TB3-06842

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 : TB3-06842 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 19, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard A. Odeleye Barrister and 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 (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX, (the Appellant), a citizen of the Republic of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and either find her to be a Convention refugee or a person in need of protection or refer her claim back to the RPD for redetermination by a differently-constituted panel. DETERMINATION [2] Pursuant to Section 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This Appeal is dismissed. Background [3] The Appellant alleged before the RPD that she suffered domestic abuse in Nigeria. She was physically beaten and abused by her common-law partner, XXXX XXXX. The Appellant met XXXX in XXXX 2000 and, after dating for a few years, she moved in with him in XXXX 2011. In XXXX 2013, she noted that XXXX was changing in his attitude towards her, and in an incident in XXXX 2013, he physically assaulted her during an argument. In another incident, the Appellant was accused of stealing 5000 pounds from XXXX, who, when confronted by the Appellant, proceeded to physically assault her. The Appellant fled to her friend's house in XXXX in XXXX 2013, and on XXXX XXXX, 2013, she then travelled to Canada, where she applied for refugee protection. [4] The Appellant's application for refugee protection was heard on May 31, 2013. In a decision of June 26, 2013, the RPD rejected her claim. Citing inconsistencies in the Appellant's evidence about key elements of her claim, the RPD found her to be generally lacking in credibility. [5] Her claim was heard on May 24, 2013. In a decision dated July 18, 2013, the RPD found that the Appellant is neither a Convention refugee nor a person in need of protection. In reaching this decision, the RPD drew a negative "credibility inference". The RPD also found that the claimant has a viable internal flight alternative in Ibadan, Port Harcourt or Benin City. [6] The Appellant raise four issues: [1] Did the Board make unreasonable credibility findings, and disregard other evidence such as the psychological report from Dr. XXXX? [2] Did the Board breach procedural fairness?; and, [3] Did the Board conduct an unreasonable analysis concerning the availability of an internal flight alternative?; and, [4] Did the Board fail to apply or properly apply the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution1 (the Gender Guidelines)? [7] The Appellant did not submit new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA or the Act). The Appellant does not seek an oral hearing under subsection 110(6) of the IRPA. [8] The Appellant takes issue with the RPD's credibility findings, thereby raising questions of fact, and, with its Internal FlightAlternative (IFA) findings, raising questions of mixed fact and law.2 [9] The Appellant argues that the RPD's decision can be overturned if it is unreasonable,3 implying a deferential standard of review. Standard of Review [10] The Appellant submits that the Board erred in its credibility finding by unreasonably expecting corroborative evidence and failing to adequately consider the Gender Guidelines; the Board failed to consider or properly apply the psychological report; and the Board unreasonably concluded that the Appellant could seek an IFA in Ibadan, Port Harcourt or Benin City. [11] Procedural Fairness Breach: The Appellant submits that the RPD erred in failing to consider or properly apply the psychological report detailing a condition of Post-Traumatic Stress Disorder and other psychological problems that the Appellant was suffering from and how this disorder would affect the Applicant's testimony. The RPD stated that it had considered information contained in the psychological report letter provided by Dr. XXXX XXXX with respect to the claimant's particular situation.4 The RPD assessed the psychological report as part of its overall credibility findings. As stated in Rokni,5 a psychiatric/psychological letter submitted as evidence "cannot possibly serve as a cure-all for any and all deficiencies in a claimant's testimony". The court reiterated its position in Danailov,6 with respect to the assessment of a physician's evidence and the question of the assessment of credibility. It was stated "that opinion evidence is only as valid as the truth of the facts on which it is based." The RAD gives no merit in this argument. [12] Credibility in itself is not a determinative issue. Even if an Appellant is found to be credible, that Appellant may still not be a Convention refugee (CR) or a person in need of protection. Alternatively, under certain circumstances, an incredible person, with a specific profile and country condition, may be a CR or a person in need of protection. However, either issue of internal flight alternative or state protection can be determinative. [13] Based on the foregoing, I am going to consider only the IFA as the determinative issue. The IFA is a question of mixed law and fact, as will be shown by the following analysis. The IFA involves the application of a legal test to the facts of the case, and, in assessing IFA, the RPD must apply the two-pronged test set out in Rasaratnam7 to the specific circumstances of a refugee claimant when considering a prospective IFA location. [14] Although the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [15] In Dunsmuir,8 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD because it is not a reviewing court but rather an administrative appellate body. In Khosa,9 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [16] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:10 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [17] It is important to consider the respective roles of the RPD, the tribunal of first instance and the RAD, the appellate tribunal by interpreting the enabling legislation IRPA. The RPD's principal role is to hold hearings to take evidence from the claimants before it and to determine whether refugee claimants are Convention refugees or persons in need of protection.11 [18] An appeal to RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's determination, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [19] The purpose and provisions of the IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [20] Canada's refugee system is, in the first instance, about saving lives and offering protection to the displaced and persecuted.12 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [21] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [22] Subsection 111(1) (b) of the IRPA allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Moreover, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [23] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. [24] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [25] Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,13 and each can take notice of information and opinion within its specialized knowledge.14 In the area of fact finding and credibility assessment, the RPD has an advantage because it holds a hearing in each claim.15 The RAD, on the other hand, may hold a hearing only under certain circumstances, and in most cases it must proceed on the basis of the record of the RPD proceeding.16 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will frequently not have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility.17 [26] The RAD also can hold an oral hearing and considers the evidence first-hand under certain circumstances; however, the RAD's oral hearing will only pertain to the new evidence and cannot, for the most part, treat the same evidence that was taken at the RPD hearing. [27] In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.18 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings which would, in effect, be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of the IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [28] There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact and on questions of mixed fact and law. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The question at issue is one of fact, and the Courts have consistently held that a trier of fact is better situated to make findings of fact at the first instance.19 The RPD has the opportunity to see and question the refugee claimant, while in most cases the RAD may not. Failure to defer to the RPD on matters of fact and on questions of mixed fact and law would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD proceedings would be reduced to little more than preliminary inquiries. [29] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them by reviewing the record before it substitutes its own decision.20 [30] In this appeal, the question in issue is whether there is a viable internal flight alternative for the Appellant in Ibadan, Port Harcourt or Benin City is one of mixed fact and law, which favours a deferential standard of review,21 and the appropriate standard of review in this appeal thus is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.22 [31] The question of whether an IFA exists is an integral part of the refugee definition. The RPD and/or the RAD must be satisfied, based on the evidence assessed, on a balance of probabilities, that there is not a serious possibility of the Appellants being persecuted in the proposed IFA. Further, conditions in the proposed location must be such that it would not be unreasonable, in the circumstances, for the Appellants to seek refuge there.23 [32] If the Appellant can indeed find safety from persecution by fleeing within Nigeria, then that her alleged abuser, XXXX Ikpe, did not persecute or harm her in Abuja or Ibadan based on the she is not entitled to Canada's surrogate protection. [33] The Appellant allegedly suffered abuse from her former common-law partner in XXXX 2013 while she lived with him in XXXX. The RPD identified Ibadan, Port Harcourt or Benin City as cities where the Appellant could flee her common-law partner and live. The RPD determined Appellant's testimony that nothing happened to her in either city. The Appellant also testified, when asked by the RPD if her common-law partner or any of his friends had found her in Ibadan, in the negative. When asked by the RPD if, in light of her not being found by XXXX or his friends, whether she could not remain safely in Ibadan. The Appellant stated that she had thought about that, but she could not work for XXXX XXXX from there.24 [34] It is evident from a review of the RPD's reasons that the RPD considered the documentary evidence,25 and the Appellant's testimony in arriving at its findings and considered the Chairperson's Gender Guidelines.26 [35] The RPD stated; in assessing the credibility of the evidence presented by the claimant, the panel has taken into consideration the Chairperson's Guidelines on Gender-Related Persecution. All of the relevant factors, including the social and cultural context, in which the claimant finds herself, were considered;27 even if the RPD had failed to do so does not constitute a reviewable error where it is clear that the Guidelines have been considered and applied.28 In the RAD's view, the RPD respected the intent and spirit of the Gender Guidelines. The Appellant does not point to any evidence that the RPD was insensitive or inappropriate in its questions, or that it conducted the hearing in a way that was insensitive to the Appellant's emotional state or her well-being. In fact, the RPD's reasons show careful attention to the issue of gender-related violence, including the treatment of women in Nigeria.29 [36] The Appellant suggests that XXXX would be able to gain access to information regarding her employment and location through his connections with his friend who got her the job at XXXX XXXX. However, I note that that the RPD made a reasonable finding - in paragraphs 29-36 of its reasons - that it had not been established that XXXX had any connections with the police or anyone in authority to search for her throughout Nigeria. [37] There is no persuasive evidence adduced at the hearing of the Appellant that her ex-common-law partner would have any position of authority with the police or Nigerian authorities to allow any one of them to carry out such a widespread and continuous search and would seek her out in all parts of a country of over 150 million people. The RAD notes that, in the Reasons for Decision,30 the RPD made inquiries about three cities in regards to an internal flight alternative. Therefore, the RPD found that the Appellant could live in any of the three cities without fear or the need to hide. If the Appellant doesn't wish to inform others of her presence in these cities, there is no reason to believe that her location would be found out. The RPD noted that the cities are large and located at a substantial distance from the city of XXXX. It would also appear that one would have great difficulty in tracing a person in such a populous country. The Appellant testified that she would not be able to live in any of those cities for the following reason. The Appellant testified that her ex-common law partner was well known and they had been together as a couple for a long time; it was only a matter of time before someone who knew them would see or meet her, and her ex-common law partner would find her. The RPD went on further to question as to how people would know in those cities with populations in excess of one million that her ex-common law partner was looking for her. The Appellant testified that she felt that anywhere she practiced either job would require her to travel around, thus increasing the likelihood of meeting her ex-common-law partner or someone who had known them both. The RAD notes, in the Reasons for Decision,31 that the Appellant continued to XXXX XXXX XXXX XXXX, despite her initial hiding out in XXXX. [38] The RPD also applied the correct two-pronged legal test and considered the Appellant's particular situation that she is a citizen of Nigeria, speaks local dialects and follows the Christian Church, the same as millions of Nigerians. The RPD Panel also found that there are no serious economic or social barriers and that it is not objectively unreasonable for the Appellant to seek refuge in any of the three cities proposed. In determining the reasonableness of a woman's recourse to an internal flight alternative, decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship. In determining the reasonableness of an IFA, the decision-makers should take into account factors including religious, economic, and cultural factors, and consider whether and how these factors affect women in the IFA, and the RPD was alert to that. [39] The RAD finds that the RPD's application of the legal test to the facts of the Appellant's case was reasonable, and that the RPD's finding on IFA falls within the range of possible, acceptable outcomes defensible in respect of the facts and the law. [40] The question of internal flight alternative is integral to both the definition of a Convention refugee and that of a person in need of protection. As the Appellant can find viable internal flight alternatives in her own country, she does not require Canada's surrogate protection. [41] As such, the issue of IFA is determinative in disposing of this appeal, and it is not necessary for the RAD to consider the other grounds raised by the Appellant.32 DISPOSITION [42] Pursuant to Section 111(1) (a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho February 19, 2014 Date 1 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 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 2 Velez, Lucas v. M.C.I. (F.C., no. IMM-1030-10), Pinard, November 17, 2010, 2010 FC 1114, para. 10. 3 Appellant's Record, p. 109, paragraphs 05 to 08. 4 Reasons for Decision, paragraph 8 5 Rokni, Mohamed Mehdi v. M.C.I. (F.C.T.D., no. IMM-6068-93), Muldoon, January 27, 1995, at 10-11. 6 Danailov (Danailoff), Vasco (Vassil) Valdimirov v. M.E.I. (F.C.T.D., no. t-273-93), Reed, October 6, 1993, at 2. 7 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 8 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 9 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 10 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 43. 11 IRPA, Sections 96 and 97. 12 IRPA, Section 3(2)(a). 13 IRPA, Sections 170(g) and 171(a.2). 14 IRPA, Sections 170(i) and 171 (b). 15 IRPA, Section 170(b). 16 IRPA, Section 110(3). 17 Khosa, para. 89. 18 Newton, para. 80. 19 Khosa, para. 89. 20 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 21 Khosa, para. 89. 22 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 23 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 24 Reasons for Decision, paragraph 27 25 Reasons for Decision, paragraph 28 26 Reasons for Decision, paragraph 08 27 Reasons for Decision, paragraph 08 28 Shinmar, Nachhattar Pal v. M.C.I. (F.C., no. IMM-813-11), O'Reilly, January 24, 2012, 2012 FC 94, para. 19. 29 Reasons for Decision, paragraph 5 30 Reasons for Decision, paragraphs 23 - 36 31 Reasons for Decision, paragraphs 29 - 32 32 Shimokawa, Oscar Hugo Campos v. M.C.I. (F.C., no. IMM-3925-05), Tremblay-Lamer, April 6, 2006, 2006 FC 445, para. 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-06842