VB3-03251

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 : VB3-03251 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Appel instruit à Date of decision March 31, 2014 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) Suha Abu-Jazar Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the "appellant"), a national of the Republic of Cameroon, appeals the November 20, 2013 decision of the Refugee Protection Division (the "RPD") rejecting her claim for refugee protection. The claim was heard by the RPD on November 8, 2013, with a written decision rendered on November 12, 2013. The RPD found that the appellant was neither a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act ("IRPA" or the "Act")1 nor a person in need of protection pursuant to subsection 97(1) of that Act. DETERMINATION [2] Pursuant to subsection 111(1)(a) of IRPA, the Refugee Appeal Division (the "RAD") confirms the determination of the RPD that the appellant is neither a Convention refugee pursuant to section 96 of IRPA nor a person in need of protection pursuant to section 97 of that Act. Therefore, the appeal is dismissed. BACKGROUND [3] Appellant's counsel at the RAD was also counsel before the RPD. The Minister has not intervened before either the RPD or the RAD. [4] No transcript of the proceeding before the RPD is included in the Appellant's Record (AR).2 However, a written copy of the submissions of the appellant's counsel made before the RPD is included in the AR.3 A compact disc (CD) of those proceedings is included at the back of the RPD Record (RPDR).4 However, no extracts of testimony are set out in the AR nor are there any time code references made to this CD as to where in the hearing the RPD Member made any errors or to any specific testimony. Basis of Claim [5] The appellant is a 25-year-old Christian woman from Cameroon. She arrived in Canada on a visitor's visa on XXXX XXXX, 2013 and made claim for refugee protection the following month. [6] The primary basis of the claim is the appellant's allegation that if she is returned to Cameroon she will be forced to take up the position of High Priestess or "Mafo" of her village and participate in voodoo practices, contrary to her Christian and personal beliefs. As well, she will be forced to serve as a wife to the village Chief who had previously raped her during the period of XXXX 2009 to XXXX 2011. [7] The appellant alleges that the above described persecution would be by reason of her gender and attributed religious affiliation. She also alleges that she would be unsafe everywhere in Cameroon and that adequate state protection would not be available to her anywhere in the country. RPD Decision [8] The RPD found that the appellant was credible, having testified in a straightforward and consistent manner.5 The RPD also found that the appellant had established two nexus to the Convention Relating to the Status of Refugees (the "Convention")6 being; first, her gender given the sexual abuse that she had, and would in the future, suffer at the hands of the Chief and; second, religion arising from her being forced to participate in traditional practices contrary to her personal Christian beliefs.7 In addition, the RPD found that the appellant "would face more than a mere possibility of persecution if she returns to Natap, Bangante or Bamenda".8 [9] However, the RPD found that the appellant was neither a Convention refugee nor a person in need of protection inasmuch as she has a viable internal flight alternative (IFA) in Yaoundé, the capital of the country. GROUNDS OF APPEAL [10] The appellant lists the following as issues on the appeal: a) What is the standard of review? b) Did the appellant have evidence that arose after the rejection of her claim or was not reasonably available or could not reasonably be expected to in the circumstances to have been presented by her at the time of his [sic] hearing? c) Did the RPD employ speculative reasoning in finding that the appellant had a viable IFA in Yaoundé or Douala? REMEDY SOUGHT [11] The appellant seeks an order that the RAD set aside the determination of the RPD and substitute it with a determination that her claim for refugee protection be accepted. Alternatively, an order is sought that the matter be referred to the RPD for redetermination, with directions to the RPD considered appropriate by the RAD. STANDARD OF REVIEW [12] The appellant submits that the appropriate standard of review which should be applied by the RAD with respect to appeals from decisions of the RPD is that of correctness. [13] The primary argument underlying the appellant's argument is summarized in the following. [14] Subsection 110(1) of the Act provides that a person may appeal the determination of the RPD to the RAD "on a question of law, of fact or of mixed fact and law". One of the three potential decisions available to the RAD after considering the appeal set out in subsection 111(1)(c), is that the RAD may refer the matter back to the RPD for redetermination. The appellant notes that that option is circumscribed by the provisions of subsection 111(2) of IRPA: 111(2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. (appellant's underlining) The appellant submits that the use of the word "wrong" in the statute suggests an intent that the RAD is to intervene in "incorrect" cases which, in turn, suggests a standard of correctness. I disagree. [15] In considering the appellant's approach, I found it instructive to review the statutory wording found in the legislation regarding applications for judicial review before the Federal Court. Subsection 18.1(4) of the Federal Courts Act,9 which is concerned with the grounds of appeal regarding applications for judicial review to that Federal Court provides: 18.1(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. (RAD emphasis) [16] The plain definition of the word "erroneous" found in subsection 18.1(4)(d) noted above is also "wrong" or "incorrect". This is the subsection under which one might raise grounds of appeal for judicial review with regard to findings of fact. However, there is a myriad of judicial authority of long-standing at all court levels to the effect that, on judicial review, erroneous findings of fact and of mixed fact and law are to be assessed on the standard of reasonableness and not correctness. Therefore, the appellant's logic that the mere use of the word "wrong" in subsection 111(2) dictates that the standard of review should be "correctness" is ill-founded and unsupported. The appellant cites no case authority for this proposition. [17] When considering standards of review with regard to the judicial review of administrative tribunal determinations, the Supreme Court of Canada (the "SCC") in Dunsmuir10 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a specific issue before a review court is well settled by past jurisprudence, a reviewing court may adopt that standard of review. It is when that search proves fruitless that a reviewing court must undertake a consideration of factors comprising the standard of review analysis. [18] The RAD is a new appellate administrative tribunal about which, to the best of my knowledge, the Federal Court has yet to comment on the question of what standard of review the RAD should apply under various circumstances that might come before it. [19] However, some RAD decisions which, inter alia, set out detailed analysis establishing standards of review to be applied by the RAD, have now been made publicly available. [20] The RAD has previously determined that appeals based on issues of fact or mixed fact and law are to be assessed on a reasonableness standard.11 I agree with those conclusions. As well, in a publicly available previous decision,12 I have determined that the assessment of issues concerning a breach of natural justice or fairness is to be on the standard of correctness. [21] In my opinion the primary issue raised by the appellant in this case (i.e. the application of IFA to the circumstances of this claim) concerns issues of mixed fact and law to which the standard of reasonableness should apply. [22] In assessing reasonability, the SCC in Dunsmuir13 noted in paragraph 47 of its decision: In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [23] The SCC has made it clear that on judicial review a court should not lightly interfere with a decision, even when the decision may not have been the one which the reviewing court would have reached on its own. As the SCC noted further in its subsequent decision in Khosa:14 There may be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. [24] Based on the earlier RAD analysis referred to earlier, I find there is no substantive reason why a similar approach on the issue of reasonability should not be applied in this case. [25] As noted earlier, in my assessment the nature of this appeal concerns the RPD's treatment of the issue of IFA. [26] Regarding judicial review, the courts have found that the determination of a viable IFA is a question of mixed fact and law. I find that there is no substantial reason why the RAD should not come to a similar conclusion in this claim. [27] As was set out in a brief synopsis of the law concerning IFA by Justice Heneghan in Fatoyinbo:15 [4] The determination of a viable IFA is a question of mixed law and fact, reviewable on the standard of reasonableness; see the decision in Agudelo v Canada (Minister of Citizenship and Immigration), 2009 FC 465 at para 17 and Canada (Minister of Citizenship and Immigration) v Khosa, [2009] 1 SCR 339. [5] The test for a viable IFA was set out in Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA) at 710-711. It is a two-pronged test, as follows: first, the Board must be satisfied that there is no serious possibility of a claimant being persecuted in the IFA and second, it must be objectively reasonable to expect a claimant to seek safety in a different part of the country before seeking protection in Canada. [6] In order to show that an IFA is unreasonable, the Applicant must provide evidence to show that conditions in the proposed IFA would jeopardize her life and safety in travelling or relocating to that IFA; see Thirunavukkarasu v Canada (Minister of Employment and Immigration),[1994] 1 FC 589 (FCA) at 596-598. Justice de Montigny commented as follows in Garcia Guevara16 with respect to the onus on the claimant when a potential IFA is identified: [20] On the other hand, I am of the view that the panel could consider the possibility of an internal flight alternative for the applicant in Mexico City. It is settled law that the onus is on refugee claimants to establish that they cannot find refuge in their country of origin. For the purposes of this analysis, it is important to apply the two-stage test developed by the Court of Appeal in Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 FC 706. The applicant therefore had the burden of proving, on a balance of probabilities, that she faced persecution everywhere in Mexico and that it was objectively unreasonable for her to avail herself of an internal flight alternative. [21] In this case, the panel noted that the applicant had always lived in the same city and that it would not be unreasonable for her to relocate to a large city like Mexico City. On the other hand, the panel found that there was nothing to indicate that she could not establish herself there; it is true that she has no family there, but she does not have any in Canada either. In this respect, it should be reiterated that it is important to adduce concrete evidence showing that it would be unreasonable to seek refuge in her own country: We read the decision of Linden J.A. for this Court as setting up a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. Ranganathan v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 at paragraph 15. (RAD emphasis) [28] Taking the above into account, I find that the question of an IFA concerns both law and fact. With regard to law, the RPD must correctly consider the two prongs of a proper IFA analysis and then must come to a reasonable conclusion about the viability of such an IFA after applying the law to the facts established in the evidence. [29] In this case, is there any substantial reason why a similar standard of reasonability should not be applied by the RAD to the RPD determination on IFA regarding such matters as whether the chief would find the appellant in Yaoundé, if he would have the motivation or means to attempt to do so or if the appellant's life or safety would be jeopardized in that city? As discussed below, I find there is no such reason. [30] The above then deals with the first issue raised by the appellants, i.e., the appropriate standard of review. [31] The second ground concerns the question of how evidence allegedly arising after the RPD determination should be considered by the RAD under subsection 110(4) of the Act. In this regard, the appellant submits that, "correctness is also the standard to be used with respect to new evidence, given that the RPD would not have had the evidence before the time of determination".17 I conclude that this submission is somewhat misconceived in that the introduction of "new evidence" raises considerations before the RAD that were never before the RPD. The RPD obviously never made any determination on that evidence and, therefore, there is no RPD decision in that respect to be reviewed at all by the RAD. No standard of review is applicable as the determinations to be made by the RAD regarding such evidence are fresh and are not a reconsideration of a decision made by the RPD. ANALYSIS OF THE MERITS OF THE APPEAL Subsections 110(4) and 110(6) [32] The primary evidentiary focus of the appeal is as is set out in the appellant's memorandum:18 6. In rejecting the Appellant's claim, the RPD found that the Appellant had a viable internal flight alternative (IFA) in other parts of Cameroon. The panel argued that the Chief of Natap likely did not have the capacity to find the Appellant in another large city. 7. Following the hearing, additional information came to the attention of the Appellant and her counsel that is believed to be relevant to her case. 8. Specifically, the Appellant's counsel discovered information confirming that the Chief who persecuted the appellant, Seidou Pokam, is in fact the leader of the entire Bangante tribe and not simply the Chief of the area of Natap. 9. The Appellant also received an email from her cousin, Axcel Cedric, on December 16, 2013, indicating that the recent funeral of the Appellant's aunt, the elders and chief proclaimed that they would "not rest" until they had captured the Appellant and made her pay for her acts of disrespect against the tradition. 10. The Appellant relies on the additional facts as set out in her affidavit of December 23, 2013. [33] The appellant's affidavit19 reiterates some of the information previously provided to the RPD through the appellant's Basis of Claim (BOC) form and testimony. [34] The appellant notes that some years ago her mother had been designated to become the Mafo in the appellant's village. The mother died in 1996, after which the appellant was raised by her aunt in another village. In XXXX 2009, the appellant was informed that she would have to follow in her mother's footsteps and assume the role of Mafo. Being unaware of what the position truly entailed, the appellant voluntarily returned to her village in XXXX 2009. As Mafo, she was forced to marry the Chief, XXXX XXXX. He regularly raped her and required her to engage in traditional voodoo practices, contrary to the appellant's Christian beliefs. The appellant alleges that she twice attempted suicide and aborted two pregnancies as she could not bear to give birth to the Chief's children. [35] With her aunt's assistance, the appellant left the village and went to the United Kingdom (UK) in August 2011 on a study permit. The appellant hoped to regularize her status in that country through her permit. In XXXX 2013, the aunt wrote a letter to the appellant telling her that the elders and the Chief of the village had forced her to reveal the appellant's whereabouts in the UK. The appellant went to stay at a friend's house until she was able to travel to Canada in XXXX 2013, making a claim for refugee protection the next month, signing her BOC on August 27, 201320. [36] The first document the appellant seeks to introduce to the RAD is a two-page rendition of her counsel's oral submissions to the RPD.21 In my assessment this document does not require an application under subsection 110(4) of the Act in order to be considered by the RAD, provided it is an accurate record of what was submitted by counsel. Therefore, it will be considered by the RAD. [37] The appellant deposes that she learned on October 16, 2013 that her current counsel's law office had accepted her legal aid certificate and attended her initial meeting with counsel on October 24. They worked together to prepare for the scheduled November 8, 2013 RPD hearing. These preparations were significantly disrupted when the appellant learned on November 3, through an email from her cousin, XXXX XXXX, that the aunt with whom she had lived for years had died. The appellant notes that in light of the appellant's reaction to the news, her counsel suggested that an application be made to adjourn the hearing but, because the appellant was anxious to finalize the matter, she instructed counsel that they would proceed. The appellant alleges that it was not until after the RPD hearing that additional research done by her counsel's office revealed information that the Chief she feared, XXXX XXXX XXXX was not merely a chief of her small village but, rather, the head of the XXXX tribe. In this regard, the appellant seeks to present to the RAD the second document, being a 31 page listing of "traditional states "or tribes in the Cameroon.22 Over 100 tribes are mentioned. [38] The third document sought to be presented to the RAD is a XXXX XXXX XXXX 2013 email from her Cameroonian cousin, XXXX XXXX, stating that at the aunt's funeral the Chief and elders swore that they would not rest until they made the appellant pay "for bringing shame and defying the traditions of the land". The cousin advised the appellant to stay away from Cameroon or her life would be at risk.23 [39] Having dealt with the written copy of counsel's submission to the RPD by taking it into consideration on this appeal as merely being a form of the RPD Record, I find that neither of the two remaining documents should be accepted into evidence before the RAD. [40] With regard to the admission of documents as evidence before the RAD pursuant to subsection 110(4) of IRPA, the section provides: 110(4) On appeal, the person who is the subject of the appeal may 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. [41] For the reasons that follow, I find that the appellant has not met the requirements of the Act with respect to the 31 page listing of tribes in Cameroon or the email from the appellant's cousin. [42] While a Pre-Removal Risk Assessment (PRRA) differs from an appeal to the RAD, the wording of subsection 110(4) of IRPA is almost identical to section 113 of the Act which identifies what evidence is to be allowed in support of a PRRA application. Accordingly, I find that the Federal Court of Appeal and Federal Court jurisprudence regarding section 113 provides important guidance with respect to the interpretation of subsection 110(4). Section 113 of IRPA provides: 113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; Given the near identical wording of subsection 110(4), I find that there is a legislative intent that the two provisions are to be interpreted alike and that jurisprudence concerning section 113 is helpful in interpreting 110(4). [43] A seminal authority with respect to the interpretation of section 113 is the 2007 Federal Court of Appeal decision in Raza.24 Relying on the guidance of this authority, the first step with regard to subsection 110(4) is to determine whether or not the proffered evidence was not available or could not have been provided to the RPD. If it could not have been, the RAD must then assess its credibility, relevance, newness and materiality. An applicant is required to state why the evidence constitutes new evidence and why it should be considered. The burden of proving both the newness and materiality of the evidence lies with the applicant. (RAD emphasis) [44] However, in interpreting Raza, the Federal Court has held that it would be a misapplication of that authority to find that if any one of the Raza grounds were met, the evidence would be considered new evidence, regardless of other grounds. The Federal Court in Mooketsi held that:25 [18] In my view, the Applicants have misapplied the Court of Appeal decision in Raza. I do not read the decision and, in particular paragraph 13, as a statement to the effect that, if any one of the questions posed can be answered in the positive, the evidence is "new". As noted in paragraph 15 of Raza decision, evidence must be considered "unless it is excluded on one of the grounds stated in paragraph [13] above". Thus, if the "new" evidence could have been presented at the RPD hearing, then s. 113(a) requires that such evidence be rejected, even if it contradicts a finding of fact by the RPD. This is reinforced by paragraph 13(5)(a) of the Raza decision. Thus then, if a document cannot pass the first test of having arisen after the rejection of a claim, or was not reasonably available, or that could not reasonably have been expected in the circumstances to have been presented, the document will not be accepted. If it does meet that test, it is still necessary to then assess its credibility, relevance, newness and materiality. [45] The lengthy document concerning the tribes of Cameroon bears no publication date. The copy found in the AR indicates it was taken off the Internet on December 11, 2013. A review of the document reveals that the most recent date referenced in it is June 2010.26 The appellant has not asserted or provided evidence that the document did not exist prior to the RPD hearing of November 8, 2013. Rather, the appellant's affidavit indicates that her counsel's office did not locate it until after her RPD claim had been rejected. [46] The affidavit notes that the appellant's legal aid certificate was not accepted by counsel's firm until October 16, 2013 and that she first met with counsel on October 24. This was not long before the RPD hearing and the preparations for it were further disrupted by the appellants being made aware of her aunt's death shortly before the hearing. I take from the affidavit that it is on this factual basis that the appellant maintains that the information concerning the tribes could not reasonably have been expected to be presented to the RPD. [47] I find that the evidence provided by the appellant in this regard is insufficient for me to conclude that the document could not have been presented at the RPD hearing. [48] A number of considerations lead me to this conclusion. First, the threat presented by the Chief to the appellant was of long-standing. She fled Cameroon for the UK in 2011, after suffering two years from the Chief's abuse. In XXXX 2013, the appellant's aunt told her that she had been forced to reveal the appellant's whereabouts in the UK to the Chief and his cohorts. This news made the appellant allegedly too afraid to remain in the UK or make a claim for protection there and she began to make arrangements to come to Canada for her safety. Although she came to Canada on a visitor's visa in XXXX 2013, only by XXXX XXXX, 2013 had she signed her BOC with regard to her refugee claim. [49] The point the appellant wishes the RAD to draw from the document is that the Chief is not merely the head of a small village of around 500 people (i.e. XXXX) but, rather, is the Chief of the tribe itself.27 Thus, it is suggested that the finding made by the RPD that the Chief had a limited ability to locate the appellant in the country's capital, Yaoundé, is ill-founded if the Chief was the head of a larger organization. There is insufficient evidence before me to indicate that the appellant, a highly educated woman, would not have knowledge about the scope of her Chief's influence, particularly after living under his control for two years. Also, she is not an unsophisticated woman, having attained her XXXX XXXX XXXX XXXX in Cameroon and then her XXXX XXXX28 in XXXX XXXX from the XXXX XXXX XXXX XXXX London. [50] Given her personal background as noted above, I find that there would have been ample time for the appellant to prepare her case. Specifically, I also find that her delay in retaining counsel while she awaited legal aid is an insufficient reason to demonstrate that she could not have been reasonably been expected to present the document to the RPD. [51] The appellant had for years been in fear of the Chief and, at least from XXXX 2013, she was aware that he knew where she was in the UK. She came to Canada on XXXX XXXX, 2013 but did not commence a claim until late August 2013. This was over two months before her RPD hearing on November 8, 2013 with the hearing being nearly four months after she came to this country. [52] The issue of one awaiting the determination of legal aid concerning representation has been previously considered by a number of courts. In a case concerning an application for extending the time within which to seek leave in a judicial review Justice Blanchard stated:29 9. To obtain leave for an extension of time, the applicants must have a reasonable explanation for the delay and must establish an arguable case [See Vinogrado v. Canada (Minister of Employment and Immigration) (1994) 77 F.T.R. 296 (T.D.)]. 10. I am not satisfied, on the materials before me, that the applicants have offered a reasonable explanation to justify the extensive delays in the filing of their leave application and the within motion for reconsideration. Difficulties in obtaining counsel or a legal aid certificate is not, in my view, sufficient reason for failing to bring an application on time nor is it an acceptable explanation for delay that warrants an extension of time. 11. In Kiani v. Canada (Minister of Citizenship and Immigration) 124 F.T.R. 299 at para. 5. Mr. Justice Muldoon confirmed that waiting for confirmation of legal aid is not an adequate excuse for allowing a prescribed time limit to pass. He asserted that the principle was virtually inscribed in stone and cited Mr. Justice Mahoney, for the Federal Court of Appeal in Espinoza v. M.E.I.. [1992] F.C.A.D. 1486-15, 92-A-1361. (a) I am not prepared to grant an indefinite extension. The policy of the Immigration Act and Federal Court Immigration Rules as to the expeditious processing of leave applications is transparently clear. The dilatory initiation of Legal Aid applications, delays in providing opinion letters, which counsel know very well will be required, and the ever slower processing of such applications by some Legal Aid Committees cannot be permitted to defeat the policy of the Act and Rules. As I had occasion to observe in another application for an extension, "the agenda of the London & Middlesex County Legal Aid Committee cannot dictate this Court's administration of the law and application of its Rules." And Justice Zinn:30 [9] This Court has often held that waiting for a response from Legal Aid is not a reasonable explanation for delay: Espinoza v Canada(Minister of Employment and Immigration) (FCA), [1992] FCJ No 437, and Zheng v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1005. Other than stating that they have difficulties understanding the procedure before this Court, they have not advanced any other explanation to justify their delay. Further, nowhere in her affidavit does the appellant explain why she did not secure counsel much earlier. In any event, when her own counsel advised her that she might try to seek an adjournment of her RPD hearing due to her upset at learning of her aunt's death, she instructed counsel to proceed. [53] In the result, I find that the list of tribes document will not be accepted as evidence at the RAD inasmuch as the appellant has failed to establish that it was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented it at the RPD hearing. [54] This then leaves the question of her cousin's email to her of December 16, 2013. Quite clearly, this document was produced after the appellant's claim was rejected by the RPD and could not have reasonably been presented to that Division. It is to be noted that an email from the same cousin dated November 5, 2013 was disclosed to the RPD. In this latter email the cousin reveals that the aunt had died on XXXX XXXX, 2013.31 He also advised the appellant not to return to the country. In the December 16 email he states that the Chief and the elders "cursed you that they will not rest until you pay for bringing shame and defying the traditions of the land. This left many who came for the funeral very afraid as apparently no want [sic] who had ever had this curse thrown at them has ever survived".32 [55] I find that while this document could not reasonably have been expected to be produced at the RPD, it is not material in the sense of being directed to a fundamental ground of the RPD decision or the RAD appeal. This document provides evidence that the Chief continues to want to do harm to the appellant. This does not challenge in any way, but rather supports, the RPD's finding that the appellant would face more than a mere possibility of persecution if she returns to XXXX XXXX XXXX XXXX XXXX XXXX33 Accordingly, the document is not accepted under subsection 110(4) of the Act. [56] Not having accepted either of the above-mentioned documents, I find that there is no basis to hold a hearing before the RAD. Subsection 110(6) provides: 110 (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [57] Subsection 110(3) states: 110(3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. [58] The tribal list was rejected because the appellant could not establish that it could not reasonably have been expected to be produced for the RPD hearing. The cousin's email was not accepted as it did not deal with a material issue before the RAD. In particular, I find, in the words of subsection 110(6)(c), that the email, even if accepted, "would not justify allowing or rejecting the refugee protection claim". [59] Having determined that no documents are to be accepted by the RAD pursuant to subsection 110(4) of the Act and that no hearing will be held pursuant to subsection 110(6), I will now consider the balance of the issues raised by the appellant in light of those rulings. [60] To reiterate, the third issue raised by appellant is: Did the RPD employ speculative reasoning in finding that the appellant had a viable IFA in Yaoundé or Douala? [61] The country documents disclosed before the RPD include the May 3, 2013 National Documentation Package (NDP) for Cameroon.34 Item 1.3 of the NDP (being the United States Central Intelligence Agency entry for Cameroon in its "World Factbook") indicates that Cameroon has a national population of approximately 20.5 million. The capital, Yaoundé, has a population of about 1.7 million with Douala yet larger at 2.0 million. [62] As noted by the RPD in the Member's reasons, "the issue of IFA was raised with the appellant at the beginning of the hearing and throughout the hearing and Yaoundé and Douala were suggested".35 Ultimately, the Member singled out Yaoundé as the applicable IFA. I find that the RPD correctly set out the following considerations with respect to IFA in the following portions of its decision: [13] The panel must be satisfied on a balance of probabilities that (1) the claimant would not face a serious possibility of persecution in the IFA or be subject personally to a danger of torture, or to a risk of life or a risk of cruel and unusual punishment in the proposed IFA and (2) that conditions in that part of the country are such that it would be objectively reasonable, in all the circumstances, including those particular to the claimant, for her to seek refuge there. [14] In Rasaratnam v. Canada (MEI), the Court of Appeal held that, with respect to the burden of proof, once the issue of an internal flight alternative was raised, the onus is on the claimant to show that he or she does not have an IFA.36 The burden placed on a claimant is fairly high in order to show that the IFA is unreasonable. In the Federal Court of Appeal decision of Ranganathan v. Canada (MCI) in 2001, it stated the test is to show that the IFA is unreasonable.37 That test requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimant in relocating to a safe area. Actual and concrete evidence of adverse conditions is required. The panel finds that the claimant has not discharged that onus of proof. [63] Bearing in mind the onus on a claimant to show that they do not have an IFA once the question has been raised, I note that the written submission of counsel presented to the RPD provided in the AR makes virtually no direct comment on the question. If other submissions were made to the RPD on this question, the appellant has failed to note where on the CD such submissions might be found. [64] In my assessment, it is not enough for an appellant to make arguments or submissions for the first time before the RAD that could have, and should have, been made to the RPD once the issue of IFA was raised. It is not appropriate to wait until after one reads the rejecting reasons of the RPD to then determine to address the issue properly for the first time before the RAD. [65] References in submissions to country documents that "corruption is pervasive in Cameroon and that traditional chiefs could most likely act with impunity" are not sufficient in my opinion to establish, on a balance of probabilities, that the Chief or his associates in this case would locate the appellant if she were to move to Yaoundé and that there would be a serious possibility that she would be persecuted if he did. The latter point was conceded by the RPD in any event. [66] With respect to the first prong of the IFA test the Federal Court of Appeal noted in Rasaratnam, specifically dealing with section 96 claims, that: The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.38 (RAD emphasis) [67] In the context of claims under section 97, the test is somewhat different. A Board must be satisfied, on a balance of probabilities, that it is probable or likely that a claimant would not face a risk to life, cruel and unusual treatment or punishment or a danger of torture in that IFA. [68] As I understand the application of the law regarding the first prong with respect to the circumstances of this appellant, answers to two questions are required: a) is it probable that the agent of persecution would locate the appellant in Yaoundé and then, if so, b) is there a serious possibility that he would persecute her there with respect to section 96, or, regarding section 97, is it probable that he would inflict section 97 risks or danger on her? [69] The RPD provided a number of reasons why it concluded that the appellant would not be located in Yaoundé such that there would be a serious possibility that she would be persecuted there. The first concerns the appellant's personal profile. The RPD noted that the appellant testified that she was a relatively "closed person" while going to XXXX XXXX in Yaoundé before she became Mafo in 2009. She kept to herself and a number of her acquaintances were from other countries. The RPD also found that being a Mafo in the village of XXXX, having but 500 residents, did not did not give the appellant such a profile that she would be readily recognized in Yaoundé, a city approaching 2 million people. The appellant was asked how anyone from XXXX would know if she returned to Cameroon [to live in Yaoundé] and she responded by saying that Cameroon is a communal society and that someone could see her and inadvertently let the Chief know of her whereabouts. Her counsel asked her if she had any specific examples of how that might happen. The appellant stated that she could get involved through her church in activities such as trying to find missing children and that maybe that exposure could reveal where she lives. The RPD discounted this and noted that the appellant testified that the name and picture of such children are not shown on TV as might be the case in Canada. The RPD concluded that these explanations were speculative, providing insufficient evidence to show that the Chief or his elders would be able to find the appellant in Yaoundé. Bearing in mind that a balance of probabilities is the test with regard to whether or not one might be located in a proposed IFA, whether the claim be section 96 or 97(1) of the Act, I find it reasonable for the RPD to conclude that these examples did not establish that it was more likely than not that she would be discovered living in Yaoundé. [70] The RPD also found (in paragraphs 15 and 19 of its decision) that the appellant's belief that her mother and aunt had been located and subsequently died as a result of witchcraft was, while an honestly held belief of the appellant giving rise to her fear, was insufficient objective evidence to demonstrate that she would be at risk in Yaoundé as a consequence of witchcraft. I find that the RPD's conclusion that the suggestion concerning witchcraft was speculative and not objectively established to be a reasonable conclusion in all of the circumstances and in light of the evidence. [71] Similarly, the RPD considered the submission about chiefs in Cameroon being corrupt which could, thereby, lead to the Chief in this case finding the appellant in Yaoundé and also found this submission to be speculative in that there was not sufficient evidence before the RPD to demonstrate that the local Chief of XXXX "has used or would use connections through corrupt officials to locate the claimant". When considering whether the appellant would be found in Yaoundé, the RPD found that there was insufficient evidence to show that the Chief of a small village had the connections or the capacity to find the claimant in a city the size of Yaoundé. [72] The RPD also found that, with her aunt's death, the Chief had lost the last connection with anyone who specifically knew where the appellant was located. In her AR, the appellant disputes this conclusion on the basis that at least her cousin XXXX XXXX, the man who had sent her emails, knew where she was. However, in paragraph 34 of the affidavit she provided to the RAD,39 the appellant deposed that, although she had received messages from him on her email account, she has not returned any of his email correspondence, "and I therefore am unable to provide a statutory declaration or written letter from him in support of this case". I take from this comment that, while he may have her email account, the appellant has quite studiously not advised him where she is now. There is no specific evidence offered that the appellant would plan to do so in the future. [73] In paragraph 42 of the memorandum, the appellant writes40: To recall, the first prong of the IFA prong only requires a serious possibility of persecution in the IFA. A request for specific incidents is an unduly high burden for a claimant - with no contact with anyone in Cameroon - to satisfy. The evidence before the panel was clear - corruption is widespread in Cameroon; Chiefs are particularly inclined to exercise their connections to meet their own ends; two instances were highlighted in which relatives of the Appellant were located by the elders and chief while they were living outside of XXXX. We submit that this is sufficient evidence to establish a serious possibility of persecution in an IFA. [74] In my assessment, this submission misses the point discussed earlier that, with respect to the first prong of the IFA analysis, the prospect that an individual might be located in an IFA is to be determined on a balance of probabilities. If it is likely that they would be found, the next consideration with regard to a section 96 claim is whether or not there is a serious possibility that persecution would follow. [75] Regarding the second prong of the IFA analysis, the RPD found41 that that it was objectively reasonable that the appellant could relocate to Yaoundé. The Member noted that the appellant is a highly educated 25-year-old woman with two postsecondary degrees. She has a XXXX XXXX as well as a XXXX XXXX XXXX XXXX from a university in the UK. She speaks English and French. Importantly, the appellant had testified that, absent the search for her by the Chief and the elders, there were no reasons why she could not live in Yaoundé. The appellant has noted that country documents include comments that women who live alone in Cameroon may be considered women of "poor reputation" such that members of their family would have to act as guarantors for them so that they might obtain accommodations42. However, there is no indication that this submission was made to the RPD. Moreover, this apparently was not something about which the appellant provided her own testimony. The RPD highlighted in paragraph 22 of the decision that the documentary evidence indicates that "it is possible for a woman to live alone in Cameroon's large cities, such as Yaoundé or Douala, as long as they have the necessary resources; the same sources added that the level of education influences the quality of the employment". The RPD added that the appellant had demonstrated that she is resourceful and adaptable by having studied in Yaoundé and, subsequently, in the UK and then traveling to Canada. The RPD concluded that it was objectively reasonable in all the circumstances, including those particular to the appellant, for her to relocate to Yaoundé. [76] Taking the entirety of the RPD reasons and record into account, as well as submissions made to the RAD, I find that the appellant has failed to meet the burden of demonstrating that the proposed IFA in Yaoundé is unreasonable bearing in mind that that test, in the words of the Federal Court of Appeal in Rasaratnam, "requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimant in relocating to a safe area. Actual and concrete evidence of adverse conditions is required". [77] In the result, I find that the RPD has reasonably concluded, as that term has been defined by the Supreme Court of Canada in Dunsmuir and Khosa, that the appellant has a viable IFA in Yaoundé upon a return to Cameroon. That finding applies whether the claim is made under section 96 or section 97(1) of the Act. That being the case, the appeal is dismissed. CONCLUSION [78] For the foregoing reasons, the determination of the RPD that XXXX XXXX XXXX XXXX XXXX neither a Convention refugee nor a person in need of protection is confirmed and her appeal is dismissed. (signed) "Philip MacAulay" March 31, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Refugee Appeal Division (RAD), Exhibit 2, Appellant's Record (AR). 3 RAD Exhibit 2, AR, pp. 19-20. 4 RAD Exhibit 3, RPD Record (RPDR) 5 RAD Exhibit 3, RPDR, p. 4, para. 4. 6 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 7 RAD Exhibit 3, RPDR, p. 7, para. 10. 8 RAD Exhibit 3, RPDR, p. 7, para. 11. 9 Federal Courts Act, R.S.C. 1985, c.F-7 as am. 10 Dunsmuir v. New Brunswick, 2008 SCC 9. 11 For example see X (Re), 2013 CanLII 82622 at para. 29 (IRB); X (Re), 2013 CanLII 67015 at para. 29 IRB): X (Re), 2013 CanLII 76397 at para. 18 (IRB); X (Re), 2013 CanLII 76473 at para. 28 (IRB); X (Re), 2013 CanLII 76390 at para. 27 (IRB). Decisions on CanLII are publicly available at <http://canlii.org>. 12 X (Re), 2013 CanLII 61014 (IRB), publicly available at <http://canlii.org>. 13 Dunsmuir v. New Brunswick, 2008 SCC 9. 14 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para.59. As well, see Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 and Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10. 15 Fatoyinbo v. Canada (Minister of Citizenship and Immigration), 2012 FC 629. 16 Garcia Guevara v. Canada (Citizenship and Immigration), 2012 FC 195. 17 RAD Exhibit 2, AR, p. 84, para. 15. 18 RAD Exhibit 2, AR, p. 80, para. 6-10. 19 RAD Exhibit 2, AR, pp. 13-52. 20 RAD Exhibit 3, RPDR, p. 23. 21 RAD Exhibit 2, AR, pp. 19-20. 22 RAD Exhibit 2, AR, pp. 21-51. 23 RAD Exhibit 2, AR, p. 52. 24 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 25 Mooketsi v. Canada (Citizenship and Immigration), 2008 FC 1401. 26 RAD Exhibit 2 AR, p. 50; see reference to date under "Foto" tribe. 27 The document itself does not indicate how many persons might be in the tribe under which the chief's name is given. There is a category of tribes called "Bamileke States" numbering 47 of which the appellant's Chief is listed under only one of them. 28 RAD Exhibit 3, RPDR, p. 37. 29 Shokri v. Canada (Minister of Citizenship and Immigration), 2002 FCT 785. 30 Flores Cabrera v. Canada (Minister of Citizenship and Immigration), 2011 FC 1251. 31 RAD Exhibit 3, RPDR, p.176. 32 RAD Exhibit 2, AR, p.52. 33 RAD Exhibit 3, RPDR, p. 7, para. 11. 34 RAD Exhibit 3, RPDR, pp. 94-115. 35 RAD Exhibit 3, RPDR, p. 8, para. 12. 36 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) 37 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.) 38 Rasarathnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (CA), at p. 710. 39 RAD Exhibit 2, AR, p. 17, para. 34. 40 RAD Exhibit 2, AR, p.89, para. 42. 41 RAD Exhibit 3, RPDR, p. 11, para. 42 RAD Exhibit 2, AR, p. 91, para.47. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB3-03251 RAD.25.02 (February 7, 2014)