MC0-08326

RAD File No. / No de dossier de la SAR : MC0-08326 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision March 26, 2021 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Angelica Pantiru Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, you are a citizen of Spain and of the Dominican Republic. You have stated that, in both those countries, you are afraid of violence from your former spouse, who is the father of your daughter and who is involved in drug trafficking.1 [2] The Refugee Protection Division (RPD) found that you were not credible. It also found that, even if you had been credible, you did not rebut the presumption that the Spanish authorities can provide you with adequate protection.2 [3] On appeal, you submitted evidence and ask for an oral hearing to be held. You argue that the RPD made errors in finding that you were not credible and that you could avail yourself of state protection in Spain. You also argue that it failed to analyze your fear with respect to the Dominican Republic and refused to grant you a postponement in order to obtain documents to corroborate your allegations.3 [4] Having analyzed your record, I have concluded that the documentary evidence submitted with your appeal is not admissible and that it is not possible to hold an oral hearing. I also conclude that the RPD did not make the errors you allege. [5] In light of those conclusions, your appeal is dismissed. I. EVIDENCE SUBMITTED ON APPEAL [6] The Refugee Appeal Division Rules (RAD Rules) require persons who are the subject of the appeal to include in their memorandum full and detailed submissions regarding how the documentary evidence they want to rely on in the appeal meets the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and how the evidence relates to them.4 [7] In your memorandum, you submitted your daughter's birth certificate. You contend that, although you gave it to your lawyer, he neglected to send it to the RPD. You state that, when you read the RPD's decision, you were shocked to learn of this negligence on the part of your lawyer. You also argue that the negligence affected your credibility, as the certificate could corroborate the identity of your agent of persecution as the father of your daughter.5 [8] I must emphasize that subsection 110(3) of the IRPA expressly provides that the RAD must generally proceed without a hearing, on the basis of the record of the proceedings of the RPD. Subsection 110(4) creates an exception to that general rule. The existence of criteria governing the admissibility of new evidence on appeal helps to preserve the integrity of the process by promoting finality with respect to the factual record at the first level of decision-making, with very limited exceptions, and encouraging the narrowing of issues as matters move up the appellate ladder.6 [9] I have read your daughter's birth certificate.7 The document does not relate to facts that arose after the RPD rejected your claim for refugee protection. You argue that your former lawyer neglected to submit it to the RPD. However, you submitted no document that could establish that you actually did inform your former lawyer of the negligence. [10] Be that as it may, even supposing that there was negligence on his part, the fact remains that the RPD concluded that, even if you were credible, you did not rebut the presumption that Spanish authorities are willing and able to provide you with adequate protection. In other words, even assuming that you have clearly established who is the father of your daughter, you have still not provided clear and convincing evidence that you would not be able to enjoy the protection available from Spanish authorities. [11] In that context, I am of the opinion that your daughter's birth certificate is not relevant, given that it is not capable of proving or disproving a fact that is relevant to the determinative issue in your appeal.8 I therefore find that it does not satisfy the requirements of subsection 110(4) and is not admissible in your appeal. II. HOLDING AN ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [12] The RAD Rules require persons who are the subject of the appeal to include in their memorandum full and detailed submissions regarding why the RAD should hold an oral hearing under subsection 110(6) of the IRPA.9 [13] In your memorandum, you ask the RAD to order that an oral hearing be held, given that there is evidence that is referred to in subsection 110(3) of the IRPA. You argue that the evidence raises a serious issue with respect to your credibility, that it is central to the decision with respect to your refugee protection claim and that, if accepted, it would justify allowing your claim.10 [14] The onus rests with the RAD to determine whether or not the criteria in subsection 110(6) of the IRPA have been met.11 [15] The RAD has no obligation to hold an oral hearing if the requirements of subsection 110(6) of the IRPA have not been met; there must be new documentary evidence that fits within the parameters of subsection 110(4). I am of the opinion that the birth certificate you submitted with your appeal is not admissible. Even if I had found it to be admissible, it is not, in any event, central to the decision with respect to your claim for refugee protection and it cannot justify allowing or rejecting your claim. Consequently, it is not possible to hold an oral hearing.12 III. ANALYSIS OF THE APPEAL [16] The role of the RAD is not to conduct a de novo review of refugee protection claims, but rather to determine whether the RPD committed the errors for which it is criticized.13 [17] On this point, it must be noted that the RAD's mandate is to intervene to correct any error of fact, law, or mixed fact and law, made by the RPD. Nevertheless, generally, this mandate is to be exercised on the basis of the record that was before the RPD. That general rule has one exception, but it can only be used if the requirements of subsections 110(4) or 110(6) of the IRPA have been met.14 The exception does not apply here, since the document submitted with your appeal does not meet the requirements of subsection 110(4). [18] I have conducted my own analysis of your record and I am of the opinion that the correctness standard of review must be applied.15 For the purposes of my own analysis, the determinative issue is the protection that can be provided to you by Spanish authorities. A. The errors that the RPD made, in your opinion [19] The RAD Rules require that persons who are the subject of the appeal must identify: i) the errors that are the grounds for the appeal, and ii) where the errors are located in the RPD's decision or in the transcript or in any recording of the hearing.16 [20] In your memorandum, you argue that the RPD should have first analyzed your fear of persecution in the Dominican Republic, your country of birth.17 [21] You also argue that the RPD had no reason to doubt your credibility as to your former spouse being informed about your activities in requesting spousal support and that it did not analyze the possibility that he would learn of your plans, including from yourself.18 [22] You argue that the RPD should have analyzed state protection in terms of the profile of your former spouse, a drug trafficker, as Spain is part of an international drug trafficking network. You also argue that the RPD did not consider important evidence, such as the corruption among government representatives and the serious problem of violence against women and children in Spain.19 [23] Finally, you argue that the RPD deprived you of your right to obtain other documents, specifically your daughter's birth certificate, by refusing to postpone the start of the hearing.20 B. By my own analysis, the Refugee Protection Division did not make the errors you allege [24] Having conducted my own analysis of your record, I found that the RPD did not make the errors you allege. This is why. State protection [25] I will begin my analysis with the issue of state protection, since this is the determinative issue in your case. I am of the opinion that the RPD made no errors in this matter. This is why. [26] It is well established that the onus of producing evidence to rebut the presumption of state protection is on the person claiming refugee protection. It is up to that person to show, with clear and convincing evidence, that state protection is not adequate. This involves demonstrating either that the refugee protection claimant sought state protection but it was not forthcoming, or that they did not try to obtain it because of a well-founded fear that it would not be provided.21 [27] In its decision, the RPD referred to the presumption that states are capable of protecting their citizens. It analyzed the documentary evidence that Spain is indeed a state of law where human rights and freedoms have a major place. It also pointed out that you actually did not seek the protection of Spanish authorities from your former spouse who had allegedly been violent to you.22 [28] In his written submissions, your former lawyer points out that, during your testimony, you stated that you had filled in a complaint form, but you ended up not submitting it, leaving your job because you feared for your safety, and coming to claim protection in Canada.23 [29] I read the complaint you submitted as evidence to the RPD. The document does not specify the grounds on which the complaint was made.24 [30] According to my own analysis of the record, you did not use the various remedies available in Spain to victims of family violence. The fact that your former spouse was being followed by the police and was involved in drug trafficking does not excuse you for not asking Spanish authorities to provide you with the protection available in that country. Consequently, you did not rebut the presumption that Spanish authorities would be willing and able to protect you if you had to deal with violence in your relationship with your former spouse. Your credibility [31] People claiming refugee protection are presumed to be telling the truth when they swear to the truth of certain allegations. However, that presumption can be rebutted where the evidence is inconsistent with the testimony or where the RPD is not satisfied with the explanation for the inconsistencies.25 The RPD may draw negative inferences from implausibilities, inconsistencies or omissions. The entirety of the evidence must be assessed.26 [32] In its decision, the RPD explained why it found you not to be credible. It referred to the fact your former spouse had been informed by people at a court where you had gone to obtain the forms needed to apply for spousal support, but that you ended up not doing so. It also referred to the fact that you submitted a complaint form, but with no heading to indicate which Spanish organization it came from.27 [33] In my opinion, the RPD did not err when it found that there was sufficient evidence to find that your credibility was undermined. Your request for a postponement [34] There is no basis for your argument that the RPD deprived you of your right to obtain other documents, specifically your daughter's birth certificate, by refusing to postpone the start of the hearing. Although it refused the request for postponement, the RPD nevertheless gave you time to submit the birth certificate. It therefore did not deprive you of your right to obtain other documents. Your fear in the Dominican Republic [35] When no fear of persecution within the meaning of section 96, and no risk within the meaning of section 97 of the IRPA were established with regard to Spain, your fear in the Dominican Republic did not have to be analyzed.28 CONCLUSION [36] For those reasons, I confirm the RPD's decision rejecting your claim for refugee protection. [37] Your appeal is dismissed. (signed) (Alain Bissonnette) Me Alain Bissonnette March 26, 2021 Date IRB translation Original language: French 1 Your Basis of Claim Form (BOC Form) is reproduced on pages 20 to 43, and your lawyer's written submissions and the documents you submitted in evidence to the RPD are reproduced on pages 77 to 252 of the scanned version of the RPD record. 2 Refugee Protection Division (RPD) Reasons and Decision, February 26, 2020, pages 5 to 9 of the scanned version of the RPD record. 3 Your memorandum, pages 15 to 21 of the scanned version of your appeal record. 4 Refugee Appeal Division Rules (RAD Rules), SOR/2012-257, subparagraph 3(3)(g)(iii). 5 Your memorandum, supra, footnote 3, paragraphs 22 to 26. 6 Canada (Minister of Citizenship and Immigration) v. Davoodabadi, No. IMM-1047-18, Norris, March 21, 2019; 2019 FC 350, paragraph 21, citing the Federal Court of Appeal decision in Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96. 7 This document is reproduced on pages 12, 13 and 14 of the scanned version of your appeal record. 8 As the Federal Court of Appeal states in Singh, supra, footnote 6, paragraph 38. 9 RAD Rules, supra, footnote 4, subparagraph 3(3)(g)(v). 10 Your memorandum, supra, footnote 3, paragraph 12. 11 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraphs 27 and 28. 12 Abdi v. Canada (Minister of Citizenship and Immigration), No. IMM-566-18, Boswell, January 16, 2019; 2019 FC 54, paragraph 29. 13 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 14 Davoodabadi, supra, footnote 6, paragraph 22, citing the Federal Court of Appeal decision in Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paragraphs 78, 97, 98 and 103. 15 Huruglica, supra, footnote 13. 16 RAD Rules, supra, footnote 4, subparagraph 3(3)(g)(ii). 17 Your memorandum, supra, footnote 3, paragraphs 14 to 21. 18 Ibid., paragraphs 29 to 36. 19 Ibid., paragraphs 37 to 42. 20 Ibid., paragraphs 43 to 46. 21 Pava v. Canada (Minister of Citizenship and Immigration), No. IMM-2115-18, Pentney, September 26, 2019; 2019 FC 1239, paragraph 37. 22 RPD Reasons and Decision, supra, footnote 2, paragraphs 18 to 24. 23 These written submissions are reproduced on page 78 of the scanned version of the RPD record. 24 This complaint is reproduced on pages 80 and 81 of the scanned version of the RPD record. 25 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 26 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 27 RPD Reasons and Decision, supra, footnote 2, paragraphs 8 to 17. 28 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, pages 694, 751 and 752. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-08326 RAD.25.02 (January 2020) Disponible en français 3 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.25.02 (January 2020) Disponible en français