TB8-17003

RAD File / Dossier de la SAR : TB8-17003 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 April 30, 2019 Date de la décision Panel T. Andrews Tribunal Counsel for the person who is the subject of the appeal Richard Odeleye 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), claims to be a citizen of Nigeria. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. This decision explains why the appeal is allowed. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) allows the appeal, sets aside the determination of the RPD and refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND [3] The appellant alleged before the RPD that she would face a serious possibility of persecution if returned to Nigeria based on the fact that she has been accused of being a witch. [4] The appellant is one of the wives of the XXXX of a small town known as XXXX XXXX. On XXXX XXXX, 2016, she sent the daughters of her sister wife on an errand and they were killed in a motor accident. After the incident, her sister wife and her sister wife's former husband, Mr. XXXX (the father of the deceased children) blamed her and labelled her as a witch. They spread this rumor about witchcraft in the community and Mr. XXXX made various threats against her. She fled to Canada to escape the dangerous situation she found herself in. [5] In its decision dated June 22, 2018 the RPD determined that the appellant was not a Convention Refugee or a person in need of protection. ROLE OF THE RAD [6] In Huruglica1, the Federal Court gives guidance in regard to the role of the RAD. The RAD must conduct an independent assessment regarding whether the RPD was correct in relation to the alleged errors of law, fact or mixed fact and law. The RAD may defer to the RPD's credibility assessment of oral testimony, where the RPD had a meaningful advantage in the circumstances. ANALYSIS [7] The appellant argues that there was a breach in procedural fairness when the RPD member failed to appoint a Designated Representative. The appellant also argues that the member erred by focusing on Boko Haram as the agent of persecution by inaccurately summarizing the appellant's evidence, and by drawing a negative inference from the lack of corroborative documents. The appellant further argues that the RPD erred by ignored relevant testimony and by failing to conduct a section 97 analysis. [8] The determinative issue on appeal is whether or not there was a breach of procedural fairness. Has there been a breach of procedural fairness? [9] The RPD found that in the appellant's specific circumstances that due to some credibility concerns and because of what the objective documents indicate regarding individuals who are typical victims of witch branding, that the appellant would not be at risk of persecution in Nigeria. [10] The appellant argues that there was a breach of procedural fairness because a designated representative (DR) was not appointed in this case. The appellant indicates that her Counsel's request was supported by sufficient medical evidence including a diagnosis of XXXX, XXXX and XXXX from the treating psychiatrist, to find that she was unable to fully understand the nature of the proceeding and what was required to establish her claim. Her medical evidence further illustrated that she was hospitalized in a psychiatric ward during the hearing process and attended her hearing by coming to and from the medical facility. Despite acknowledging that the appellant faced mental health challenges in advancing her claim, the RPD failed to appoint a DR who could have assisted her in all areas of her claim including gathering evidence, which was a critical factor in why her claim was rejected. The RAD finds there was a breach of procedural fairness in this case. [11] In reviewing the hearing, the RAD notes that the appellant's claim was heard jointly with her step-son's claim. He was self-represented while she was represented by Counsel. The hearing took place over five sittings; July 5, 2017, August 17, 2017, September 26, 2017, October 11, 2017 and November 30, 2017. The appellant attended only three of the five sittings as she was hospitalized in XXXX, 2017 and subsequently undergoing treatment for her medical concerns in XXXX, 2017. [12] At the hearing on September 26, 2017, the appellant's Counsel indicated that he had only just received new information clarifying the appellant's psychiatric issues from a City of Toronto case worker (who was also present at the hearing on that date). The RPD member proceeded to hear testimony from the principal claimant (the appellant's step-son), but suggested that Counsel and the case worker should discuss with the appellant (the associate claimant), any steps that might be needed to safeguard her rights during the hearing. Said discussion occurred between those parties during one of the breaks. [13] After returning from the break2, Counsel for the appellant made an application for a DR. He indicated that the appellant had undergone extensive psychiatric treatment and before attending the first hearing she had been in a psychiatric hospital for five weeks. He indicated that after the appellant failed to attend their meeting on September 24, 2017, he learned from the case worker that the appellant was back in the same psychiatric hospital and documents regarding the situation only became available to him that morning. Counsel submitted that he had posed a number of questions to the appellant and although she gave responses that corresponded to her basis of claim, he wished to make the application for a DR out of an abundance of caution as he was concerned about the extensive psychiatric treatment. The member then proceeded to ask the appellant a number of questions of her own to gauge the appellant's understanding of the process. [14] At the conclusion of her questions the presiding member indicated. "I'm going to reserve my decision on the designated representative at this time, but I promise that a decision will be made before you come back here on the 11th of October."3 Counsel went on to comment about something that the appellant said, but they returned to the matter of when a decision would be made a short time later as follows: PRESIDING MEMBER: So as I said I've reserved my decision on the appointment of a designated representative. However, we will reconvene on the 11th of October at 8:45 in the morning. COUNSEL: And a decision on that will be made before that date. PRESIDING MEMBER: Okay. So thank you very much, everyone.4 [15] The RAD reviewed the October 11, 2017 hearing, but it did not proceed as the appellant was absent, having provided late documents to indicate she was undergoing XXXX therapy (XXXX). [16] The RPD member's reasons for decision address the fact that an application for a DR was made at the hearing on September 26, 2017 and confirms that the panel reserved its decision. The paragraphs that follow indicate: [8] On November 30, 2017 the panel considered the application in the presence of all the parties and the associate claimant's counsel. At this sitting, the panel questioned the associate claimant closely concerning her understanding of the nature and significance of the proceedings and the consequences of both a positive outcome and a negative outcome of her refugee claim. In conversation with the panel, the associate claimant indicated not only that she understood the purpose and significance of the refugee claim proceedings, but also that she had had the chance to communicate with her counsel in preparation for the sitting of the hearing, and that she was able to instruct her lawyer and to seek advice from her lawyer concerning any issues that might arise during the hearing. [9] Moreover, at each sitting of the hearing in which she participated, the associate claimant was accompanied by a case worker from the City of Toronto's social services department, who remained in the room at the associate claimant's request, and with the permission of the principal claimant, to provide her with emotional support. [10] Given that the associate claimant was able to participate meaningfully in the proceedings, the panel determined that it was not necessary to appoint a designated representative for the associate claimant. [11] At this time, the panel did indicate to the associate claimant and the associate claimant's counsel that it was prepared to make any accommodations necessary to facilitate the associate claimant's successful participation in the refugee claim hearing, in accordance with the Chairperson 's Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB.5 [17] What the RAD gleans from the above is that a decision was made at the hearing on November 30, 2017 and the panel determined that if the claimant could understand and answer questions, and direct counsel, it was not necessary to appoint a DR, but offered to make accommodations if needed. [18] However, this does not correspond to the information before the RAD, which is found in the audio recordings. The RPD asked questions of the appellant regarding her understanding of the process during the September 26, 2017 sitting directly after Counsel's DR application. [19] At the November 30, 2017 sitting, there is no further discussion of the matter of the DR and there is no record of a decision having been made on the DR application, either orally at the hearing itself or in writing prior to that sitting. At the outset of the hearing, normal introductions were made, instructions were provided and then the member went straight into questioning the appellant about her claim. [20] While the RAD knows what conclusion the RPD reached as per its brief summary found at paragraphs eight through ten of its reasons for decision, seemingly this was not the full decision given that those same reasons stipulate that an interlocutory decision was made. Without the interlocutory decisions itself, it is unclear if the RAD has a complete picture of the RPD's reasoning and all factors that were considered. There may or may not have been more to the RPD's analysis beyond what was included in the summary. The RAD finds that it is not in a position to properly assess whether the failure to appoint a DR was a breach of procedural fairness without having that decision. [21] Nevertheless, the RAD finds that the absence of full reasons on the matter of whether or not the appellant was able to appreciate the nature of the proceedings is problematic in and of itself and reviewing an incomplete record would constitute a breach of procedural fairness. [22] Also, it is unclear whether or not the member properly considered and analysed the second factor of RPD Rule 20(5)(a); whether the appellant could instruct counsel in light of her medical condition. That Rule specifies: (5) When determining whether a claimant or protected person is unable to appreciate the nature of the proceedings, the Division must consider any relevant factors, including: a. whether the person can understand the reason for the proceeding and can instruct counsel; b. the person's statements and behaviour at the proceeding; c. expert evidence, if any, on the person's intellectual or physical faculties, age or mental condition; and d. whether the person has had a representative designated for a proceeding in another division of the Board.6 [23] The RAD is guided by the Federal Court's recent findings in Raj7 on this point. As it stands, the RAD finds that there is insufficient information to suggest that the member engaged with the medical evidence before it regarding the claimant's mental health or considered any limitations her condition may have had on her ability to instruct counsel or properly prepare her case, which is an error in law. [24] Based on the RAD's findings above on the issue of a breach of procedural fairness, it is unnecessary to deal with the other arguments raised in the memorandum. CONCLUSION [25] Given that the record before the RAD is deficient, the RAD finds that it is in the interests of natural justice to refer the matter back to the RPD for redetermination. [26] The RAD does not have the jurisdiction to conduct a hearing given that there was no new evidence presented on appeal. [27] Hence, this appeal is allowed and pursuant to Section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. Directions [28] The RAD directs the RPD to: 1. Fully canvass the claimant's medical condition including obtaining details of any specific diagnosis, treatments and medications she is or has been on and use this to address whether a DR is required. (signed) "T. Andrews" T. Andrews April 30, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93,paras 70, 103. 2September 26, 2017 RPD hearing at approximately 1:53:29. 3 September 26, 2017 RPD Hearing at approximately 02:08:46. 4 September 26, 2018 RPD Hearing at approximately 02:12:45. 5 Exhibit RPD-1, RPD Record, RPD Decision and Reasons, pp. 5-6. 6 Refugee Protection Division Rules, SOR/2012-256, s 20(5). 7 Raj, Md Kaiser Mallick v. M.C.I. (F.C., no.IMM-3392-18), Diner, February 28, 2019; 2019 FC 251. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-17003 RAD.25.02 (April 04, 2018) Disponible en français 2 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