TB8-27166

RAD File / Dossier de la SAR: TB8-27166 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 23, 2019 Date de la décision Panel J. Pollock Tribunal Counsel for the person who is the subject of the appeal Rasaq Ayanlola 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 OVERVIEW [1] XXXX XXXX XXXX (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD), dated October 11, 2018, rejecting her claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to substitute a positive determination, or to remit the matter to a newly-constituted RPD panel for redetermination. DETERMINATION [2] The appeal is allowed. Pursuant to subsection 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently constituted panel.1 BACKGROUND [3] The details of the Appellant's allegations are included in her Basis of Claim (BOC) form.2 In summary, she alleges a fear of persecution upon return to Nigeria based on her particular social group, as a relative of members of the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) community. The Appellant's son, A.K.A.,3 and daughter-in-law, R.J.A., have each been recognized as Convention refugees in Canada based on their sexual orientations.4 The Appellant alleges that she has been ordered by an Oracle to appear before a shrine to undergo cleansing rites, specifically Female Genital Mutilation or Cutting/Circumcision, based on her association with her daughter-in-law. [4] The Appellant has two sons: A.A.A., who is deceased, and A.K.A., who is in Canada. The Appellant's late son, A.A.A., was in a common-law relationship with R.J.A., who was suspected of being bisexual. In her own BOC narrative, R.J.A. identifies as a lesbian and alleges that the rumors in Nigeria about her sexuality began in 2014, while she was visiting Canada.5 The Appellant alleges that her son, A.A.A., remained in Nigeria and was ordered by an Oracle to produce his wife before a shrine for cleansing rites. Having failed to produce R.J.A in Nigeria for these rites, the Appellant alleges that her late son was poisoned at the shrine and died shortly thereafter in hospital in XXXX 2016. The Appellant further alleges that in 2017 the Oracle ordered her other son, A.K.A., to produce the Appellant for cleansing rites because of her relationship to her daughter-in-law. As a result, the Appellant fled Nigeria for the US with her son, A.K.A., and grandchildren, in XXXX 2017 travelling to Canada two weeks later in order to initiate their refugee claims. [5] On August 2, 2018, the Appellant's claim was heard before the RPD, alongside that of her son, A.K.A. The claims of the two grandchildren were withdrawn as they were successful in obtaining permanent resident status through their mother, R.J.A. In a decision dated October 11, 2018, the RPD accepted A.K.A.'s claim, finding that he had credibly established his bisexuality, but denied the Appellant's claim on the issues of credibility and objective basis. ROLE OF THE RAD [6] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence.6 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony, which may attract deference. In this instance, I am reviewing the RPD's decision on the standard of correctness, as I do not find the RPD enjoyed a meaningful advantage in the assessment of oral testimony. NO NEW EVIDENCE AND NO JURISDICTION TO HOLD AN ORAL HEARING [7] The Appellant has not submitted new evidence in support of her appeal. Having admitted no new evidence, the RAD has no jurisdiction to convene an oral hearing.7 ANALYSIS Issues on appeal [8] The Appellant argues that the RPD erred, as follows: * In breaching the Appellant's right to procedural fairness; * In improperly considering and applying The Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution; * In misapprehending the Appellant's evidence, including a cause of death certificate for her late son; * In improperly assessing the objective basis for the claim; and * In failing to conduct a proper section 97(1) analysis. [9] The determinative issue in this appeal is whether the RPD acted fairly in providing the Appellant with a full opportunity to be heard. In rendering this appeal, I have considered and applied the Chairperson's Guideline 9 on claims involving Sexual Orientation and Gender Identity and Expression (SOGIE) and the Chairperson's Guideline 4 on claims involving women fearing gender-based persecution.8 Having listened to the audio-recording of the RPD hearing, I find that the RPD did not provide a full and fair opportunity for the Appellant to understand the proceedings and tender evidence in support of her claim. This being the case, I find that the RPD erred and that this error is fatal to the RPD decision. The RPD erred in breaching procedural fairness and natural justice [10] The Appellant argues that the RPD breached her right to procedural fairness. In assessing this argument, I have considered whether the requirements of natural justice have been met in the particular circumstances of the Appellant's case. I find, for the reasons that follow, that these requirements have not been met and that the RPD erred in breaching the Appellant's right to procedural fairness and natural justice and that this breach is fatal to the RPD decision. The RPD breached the Appellant's right to understand the proceedings [11] The Appellant is a seventy-year-old woman, age sixty-nine on the date of the hearing, with no formal education who is unable to read or write, and who does not speak or understand English, and who required the assistance of a Yoruba interpreter in completing her BOC and testifying at her hearing. Despite acknowledging these particular circumstances in its decision, the RPD did not ensure that the Appellant had the benefit of Yoruba interpretation of her son's testimony.9 [12] Having listened to the audio-recording of the RPD hearing, I note the following exchange once the RPD Member had finished asking questions of the Appellant, and was ready to ask questions of the Appellant's son: RPD Member: Do we need an interpreter? Appellant's son: No, ma'am. RPD Member: Ok, just speak loud and clear, ok? Appellant's son: Ok, ma'am.10 [13] Having listened to the complete three hour audio-recording of the RPD hearing, I note that the RPD Member proceeded to examine the Appellant's son in English without having the Yoruba interpreter provide interpretation for the Appellant, either simultaneously or consecutively.11 At no time on the recording does the Appellant, or Counsel on her behalf, waive her right to have her son's testimony interpreted from English into Yoruba. I also note that at no time on the recording does Counsel, who is not the same Counsel retained for this appeal, raise any objection to this approach. [14] The RPD Member goes on to identify inconsistencies in the Appellant's son's testimony.12 These inconsistencies are then relied upon by the RPD in its decision to impugn the credibility of the allegation that the Appellant has been summoned before the Oracle for cleansing rites.13 This finding forms the basis for the overall finding that the Appellant's claim is not credible.14 This despite the fact that the Appellant herself had no understanding of the content of this evidence without interpretation into Yoruba. In Kamara the Federal Court found that a failure to ensure continuous interpretation during a proceeding, including continuous interpretation of witness testimony, absent an informed waiver, is a breach of procedural fairness.15 [15] I find that this failure to provide the Appellant interpretation of her son's testimony, absent an informed waiver, breached the Appellant's right to understand the proceedings. The RPD's error is compounded when it relies on inconsistencies in this un-interpreted testimony to impugn the credibility of the Appellant's own allegations. This being the case, I find that the RPD erred in breaching the Appellant's right to procedural fairness and natural justice and that this breach is fatal to the RPD decision. The RPD breached the Appellant's right to tender supporting evidence [16] Counsel sought to have the Appellant's daughter-in-law, R.J.A., provide witness testimony under Rule 44 of the Refugee Protection Division Rules.16 At no time during the hearing does the RPD take issue with the relevance and probative value of this testimony. Having listened to the audio-recording of the RPD hearing, I note that the RPD Member specifically mentions at the start of the proceedings that "we have a witness today Counsel" and then proceeds to confirm that the witness is being tendered in support of both the Appellant and the Appellant's son, and finishes by instructing the witness: "I will ask you to remain outside during the hearing, and when you are ready to provide your testimony, then we will call you back in."17 Having listened to the complete three hour audio-recording, I note that at no time is the witness called upon to provide evidence. The following exchange took place near the end of the hearing: RPD Member: Alright, Counsel, are you ready for submissions? Counsel: I don't know whether there is anything you might want to clarify with the witness. RPD Member: I don't see the need for that.18 [17] In her decision, the RPD Member impugns the credibility of the allegation that the Appellant's late son was poisoned by the Oracle and that the Appellant has been summoned before the Oracle for cleansing rites. Counsel argues that "it is unknown now if the testimony of the witness could have affected the decision of the panel."19 I agree with Counsel, especially given the materiality of the witness to the Appellant's claim; it was the proposed witnesses' spouse who was allegedly poisoned by the Oracle as a result of her sexual orientation and this is the reason that the Appellant fears returning to Nigeria. [18] Counsel for the Appellant correctly identifies the Federal Court decision in Ayele as instructive for this appeal, where the Court found: [12] . . . the essence of adjudication is the ability to keep an open mind until all the evidence has been heard. The reliability of evidence is to be determined in light of all of the evidence in a particular case. This is the reason why an adjudicator must remain open to persuasion until all of the evidence and submissions are received. Evidence, that at first blush may seem implausible, may later appear plausible when set in the context of subsequent evidence. It is, at the least, suggestive of an impermissibly closed mind to state "there's no point calling the witness ["] ...20 [19] The RPD has the right to limit repetitive testimony and to refuse witness testimony that is not relevant or probative.21 However, the RPD should not "exclud[e] witnesses who could offer evidence going to the central issues of the case."22 The RPD erred when it advised Counsel that it does not see the need to call the witness and then impugned the credibility of allegations that the witness could have corroborated. It is not the case that the RPD simply limited the scope of evidence by stipulating certain points that are not in dispute; the credibility of the Appellant's allegations remained a live issue. It is a breach of procedural fairness to discourage a witness who can corroborate the Appellant's testimony and rehabilitate her credibility. [20] I find that the RPD breached the Appellant's right to tender supporting evidence. This being the case, I find that the RPD erred in breaching the Appellant's right to procedural fairness and natural justice and that this breach is fatal to the RPD decision. CONCLUSION [21] I have found that the hearing before the RPD was procedurally unfair. Therefore, I find that I must set aside the RPD's negative determination. Given this finding, it is not necessary to consider Counsel's further arguments. The two breaches of procedural fairness arise from evidence that was canvassed without interpretation by the RPD, in the form of the appellant's son's testimony, and evidence that was available to the RPD but was not heard, in the form of the appellant's daughter-in-law's testimony. This is not new evidence. As the RAD only has the power to hold hearings on new evidence, and as the appellant ought to have a fair opportunity to tender her son and daughter-in-law's testimony, I am referring this matter back to the RPD for redetermination. [22] Moreover, there remain a number of issues that prevent me from making a substituted determination. In particular, there were inconsistencies between the Appellant's BOC, her son's BOC, her son's psychological report, and the affidavit from the shrine servant that were not satisfactorily canvassed.23 In my view, these issues should be more thoroughly explored. It will remain within the RPD's discretion whether to examine these issues further in oral testimony. [23] The appeal is allowed. Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. (signed) "J. Pollock" J. Pollock August 23, 2019 Date 1 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 111(1)(c). 2 Exhibit RPD-1, RPD Record, Exhibit 2, at pp. 12-24. 3 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision, pursuant to para. 5.3 of the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the IRPA, IRB, Ottawa, Effective date: May 1, 2017. 4 Exhibit RPD-1, RPD Record, at pp. 3-11, 454-457. 5 Exhibit RPD-1, RPD Record, Exhibit 14, at pp. 437, 439, at paras. 7, 14. 6 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103. 7 IRPA, at ss. 110(6). 8 The Chairperson's Guideline 9, at para. 8.3; The Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the IRPA. 9 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 5, at para. 8. 10 RPD hearing recording, August 2, 2018, timestamp 01:36:35 - 01:36:41. 11 RPD hearing recording, August 2, 2018, timestamp 01:36:26 - 02:49:10. 12 RPD hearing recording, August 2, 2018, timestamp 01:45:00 - 01:50:40. 13 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 7-8, at para. 11. 14 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 10, at para. 22. 15 Kamara v. Canada (MCI), 2011 FC 243, at paras. 35-43. 16 Refugee Protection Division Rules, SOR/2012-256, Rule 44. 17 RPD hearing recording, August 2, 2018, timestamp 00:04:08 - 00:05:46. 18 RPD hearing recording, August 2, 2018, timestamp 02:49:10 - 02:49:35. 19 Exhibit P-2, Appellant's Record, at pp. 18, 19, at paras. 23, 25. 20 Ayele v. Canada (MCI), 2007 FC 126, at para. 12. 21 Refugee Protection Division Rules, SOR/2012-256, Rule 44. 22 Kamtasingh v. Canada (MCI), 2010 FC 45, at para. 13. 23 RPD hearing recording, August 2, 2018, timestamp 02:38:55; Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 61-62, at para. 8; Exhibit RPD-1, RPD Record, at p. 489; Exhibit RPD-1, RPD Record, Exhibit 2, at p. 23, at para. 4; Exhibit RPD-1, RPD Record, Exhibit 12, at p. 414, at para. 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR: TB8-27166 RAD.25.02 (April 04, 2019) Disponible en français 8 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.25.02 (April 04, 2019) Disponible en français