations that she would be killed upon return to St. Lucia by XXXX. The RPD, however, accepted that the Appellant suffered abuse up to 2012, and that the Appellant experienced harsh conditions and traumatic events; the RPD, however, had lingering questions relating to these findings.20 [25] The RAD finds the RPD did not make clear findings regarding whether the scars on the Appellant's body did or did not result from the abuse perpetrated by XXXX.21 The Appellant submits that the RPD dismissed the Appellant's corroborative evidence and mischaracterized the Appellant's psychological report. Further, the Appellant submits that the RPD did not find any inconsistencies or discrepancies in the Appellant's evidence and her testimony, yet found the Appellant to be not credible. [26] While the RAD recognizes and respects the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusions, the RAD has equal if not greater expertise in interpreting the Appellant's personal and objective documentary evidence. The RAD reviewed the Appellant's BoC narrative, the totality of the documentary evidence submitted, and the audio recording of the RPD's proceedings. Although the RAD finds the RPD provided adequate reasons relating to an inconsistency with respect to the Appellant's residence,22 the Appellant's failure to list XXXX on her visitor visa application23 and to provide documentary evidence regarding the Appellant's complaint to the police,24 and in findings that some of the Appellant's evidence was fabricated;25 regardless, the RAD finds those reasons are not supportable in and of themselves given that the RPD did not sufficiently engage the Appellant's medical reports and did not appropriately apply the Gender Guidelines and did not duly incorporate in its analysis its own finding that the Appellant was abused up until 2012, in assessing the delay in claiming. Since the RAD finds the delay in claiming issue was such a significant part of the RPD's reasons, they cannot be sustained. [27] In consideration of the above, the RAD also finds the RPD's lingering questions relating to the abuse perpetrated by XXXX and the resultant finding of a lack of a prospective risk of harm upon the Appellant's return to St. Lucia cannot stand either. [28] Since the RAD finds the RPD was wrong in not engaging the Appellant's psychological assessment, failed to appropriately apply the Gender Guidelines, and erred in its credibility findings relating to the prospective risk of harm, the RAD cannot confirm the RPD decision. Therefore, the RAD must either substitute its own determination or refer the matter back to the RPD for re-determination. THE RAD'S DETERMINATION [29] The RAD finds that there is insufficient evidence in the RPD record upon which the RAD could base its own determination. In order to make its own determination in this case, it would be necessary for the RAD to convene an oral hearing. It is clear from Section 110(3) of the IRPA that the oral RAD hearings are to be the exception, as the RAD "must proceed on the basis of the record of the proceeding of the Refugee Protection Division....."26 Section 110(6) of the IRPA gives the RAD discretion to hold a hearing if there is new documentary evidence which meets certain requirements, including that it is central to the decision with respect to the refugee claim.27 The Appellant has submitted no new evidence. The Appellant's submitted an affidavit,28 the affidavit, however, contained facts that were already in front of the RPD; and the same were duly argued in the Appellant's Memorandum as well. In order for the RAD to make a determination in this case, it would be necessary for the RAD to re-hear the entire refugee claim. The IRPA prohibits RAD from re-hearing evidence that was presented to the RPD.29 [30] As outlined above, the RAD cannot confirm the RPD decision, cannot substitute its own determination, and cannot hold an oral hearing in this case; therefore, the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. DISPOSITION [31] Pursuant to Section 111 (1) (c) of the IRPA the RAD refers the matter to the RPD for re-determination, before a differently-constituted panel. This appeal is allowed. (signed) "S.S. Kular" S.S. Kular January 14, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit RPD-1, RPD's Record, RPD Exhibit 2, the BoC Narrative. 3 Exhibit P-2, Appellant's Record, item 1, Decision and reasons of the Board member, para.15. 4 Exhibit P-2, Appellant's Record, item 1, Decision and reasons of the Board member, para. 24. 5 Exhibit P-2, Appellant's Record, item 1, Decision and reasons of the Board member, para. 34. 6 Exhibit P-2, Appellant's Record, item 4, Memorandum of Fact and Law, Part II(A), p. 18. 7 Exhibit P-2, Appellant's Record, item 4, Memorandum of Fact and Law, p. 20, para. 10. 8 Exhibit P-2, Appellant's Record, item 4, Memorandum of Fact and Law, Part II(B), p. 18. 9 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 10 Exhibit P-2, Appellant's Record, item 3, Case law. 11 Exhibit P-2, Appellant's Record, item 4, Memorandum of Fact and Law. 12 Exhibit P-2, Appellant's Record, item 1, Decision and reasons of the Board member, para. 13. 13 Exhibit P-2, Appellant's Record, item 1, Decision and reasons of the Board member, paras. 38-39. 14 Exhibit P-2, Appellant's Record, item 4, Memorandum of Fact and Law, pp. 26-33, paras. 34-56. 15 Exhibits RPD-1, RPD's Record, RPD Exhibits 6, 7 and 8. 16 Exhibit RPD-1, RPD's Record, RPD Exhibit 6. 17 Exhibit RPD-1, RPD's Record, RPD Exhibit 7. 18 Exhibit P-2, Appellant's Record, item 4, Memorandum of Fact and Law, pp. 19-24, paras. 5-25. 19 Exhibit P-2, Appellant's Record, item 4, Memorandum of Fact and Law, pp.24-26, paras. 26-33. 20 Exhibit P-2, Appellant's Record, item 1, Decision and reasons of the Board member, paras. 38-39. 21 Exhibit P-2, Appellant's Record, item 1, Decision and reasons of the Board member. 22 Exhibit P-2, Appellant's Record, item 1, Decision and reasons of the Board member, para. 25. 23 Exhibit P-2, Appellant's Record, item 1, Decision and reasons of the Board member, para. 26 24 Exhibit P-2, Appellant's Record, item 1, Decision and reasons of the Board member, paras. 28-30 25 Exhibit P-2, Appellant's Record, item 1, Decision and reasons of the Board member, paras. 32-33, 35, and 42-43. 26 IRPA, Section 110(3). 27 IRPA, Section 110(6). 28 Exhibit P-2, Appellant's Record, item 2, Affidavit of Allana Mitchell. 29 IRPA Section 112(2)(b). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-09405