TB5-01325

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 : TB5-01325 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 19, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Adrienne C. Smith 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] The Appellant, XXXX XXXX XXXX, is a citizen of Jamaica, and appeals a decision of the Refugee Protection Division (RPD) dated December 9, 2014, rejecting her claim for refugee protection. She has submitted new evidence in support of her appeal and requests that an oral hearing be held. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and that the RAD refer the matter back to the RPD for reconsideration. DETERMINATION [2] Pursuant to Section 111(1)(c) of IRPA, the RAD refers the matter back to the Refugee Protection Division for re-determination by a differently-constituted panel. BACKGROUND [3] The Appellant alleges that she cannot return to Jamaica because she will suffer domestic abuse at the hands of her former fiancé XXXX. The Appellant came to Canada in XXXX of 2013 to attend her sister's XXXX. In XXXX of 2014 she received a telephone call from XXXX. The Appellant alleges that the telephone call brought flashbacks of the alleged abuse and she decided to make a refugee claim on February 5, 2014. ROLE OF THE RAD [4] The Appellant has provided submissions in regard to the role that the RAD plays in the review of a RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,1 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". [5] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [6] 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 and will consider only the issues raised by the Appellant. 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. ANALYSIS OF THE MERITS OF THE APPEAL [7] The RPD found that the determinative issue in this claim is credibility. Credibility [8] The RPD found that the Appellant's testimony was inconsistent and that there were material omissions from her Basis of Claim (BoC) form and that she provided contradictory evidence with respect to determinative aspects of her claim. [9] The Appellant submits that the RPD erred in its credibility findings and that the RPD misconstrued the facts and the law. The Appellant also argues that the RPD ignored relevant evidence. [10] The Appellant submitted into evidence a copy of a police report from Jamaica dated XXXX XXXX, 2015. The RAD asked that the document be verified with the competent authorities in Jamaica but no reply was received by the Immigration and Refugee Board. The RAD notes that the Appellant's counsel also attempted to verify the report without success. The RAD also asked its Research Directorate to attempt to verify the information provided in the report with respect to the address and location of the police station but the reply received was not conclusive. [11] The RAD did hold an oral hearing on the issue of the authenticity of the report but the RAD finds that the evidence was not conclusive. New Evidence Documentary evidence from Jamaica [12] The Appellant submitted the following new evidence: * Information provided in her Affidavit with respect to her sexual orientation * Letter from XXXX XXXX XXXX * Letter from XXXX XXXX * Letter from XXXX XXXX * Report from Human Rights watch [13] Since the issue of the Appellant's sexual orientation was not raised before the RPD and it may seem to be relevant to the Appellant's claim, the RAD finds that it is necessary that the matter be referred back to the RPD so that it may deal with this new issue. CONCLUSION [14] Pursuant to Section 111(1)(c) of IRPA, the RAD refers the matter back to the Refugee Protection Division for re-determination by a differently-constituted panel. The appeal is allowed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino October 19, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-01325