TB5-07833

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 : TB5-07833 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 XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 21, 2015 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mercy Dadepo 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant is not relying on new evidence; however, she requests a hearing. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and substitute a positive determination. In the alternative, the Appellant asks the RAD to refer the matter to the RPD for determination, giving directions to the RPD to accept her claim. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that, upon return to Nigeria, she will be harmed by her husband and his family members as they have abused her in the past. [4] The Appellant's claim for refugee protection was heard on May 25, 2015. By a decision of July 13, 2015, the RPD rejected the claim finding that the Appellant lacked credibility and she was not credible with respect to her being in danger at the hands of her husband or her husband's family in Nigeria. The Appellant submits that the RPD erred in its credibility analysis and findings. ANALYSIS Role of the RAD [5] What is the role of the RAD in considering an appeal against a decision of the RPD? The Appellant refers to the decision of the Federal Court in Iyamuremye1 and submits that unlike the Federal Court the RAD has jurisdiction and indeed a positive duty imposed by law to reassess the evidence tendered to the RPD before making a determination that the decision of the RPD is confirmed. [6] The RAD notes in Huruglica2 the Court considered the appropriate relationship between the RAD and the RPD. It found that the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of the IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.3 [7] Justice Phelan stated the following in Huruglica: 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. 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." [8] Considering the jurisprudence, including the Court's decision in Huruglica, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD will substitute its own determination. Application for an oral hearing [9] The Appellant seeks an oral hearing for arguments regarding the legal and factual issues in her case. She submits that a hearing affords a better opportunity to present and respond to arguments.4 [10] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [11] According to Section 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no further evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [12] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. As there is no new evidence to consider in this appeal, the RAD must proceed without a hearing and the Appellant's request for an oral hearing is denied. RPD findings, Appellant's arguments and assessment of refugee claim Appellant reporting to police in Greece [13] In the reasons for its decision, the RPD noted the Appellant's testimony regarding her failure to register a complaint with police when her children were beaten by her in-laws while they were living in Greece. It also noted the Appellant's explanation for not complaining to police was because her in-laws held the upper hand over the Greek police. The RPD found that the Appellant had failed to rebut the presumption of state protection. It drew an adverse inference with respect to the Appellant's credibility given that she provided no evidence that the police in Greece were subservient to her own in-laws. [14] The Appellant submits that the RPD erred when it stated she did not seek police protection in Greece. She indicates that it is written in paragraphs 8 and 10 of her BoC narrative that she went to the police in Greece on two occasions. She also indicates that she testified at her hearing that she went to police in Greece on two occasions. The Appellant further indicates that she never testified that her in-laws had the upper hand over the police in Greece. She submits that talk about the family exercising influence on the police was when she was beaten up in Nigeria and she had to go to the police there to report the abuse. [15] It is clear in paragraph 5 of the Appellant's BoC narrative5 that the Appellant alleges she was driven out of her husband's family house in Nigeria by her husband's family members. Although the Appellant mentions Greece twice in the same paragraph, many of the incidents she describes in the paragraph pertain to events that occurred in Nigeria before she departed for Greece. She even indicates in the same paragraph that she was in her village (in Nigeria) until her husband heard what the family had done and he returned to Nigeria to take her and his children to Greece. [16] When questioned about the paragraph 5 incidents at the hearing, the Appellant indicated that her in-laws came to the house, questioned her about the money her husband was sending her, and accused her of wasting her husband's money. She also indicated that her in-laws started throwing her things out and beating her children. The Appellant indicated she did not go to police because she did not think anyone could help her. The following is an excerpt from the hearing: RPD: Did you go to the police? Appellant: No sir. RPD: Why not? Appellant: I was confused. I didn't see anyone could help me in that situation RPD: Police can't help if you don't ask for help right? Appellant: I didn't want to involve police because the family has the upper hand. RPD: Family has the upper hand? Appellant: Yes that's why I decided to go that way. [17] It appears that the RPD misapprehended the evidence regarding the beating of the Appellant's children by her in-laws. The incident allegedly occurred in Nigeria and not Greece. The RPD's analysis and findings are erroneously premised on the assumption the incident and aftermath occurred in Greece. Considering the error, the RAD finds that the RPD was wrong to find that the Appellant had failed to rebut the presumption of state protection and to draw an adverse inference with respect to the Appellant's credibility. Omission in Basis of Claim Form (BoC) regarding the beating of Appellant's children [18] The RPD noted that the Appellant failed to mention in her BoC that her husband had been beating her children. It also noted that the Appellant indicated she did not know why she failed to mention it. The RPD found it not to be credible that a mother would not protect her children against abuse. It drew an adverse inference as to the credibility of the Appellant due to her omission of the very significant allegation that her children had been beaten while in Greece. [19] The appellant indicates that she wrote in her BoC narrative that her husband began to beat her children up because they were intervening on her behalf. She indicates that she stated at her hearing that her husband beat up her children whenever they intervened to make him stop beating her. The Appellant submits that the RPD's statement that she indicated she did not know why she failed to mention it never took place. [20] In paragraph 7 of her BoC narrative the Appellant describes incidents that occurred in Greece. She also writes the following in the same paragraph. "He began to beat my children up as well because they were intervening on my behalf."6 The RAD was unable to ascertain from the recording of the hearing that the Appellant was asked why she failed to mention in her BoC that her husband had been beating her children. The RAD does note the following exchange from the hearing. RPD: Did you tell police in Greece that your husband was beating the children? Appellant: Yes, I told them. RPD: And they did nothing to protect the children? Appellant: No, they didn't. [21] It appears that the RPD misconstrued the evidence regarding the beating of the Appellant's children by her husband. There is no mention in the Appellant's BoC that her children were beaten by her in-laws but she does indicate they were beaten by her husband. The Appellant was not asked about a BoC omission, regarding her husband beating her children, at her hearing. The RPD's analysis and findings are erroneously based on the Appellant failing to mention in her BoC that her husband had been beating her children when it is mentioned in her BoC. Furthermore, the RPD's analysis and findings are premised on the erroneous information that the Appellant did not report her children's beating to police when she testified she told police in Greece that her husband was beating the children. Considering the errors, the RAD finds that the RPD was wrong to find it not to be credible that a mother would not protect her children against abuse and to draw an adverse inference as to the credibility of the Appellant. Contradiction regarding the influence of the Appellant's mother-in-law over the Appellant's husband [22] The RPD noted the Appellant's testimony regarding her husband listening to his mother and doing what she tells him to do. It also noted the Appellant's evidence that her husband had an independent mind and frequently protected her from his mother. The RPD noted the Appellant's explanation for the apparent contradictions and inconsistencies: that her husband does almost everything his mother asks. It rejected the Appellant's explanation as it was not in accordance with her other evidence and she had failed to provide an adequate explanation for the contradiction. [23] The Appellant indicates that she explained at her hearing that her husband had initially supported her and tried to stop his family members from abusing her. She also indicates that it is written in her BoC narrative and she testified at her hearing that her husband protected her until he decided to relocate to Greece in 2004. The Appellant submits that she explained in her narrative and her testimony at the hearing how the relationship deteriorated to the point that her husband took sides against her and became very abusive of her. She further submits that the RPD's confusion as to how the abuses escalated was unclear and goes to support that it was not alert at the hearing. [24] The RAD notes that the Appellant indicated at her hearing that the three children she had with a previous husband did not go to Greece with her and her current husband because her mother-in-law told her current husband to do this and he does whatever his mother tells him to do. When asked about the extent of what her husband does when told by his mother, the Appellant indicated that he did not do everything she asks him to do. Although the Appellant indicated that her husband did what his mother asked him to do, her evidence is that he did not do everything she asked him to do and that he had taken her side against his family at one time. She indicates in paragraph 7 of her BoC narrative that her husband in the earlier years of being in Greece took her side against his family. She later writes in paragraph 15 of her BoC narrative that her husband and his family deceived her into returning to Nigeria. [25] The Appellant's evidence in her BoC narrative with respect to the Appellant's husband listening to his mother and doing what she tells him to do is mixed; the Appellant's husband took the Appellant's side for a period of time and he took his family's side for a period of time. The Appellant indicated at her hearing that her husband did whatever his mother told him to do but he did not do everything she told him to do. The RAD finds that the Appellant's evidence with respect to her husband doing what his mother tells him to do is internally consistent. The RPD was wrong to reject the Appellant's explanation regarding apparent inconsistencies and omissions when there were no inconsistencies and omissions of any significance. Inconsistency regarding XXXX 2013 incident [26] The RPD noted the Appellant's testimony that she consulted a doctor or hospital after the XXXX 2013 incident; however, when asked if she could provide a medical report, she changed her story and stated that she had not gone to a hospital but had seen a nurse who was the friend of a friend. It noted that the Appellant failed to provide an explanation as to why she said she had gone to a hospital or doctor. [27] The Appellant indicates that she was asked by the RPD if she received treatment after the abuse of XXXX 2013 to which she responded that she did. She submits that she did not take cognisance of the fact that the RPD was asking about treatment in a hospital or by a doctor. The Appellant indicates that it was after her counsel intervened to make the question clearer to her that she stated she had received treatment from a nurse and not a doctor. She submits that she was not in any way changing her testimony; she did receive treatment of some sort but not at a hospital but by a nurse friend. The Appellant submits that there were no inconsistencies with her testimony. [28] At her hearing with the RPD, the Appellant was questioned about the XXXX 2013 incident when she alleges she was physically assaulted by her husband. The following is an excerpt from the hearing regarding the medical attention she sought following the assault. RPD: Did you see a doctor or go to a hospital? Appellant: Yes. RPD: What was it a doctor or hospital? Appellant: We have a different (inaudible). It was a nurse. RPD: But I said did you see a doctor or go to hospital? Appellant: I didn't go to a hospital. RPD: Why say yes before? Appellant: (no answer) [29] It is clear that the Appellant testified that she sought medical treatment from a doctor or at a hospital after the XXXX 2013 physical assault. She then indicated that she had not sought medical treatment from a doctor or at a hospital but from a nurse who was a friend of a friend. The alleged physical assault the Appellant suffered in XXXX 2013 is a significant element of her story, particularly if the injuries were so severe she required medical attention. It is reasonable to expect the Appellant to give consistent evidence about the medical treatment she sought after the assault and the RAD finds that her failure to do so damages her credibility. Omission regarding 2005 incident [30] The RPD noted from a medical report that the Appellant's XXXX had been broken and the Appellant indicated at her hearing that her XXXX was broken in 2005 at the hands of her mother-in-law; however, there was no indication of this in her BoC narrative. It noted that the Appellant stated she did not know that she had failed to mention it. The RPD found that the failure of the Appellant to include such a vital element in her story, although given ample opportunity to provide a complete rendering of her story, is not believable. The RPD drew an adverse inference as to the Appellant's credibility. [31] The Appellant makes no submission with respect to the RPD's finding on the above-noted omission. The RAD notes that a Canadian medical report indicates that a scar on the Appellant's XXXX XXXX is consistent with a traumatic fracture of the XXXX XXXX XXXX.7 When asked about the injury at her hearing, the Appellant indicated that she sustained the injury in 2005 when her mother-in-law, sisters-in-law and uncle-in-law beat her. When asked why she had not mentioned that her in-laws broke her XXXX in her narrative, the Appellant did not respond. When asked why she had not mentioned that her XXXX was broken by her in-laws when she had indicated they had driven her out of the house, the Appellant said that she did not know she had to write it. [32] Instructions for completing the BoC are clear in asking refugee claimants to explain in detail what happened to them and their family and when the harm or mistreatment or threats occurred. The Appellant's BoC contains her signed declaration indicating that the information she provided is complete, true and correct. She confirmed at her hearing that the information in her BoC was complete, true and correct. The RAD finds that it would be reasonable to expect the Appellant to indicate in her BoC that her XXXX was broken by her in-laws when they beat her in 2005, if it actually occurred. She writes of less serious incidents such as being driven out of the family house by her in-laws in or about 2005. The RAD concurs with the RPD finding and further finds that the omission, without a reasonable explanation, further undermines the Appellant's credibility. CONCLUSION [33] The RAD finds that the RPD erred in a number of its findings. The RAD does not concur with the RPD's findings on the Appellant's evidence, other than certain findings with respect to an inconsistency and a BoC omission noted above. Since the RPD's determination of the Appellant's refugee claim was based substantially on erroneous findings, the determination cannot stand. [34] The Appellant asks the RAD to set aside the determination of the RPD and substitute a positive determination. The RAD is not in a position to satisfy the Appellant's request. There were multiple credibility concerns with the Appellant's evidence and the RAD is unable to make that determination only on the basis of the RPD record. For example, the Appellant indicated that she went to police on two occasions in Nigeria and on two occasions in Greece, however, there is no indication in the RPD record of the Appellant's efforts to obtain corroborating documents from police in Nigeria or Greece. Furthermore, in the RAD's opinion, failure to claim elsewhere is a significant issue in this case and although it was raised as an issue at the hearing, the RPD failed to provide an analysis and finding on the Appellant's failure to claim in the United States in its reasons. The RAD has not seen or questioned the Appellant, is not in a position to hold a hearing, and therefore cannot reach its own conclusions on her credibility or other issues relevant to her claim. [35] In the alternative, the Appellant asks the RAD to refer the matter to the RPD for re-determination, giving directions to the RPD to accept her claim. The RAD is also not in a position to refer the matter to the RPD for re-determination giving directions to accept the claim. As noted above, there were multiple credibility concerns with the Appellant's evidence. The RAD is unable to make the determination that the claim be accepted only on the basis of the RPD record. The RAD is in a position, however, to refer the matter to the RPD for determination without directions. [36] The determination of the RPD is set aside, and this matter is referred back to the RPD for re-determination. Pursuant to Section 111(1)(c) of IRPA, the Refugee Appeal Division refers this matter to the Refugee Protection Division for re-determination by a differently-constituted panel. [37] This appeal is allowed. (signed) "M. Pettinella" M. Pettinella October 21, 2015 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Huruglica, para. 45. 4 Exhibit P-2, Appellant's Record, at p. 6. 5 Exhibit RPD-1, RPD's Record, at p. 9, para. 5. 6 Exhibit RPD-1, RPD's Record, at p. 9, para. 7. 7 Exhibit RPD-1, RPD's Record, at p. 72. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07833