MB5-00724

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 : MB5-00724 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision December 21, 2015 Date de la décision Panel Anna Brychcy Tribunal Counsel for the person who is the subject of the appeal Me Adrian D Huzel Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant is XXXX XXXX XXXX. She is a citizen of Mongolia. She is appealing a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She is submitting new evidence and is asking for an oral hearing. The appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that she is a "Convention refugee" or a "person in need of protection". In the alternative, the appellant asks that the matter be referred back to the RPD to a differently-constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that the appellant is neither a "Convention refugee" according to section 96 of IRPA, nor is she a "person in need of protection" under section 97(1) of IRPA. [3] The appeal is dismissed. BACKGROUND [4] The appellant was a victim of domestic violence on the part of her common-law partner. In XXXX 2012, her partner gave her to one of his friends, XXXX, who forced her to work in prostitution using violence and harsh treatment. The appellant managed to escape in XXXX 2012. The appellant reported her experience to the police on XXXX XXXX, 2013. In XXXX and XXXX 2013, the appellant was followed and attacked by two men. When she went to seek safety and stay with a friend in a rural area there was a fire at the house which was determined to be arson. Fearing for her life, the appellant left Mongolia and arrived in Canada on XXXX XXXX, 2014. She claimed refugee protection in May 2014. [5] The appellant's refugee hearing was held on July 21, 2014 and on September 10, 2014. In a bench decision on September 10, 2014, the RPD rendered a negative decision on her claim. Her claim for refugee protection was refused on the basis that adequate and effective state protection was available to her in Mongolia. [6] An appeal was filed to the RAD. In a decision, dated April 24, 2015, the RAD member found that the RPD had erred in its credibility assessment of the appellant. The RAD member found that due to the many problems deference could not be granted to the RPD on its credibility determination and the appeal was dismissed. [7] The appellant then filed an application for leave and for judicial review to the Federal Court on May 14, 2015. On July 14, 2015, the judicial review was settled by consent and Mr. Justice Russell issued an order returning the appeal to the RAD for reconsideration. SUBMISSIONS OF THE APPELLANT [8] The appellant continues to rely on the original appellant's Memorandum of Argument, dated October 29, 2014, and the issues and arguments set out in that document, as well as on a further Memorandum of Argument which was filed after the appeal was returned from the Federal Court for reconsideration. [9] In the original Memorandum, it is argued that the RPD erred in finding that state protection was available to the appellant, given the overwhelming evidence that state protection is inadequate in Mongolia against victims of domestic violence and human trafficking. The appellant relies in particular on Tab 5.1 of the NDP, which is a report entitled "Implementation of Mongolia's Domestic Violence Legislation" by the National Centre Against Violence and which had been in front of the RPD member. It is submitted that this report clearly establishes that state protection of domestic violence victims is inadequate in Mongolia and ineffective at the operational level. It is argued that the RPD's failure to consider the contents of the report renders its finding that state protection mechanisms are effective as unreasonable. [10] It is also argued that the RPD erred in finding that state protection was effective and available to the appellant in her own circumstances. The appellant's ability to be able to withdraw her charges of domestic abuse in 2009, due to a reconciliation with her partner, reveals a fundamental weakness in the system. The appellant had also reported crimes to the police but despite having accessed state protection she was nevertheless badly beaten by her persecutors in XXXX 2013, necessitating XXXX days of treatment in hospital. Mongolia's state protection is ineffective and inadequate in practice and the RPD erred in finding that the Mongolian authorities offer protection to victims of domestic violence and human trafficking. Serious efforts to provide protection do not equate with adequate state protection. The RPD is required to determine whether those efforts result in adequate protection in practice. [11] In the new Memorandum of appeal two further issues are raised. These are: 1. Should the RAD accept the credibility determination of the RPD? 2. If not, is the appellant entitled to an oral hearing before the RAD? [12] It is argued that the RAD erred in revisiting the issue of credibility and coming to a conclusion contrary to that of the RPD. Counsel for the appellant examines the recent jurisprudence and submits that it is generally agreed that the RPD findings on credibility should generally be respected by the RAD. The RPD is in the best position to determine credibility issues as it hears the viva voce testimony of the claimant and the RAD should therefore pay deference to the findings of credibility made by the RPD. [13] It is also submitted that the appellant should be entitled to an oral hearing if the new RAD member deciding the case also denies the appeal on the basis of credibility, as there is simply no other way for the appellant to be able to provide a response to any remaining credibility concerns without being able to testify before the RAD in person. ADMISSIBILITY OF NEW EVIDENCE SUBMITTED ON APPEAL [14] The appellant identifies two new exhibits in her affidavit submitted on October 29, 2014. [15] Section 110(4) of IRPA provides that the appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. The appellant is entering as new evidence Tabs 2.1, 2.3, 5.1 and 5.2 from the Mongolian National Documentation Package, dated June 27, 2014, which had been in front of the RPD at the hearing as Exhibit 5, and presents these documents now as Exhibit A. This RAD member finds that the RPD is not required to specifically mention all of the documents in the RPD record and that failure to refer to a particular document does not necessarily lead to the conclusion that the RPD was unaware of that document or did not consider it in making its determination of the claim. Since the articles being submitted were already disclosed in the NDP which was in front of the RPD member, there are therefore not considered as new evidence. [16] The second exhibit, identified as Exhibit B, is a new translation of a paragraph in the newspaper article, "XXXX XXXX XXXX XXXX XXXX" which had been entered as Exhibit 11 during the hearing. This article is an interview with the appellant's mother and the paragraph in question concerns her response to the interviewer's question concerning what were the charges against the men who had assaulted her daughter. The original translation had stated that two of the four members of the gang, who had forced the appellant into prostitution, had been apprehended and detained for six months, and that the investigation of the appellant's former common-law husband and Mr. XXXX was continuing. The original translation implied that Mr. XXXX and his two accomplices had been arrested, charged and released after six months, while the new translation states that they were "put into custody and remanded" rather than being charged with criminal offences, thereby suggesting that XXXX and his two accomplices were never charged but simply released after six months of detention. Since the new translation dates after the rejection of the claim and an error in the original translation could not have been anticipated, the new translation, Exhibit B, is accepted as new evidence. [17] Counsel for the appellant submits that the appellant should be entitled to an oral hearing in front of the RAD, as there is no other way for her to provide a response to any other credibility issues that might be raised. With respect to the appellant's request for an oral hearing to be held, pursuant to section 110 (6) of IRPA, the RAD normally proceeds without a hearing, but may hold a hearing in an appeal if the new evidence raises a serious issue with respect to the credibility of the appellant, is central to the claim and that, if accepted, would justify allowing or rejecting the refugee protection claim. [18] The argument is made that Exhibit B, the new translation evidence, suggests that charges were never laid and that the failure to convict means that the state failed to provide adequate state protection. Even if the men were released after six months of detention, it is argued that this is an extremely light sentence for a serious crime. [19] The appellant had testified at the hearing that her ex-common law partner and XXXX had not been arrested and that her case was still under investigation and that two people who worked with XXXX had been arrested.1 She stated that because the case is still open, the police are not able to give a lot of details, and repeated again that her ex-common law partner and XXXX have still not been arrested.2 Later in the hearing when asked when the two accomplices of XXXX had been convicted, the appellant responded by saying that two months after XXXX XXXX, 2013, they were detained for 6 months and that the investigation was ongoing. While she testified that there had been no trial, she was unable to state if there had been any charges and did not know anything more other than that they had been detained for 6 months.3 Whatever the correct translation of the paragraph in the newspaper article may be, it did not appear to be a credibility issue for the RPD. The RPD had only briefly noted the contradiction between the appellant's testimony and the first translation, which had referred to the charges and arrest of XXXX, and in fact had even mentioned that the translation had been done by a translator who had made an earlier error in the Basis of Claim form.4 This comment on the part of the RPD member would seem to mean that she was willing to accept that there might have been a translation error. [20] The RAD finds that the new evidence does not raise a credibility issue with respect to the appellant's testimony and the request for an oral hearing is therefore denied. According to the testimony, the appellant had simply not been aware of what had happened to the men she feared as the police had not been able to give her much information because the case was still under investigation. ROLE OF THE RAD [21] While IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [22] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. The panel finds that the recent Federal Court decision, in Huruglica,5 provides the RAD with guidance in relation to the appropriate review the RAD should conduct of an RPD decision. [23] While the Court had endorsed the standard of reasonableness in Iyamuremye,6 and accepted it in Malhotra,7 more recently, the Court, in Huruglica,8 found the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In simply reviewing a decision for reasonableness, the RAD would merely be duplicating what occurs on judicial review at the Federal Court and this would be inconsistent with the creation of the RAD and the extensive legislative framework. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.9 It is to review all aspects of the RPD's decision and come to an independent assessment of the appellant's refugee claim. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [24] It appears that the RAD, as a tribunal specialized in refugee protection matters, must examine all the evidence to determine whether the decision is well founded in light of the evidence filed before the RPD and contained in the RAD record. The RPD has the advantage of seeing and hearing the appellant and is therefore in a better position to make findings regarding credibility. Although the RPD views the evidence first-hand and while deference may be afforded to the credibility findings of the RPD, or to other findings where the RPD has a particular advantage in reaching its conclusions, according to this RAD member, the RAD must conduct its own independent analysis of the evidence. When it is a matter of interpreting the documentary evidence on country conditions, there is no reason for the RAD to defer to the RPD on this type of assessment.10 [25] This panel member of the RAD will be following the case of Huruglica in dealing with this appeal. Accordingly, the RAD will conduct its own assessment 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". ANALYSIS OF THE MERITS OF THE APPEAL [26] The representative of the Minister of Citizenship and Immigration had intervened and was present at the hearing raising a wide range of credibility issues related to the appellant's employment history, family members and prior visa applications.11The RPD member, in her decision, had acknowledged that the Minister had raised valid concerns about the appellant's testimony concerning who had assisted her in completing her visa applications to Canada and the US, and had noted that these inconsistencies had not been adequately resolved at the hearing. However the member stated that they were not determinative. She, instead, appears to have decided the case on the basis of the fact that she believed the appellant would receive adequate state protection in Mongolia. [27] With respect to the credibility of the appellant the RPD member had stated the following in her decision12: "while the claimant's evidence is not perfect, the panel does accept on the basis of the police reports and other documents provided that the claimant has been a victim of domestic violence and has subsequently been the victim of human traffickers." [28] Yet reading the decision further, it appears that while the RPD member accepted that the appellant had made a complaint to the police in XXXX 2013, after her alleged ordeal of having been forced into prostitution, the RPD member did not find any of the subsequent attacks on the appellant in XXXX and XXXX 2013 to be credible. The RPD did not accept the appellant's explanations for omitting salient details about these attacks and did not find her testimony reliable that these attacks had been related to the agent of harm. With respect to the subsequent arson incident, which is alleged by the appellant to have taken place in XXXX 2013 at her new place of hiding, the RPD found her suggestion that the police had informed her agents of harm of her location to be pure speculation. The RPD also found her allegations that she had, in fact, been the target of the arson to be highly speculative. [29] It appears then to this RAD member that the RPD member did not find much credible in the appellant's testimony with respect to all the events which occurred to her after her police report had been made in XXXX 2013. Yet the events in XXXX, XXXX and XXXX 2013 are all events which the appellant alleges involved her agent of harm and were the events which led her to leave Mongolia and come to Canada. The credibility of her allegations that she was fleeing Mongolia because she was being pursued by her agents of harm is thus called into question. [30] While the appellant's delay in claiming refugee protection once in Canada had been examined at the hearing, it was not mentioned in the decision. Delay in claiming is not a decisive factor in itself. It is, however, a relevant element that should be taken into account in assessing the actions of the appellant. The subjective fear relates to the fear of harm in the mind of the claimant. In the present case the appellant alleges to have been a victim of human trafficking. She alleges that she was too traumatized to report it to the police immediately after her escape in XXXX 2012 and that she required hospitalization after the incident. To this, one might add the questionable events of XXXX to XXXX 2013, where she alleges that the agents of harm were still trying to harm her. Yet, despite all these events, the appellant did not seek refugee protection immediately upon arriving in Canada, but chose instead to wait 4 months before doing so. [31] The RAD would like to quote Assadi 13: "Failure to immediately seek protection can impugn the claimant's credibility, including his or her testimony about events in his country of origin." [32] The RAD finds that this delay in claiming undermines the appellant's subjective fear. Lack of subjective fear is an indication of credibility and can also influence the evaluation of credibility on the allegations made by the claimant for leaving his or her country. The RAD's reasoning is that someone who is truly fearful would claim refugee status at the first available opportunity. The allegations made by the appellant are extreme and it is unlikely that anyone who had lived through such a horrendous ordeal of being kidnapped, raped, and forced into prostitution, and who believes that she is still being pursued by her agents of harm, would not ask for protection at the first available opportunity. Yet the appellant waited for 4 months and only claimed when her two attempts to obtain a student visa in Canada had failed. On this basis this RAD member draws an adverse inference about the possibility of any serious harm occurring to her in Mongolia. Her behavior is not consistent with that of someone who fears for her life. [33] The RAD also notes that the appellant had filed a student visa application to the United States which had been refused in XXXX 2012. This was done before her alleged kidnapping and abduction into prostitution. The information contained in that U.S. visa application contains similar information to that of her later applications for a student visa once in Canada, especially with respect to her employer in Mongolia having been the company XXXX XXXX, an employer for whom the appellant denied ever working for at the hearing. The fact that she continued to provide the same information about her past employment in her Canadian student application as she had in her earlier US visa application coupled with the fact that she appears to have been attempting to leave Mongolia even before her alleged abduction into prostitution, leads the RAD to conclude that aspects of the appellant's story lack credibility. [34] The determinative issue for the RPD was however state protection. The RPD had found that adequate state protection mechanisms are effective at the operational level for the appellant in Mongolia. The RPD had acknowledged that the documentary evidence was mixed but had found that strides had been made in protecting victims of domestic violence and more particularly victims of trafficking. Moreover, in the appellant's case, the RPD found that the police and authorities had responded to her complaint. [35] The RAD examined the documentary evidence on violence against women in Mongolia and in particular Tab 5.1 of the NDP which was referred to in counsel's submissions.14 This document examines the laws and practices that constitute the Mongolian government's response to the problem of domestic violence. While acknowledging the Mongolian government's commitment to combatting domestic violence through the adoption of the Domestic Violence Law in 2005 and commending it for its efforts, the report notes the gaps and weaknesses in the law and in its implementation. Although the government of Mongolia has taken critical steps to combat domestic violence, monitoring revealed that the government must take additional measures to more fully achieve victim safety and to ensure offender accountability. [36] The Mongolian government has been criticized for typically applying the Administrative Penalty Law rather than the Criminal Code in dealing with domestic violence offenders. The Criminal Code has not been amended to make domestic violence a criminal offence so offenders are prosecuted under the Criminal Code involving assault, infliction of injury to health, disorderly conduct, or hooliganism, rather than for domestic abuse. Most domestic violence cases, regardless of the severity of the crime, however, are handled through the Administrative Penalty system instead of the criminal system and result in only a fine or a brief detention. The report mentions that maximum penalty under the Administrative Penalty system is a maximum detention of 30 days.15 [37] The same documentary evidence states the police do not refer cases for criminal-level prosecution and that those proceedings are fraught with barriers that often stymie successful convictions of a perpetrator and if he is charged at all, it is generally with less serious offences under the Administrative Penalty Law. The appellant in the present case stated that her former common-law partner was punished under the Administrative Penalty law. Yet in XXXX 2010, he received a three month sentence for his assault on her and this is more than the maximum 30 day penalty that the Administrative Penalty system allows. In the case when prosecutors decide to proceed with criminal charges, the report mentions that it is often difficult to obtain convictions given the evidentiary burden. The appellant's ex-partner, however, appears to have received a 3 month sentence for the assault on her in XXXX 2010.16 [38] Whereas, according to the documentary evidence in Tab 5.1., it would appear that the police rely mostly on the intoxication and hooliganism provisions of the Administrative Penalty Law, with punishments that impose only short-term detentions or fines, in the appellant's case her ex-common law husband did not go unpunished after his assault on her. While the system in Mongolia may not be perfect and while the documentary evidence states that police do not always make an arrest, even when there is evidence that an assault has occurred, it would appear in the appellant's case that her former partner was prosecuted for his crime and received a longer sentence than what the Administrative Penalty Law allows for. [39] Other documentary evidence states that domestic violence particularly affects women of low-income rural families.17 Throughout Mongolia, many victims are unemployed and rely entirely on the perpetrator for support and this economic dependence puts women in a vulnerable position. [40] The appellant in the present case, however, is a college-educated woman living in an urban center who has studied XXXX. Counsel presents evidence that in Mongolia, the police are often reluctant to intervene in what is often viewed as internal family matters and that the police fail to carry out arrests due to beliefs that it is more important to preserve the family than to protect the victim. The RAD acknowledges that domestic violence is a serious problem in Mongolia, as it is in many countries of the world. In assessing the future risk to the appellant, however, it must be noted that she is no longer in a relationship with her former partner and that she had returned to live with her parents. She has no children with her former partner, no joint property, and neither is she financially dependent on him. She testified that the last time she saw her former partner was in XXXX 2012 and neither she nor her family has heard from him since. In the unlikely event that he would attempt to harm her, the police would not consider him to be her common-law partner, given the time they have lived apart and that the relationship is over. [41] With respect to the investigation into her alleged ordeal into prostitution, the RPD found that the authorities were making reasonable efforts to investigate her allegations and that the appellant had met with her investigator on 8 occasions. However, there were important credibility issues with the alleged incidents in XXXX, XXXX and XXXX 2013, all of which involve pursuit of the appellant by her agents of persecution. The RAD does not accept that these incidents occurred or that her persecution continued after filing her police report. While a medical report was presented for an assault on XXXX XXXX XXXX 2013, the RAD gives the report little probative value that this incident was related to her pursuit by the agents of persecution. While the new translation presented as new evidence stated that XXXX and his two accomplices were never charged with a criminal offence but released after six months of detention, the appellant had little information on the case itself or as to why there was not a trial. The appellant only provided evidence in the form of a letter from the police department, dated XXXX XXXX XXXX 2014, which states that the investigation in her case is being investigated under the criminal law. 18 [42] With respect to human trafficking, the Government of Mongolia maintained its anti-trafficking law enforcement efforts.19 Mongolia prohibits all forms of human trafficking through Article 113 of its criminal code. Article 113, which defines trafficking in accordance with international law, prescribes up to 15 years' imprisonment for trafficking offenses, penalties which are sufficiently stringent and commensurate with penalties prescribed for other serious offenses, such as rape. The government investigated and prosecuted and convicted offenders. Regular training programs for provincial and district law enforcement officers was held. In January 2014, the Law on Victim and Witness Protection went into effect. This law requires the government to provide for the safety and psychological well-being of victims and witnesses during the investigation and prosecution of a crime. It further mandates that victim protection measures be put in place-including physical protection, use of safe houses, protection of victims' identity, and psychological counseling. The government of Mongolia also demonstrated moderate efforts to prevent trafficking. [43] The RAD agrees with the RPD member that state protection is available to women who have suffered domestic violence in Mongolia. In the appellant's case her ex-partner appears to have been arrested and sentenced to a term of imprisonment for his assault on the appellant in XXXX 2010. With respect to her fears of her ex-common law partner, the appellant is no longer in a relationship with him and has not seen or heard from him since 2012. The RAD finds that the appellant's allegations of being pursued by XXXX and his accomplices lacks credibility and that her delay in claiming refugee protection in this country further diminishes the credibility of her allegations of being pursued by these men who had allegedly forced her into prostitution. [44] In conclusion, because of the credibility issues noted by the RAD and because of the possibility of state protection for the appellant in Mongolia, the RAD finds that the appellant does not have a well-founded fear of persecution or that, on a balance of probabilities, she would face torture or a risk of harm or cruel and unusual treatment or punishment, if she were to return to her country. CONCLUSION [45] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD, namely, that the appellant is neither a "Convention refugee" according to section 96 of IRPA, nor is she a "person in need of protection" under section 97(1) of IRPA. [46] The appeal is dismissed. Anna Brychcy Anna Brychcy December 21, 2015 Date /cos 1 Transcript p. 42 line 11-17. 2 RAD record, transcript. P. 42 lnes 20-24. 3 RAD record, transcript, p. 58, lines 2-27; p. 59, line1. 4 RAD record, p. 4, RPD decision, paragraphs 26-29. 5 Huruglica v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 6 Iyamuremye v. M.C.I. (F.C., no. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 7 Malhotra v. M.C.I. (F.C., no. IMM-6899-13), Bédard, August 1, 2014; 2014 FC 768. 8 Huruglica v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 9 Huruglica, para. 45. 10 Huruglica, para. 38. 11 RPD record, Notice of Intent to Intervene p. 106-109. 12 RPD decsion, p. 5. Lines 17-20. 13 Assadi, Nasser-Eddin v. M.C.I. (F.C.T.D., IMM-2683-96), Teitelbaum, March 25, 1997. 14 National Documentation Package on Mongolia. 27 June 2014. Tab. 5.1. Implementation of Mongolia's Domestic Violence Legislation. The Advocates for Human Rights; National Center Against Violence. January 2014. 15 Ibid. p. 32. 16 RPD record, p. 223. 17 NDP on Mongolia. Tab. 5.2. Domestic violence, including legislation, in particular the progress in the implementation of the 2005 law, and availability of state protection and support services (2008-April 2010). IMNG103387.E. Immigration and Refugee Board of Canada. 15 April 2010. 18 RPD record, p. 309. 19 NDP on Mongolia. Tab. 7.1 Mongolia (Tier 2). Trafficking in Persons Report 2014. United States. Department of State. June 2014. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB5-00724 16