TB4-05831

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 : TB4-05831 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 December 16, 2015 Date de la décision Panel Ken Atkinson 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 ("Appellant"), a citizen of Kenya, appeals a decision of the Refugee Protection Division ("RPD") rejecting her claim for refugee protection. The Refugee Appeal Division ("RAD") previously dismissed the appeal. The RAD decision was set aside by the Federal Court on judicial review. According to a Judgment of Mr. Justice H.S. Brown, dated July 16, 2015, the appeal was referred back to the RAD for redetermination by a differently constituted panel. The Appellant submitted no new evidence in her appeal and she did not request an oral hearing under subsection 110(6) of the Immigration and Refugee Protection Act ("IRPA"). After the Federal Court decision, she filed an Application to File New Documents. She requests that the appeal be allowed and the decision of the RPD be set aside and the RAD find the Appellant to be a Convention refugee or a person in need of protection or alternatively, that the matter be returned to the RPD for re-determination. DETERMINATION OF THE APPEAL [2] The appeal is allowed. Pursuant to ss. 111(1)(b) of the Immigration and Refugee Protection Act ("IRPA"), the RAD sets aside the determination of the RPD and substitutes a determination that, in its opinion, should have been made, namely that the Appellant is a Convention refugee. Background [3] The Appellant states that she has been targeted by the XXXX, a political terrorist group in Kenya, who are now known by the name XXXX XXXX. She says that her mother and her two brothers were members of XXXX. Her mother joined the group on XXXX XXXX, 2006. [4] She maintains that her mother was promoted within the group on XXXX XXXX XXXX 2008 and given the responsibility of ensuring that every female within the XXXX community was circumcised (female genital mutilation). She was told to start her work immediately beginning with her two daughters. The Appellant and her sister were called to an apartment in Nairobi to meet their mother. They were told that they were not going home because they were going to be circumcised. When the Appellant refused, four men beat her with whips. They also had machetes and cut her all over her back and right shoulder because she resisted. She says that her mother mutilated her genitals and she then stayed in the house 28 days to heal. As soon as she was healed, she and her children moved into another province because she did not want to join the XXXX. [5] The Appellant came to Canada to visit her daughter XXXX XXXX XXXX, 2013. Her mother died on XXXX XXXX, 2013. She received a letter on XXXX XXXX, 2013 stating that her mother left a message for her, instructing her that she was to continue her work by performing female genital mutilation on her daughters and granddaughters. [6] The Federal Court granted the application for judicial review in this matter finding that the RAD had erred in requiring a psychiatric assessment in considering the issue of compelling reasons. ROLE OF THE RAD [7] The Huruglica1 decision of the Federal Court provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. Justice Phelan states in paragraph 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". [8] Accordingly, the RAD will review all aspects 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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. [9] The RPD determined that the Appellant was not a Convention refugee or a person in need of protection for the following reasons: (a) The Appellant failed to rebut the presumption of state protection from the XXXX in Kenya. New Evidence [10] After the Federal Court Decision, the Appellant filed an Application to File New Documents, pursuant to Rules 29 and 37: (a) A Psychiatry Consult Note, dated September 15, 2015, signed by Dr. XXXX XXXX. [11] RAD Rule 29 provides: 29. (1) A person who is the subject of an appeal who does not provide a document or written submissions with the appellant's record, respondent's record or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division. (2) If a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37. (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. (4) In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [12] The Appellant has produced this psychological note and states that it reports her condition with reference to both the impact of her son's death and her experiences in 2009 with female genital mutilation (FGM). She says that a psychological report was not filed at the hearing before the RPD as the law did not require that psychological evidence in cases of compelling reasons be in evidence. It was also not filed on the initial RAD determination for the same reason, and because it arguably did not meet the requirements of section 110(4) of the IRPA. It is submitted that as the report now exists and is a relevant consideration, it can and it should be entered in evidence. It provides additional, relevant, but not required evidence, on the compelling reasons issue. [13] Section 110(4) of IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected2 in the circumstances to have presented, at the time of the rejection. [14] Section 110(4) establishes a disjunctive test.3 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. 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 claims. 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 Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [15] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.4 [16] As the RAD understands it, Section 110(4) provides the Appellants 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 Appellants could not have been expected to present it to the RPD. [17] The RAD acknowledges the Federal Court which stated: ...in order for there to be a "full fact-based appeal" before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur. Often, the evidence at stake will be essential for proving the factual basis of the errors the claimant alleges were made by the RPD. This consideration becomes all the more pertinent in light of the strict timelines a claimant now faces for initially submitting evidence before the RPD. A claimant now has 50 days to present all documents from the date he or she made the claim; the previous legislative scheme required the documents 20 days prior to a hearing, which, on average, took much longer to take place. When the RPD confronts a claimant on the weakness of his evidentiary record, the RAD should, in subsequent review of the decision, have some leeway in order to allow the claimant to respond to the deficiencies raised.5 [18] The Court also held that the "main issue is whether the evidence 'was not reasonably available, or that the person could not reasonably (or normally according to the French version) have been expected in the circumstances to have presented."6 [19] The RAD finds that the psychiatric report is relevant and probative to the issue of compelling reasons. In accordance with the Singh decision, the report will be admitted into evidence in order for there to be a full fact-based appeal. In this particular case, the RAD follows the statement that the admissibility of evidence must be sufficiently flexible to ensure that that this can occur. Submissions [20] The Appellant originally submitted before the RAD that the RPD incorrectly stated three legal tests, ignored evidence relevant to the issue of state protection and failed to consider whether she met the compelling reasons exception in section 108(4) of the IRPA. [21] The Appellant made further submissions on the issue of compelling reasons after the matter was returned to the RAD by the Federal Court. The Appellant argues that there was prima facie evidence of past persecution that was appalling and atrocious. FGM is a violent form of sexual assault and has been found by the Federal Court to be appalling and atrocious. It was an error for the RPD and the RAD to not assess this issue. It is an error to simply ignore the issue, particularly where the RPD has specifically found a changing country conditions, in this case, the going underground or disbanding of the XXXX organization as a result of the state's serious efforts. [22] It is submitted that uncontradicted evidence of forced female genital mutilation is prima facie evidence of appalling and atrocious treatment clearly bringing the Appellant within the section 108 exception. Forced female genital mutilation is a form of lifelong sexual assault, recognized as appalling and atrocious in case law and is torture or cruel, inhuman or degrading treatment or punishment contrary to Article 5 of the Declaration of Human Rights. The RAD erred when it stated that the exception is only engaged when the RPD has made a clear statement confirming the prior existence of refugee status on the claimant. [23] Psychological evidence may be relevant information and when presented must be addressed, but there is no need to establish psychological after-effects. The act of forced female genital mutilation is so appalling and atrocious that returning someone to the country where that happened would go against Canada's own humanitarian and compassionate principles. That is the underlying rationale for compelling reasons, not psychological after-effects or the Appellant's mental strength, or the degree of emotional trauma she would experience if XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX establish that the XXXX organization continued to be active in Kenya. None of these items were referred to by the RPD, and given their importance, the RPD erred in law by not assessing these items. The ignored articles confirm that the XXXX were active at the exact times that the Appellant and her family were experiencing their latest problems. Analysis [24] The RPD based its decision on state protection. It found that the Appellant had not rebutted the presumption of state protection as there was adequate protection from the XXXX if the Appellant returned to Kenya. It appeared that the RPD found the Appellant to be credible in her allegations. These included that she had been forced to undergo female genital mutilation at the hands of her mother and that she had been requested by her mother to take over her role as the circumciser in the XXXX organization. [25] Section 108(1)(e) of the IRPA provides that a refugee claim must be rejected if the reasons for which the claimant sought protection have ceased to exist. Section 108(4) provides an exception that section 108(1)(e) does not apply to a person who establishes that there are compelling reasons for refusing to avail themselves of the protection of the country they left. Such compelling reasons must arise out of previous persecution, torture, treatment or punishment. [26] Counsel for the Appellant raised the issue of compelling reasons at the RPD hearing, arguing that the female genital mutilation to which the Appellant was subjected constitutes atrocious and appalling treatment. The Appellant submitted on appeal that the RPD failed to address this issue in its reasons, and argued that female genital mutilation is something to which the compelling reasons exception should apply. [27] The RPD made no reference to the compelling reasons argument in its decision. This was an error on the part of the RPD. The RAD is obligated to carry out an independent review of the evidence and reach its own conclusion. Therefore, it will consider the issue of compelling reasons. [28] The RAD finds that the Appellant does come within the compelling reasons exception. This deals with a special situation where a person has been subjected to various serious persecution in the past and will not therefore, cease to be a refugee, even if fundamental changes have occurred in his/her country of origin.7 [29] The Federal Court has stated: "[27] Also, the Board went on to indicate that the documentary evidence was such that circumstances had changed in Buenos Aires to such an extent that after 4 1/2 years of absence, the applicant had no longer a well-founded fear that he would be subject to abuse by the police should be return to live openly as a gay man in Buenos Aires. While the Board was correct in its decision to undertake an assessment of compelling reasons under subsection 108(4), it erred in its factual analysis of the applicant's specific situation. Sexual assault and physical assault such as to which the applicant was subjected are not to be measured on a sliding scale of atrocity when the immutable factor giving rise to such victimization and human degradation, forms one of the very core characteristics enunciated and protected under Article 5 of the Declaration of Human Rights. [28]I agree with counsel for the respondent that the test for compelling reasons is a difficult one to meet such that only a tiny minority of claimants cross this threshold. However, our paths diverge in that on the basis of the applicant's specific circumstances, the Board erred in its application of this fact based test. Sexual assault is appalling and atrocious particularly in this instance where it is used as a tool by the police against the applicant's sexual orientation. Similarly, physical assault and the form of prior persecution inflicted on the applicant were such that it was patently unreasonable for the Board to ask the applicant to return to not only his country, Argentina, but to his home city, Buenos Aires, where the events took place."8 [30] In this particular case, forced female genital mutilation at the hands of her mother is a form of lifelong sexual assault that is atrocious and appalling. In reviewing the initial RAD decision is in this matter, the Federal Court reiterated that a psychological assessment was not an evidentiary requirement in order to establish a compelling reasons finding. However, the Appellant has provided a psychiatric assessment which finds that she is suffering from posttraumatic stress disorder at the present time. [31] It is alleged that if the Appellant returned to Kenya, the XXXX would force her to become part of their organization and take on her mother's role as the circumciser, beginning with her daughters and granddaughters. The RPD found that there was adequate state protection in Kenya if the Appellant returned to that country. The RPD also found that the government is taking action against the XXXX and the evidence shows that the organization has gone underground or even disbanded. The RAD has reviewed the evidence and agrees with this finding. This would be a change in circumstances related to this aspect of the Appellant's situation. [32] The RAD finds that as a result of her particular circumstances, the Appellant comes within the compelling reasons exception and she is a Convention refugee. DISPOSITION [33] The appeal is allowed. Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes a determination, that in its opinion, should have been made, that the Appellant is a Convention refugee. (signed) "Ken Atkinson" Ken Atkinson December 16, 2015 Date 1 Huruglica, Bajar v. M.C.I., (F.C no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, para 51. 3 See Olowolaiyemo v. Canada (Citizenship and Immigration), 2015 FC 895, para. 19. 4 Deri v. Canada (Citizenship and Immigration), 2015 FC 1042, para. 55. 5 Singh v. M.C.I., 2014 FC 1022, para. 55. 6 Singh, para. 58. 7 UN Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees 8 Goria v. M.C.I., 2007 FC 284. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :