TB4-12785

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 : TB4-12785 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.aXXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 2, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dilani Mohan Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, (the Appellant), who claims to be a citizen of Guyana and Saint Lucia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant has not submitted any new evidence in support of her appeal. 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. Application for an oral hearing [2] The Appellant does not request an oral hearing, pursuant to section 110(6) of IRPA. DETERMINATION [3] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection. BACKGROUND [4] The Appellant is HIV positive and alleges that she will face persecution in Guyana and Saint Lucia as a result of her HIV status. Miss XXXX's allegations are contained in her Basis of Claim (BoC) Form,1 a BoC addendum,2 and the Minister's Delegate Review notes.3 [5] The Appellant came to Canada on June 7, 2012 on a temporary resident VISA which was valid until XXXX XXXX, 2012. [6] The Minister of Citizenship and Immigration Canada intervened before the RPD in the Appellant's refugee claim on September 30, 2014. The Minister argued in writing with respect to credibility and well-foundedness of the claim.4 The Minister asked the RPD to reject the Appellant's refugee claim. The Appellant's application for refugee protection was heard on October 21, 2014. By a decision dated of December 03, 2014, the RPD rejected her claim, citing well-foundedness of the claimant's fear of persecution in Guyana.5 [7] In the appeal, counsel focused on the issue of the Appellant's HIV+ status and argued that the RPD erred in its findings of fact on this issue. Specific errors included: * The RPD erred as it did not discuss a single piece of evidence which contradicted its conclusion that the Appellant would face discrimination and not persecution in Guyana. * The RPD erred by failing to consider the risks to the Appellant from the community as a result of her HIV+ status. MERITS OF THE APPEAL [8] The RAD focused on two issues in assessing this appeal: * Did the RPD apply the incorrect test for well-founded fear of persecution; and, * Did the RPD improperly assess the discrimination that the Appellant would face and it cumulative effect? ANALYSIS ROLE OF THE RAD [9] The Appellant argues that the RPD made numerous errors in rejecting her refugee claim. For reasons set out below, this appeal raises questions of mixed fact and law in respect to those errors. [10] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,6 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [11] 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. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in reaching its conclusions. [12] The Appellant's affidavit7 and the appeal pleadings8 indicate that the appeal will focus on the RPD's assessment of the risk to the Appellant in Guyana as a result of her HIV+ diagnosis, in addition to finding that the Appellant would not face a serious possibility of persecution based on her HIV+ status should she return to Guyana. [13] The following sets out the order of events: * An application for sponsorship for the Appellant to immigrate to Canada was made by XXXX XXXX XXXX XXXX one of her daughters in June 24, 2005; * Application for sponsorship was refused on April 15, 2008, as the sponsor did not meet the income requirement; * Appellant entered Canada on a visitor's VISA on July 26, 2009 with expiry date of XXXX XXXX, 2010; * Appellant applied for an extension for her visitor status, and was granted one until XXXX XXXX, 2010; * Appellant's sponsorship appeal was allowed on May 12, 2010, and the claimant returned to Saint Lucia on XXXX XXXX, 2010 for processing; * Appellant's claim for sponsorship was denied on November 4, 2011 as she was found inadmissible due to her being HIV positive (during medical it was discovered that she was HIV positive); * The sponsor, once again, appealed to the Immigration Appeal Division; * Appellant entered Canada on June 07, 2012 on a visitor VISA which was valid until XXXX XXXX, 2012; * The sponsorship appeal was heard on December 10, 2013 - decision dismissing appeal rendered March 28, 2014; * Appellant deemed never to have left Canada since her entry on June 07, 2012; * Appellant deemed inadmissible pursuant to section 44(1) of IRPA on April 25, 2014; * August 12, 2014 during a Minister's Delegate Review, the Appellant expressed an interest in making a claim for protection. Serious Possibility of Persecution for HIV+ Status [14] The RAD considered the totality of the evidence before the RPD concerning conditions for people who are HIV+ in Guyana. The RAD had before it evidence that the Appellant has been diagnosed HIV+. The RAD considered whether the Appellant would face a serious possibility of persecution based on her HIV+ status. The RAD considered the evidence before it regarding the treatment of persons with HIV/AIDS in Guyana. [15] At the hearing, counsel submitted documents which were entered at counsel's disclosure.9 The articles speak about the impact of stigma in a general sense and its impact on seeking testing and treatment. The articles go on to explore stigma at the personal, family, and community level. The articles are general in nature and do not present any specific information on country conditions in Guyana or on conditions of persons who are similarly situated to the Appellant. As such, the RAD finds that these articles have limited probative value. [16] The RAD considered the articles presented by counsel: Stigma and Discrimination driving HIV epidemic in the Caribbean PANCAP statement.10 This article indicates that stigma and discrimination remain major impediments to the prevention of HIV transmission and providing treatment, care, and support to people who is HIV positive and their families. It indicates what steps are being taken in the Caribbean to promote activities consistent with the United Nations Universal Declaration of Human Rights to which all countries are committed. The article does not single out Guyana, but speaks to the Caribbean in general. The article speaks about some of the negative stigma regarding persons with HIV/AIDS being pervasive in the Caribbean. It doesn't speak about persons who have been discriminated against when people got to know their status. While the article speaks in generality about stigma, it does not provide detailed examples from individuals who have been stigmatized which would assist the RAD to determine whether stigma experienced by similarly-situated persons could rise to the level of persecution. [17] The RAD considered the article concerns raised about dwindling HIV/AIDS funding, stigma and discrimination.11 This internet article was written by Denis Scott Chabrol, however there is no date as to when this article was written, and therefore its relevance to conditions in 2014 may be limited. The article indicates that global funding has been reduced from $40 million down to $18 million. The article also speaks of how Guyana has been making progress in ensuring access to treatment and care, promoting involvement and gathering resources but that stigma and discrimination remain a major challenge. However, it does not provide any examples that speak about persons who have been discriminated against when people got to know their status. The article does not provide or give examples from individuals who have been stigmatized or discriminated against, as this would certainly assist the RAD to determine whether stigma experienced by similarly-situated persons could rise to the level of persecution. The article does also state that a large group of infected persons refused to access medication because they do not want to expose their status. The article quotes Desiree Edghill who is the Vice-Chair of Coordinating Mechanism of the Global Fund of Guyana as saying; "we have medication for persons living with HIV and AIDS in Guyana. I do not know that the amount of people who can be treated for HIV and AIDS are accessing those medications and it is not because they can't but because they won't because they feel that they will be stigmatized and discriminated against, she said." Again, there is no information provided in the article about the stigma or discrimination that those persons with HIV+ may have dealt with in their daily lives, but also how it affects their lives in general. The RAD considered the four additional internet articles which were provided by counsel at the hearing and are part of the RPD record. The articles talk about generalities in the Caribbean about the treatment, accessibility to medication and mention the stigma and discrimination of those infected, but they do not provide any details about the effects or how this impacts the lives of those infected, in particular in Guyana. The RAD notes that these articles do not provide any specific examples and only speaks about stigmatization and its impact in a general sense. As such, it is of little probative value to analyzing whether the discrimination that the Appellant may face would rise to the level of persecution. [18] A final document highlighted to the RPD by counsel was an article on "Guyanese health care provider's HIV-related experiences, Attitudes, and Readiness to provide Care,"12 written by Cynthia Cannon Poindexter, MSW, PhD written in 2007. The article deals with studies conducted from as early and as far back as 1990, but the majority of the study that the author writes about is between 2004 and 2006. The RAD finds the article very informative, given that Guyana is one of the Caribbean countries which are most HIV-affected. Given that this article was written or released in 2007, it describes the landscape then, but does not provide a more recent picture of the landscape today, and as such the RAD finds that the document has little probative value in assessing the impact of the Appellant's HIV+ status today. [19] The RAD considered the evidence in the National Documentation Package dealing with the treatment of HIV+ persons in Guyana. The DOS report for 201413 addresses the availability of anti-retroviral treatment. The report does provide a clear picture what persons infected with HIV/AIDS deal with on a day to day basis. The report merely states that violence and discrimination are now widely reported. It does not offer any other information which describes the situation for people who are affected with HIV/AIDS deal with the stigma or discrimination when it comes to their ability to obtain housing, employment, etc. [20] The RAD noted that no evidence was presented to establish that state authorities are involved in the persecution of HIV+ individuals, or that individuals, whose rights have been denied, have been denied state protection. As such, the RAD finds that the Appellant has failed to rebut the presumption of state protection with clear and convincing evidence. [21] The RAD considered the legal underpinnings of persecution. Ward14 cites Professor Hathaway as stating: "Persecution has been ascribed the meaning of sustained or systemic violation of basic human rights demonstrative of a failure of state protection." The mistreatment resulting from the violation must be "serious" and must be distinguished from the less serious consequences of discrimination and harassment. In the pleadings, counsel cites from the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees15 regarding the difference between discrimination and persecution: ... It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequence of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities. [22] The RAD also considered paragraphs 54 and 55 of the UNCHR Handbook, which state: 54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities. 55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved. (See also paragraph 53 of the Handbook) [23] There was and is no persuasive evidence before the RAD to show that the Appellant has been a victim or has been deprived of any of the core elements stated above. Based on the evidence outlined above and based on the jurisprudence regarding discrimination vs. persecution, the RAD finds that it was not provided with sufficient credible or trustworthy evidence to persuade it that the treatment that the Appellant would face would rise to the level of persecution. The evidence before the RAD does take into consideration the particular situation of the Appellant. At the hearing, counsel concentrated the submissions regarding the treatment the Appellant might face in Guyana, in the areas of her ability to obtain housing, and employment. The RAD noted that the argument that social stigma related to the Appellant's medical condition of being HIV+ must be assessed taking into consideration the particular situation. [24] The RAD finds that the Appellant has not provided sufficient credible or trustworthy evidence to persuade the RAD that she would be stigmatized or discriminated against because of her HIV+ status. Even if this were the case, the RAD finds that the Appellant has failed to provide sufficient credible or trustworthy evidence that the stigma she might face would rise to the level of persecution and would result in a denial of a core human right. [25] The Appellant's counsel at the hearing conceded clearly that there is adequate treatment available and that access to healthcare from the perspective of adequacy of the treatment is not an issue.16 The Appellant was well educated, having completed 09 years of schooling. The Appellant has lived most of her adult life in Guyana. The Appellant was employed as a hospital clerk until her retirement in 2006. [26] All of these particular factors need to be addressed in support of an argument that the Appellant has a well-founded fear of persecution in Guyana because of her HIV+ status. The RAD finds that the pleadings and the evidence before the RPD have taken into account the particular situation of the Appellant. [27] For the reasons cited above, the RAD finds that it has not been provided with sufficient credible or trustworthy evidence to support the Appellant's claim that she would face a serious possibility of persecution based on her HIV+ status, should she return to Guyana. FAMILY UNIFICATION [28] The Appellant has her oldest daughter and grandchildren living in Canada who have, in the past, tried to sponsor her to live in Canada. However, family unification and Humanitarian and Compassionate review are not part of Canadian refugee law. DISPOSITION [29] The RAD, after conducting an assessment of the evidence in its entirety, reached the same conclusion as did the RPD in its decision. Therefore, based on a review of the totality of the evidence, the RAD confirms the RPD's determination that the Appellant is not a Convention refugee nor is she a person in need of protection, as per s. 111(1)(a) of IRPA. [30] This appeal is therefore dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho April 2, 2015 Date 1 RPD record, Exhibit 2 2 RPD record, Exhibit 5 3 RPD record, Exhibit 1 4 RPD record, Exhibits 6-7, pages 76-179 5 Appellant's record, page 4, Reasons for Decision paragraph 9 6 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 7 Appellant's memorandum, page 14, paragraph 28 8 Appellant's memorandum, page 29, paragraph 17 9 RPD record, Exhibit 11, pages 185-245 10 Appeal Pleadings, Tab I, Stigma Against People Living with HIV/AIDS - Ghana's Situation, pp. 112-113. 11 Appeal Pleadings, Tab I, Concerns raised about dwindling HIV/AIDS funding, stigma and discrimination, pages 187-188 12 RPD record, Exhibit 13, pages 341-362 13 RPD's Record, Exhibit 3, National Documentation Package for Guyana (14 March 2014), Item 2.1, US DOS report 14 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 15 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1, Reedited, Geneva, January 1992, at para 54. 16 Appellant's record, page 5, Reasons for Decision, paragraph 15 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-12785