TB5-02884

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 : TB5-02884 TB5-02885 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 10, 2015 Date de la décision Panel Leonard Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Razgar Hasan Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX (the minor unaccompanied Appellants), citizens of Jordan, appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the Refugee Protection Division (RPD) and substitute a decision with its own determination that the Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD for re-determination. Designated Representative [2] The Appellants' paternal uncle, XXXX XXXX, was appointed as the designative representative of the Appellants for the purposes of this appeal. DETERMINATION [3] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [4] The Appellants alleged before the RPD that their father relocated to Canada in 2003. They lived with their mother in Jordan until 2007. In 2007, their mother was sponsored to Canada by their father. Neither parent declared the Appellants on their immigration forms when they entered Canada, and as such, they have been unable to sponsor the Appellants to Canada. The Appellants remained in Jordan with their maternal aunt. In 2012, their maternal aunt married a religiously devout and conservative Jordanian. The aunt's new husband imposed his conservative views on the Appellants and became physically abusive towards them. [5] In XXXX 2014, the Appellants traveled with their mother from Jordan to Canada through the US and made refugee claims upon their arrival in Canada. They allege that no one will protect them in Jordan and that they fear abuse at the hands of their aunt's husband. [6] The RPD found that the Appellant's fear is not well founded and that state protection would be available to them if they returned to Jordan. The Appellants submit that the RPD failed to assess the credibility of the male minor Appellant and further that state protection is not available to them in Jordan. ROLE OF THE RAD [7] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, 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 the RAD to decisions of the RPD. 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.2 [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".3 [8] 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,4 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. [9] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. 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. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [10] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of the IRPA provides that 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. [11] The Appellants have tendered the following proposed new evidence in support of their appeal. a) Letter from XXXX XXXX XXXX, dated April 2, 2015 (identified as a statement from the Appellants' aunt in the statement on s. 110(4) of the IRPA within the Appellants; Record); b) Marriage certificate of the Appellants' aunt and her husband; and c) Second letter from XXXX XXXX XXXX, dated April 2, 2015. [12] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred, or a circumstance that arose after the rejection of the refugee claim. b) The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove.5 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. c) It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD's hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the probative value of the evidence. e) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, or that it proves a fact that was unknown to the Appellant at the time of the hearing? If so, the RAD will proceed to assess the probative value of the evidence. f) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered. If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the probative value of the evidence. [13] In the case at hand, the Appellants argue that the new evidence meets the statutory requirements of section 110(4) of the IRPA because the new evidence is the "cornerstone of the appeal" but does not otherwise demonstrate how that evidence meets the test of new evidence as defined by 110(4) of the IRPA. The Appellants have not provided any argument of how that new evidence advances their appeal and have not provided any argument on why they could not have tendered this evidence prior to the rejection of the claims. The absence of argument to support the admission of the Appellants' proposed new evidence limits the assessment that can be done. [14] The RAD notes that, although the Appellants characterize the first document as a statement from their aunt, the RAD finds that the document is actually a letter from her lawyer in which he provides details on what the aunt has disclosed to him. The RAD notes that the details described in the letter predate the Appellants' refugee claims. Although this information was available to the Appellants prior to their refugee claims, they have not provided an explanation why they were unable to tender this evidence prior to the rejection of their claims. [15] The second document is a marriage certificate of the Appellants' aunt and the agent of persecution. Again, the Appellants have not provided any explanation why this document could not have been tendered with their appeal or at least prior to the rejection of their claims. The document predates the Appellants' refugee claims and, as such, ought to have been available to them. [16] The third document is a letter from the same lawyer who authored the first document. In this letter, he provides his opinion on the ineffectiveness of laws which govern state protection for children in Jordan. Although the Appellants have not provided any explanation how this letter advances their appeal, the RAD finds that it is relevant to the RPD's finding on state protection. Nonetheless, the RAD notes that the Appellants again have not provided any explanation on why they could not have tendered this information prior to the rejection of their claims. [17] The RAD notes that the issue of state protection was canvassed by the RPD during the hearing. Furthermore, the RAD notes that the Appellants' counsel provided written submission post-hearing on the issue of state protection for children in Jordan. As such, it is clear that the Appellants' counsel was aware that state protection was an issue in these claims. Although the document was prepared after the rejection of the claims, the Appellants have not provided any explanation why they did not seek this document prior to the rejection of their claims in light of the importance of the issue to their RPD's claims. The RAD notes that these claims were heard over two sittings, September, 25, 2014 and January 13, 2015. This issue of state protection was raised at the start of the hearing. [18] Furthermore, the RAD notes that interval of time between the hearing date when this issue was first raised by the RPD and the rejection of the claim on February 25, 2015 was approximately five months. The RAD finds that there was sufficient time to allow the Appellant to tender this document during the hearing or to make application to tender the document as a post-hearing document. [19] In light of the foregoing, the RAD finds that the Appellants have not established that they could not have reasonably tendered these documents prior to the rejection of their claims. On the basis of the foregoing, the RAD finds the Appellants' proposed new evidence does not satisfy the statutory requirements of section 110(4) of the IRPA, and, as such, it is not admitted as evidence in this appeal. ANALYSIS OF THE MERITS OF THE APPEAL [20] The RPD found that the Appellants do not have a well-founded fear of persecution under section 96 and do not face a risk under section 97 of the IRPA. Although the Appellants allege that there is no one in Jordan who can look after them and that they would inevitably become wards of the state, the RPD found that the Appellants can avoid harm from their uncle, the agent of persecution, by living with another relative or by living with one or both of their parents in Jordan. The RPD noted that the Appellants' parents have dual Jordanian and Canadian citizenship. The RPD also noted that the Appellants' mother, who was a witness in the hearing, testified that she has nine sisters and four brothers living in Jordan. [21] The RPD further found that the Appellants had not rebutted the presumption of state protection. The RPD noted that neither the Appellants nor their family members approached the state for protection. In addition, the RPD found that there are child protection services available in Jordan. [22] The Appellants have contested the RPD's findings on state protection; however, they have not made submissions or provided an argument on the RPD's findings on subjective fear. As noted by the RPD, the Appellants' mother testified that she preferred that the Appellants not live with her other family members because they were poor and had older children. However, she did not express any concern that they would suffer any harm or would otherwise be at risk if they were to live with another family member in Jordan. [23] After its own review and assessment of the evidence, the RAD finds that the Appellants have not provided any evidence which establishes that they would be at risk if they were to live with another family member in Jordan. There is no evidence in the record which suggests that the agent of persecution would attempt to harm them if they were in the care of other family members. Furthermore, the RAD notes that the Appellants have not provided any argument of why one or both of their parents who both have Jordanian citizenship could not provide them protection and care by residing with them in Jordan. [24] In light of the evidence in the record, the RAD agrees with the RPD's finding that there is not a serious possibility that the Appellants would be persecuted in Jordan, or that, on a balance of probabilities, they would be personally subjected to a danger of torture, or face a risk to their lives, or to a risk of cruel and unusual treatment or punishment in Jordan. [25] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "Leonard Favreau" Leonard Favreau June 10, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Ibid. para 54. 3 Ibid. para 55. 4 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, para. 16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-02884 TB5-02885