TB5-01034

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 : TB5-01034 Private Proceeding / Huis clos Redetermination of the Appeal 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 April 5, 2016 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Paul Vandervennen 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. She has submitted new evidence in support of her appeal and requests an oral hearing if the new evidence raises issues of credibility. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and make a determination that she is a Convention refugee. In the alternative, the Appellant asks that the decision of the RPD be set aside and a new hearing be ordered at the RPD. 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. This appeal is allowed. Background [3] The Appellant alleged before the RPD that, upon return to Ethiopia, she will be imprisoned and tortured by the authorities because of her political activities and associations. [4] The Appellant's claim for refugee protection was heard on April 24, 2014, June 4, 2014 and September 10, 2014. By a decision of January 8, 2015, the RPD rejected the claim. The RPD found that the Appellant was not credible. It found that the Appellant had not provided credible and trustworthy evidence to establish that she faces more than a mere possibility of persecution, or that, on a balance of probabilities, she would be at risk of one of the forms of harm set out in section 97(1) should she return to Ethiopia. [5] The Appellant submitted that the RPD erred in the assessment of her credibility. She further submitted that the RPD erred by ignoring evidence, including evidence of her political activities in Canada. [6] On May 1, 2015, the RAD dismissed the appeal and confirmed the determination of the RPD. [7] On XXXX XXXX, 2015, the Federal Court issued a judgment indicating that the Appellant's application for judicial review was granted and the matter was referred to a different Panel of the RAD for reconsideration. It found that, despite the reasonableness of the RAD's decision with respect to the Appellant's claim as it arose in Ethiopia, its complete disregard of the evidence supporting a potential sur place claim is an error in law, and the application must succeed on that basis. [8] In further submissions, and upon presentation of new evidence in support of her appeal, the Appellant argues that she faces a serious possibility of persecution in Ethiopia by reason of political opinion because of her political activities while in Canada. She further submits that she faces a serious possibility of severe discrimination which amounts to persecution in Ethiopia because of her HIV infection. ANALYSIS Role of the RAD [9] 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 Huruglica,1 and submits that the RAD is required to conduct a full appeal on the merits of the claim, and not simply review the decision to determine if the inferences drawn by the RPD were reasonably open to it. [10] The RAD acknowledges that in Huruglica 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.2 [11] 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".3 [12] The Federal Court of Appeal has indicated that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in mixed fact and law; and this translates into an application of the correctness standard of review.4 The Court held that, with respect to findings of fact (and mixed fact and law), which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. It goes on to indicate that after carefully considering the RPD decision, the RAD is to carry out its own analysis of the record to determine whether the RPD erred. The Court also stated that having done the above, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination.5 [13] Considering the recent jurisprudence, 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. Admissibility of evidence submitted on appeal [14] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in her Memorandum of Argument about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to her.6 [15] Following the Federal Court's judgment in this case, the Appellant tendered seven documents as proposed new evidence in support of her appeal. The documents are as follows: (a) Letter from Unity for Human Rights & Democracy (UHRD), dated XXXX XXXX, 2016;7 (b) 17 photographs of the Appellant at events in Toronto;8 (c) Documentation regarding the Appellant's HIV diagnosis;9 (d) Interpress Service article HEALTH-ETHIOPIA: Fighting HIV/AIDS Stigma Remains an Uphill Battle, dated December 1, 2003;10 (e) International Centre for Research on Women report Disentangling HIV and Aids Stigma in Ethiopia, Tanzania and Zambia, dated 2003;11 (f) Network of Networks of HIV positives in Ethiopia (NEP+) report The People Living with HIV Stigma Index - Ethiopia, dated July 2011;12 and (g) African Journal of AIDS Research article HIV/AIDS knowledge and stigma among women of reproductive age in Ethiopia, dated August 18, 2015.13 [16] The Appellant submits that documents in items a) and b) are new evidence of her political activities in Canada and meet the requirements of section 110(4). She notes that the Federal Court held that the RAD had committed a reviewable error of law by failing to consider her sur place claim, which involved political activities against the Ethiopian government while in Canada. The Appellant submits that the new evidence is of additional political activities she was involved in which post-date the initial RAD decision of May 1, 2015. She further submits that this evidence is highly relevant to the issue to be decided and could not have been presented previously to either the RPD or the RAD. [17] In an affidavit,14 the Appellant indicates that she was diagnosed as being HIV-positive approximately three years prior in Ethiopia. She also indicates that she did not tell anybody, including in Ethiopia, because she felt shame and feared being shunned and stigmatized. The Appellant indicates in her affidavit that she never disclosed this information to the Board or to her legal counsel previously because she always spoke through Amharic language interpreters who are from her community and whom she did not trust. She indicates that she has disclosed this information in her affidavit on February 5, 2016 for the first time because of an Amharic speaking social worker who works at the Black Coalition for AIDS Prevention whom she trusts and who assisted her with the affidavit. [18] The Appellant points out that the documents in item c) are regarding her personal medical profile which confirms her diagnosis and treatment. She points out that items d), e), f) and g) are documents regarding treatment of HIV sufferers in Ethiopia. The Appellant submits that the above should be accepted as new evidence pursuant to section 110(4), as this is evidence that she could not have reasonably been expected to present earlier because of her fear of being stigmatized, shunned and treated as an outcast. She submits that the Gender Guidelines should be applied, which speaks about the reluctance of women to disclose certain facts which could bring shame upon themselves or their families. [19] The RAD notes that most of the information contained in item a) pertains to the Appellant's political activities in Canada, subsequent to the rejection of her claim by the RPD. Also, all of the photographs in item b) were taken at political rallies or meetings that occurred after the Appellant's claim was rejected by the RPD. The RAD finds that the evidence noted above - items a) and b) - arose after the rejection of the Appellant's claim and thus meets the statutory requirements of section 110(4). [20] The RAD finds that the Appellant could not reasonably have been expected in the circumstances to have presented items c), d), e), f) and g) at the time her claim was rejected by the RPD, given her explanation. Considering the Appellant's particular circumstances of being diagnosed as being HIV-positive, and her fear of being stigmatized, shunned and treated as an outcast, the Appellant's reluctance to reveal information about her medical condition sooner is reasonable. That RAD finds that items c), d), e), f) and g) meet the statutory requirements of section 110(4). [21] The Appellant has established that all the documents proposed as new evidence arose after the rejection of her claim or she could not reasonably have been expected in the circumstances to have presented them at the time of the rejection. Since the documents meet the test for new evidence according to section 110(4) of the IRPA, they will be accepted as new evidence in this appeal. Merits of the Appeal [22] After a review of the record, the RAD finds that, notwithstanding the findings of the RPD and the allegations of error in those findings by the Appellant, there is new evidence before the RAD that indicates that the Appellant was diagnosed as being HIV-positive; a diagnosis that would cause the Appellant to face discrimination, amounting to persecution, in Ethiopia. Because the RAD is able to fairly dispose of this appeal by making a decision on the credibility of the Appellant's medical diagnosis as being HIV-positive, and its implications in Ethiopia, it is unnecessary to address the other issues raised by the Appellant. [23] The Appellant presented a number of medical reports to support her medical diagnosis of HIV infection.15 They have been accepted as new evidence in this appeal. Dr. XXXX XXXX of XXXX XXXX Hospital writes in a letter, dated XXXX XXXX, 2015, that the Appellant's past medical history includes a diagnosis of HIV (human immunodeficiency virus infection).16 Dr. XXXX XXXX XXXX XXXX XXXX Hospital writes in a letter, dated XXXX XXXX, 2015, that the Appellant's past medical history includes a diagnosis of HIV (human immunodeficiency virus infection).17 Dr. XXXX XXXX XXXX XXXX XXXX Hospital writes in an ambulatory clinic note, dated XXXX XXXX, 2015, that the Appellant is a 38-year-old HIV positive lady.18 Dr. XXXX XXXX indicates in a medical note, dated XXXX XXXX, 2016, that the Appellant is HIV positive.19 Also indicated is that the Appellant has acute HIV infection (Including AIDS/ARS).20 The Appellant's personal medical profile, dated XXXX XXXX, 2016, indicates that she suffers from HIV disease.21 The RAD finds that the documents noted above are credible and reliable medical documents reflecting the Appellant's diagnosis of HIV infection. They are from reliable and independent sources confirming a material medical matter. [24] Documentary evidence indicates that, in Ethiopia, societal stigma and discrimination against persons living with or affected by HIV/AIDS continued in the areas of education, employment, and community integration. Persons living with or affected by HIV/AIDS reported difficulty accessing services.22 [25] The International Centre for Research on Women reports that people living with HIV and AIDS in Ethiopia experience physical and social isolation (such as separation of linens and decreased social interaction); gossip, rumor, name-calling and voyeurism; loss of rights, status and decision-making power in the household and community; and loss of access to resources, such as housing and employment.23 Some of the participants in a study conducted by Network of Networks of HIV Positives in Ethiopia described stigma and discrimination as causing a lot of havoc on their lives, including violation of their rights and loss of personal freedom, displacement, job loss, deteriorating health, abandoning of life goals and development of antisocial attitudes. Also, socio-economic consequences of stigma mentioned by the research participants included: burden on families and children, marital breakdown, eviction from homes, losing friends, housing problems, interruption of education, losing the chance to go abroad, and loss of job.24 [26] The documentary evidence, some of which is noted above, indicates that discrimination and stigmatization of HIV-positive individuals occurs in Ethiopia. The evidence suggests that the treatment of HIV-positive individuals by the state is also discriminatory considering the problems HIV-positive individuals encounter when accessing services. This is also reflected in the problems they face obtaining or retaining housing, education and employment. It is clear that HIV-positive individuals in Ethiopia face considerable discrimination by other Ethiopians and the state. The RAD finds that the discrimination is systemic and sustained and amounts to persecution. [27] The RAD notes the Appellant's profile as a 39-year-old single woman. The stigma attached to HIV-positive single women in Ethiopia is greater than other groups. Data from East African countries such as Ethiopia shows that people believe that those with HIV get it through sexual activity that is not socially sanctioned or goes against religious teachings. Respondents in a study report that having HIV is a result of deviant behaviour, and people with HIV and AIDS are regarded as adulterers, prostitutes, and generally immoral or shameful.25 Although the Appellant has 16 years of formal education, including two years at a teacher's college, the evidence suggests that she would encounter discrimination in obtaining employment when her HIV diagnosis becomes known, which is inevitable considering the culture in Ethiopia. [28] The RAD has found that there is credible evidence of the Appellant's medical diagnosis as being HIV-positive. Considering this credible evidence and the Ethiopian country conditions regarding the treatment of HIV-positive individuals, the RAD finds on a balance of probabilities that there is a serious possibility of the Appellant being persecuted in Ethiopia if she returns. [29] The RPD found that the Appellant had established her personal identity and her identity as a national of Ethiopia. This finding was based on the Appellant's presentation of her Ethiopian passport containing Canadian and U.S. visas. The RAD has reviewed the Appellant's identity documents on file and concurs with the RPD's finding. [30] The RPD found that the Appellant was not credible and had not provided credible and trustworthy evidence to establish that she faces more than a mere possibility of persecution, or that, on a balance of probabilities, she would be at risk of one of the forms of harm set out in section 97(1) should she return to Ethiopia. These findings were based on the Appellant's allegations surrounding her political activities. While the RAD recognizes and respects the findings of the RPD on the issue of the Appellant's credibility, new credible evidence supports the Appellant's allegations surrounding her diagnosis of being HIV-positive. The Appellant's HIV-positive diagnosis is already known to some in Ethiopia since she was originally diagnosed with the infection in that country. Her continuing treatment for the infection only enhances the risk that it will become known to others in Ethiopia should she return. Adequate state protection would not be available to the Appellant given her particular circumstances and the documentary evidence noted above. Disposition [31] On the basis of the findings noted above, after its own assessment of all the evidence in the record, the RAD agrees with the Appellant that she has provided credible evidence of her HIV-positive status; a medical diagnosis which would cause her considerable discrimination in Ethiopia amounting to persecution. [32] Therefore, the RAD finds that there is a serious possibility of persecution should the Appellant return to Ethiopia. The RAD therefore concludes that the Appellant has established a well-founded fear of persecution under section 96 of the IRPA. CONCLUSION [33] 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. This appeal is allowed. (signed) "M. Pettinella" M. Pettinella April 5, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Huruglica, supra, footnote 1, para. 45. 3 Huruglica, supra, footnote 1, paras. 54-55. 4 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93, para. 78. 5 M.C.I. v. Huruglica, para. 103. 6 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 7 Exhibit P-3, Submissions from Appellant, at pp. 4-6. 8 Exhibit P-3, Submissions from Appellant, at pp. 7-13. 9 Exhibit P-3, Submissions from Appellant, at pp. 16-58. 10 Exhibit P-3, Submissions from Appellant, at p. 60. 11 Exhibit P-3, Submissions from Appellant, at pp. 61-81. 12 Exhibit P-3, Submissions from Appellant, pp. 82-90. 13 Exhibit P-3, Submissions from Appellant, at pp. 91-92. 14 Exhibit P-3, Submissions from Appellant, at pp. 14-15. 15 Exhibit P-3, Submissions from Appellant, at pp. 16-58. 16 Exhibit P-3, Submissions from Appellant, at p. 51. 17 Exhibit P-3, Submissions from Appellant, at p. 44. 18 Exhibit P-3, Submissions from Appellant, at p. 35. 19 Exhibit P-3, Submissions from Appellant, at p. 20. 20 Exhibit P-3, Submissions from Appellant, at p. 19. 21 Exhibit P-3, Submissions from Appellant, at p. 16. 22 Exhibit RPD-1, RPD's Record, exhibit 4, National Documentation Package (NDP) for Ethiopia (January 31, 2014), item 2.1, at p. 33. 23 Exhibit P-3, Submissions from Appellant, at p. 74. 24 Exhibit P-3, Submissions from Appellant, at p. 88. 25 Exhibit P-3, Submissions from Appellant, at p. 64. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June, 2015) RAD File No. / N° de dossier de la SAR : TB5-01034