TB3-07779

RAD File No. / N° de dossier de la SAR : TB3-07779 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 XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of Decision February 20, 2014 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are) the subject of the appeal Dilani Mohan 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 AND DECISION [1] XXXX XXXX XXXX is a female from Grenada. She appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111 (1) (a) of the Immigration and Refugee Protection Act ("IRPA"), the Refugee Appeal Division ("RAD") confirms the determination of the RPD, namely that XXXX XXXX XXXX is neither a Convention refugee pursuant to s. 96 of IRPA nor a person in need of protection pursuant to s. 97 of IRPA. BACKGROUND [3] The appellant states that she grew up in Grenada with a single mother and she experienced abuse from her mother. In 1997 she met a man by the name of XXXX XXXX ("XXXX"). He XXXX XXXX XXXX XXXX XXXX XXXX in Grenada. They developed a romantic relationship and one year later the appellant moved in with him. [4] One year later the relationship changed. XXXX became more controlling and he began to beat and rape her. XXXX threatened her with a gun to ensure that she did not speak about the abuse and in order that she would not leave him. The appellant states that she was ashamed and believed that no protection would be forthcoming. As a result, she never reported the abuse to the authorities and spoke to very few people about it. She states that she became pregnant a number of times during the relationship but she miscarried as a result of the physical assaults and rape. [5] During her time with XXXX, she made some trips to the USA and to Canada. She left Grenada on XXXX XXXX XXXX 2007 and arrived in Toronto, Canada on the same day. She made a claim for refugee protection on July 15, 2013. [6] The RPD determined that the appellant was not a Convention refugee nor a person in need of protection for the following reasons: 1. The appellant did not rebut the presumption of state protection and there was adequate state protection available to the claimant if she should return to Grenada. SUBMISSIONS [7] The appellant submits that the RPD did not properly apply the Gender Guidelines to its assessment of the appellant's credibility, subjective fear and reluctance to seek state protection. The RPD did not consider all the evidence before it in regard to state protection in Grenada and applied temporarily irrelevant facts to its assessment of the claimant's duty to attempt to access state protection. The appellant requests that the RAD set aside the RPD's decision and find that she is a Convention refugee or a person in need of protection. ANALYSIS OF THE MERITS OF THE APPEAL [8] The determinative issues in this appeal are: 1. Whether the RPD erroneously applied the Gender Guidelines. 2. Whether the RPD failed to consider all the relevant evidence in regard to state protection. Appellant's Arguments [9] The appellant submits that the RPD did not challenge or make a negative credibility finding with regard to the facts that the appellant experienced domestic abuse for about ten years. The RPD, therefore, found that the abuse took place and accepted the appellant's evidence on this matter. None of the RPD's concerns resulted in negative credibility findings on an aspect of the claim that was significant and central since the determinative issue was state protection. Consequently, the credibility concerns of the RPD should be given neither weight nor deference in this appeal. In addition, the RPD was unable to articulate why it was suspicious of the appellant's testimony and she is entitled to the benefit of the doubt. Therefore, the appellant argues that the RPD's credibility concerns were made in error. [10] The appellant also submits that the RPD erred in its assessment of the reasonableness of the appellant's failure to seek state protection in Grenada by relying on current information instead of information relevant to the time that she was in Grenada. The appellant states that the RPD noted that the appellant testified that she never went to the police because they do not offer protection because she was ashamed to talk about the abuse. The RPD also noted that the appellant had no personal knowledge of people who were abused and failed to receive protection, but acknowledged that the appellant testified to having seen stories about abused women in newspapers or on television. The appellant also argues that the RPD acknowledged the appellant's claim that Creft had friends in the police force. The appellant says that the RPD could not assess the objective reasonableness of the appellant's actions between 1999 and 2007 against the mechanisms and laws that were in place at the time of the RPD's decision. [11] The appellant also submits that the RPD's assessment of state protection was unreasonable as it ignored the evidence before it and relied solely on evidence of Grenada's best efforts and irrelevant evidence. The RPD has a responsibility to assess not only the adequacy of state protection but its effectiveness. The RPD disregarded the documentary evidence pointing out the inefficacy and inadequacy of the Grenada police force in dealing with domestic violence. The RPD did not address any of the direct contradictions within the IRB's evidence package and dismissed, without analysis, all of the evidence in the appellant's country conditions package dealing with the level of domestic violence in Grenada. Jurisprudence instructs that a state's ability to protect must not only consist of an effective legislative and procedural framework, but the capacity and the will to effectively implement that framework.1 Standard of Review [12] The determinative issue in the RPD decision was state protection. The issue of whether the RPD made an erroneous state protection finding is one of mixed fact and law. In considering these issues, it is necessary to determine the standard of review that will be used. [13] The appellant submitted that the RAD, as an administrative tribunal under a statutory regime, does not function in the same manner as a superior court and, therefore, is not obligated to follow a standard of review analysis. Sections 110(1) and 111(1) of the Immigration and Refugee Protection Act outline the grounds for appeal to and the powers of the RAD. The appellant argues that these sections are devoid of the language of "review", indicating that a standard of review analysis does not apply. [14] The appellant further submits that if a standard of review analysis is required then credibility, reluctance to seek state protection and the current availability of state protection in Grenada are all reviewable on the standard of reasonableness. [15] In considering this question, I reviewed Section 110(1) of the IRPA that sets out the grounds for an appeal to the RAD. The appeal may be on a question of law, of fact or of mixed fact and law. There are a number of decisions or determinations of the RPD that cannot be appealed to the RAD as set out in Section 110(2) of the IRPA. [16] Section 111(1) sets out the decisions that the RAD can make after considering the appeal. The RAD can confirm the determination of the RPD, set aside the determination and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving directions to the RPD that it considers appropriate. [17] The standard of review is not specified in the legislation. [18] There are a few cases that have dealt with the standard of review to be applied by administrative appellate tribunals. The Alberta Court of Appeal dealt with the issue in the case of Newton v. Criminal Lawyers Trial Association, 2010 ABCA 399. The case concerned the basic structure and interrelationship of the tribunals in Alberta that review the conduct of police officers when that conduct is called into question in disciplinary proceedings under the Alberta Police Act. [19] The matter was first heard by a senior police officer ("presiding officer") from the RCMP. There were two counts of misconduct against an officer. The presiding officer found that one count was proven and one count was not proven. The determination of the Presiding Officer was appealed to the Law Enforcement Review Board ("Board"). The Board conducted a hearing de novo. The Board allowed the appeal on the one count not proven, thus, overruling the decision of the presiding officer. The Court found that the Board did not conduct any analysis of the reasoning of the presiding officer, did not reflect on whether it should afford his decision any deference, and did not explain why it disagreed with the inferences he had drawn from the evidence. [20] The Alberta Court of Appeal reviewed the law on standard of review that has developed in Canada. [30] "The standard of review analysis respecting appellate superior courts and trial courts was definitively stated in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC. 33. Shortly put, an appellate superior court reviews the decisions of trial courts on questions of law for correctness. Errors of fact, mixed errors of fact and law and inferences to be drawn from the facts are generally reviewed for palpable and overriding error. [33] The standard of review analysis respecting the relationship between superior courts and administrative tribunals is found in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, building on the platform laid down in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. Dunsmuir summarized the standards used at para. 51: ...questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness. Some legal issues, however, attract the more deferential standard of reasonableness. Truly jurisdictional questions are usually reviewed for correctness. Errors of law within the expertise or mandate of the tribunal are often reviewed for reasonableness. Questions of law of more general interest to the legal system are often reviewed for correctness. [34] The standard of law applied by the superior courts to decisions of administrative tribunals recognizes the purely supervisory role of the superior courts. ... Because the role of the superior courts is supervisory, it is not their place to substitute their judgment for that of the tribunal. The legislature has given the authority to make the decisions under review to the tribunal, not the courts. Therefore, deference to the decision of the tribunal is an important factor in setting the standard of review. The standard of review is set by considering four factors: "(1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by the interpretation of the enabling legislation; (3) the nature of the question at issue, and (4) the expertise of the tribunal": Dunsmuir, at para 64." The Alberta Court of Appeal Court went on to state: "[35] The determination of the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance requires a consideration of the same factors that are discussed in Housen and Dunsmuir/Pushpanathan, adapted to the particular context: College of Physicians and Surgeons of Ontario v. Payne (2002), 219 D.L.R. (4th) 350, 163 O.A.C. 25 (Div. Ct.) at Para 20. [36] The following factors should generally be examined: (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 the 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." [21] The case of MacNeil v. Canada Employment Commission 2009 FCA 306 also dealt with the issue of standard of review between a tribunal of first instance and an appellate tribunal. In that case, an individual acting as an Umpire allowed the appeal of the Employment Insurance Commission from a decision of the Board of Referees. The issue in the case was whether the pension payments received by the appellant were earnings that had to be deducted from the benefits payable to the appellant under the Employment Insurance Act. [22] The Court stated that the Umpire did not set out the standard of review he applied in arriving at his decision. Counsel for the appellant argued that the reasonableness standard should have applied, since the question that the Umpire was reviewing was a question of mixed fact and law. The Court did not agree. The Court stated that the application of a legal standard to a set of factual findings is typically regarded as a question of mixed fact and law, which is reviewed on a standard of reasonableness, unless there is a readily extricable question of law. In this case, the legal standard is the definition of pension in regulations to the Act. The collective agreement is also to be considered. The Court found that these questions were questions of law, and the standard of review was correctness. [23] The case of Halifax (Regional Municipality) v. Anglican Diocesan, 2010 NSCA 306, also dealt with the issue of standard of review by an appellate tribunal of a decision of a tribunal of first instance. In this case, the Diocese wanted to erect a building with a residential component on land that it owned. Halifax's land use by-law zoned the property as Park and Institutional. The Diocese applied for a development permit, but it was denied by the municipal development officer on the basis that the residential component was not permissible according to the by-law. [24] The Diocese appealed to the Utility and Review Board ("Board") which allowed the appeal. The Municipality then appealed to the Court of Appeal. The Court reviewed the legislation establishing the Board. The relevant parts of the legislation stated that the Board could overturn a development officer's refusal of a development permit only on the grounds that the development officer's decision does not comply with the land-use bylaw or conflicts with the provisions of the land-use bylaw plus other matters that were not relevant. The Board stated that it "may only allow this appeal if it determines that the Development Officer's decision 'conflicts with' or 'does not comply' with the land-use bylaw. The Court stated that the Board should do just what the statute tells it to do. [25] The Court found that the legislation expects the Board to interpret the land-use bylaw. It went on to find that the Board reasonably interpreted the phrase "other institution of a similar type." [26] In my view, the reasoning of the Federal Court of Appeal in McNeil and the Nova Scotia Court of Appeal in Anglican Diocesan is consistent with the Alberta Court of Appeal decision in Newton and might well have been reached using the factors set out in that decision. In the McNeil case, the court appears to have considered the nature of the question in issue, the interpretation of the statute as a whole as well as the other factors. In the Halifax case, the court considered the nature of the question in issue, the interpretation of the statute as a whole, the expertise and advantageous position of the tribunal of the first instance, compared to that of the appellate tribunal as well as the other issues. For that reason, in my opinion, the standard of review to be applied by the RAD should be determined using the factors set out in Newton. [27] In considering the standard of review to be applied by the RAD to the RPD decision, I reviewed the factors set out by the Alberta Court of Appeal. (a) The RPD's principal function is to hold oral hearings to determine if a claimant referred to the Immigration and Refugee Board ("Board") by Citizenship and Immigration Canada (CIC) or Canada Border Services Agency (CBSA) is a Convention refugee in accordance with Section 96 of the IRPA or is a person in need of protection according to Section 97 of the Act. The RPD also considers whether a claimant is subject to exclusion under Section 98 of the IRPA. Section 98 incorporates sections "E" and "F" of Article 1 of the Refugee Convention. The RPD may inquire into any matter relevant to the claim. It must hold a hearing, but it may accept a claim without a hearing through an expedited process. It may question the witnesses, including the person who is the subject of the proceeding. The RPD must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations. An appeal to the RAD may be made by the person who is the subject of the RPD proceedings or by the Minister against a decision of the RPD to allow or reject the person's claim for refugee protection. The person or the Minister may appeal to the RAD on a question of law, question of fact or a question of mixed law and fact. There is no appeal to the RAD in certain circumstances as set out in the IRPA. The RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD shall make one of the following decisions: confirm the determination of the RPD; set aside the determination and substitute a determination that, in its opinion, should have been made; or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate. The Act provides that the RAD must proceed without a hearing on the basis of the record of the RPD proceedings except that the RAD may, in accordance with certain provisions, accept documentary evidence and written submissions and conduct an oral hearing. (b) The basic question before both the RPD and the RAD is whether a claimant is a person in need of protection. Both the RPD and the RAD are given authority to use "specialized knowledge" in reaching their decisions. The RAD is to determine if the question is one of law, fact, or mixed fact and law. (c) In reviewing the interpretation of IRPA as a whole, sections 3(2) and 3(3) set out the objectives of the Act with respect to refugees and the general application of the Act. Among other matters, these sections state that the objectives include: recognition that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; granting, as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution; establishing 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; promoting international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals; fulfilling Canada's international legal obligations with respect to refugees and affirm Canada's commitment to international efforts to provide assistance to those in need of resettlement. The Act is to be applied in a manner that ensures that the decisions taken are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; and complies with international human rights instruments to which Canada is signatory The Act also provides in Section 162 that each Division of the Board has, in respect of proceedings brought before it sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction and each division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. (d) The RPD is able to hear and observe the evidence in the original hearing. Both the RPD and the RAD are considered to have the expertise to use "specialized knowledge". The RAD has more than a supervisory role over the RPD, since it can set aside the determination and substitute a determination that, in its opinion, should have been made. (e) As noted above, the Act provides that the RAD must proceed informally and quickly as the circumstances and the considerations of natural justice permit. The RAD must proceed without a hearing on the basis of the record of the RPD proceedings except that the RAD may, in accordance with certain provisions, accept documentary evidence and written submissions and conduct an oral hearing. Together with the items mentioned in paragraph (f), these factors indicate that the Act contemplates the need to limit the number, length and cost of appeals. (f) The Act provides that there is no appeal to the RAD in respect of an RPD decision regarding designated foreign nationals; withdrawn or abandoned claim; no credible basis or manifestly unfounded claim; exception to the Safe Third Country Agreement; designated country of origin (DCO); Minister's application that refugee protection has ceased (whether allowed or rejected); Minister's application to vacate refugee protection (whether allowed or rejected); deemed rejection of claim because of Extradition Act; application for protection, i.e., Pre-Removal Risk Assessment (PRRA). Along with the factors listed in paragraph (e) the Act preserves the economy and integrity of the RPD. (g) No other relevant factors. [28] These factors indicate that the Act does not contemplate that the proceedings before the RPD are to be given no deference. The RPD is an important step in the process of refugee determination. It has the obligation to decide many matters that cannot be appealed to the RAD, and it has the significant advantage of hearing first-hand evidence from witnesses in an oral hearing. The RAD, in contrast, is primarily an appeal on the record. Deference ought to be given to the tribunal which has the advantage of a full oral hearing in which to make its findings of fact and fact and law. Although the RAD and the RPD have similar expertise in interpreting the enabling legislation, that would support a standard of correctness only for questions of law. The RAD is given the ability to set aside a determination of the RPD and substitute a determination that, in its opinion, should have been made. This is a remedy that a court does not have in exercising judicial review of an administrative tribunal. I have taken this into consideration; however, in assessing these remedial powers against the above factors and the roles set out for the RPD and the RAD, I conclude that the RAD is still to give deference to the RPD. [29] In accordance with this deference, findings of fact and findings of mixed fact and law are to be assessed on the basis of reasonableness. Both the RPD and the RAD are considered to have specialized knowledge. Therefore, errors of law within the expertise or mandate of the tribunals as well as questions of law of more general interest to the legal system are to be reviewed for correctness. Analysis [30] The issues raised by the appellant in this case challenge the RPD's findings of fact and fact and law. These findings are to be examined on a standard of reasonableness. [31] The RPD stated that it had credibility concerns with respect to the issue of subjective fear. The RPD considered the delay of over five years before the appellant claimed refugee protection in Canada, and failure to previously claim on trips to the United States of America and Canada. The RPD found that these matters were "indicative of a lack of subjective fear with respect to the claimant's allegations against her ex-partner" and "the length of delay and the number of times the claimant returned to Grenada undermines her credibility as it relates to her subjective fear." However, the RPD never made a definitive finding as to the credibility of the appellant or a lack of subjective fear. The RPD then went on to consider the issue of state protection in Grenada as it relates to domestic abuse. I find that the RPD accepted that the appellant had been subject to abuse by XXXX in Grenada. [32] The appellant submitted that the RPD did not apply the Gender Guidelines in this matter. In reviewing the transcript provided by the appellant, the RPD states that it was not interested in hearing the specifics about the abuse but asked the appellant to give her evidence in general terms. As outlined above, although the RPD had some concerns about credibility, the evidence of abuse was accepted and the determinative issue was state protection. These items indicate that the RPD applied the Guidelines and did not merely mention them in the decision. [33] The appellant states that the RPD erred in applying temporally disconnected information to the assessment of the reasonableness of the appellant's failure to seek state protection in Grenada. In considering whether a person tried to obtain state protection, the RPD is trying to determine if the appellant had personal evidence of a lack of protection in order to rebut the presumption of state protection. In asking if she had personal knowledge of other women who failed to obtain state protection, the RPD is trying to determine if the appellant has evidence of similarly situated persons who were unable to obtain state protection. The RPD was not considering the documentary evidence as to the availability of state protection at that particular time. Refugee protection is forward looking and, in considering state protection, the issue is what protection is available if the appellant should return to Grenada and if she would be able to access that protection. [34] The RPD stated that in considering the issue of state protection it was guided by well-established jurisprudence from the higher courts and it applied these principles. However, it did not specifically state these principles. [35] The basic state protection principles are that there is a presumption that, except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state's inability to protect its citizens. The evidence that state protection is inadequate must not only be reliable and probative, it must also satisfy the Board, on a balance of probabilities, that state protection is inadequate. The onus is on the claimant to approach the state for protection in situations where state protection might be reasonably forthcoming. A claimant's burden of proof is directly proportional to the level of democracy in the state in question; the more democratic the state's institutions, the more the claimant must have done to exhaust all courses of action open to them. The Federal Court has stated that the state protection analysis must be contextual and the protection should be adequate at the operational level. Serious efforts alone are not enough to show adequate protection. [36] In this case, the RPD reviewed the documentary evidence from Grenada and stated that adequate state protection would be available to the appellant if she returned to Grenada. The RPD also stated that the government of Grenada was making serious efforts to provide protection and that such measures have been implemented and shown to be effective. [37] The RPD stated that the US Department of State Report on Human Rights Practices for 2012 in Grenada, dated April 19, 20132 stated that Grenada is a functioning democracy and the Royal Grenada Police Force was generally effective at responding to complaints and maintained a community policing program. Civilian authorities maintained control over the police and there was an independent judiciary. Police and judicial authorities usually acted promptly in cases of domestic violence. The RPD then reviewed some statistics and legislation and means of enforcement within that legislation. It mentioned the shelter for battered women in Grenada and the course for perpetrators that can be made mandatory by a court dealing with a domestic abuse matter. Restraining orders were available and there was a clinic with lawyers who would assist victims in obtaining restraining orders against perpetrators in a "timely manner." There was also training for the police force in domestic abuse matters and programs available to abused women. [38] The appellant submitted that the RPD disregarded the documentary evidence of the IRB and the appellant showing the inadequacy and ineffectiveness of the police and institutions as they relate to domestic violence. The RPD acknowledged that domestic abuse remained a problem in Grenada and it considered the appellant's documentary evidence as well as counsel's submissions. The RPD stated that it gave more weight to the US Department of State Report because it was current and drawn from a wide range of objective governmental and non-governmental sources. It concluded that the government of Grenada was making "serious and effective efforts to provide adequate state protection." [39] The RPD has considered the basic principles in its state protection analysis showing that Grenada is a functioning democracy and the onus is on the appellant to rebut the presumption of state protection. The RPD has considered the effectiveness of the police and institutions in Grenada in responding to issues of domestic abuse. Although the RPD uses the words "serious efforts", it has considered the effectiveness of the various matters at the operational level. There is an acknowledgement that domestic abuse remains a problem in Grenada. There is justification, transparency and intelligibility in considering the issue of state protection for domestic abuse in Grenada. I find that the decision falls within a range of possible, acceptable outcomes and the decision is reasonable. REMEDIES [40] For all these reasons, the appeal is dismissed and I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) 'Ken Atkinson' Ken Atkinson February 20, 2014 Date 1 Garcia v. Canada, 2007 FC 79. 2 Exhibit 3, RPD, National Documentation Package, May 3, 2013. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-07779