TB5-08140

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 : TB5-08140 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal 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 David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal John W. Grice 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), a citizen of Hungary, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that this Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. DETERMINATION [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Background [3] The Appellant alleged before the RPD that he fears returning to Hungary because he will be persecuted by Hungarian Guardists and skinheads. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [4] The Appellant's application for refugee protection was heard on July 16, 2015. A negative decision was rendered in writing on July 20, 2015. The RPD found that the Appellant has failed to rebut the presumption of state protection in Hungary, in his particular case, and that he failed to provide sufficient evidence that he would be persecuted for a Convention ground or be subjected to a risk to his life or a risk of cruel or unusual treatment or punishment or a risk of torture, should he be returned to Hungary. [5] The Appellant submits that the RPD erred in its assessment of the Appellant's section 96 analysis. [6] The Appellant submits that the RPD erred in its assessment of state protection. [7] The Appellant submits that the RPD erred in its section 97 analysis for this Appellant. ANALYSIS Role of the RAD [8] The RAD finds that the recent Federal Court decision, in Huruglica,2 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". [9] 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 to other findings where the RPD has a particular advantage in reaching its conclusions. Admissibility of Evidence Submitted on Appeal [10] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim, or that was not reasonably available, or that he could not reasonably have been expected,3 in the circumstances, to have presented at the time of the rejection. [11] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.4 Application of Section 110(4) [12] Section 110(4) establishes a disjunctive test.5 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in his circumstance, to have presented the evidence to the RPD prior to the rejection of his claim. If he could not have been expected to do so, the evidence meets the requirements of the section. [13] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.6 [14] As the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. [15] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important, is the event or circumstance sought to be proved by the evidence.7 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [16] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document's "newness", these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, or is immaterial to the issues to be considered by the RAD, it would make little sense to admit such document, even if it meets the test in section 110(4). [17] The RAD will therefore undertake an analysis of any proposed new evidence, not only for its timeliness, which is largely the focus of section 110(4), but also to consider whether it has evidentiary value and, if so, how much. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "...credible or trustworthy in the circumstances". This provision makes it clear that in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [18] While the IRPA makes specific reference to the credibility of evidence received by the RAD, there is no corresponding provision which addresses relevance. However, in the RAD's view, it is obvious that evidence must be assessed for its relevance.8 Apart from the support from the case law, it would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the Immigration and Refugee Board (IRB) to "...deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [19] It is therefore appropriate for the RAD to consider whether new evidence is relevant, even if it meets the test in section 110(4). [20] The RAD will also consider whether the proposed new evidence is material. This consideration is also based on the same provisions above, regarding credibility and relevance. [21] For these reasons, the RAD will apply the following factors to evidence that passes the test in section 110(4). (a) The RAD will consider whether the proposed new evidence is credible or trustworthy. (b) The RAD will assess the relevance of the evidence-whether it is capable, together with the other evidence in the record (including other admissible new evidence) of proving or disproving a fact at issue in either the refugee claim or the appeal.9 (c) The RAD will determine whether the evidence is material, in the sense that it could be capable of justifying, with or without the benefit of an oral hearing as the case may be, a disposition under section 111 of the IRPA. [22] If the proposed new evidence does not meet each of the factors above, the RAD may choose not to admit it. These factors, however, are not exhaustive, as the RAD may consider other factors as appropriate in the circumstances. [23] The Appellant, in his Statement,10 has requested an item be received by the RAD as new evidence. The document referred to is the IRB's National Documentation Package (NDP) for Hungary, item 2.11, dated July 31, 2015, which is a date post decision. However, in canvassing the document, the RAD notes that the document was actually published on December 16, 2014, so although it may be considered as a new insert into the NDP, it is not a new document within the definitions of section 110(4) of the IRPA. The Appellant was, and is, represented by counsel, whose job it is to provide the best evidence on behalf of the Appellant for the hearing. The unfortunate fact that the Appellant did not find this evidence until post-decision, does not make in acceptable to the RAD appeal. This evidence is disallowed. [24] Therefore, the RAD will not be allowing this document into evidence. The RPD's Findings [25] The Appellant argues that the RPD erred in its assessment of the Appellant's section 96 analysis. The panel found that the Appellant was not facing persecution, while agreeing to the stated fact that the Appellant was and had been facing discrimination on various levels. Counsel for the Appellant (counsel) argues that the panel failed to properly assess the cumulative effect of the years of discrimination, in areas considered by some, as basic human rights. Those in particular include a right to education, a right to housing and a right to health care. The RAD believes that when an individual is systematically deprived of his basic human rights, time and again due only to discrimination (as opposed to legal incarceration), then such deprivation may amount to persecution. At issue, is what is or is not a basic human right. The RAD has canvassed the United Nations High Commission for Refugees (UNHCR) documents, including the Handbook11 referred to by counsel. Although the documents clearly define the grounds for section 96 status, nowhere can the RAD find a definition of persecution in those documents. [26] The Merriam Webster dictionary defines the word "persecute" in its first instance as follows: "per-se-cute, verb, - to treat someone cruelly or unfairly especially because of race or religious or political beliefs." [27] The Handbook, at page 11, in its "general analysis", tells the RAD that "well-founded fear of being persecuted" is the key phrase of the definition of a refugee. [28] The question now becomes, does the Appellant have such a well-founded fear? According to counsel, he does. According to the RPD, he does not. The RAD has canvassed the documents including the BOC form, submissions, the RPD's Reasons and Decision, and more. The RAD has listened to the audio recording of the hearing. [29] The RPD's analysis looked at the Appellant's alleged eviction from the family home in XXXX. The panel accepts that the Appellant and his family were evicted from their home in the "numbered district" of XXXX, along with many other Roma families in that district, but then goes on to write how such eviction is "... a normal part of renting property."12 The panel then went on to accept that the Roma population (of which the Appellant is a member) "...were the majority of the population impacted by the decision to dismantle slums. In fact, there are about 160 families, mostly Roma, who will be negatively affected by the decision of the local XXXX government." The panel went on to write that in most cases, the rent was late or the leases had expired. The act by local government to bulldoze an entire community which just happens to be almost entirely made up of Roma families, smacks of discrimination. According to documents13 at the Board, about 450 residents of the predominantly Roma neighbourhood, known as the Numbered Streets in the city of XXXX, were put at risk of forced eviction and possible homelessness because the city declared the houses and the neighbourhood old and inadequate, while at the same time announcing that the tenancy agreements would be terminated. The city plans to demolish the buildings. This document refutes the panel's belief that "eviction is a normal part of renting property." That was obviously not the case here. The RAD finds that the eviction did, or would, occur only because the occupants, including the Appellant, were Roma. On its own, such a discriminatory practice is abhorrent; however, it is not persecution. [30] The Appellant attended a public school, allegedly for Roma, until the end of grade 8; which he apparently graduated from. The Appellant testified that he was not prepared to compete for a spot in secondary school as the level of teaching given to Roma school children is seriously inferior to that given to other Hungarian children. The inequity in the education at the primary school level is discriminatory on its own. This act of discrimination results in a seriously decreased opportunity for gainful employment in the future of the Roma youth. To further exacerbate the situation for Roma seeking employment, the general discrimination against Roma is felt in the workplace and in the job market. According to The National Social Inclusion Strategy document,14 most discrimination in the workplace is suffered on grounds of skin colour, ethnic origin, age and gender. There is no doubt in the RAD's mind that Roma are discriminated against in the workplace and in the job market, as all reasonable documentation supports this conclusion. Up to 90% of working age Roma are unemployed. But this is discrimination and not persecution. [31] The Appellant wrote in his BOC and testified to the fact that he suffered the above acts of discrimination as well as having been threatened and humiliated in public and has gone through these acts of discrimination his whole life. The Appellant did not attempt to bolster his claim by adding a few beatings by skinheads to the list of acts against him. The Appellant argues that the RPD erred by not correctly considering the cumulative effect of a lifetime of discrimination suffered by Roma in general, but by the Appellant in particular. Counsel argues that the panel misapprehended the eviction scenario in XXXX, as well as the issue of social assistance schemes in Hungary. The RAD concurs with counsel. [32] Even though each of the issues analysed above is, on its own, discriminatory, when put together with a lifetime of verbal abuse and deprivation of equal rights to housing, education, healthcare and work, the RAD finds that these events have risen to the level of persecution. Further, that persecution is based on the ethnicity of the Appellant, and nothing else. Therefore, the RAD finds that the Appellant does have a nexus to section 96 of the IRPA. Consequently, the RAD will do an independent analysis of state protection in Hungary. The issue has been broached and is discussed by counsel in the Memorandum. State Protection [33] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown (Ward).15 [34] The presumption that a state is capable of protecting its citizens underscores the principle that international protection comes into play only when a refugee claimant has no other recourse available (Ward).16 [35] The presumption of state protection applies equally to cases where the state is alleged to be a persecutor (Hinzman).17 [36] The Appellant argues that the RPD erred in its assessment of state protection. Counsel writes18 that "It is a well-known tenet of refugee law that there can be no discussion of state protection where the state itself is party to the persecution." Counsel cites Chaves,19 in which the Court has discussed state protection and the rebuttal thereof, in cases where the state is the alleged perpetrator of the persecution. With respect, counsel misapprehends the Court. The Court wrote "...the applicant can rebut the presumption of state protection without exhausting every conceivable recourse in the country... ." In the case at bar, the Appellant did not even attempt to access state protection at any level. In this particular case, Ward20 still applies. The RAD finds that the RPD did not err in its assessment of this particular portion of its analysis. [37] Counsel continues on state protection, arguing that the panel relied too much on state "efforts" and not enough on the operational effectiveness of state protection. In fact, counsel argues that the panel actually concludes21 that protection is adequate on the basis of "efforts" made by the state. That is not what the panel has written. Counsel erred in his understanding of this paragraph. It is clear to the RAD that the panel was referring to steps being taken to seek protection rather than, as counsel argues, making a statement that making an effort is what the panel based her conclusions on. Specifically, in paragraph 31 on page 15 of the Appellant's record of appeal, the panel writes "Consequently, as long as the government is taking serious steps to provide or increase protection for individuals then the individual must seek state protection." This does not say that the panel based her conclusion on "making efforts", as counsel has argued. The RAD finds that the RPD did not err in that statement. [38] The RAD could go on for a lengthy time writing on this issue. However, the documents on hand and previously footnoted, overwhelmingly concur with the Appellant's argument in rebuttal of state protection for Roma in Hungary. Although to date, the Appellant has not suffered direct physical abuse, such as beatings due to his ethnicity, he has without doubt, suffered ongoing persecution. On a balance of probabilities, which is a much higher test that he needs, this Appellant would face more persecution, and more likely greater serious persecution, should he return to Hungary. The RAD finds that the preponderance of the evidence today shows that in the case of Roma, there is more than a mere possibility that a Roma, this Appellant, will be persecuted should he return to Hungary. Disposition [39] The RAD has found that the RPD's decision will not stand. CONCLUSION [40] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe October 21, 2015 Date 1 Exhibit RPD-1, RPD's Record, Basis of Claim Form, pp. 18-29. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected"; see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 51. 4 Refugee Appeal Division Rules, section 3(3)(g)(iii). 5 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2015, 2015 FC 895, para. 19. 6 Deri,Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55. 7 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 16. 8 There is a great deal of support for this view. "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence", Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004), at17-6.12; Re Bortolotti v.Ministry of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33, at para. 64. 9 See Raza at para. 13.4; also David Paciocco & Lee Stuesser, The Law of Evidence, 3d ed. (Irwin Law, 2002) at 24: "Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence." 10 Exhibit P-2, Appellant's Record, pp. 19-21. 11 "Handbook on Procedures and Criteria for Determining Refugee Status: Under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees", (The Handbook); Reedited, Geneva, January 1992. 12 Exhibit P-2, Appellant's Record, p. 8, para 16. 13 Exhibit RPD-1, RPD's Record, pp. 784-795. 14 Exhibit RPD-1, RPD's Record, NDP for Hungary (27 June 2014), item 13.16, p. 29. 15 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 725. 16 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. at 709. 17 Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171, para. 54. 18 Exhibit P-2, Appellant's Memorandum, p.180, para. 34. 19 Chaves, Alejandro Jose Martinez v. M.C.I. (F.C., no. IMM-603-04), Tremblay-Lamer, February 8, 2005, 2005 FC 193. 20 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 21 Exhibit P-2, Appellant's Record, Memorandum, p. 181. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08140