TB4-07700

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 : TB4-07700 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 January 21, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Preevanda K Sapru Barrister & Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX(the Appellant), a citizen of Saint Vincent and the Grenadines (SVG), 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. The Appellant asks the Refugee Appeal Division (RAD) to allow an appeal of the RPD decision however; the Appellant does not specify in her Memorandum exactly what result she seeks. The RAD will presume in this case that the Appellant is asking that the RAD overturn the RPD decision and declare the Appellant a Convention refugee or a person in need of protection or in the alternative, send the case back to the RPD to be heard by a different Member. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she had been sexually abused by various people, during her childhood, in SVG. The Appellant was represented at the hearing by counsel and by a designated representative (DR), Ms. XXXX XXXX, a respected member of the Bar who has appeared before the IRB in the capacity of DR and as counsel on many occasions. The Appellant was deemed vulnerable in accordance with the Chairperson's Guidelines, specifically Guideline #8, and additionally by the RPD appointed DR, Ms. XXXX. [4] The Appellant had left SVG in 1998, eventually arriving in Canada that same year. She had lived and worked in Canada without legal status until being arrested in a half-way house and being turned over to Immigration authorities where she was detained for several months. [5] The Appellant's application for refugee protection was heard on May 14, 2014, with Ms. XXXX on hand as the DR. After some discussion amongst the RPD, counsel and the DR, it was agreed upon that the order of questioning would be as usual however, if that was found not to satisfy the needs of the hearing and of the Appellant, other accommodations would be discussed and decided upon. At the end of the hearing, the Appellant was given until June 16, 2014 to make written submissions. Those submissions were received and taken into account by the RPD in its Reasons and Decision. The decision was that the Appellant lacked subjective fear and was not a Convention refugee. The basis of the finding was the egregious length of time between the Appellant's landing in Canada in 1998 and her application for protection, 15 years later in 2013. [6] The Appellant submits that the RPD erred by not fully and properly applying the Chairperson's Guidelines in this case when the RPD determined a lack of subjective fear by the Appellant due to her length of time in Canada before applying for status. As a vulnerable person with cognitive and memory impairment, should the RPD have taken more consideration of these issues in rendering a decision? [7] The Appellant submits that the new evidence (see below) may invalidate the RPD's decision as that evidence demonstrates that the Appellant did file application long ago to regularize her status in Canada. As the egregious delay in applying for status was the basis of the negative decision by the RPD, the Appellant submits that this new evidence would render that decision invalid. [8] The Appellant believes that the RPD erred when it failed to consider the Appellant's risk should she return to SVG now, because the RPD decided that the delay in claiming was fatal to the claim, and consequently did not conduct a thorough analysis of the rest of the claim. [9] The Appellant believes that the RPD erred in its assessment of the country conditions in regards to this Appellant when taking into account, her cognitive impairment. ANALYSIS Admissibility of Evidence Submitted on Appeal [10] Section 110(4) of 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. [11] It is for the Appellant to make full and detailed submissions in her Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.1 [12] The Appellant asks that the RAD admit as new evidence, documents which show that the Appellant had at times in the past, applied for a regularization of her status in Canada. The evidence in question2 are documents which appear to show that the Appellant had applied to Citizenship and Immigration Canada in 2005 for permanent resident status on "Humanitarian and Compassionate" grounds. This application was denied. The documents also indicate that the Appellant had attempted some sort of interaction with Immigration as early as 2000. It is uncertain what that was however, the Appellant submits that this evidence supports her testimony at the hearing when she testified to having paid various lawyers and consultants to obtain legal status in Canada. [13] The question the RAD must answer is whether this evidence is new. Of course, it is evidence which was created as much as 15 years ago and as recently as 5 years ago; all of which, under normal circumstances, would mean that it is not new. RAD must now ask "was it reasonable to expect the Appellant to provide this documentation at the hearing?" The answer, again under normal circumstances, is a resounding "yes." The Appellant (or her counsel) would be aware that such information may be important to the outcome of the hearing and should have made Herculean efforts to obtain it. Lastly, the RAD asks "was this evidence reasonably obtainable by the Appellant in time for the hearing?" Once again, under normal circumstances, the answer is "yes." [14] However, the RAD finds that this case is not about normal circumstances. The Appellant is a middle aged woman who, according to the psychological assessment of a respected practitioner and according to a well-respected DR who often appears before the IRB, is a vulnerable person, suffers from severe cognitive issues and does not have the capacity to understand the importance of the new evidence nor the capacity to have been more forceful in her attempts to obtain her belongings from the half-way house where they were being held. The DR has written in her affidavit that neither she nor counsel were aware of these documents being submitted as new evidence until late August, 2014, when the Appellant showed up at counsel's office with the evidence which she had only recently obtained from the half-way house where they had been stored. The Appellant, due to her cognitive disability, was unaware of the existence of these documents until the half-way house manager demanded the Appellant pick up her belongings she left behind when she moved out. When the RAD considers the psychological report substantiating the condition of the Appellant's cognitive capabilities along with the sworn affidavit from the DR, the RAD believes that this evidence was not reasonably available at the time of the hearing. For these reasons, the RAD will consider that the new evidence does qualify under Section 110(4) of IRPA. Further, having read and otherwise perused the documents in question, the RAD finds that they are relevant, they are credible and they are material to the basis on which the Appellant was denied refugee status. The new evidence is allowed. The Role of the RAD [15] Counsel has made some submissions on the RAD 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,3 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 Appellant 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." [16] Accordingly, the RAD will conduct its own assessment of the evidence 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. However, the RAD will not be bound by those RPD conclusions. The RPD's Findings [17] The Appellant argues that the RPD erred by not fully and properly applying the Chairperson's Guidelines in this case, when the RPD determined a lack of subjective fear by the Appellant due to her length of time in Canada before applying for status. As a vulnerable person with cognitive and memory impairment, should the RPD have taken more consideration of these issues in rendering a decision? The RAD has perused the evidence which was before the RPD, which included the psychological report outlining the vulnerability of the Appellant. The RPD took notice of the fact that Dr. XXXX found evidence of cognitive impairment in the Appellant. The RPD consulted counsel and the DR in order to make accommodations that the RPD felt were necessary in the hearing of this claim. Accommodations were agreed upon by all parties and the hearing proceeded accordingly. The RAD finds that the RPD did in fact consider and apply those considerations of the Chairperson's Guidelines (#8) in respect of the hearing of this claim. However, the Appellant submits that the RPD failed to properly assess the weight to be given to evidence in light of the Appellant's vulnerability. [18] The RAD respectfully disagrees with the Appellant. Given the fact that the claim was not "well corroborated by objective documentation personal to the claimant",4 and that the panel even took into consideration that the Appellant was in detention making the gathering of such evidence more difficult, the RAD finds that the RPD did properly assess the evidence that was before the panel at the hearing. In dealing with the primary issue (according to the panel) of egregious delay, there was insufficient evidence at the hearing to substantiate any good reason for such a delay of up to fifteen years in making a claim, and such a delay can and should be fatal to a claim. The RAD finds that the RPD gave proper weight to the evidence that came before it and did not err. [19] The Appellant argues that the new evidence may invalidate the RPD's decision as that evidence demonstrates that the Appellant did file application long ago to regularize her status in Canada. As the egregious delay in applying for status was the basis of the negative decision by the RPD, the Appellant submits that this new evidence would render that decision invalid. The RAD has allowed the new evidence because it was not reasonably available at the time of the hearing and, in fact refutes the finding of the RPD to some degree. The RPD found the 15-year delay to be egregious. The new evidence shows that the delay to gain some sort of legal status in Canada was not 15 years as at least three attempts were made previously in 2000, 2005 and 2009. This new evidence certainly reduces the time of how long the Appellant was in Canada before she applied for refuge; however, the question the RAD now must ask itself is just how long a delay is acceptable? The Appellant landed in Canada in late 1998. The new evidence seems to suggest that her first application for refuge was in the year 2000 which would still leave a gap of 14 months from her arrival in Canada to the time of her first application. Had this been the known circumstance at her hearing, would the RPD have still considered a 14 month delay as egregious? The RPD has cited Singh5 in regards to the importance which may be placed on a delay in claiming. The Appellant cites Brown6 to tell that the delay itself (in claiming) is insufficient to cause a refugee claim to fail. It is obvious that the law is mixed on this issue. The RAD has looked seriously at the record, the case law and all relevant data and has decided that, but for the cognitive impairment of this Appellant, the RPD's decision regarding delay would stand. However, in view of the diagnosed cognitive impairment, supported by evidence on file including the Basis of Claim form and the narrative attached thereto, the RAD finds that this Appellant does suffer from a cognitive impairment, combined with a low standard of education, both of which when considered in view of Guideline 8 are sufficient enough to find the delay of 14 months, in submitting her first claim to be not egregious and not necessarily indicative of a lack of subjective fear [20] The Appellant argues that the RPD erred when it failed to consider the Appellant's risk should she return to SVG now, because the RPD decided that the delay in claiming was fatal to the claim and consequently did not conduct a thorough analysis of the rest of the claim. The RPD concluded that the passage of time would make it less than a serious possibility that the Appellant would be persecuted by her mother's abusive boyfriend or the other alleged abusers back in SVG. The RPD also noted that the fear of gang related crime is a generalized risk which precludes it from being considered under either Section 96 or Section 97 of IRPA. [21] The RAD has considered this issue and has looked at the country conditions of SVG; in particular, those with regards to domestic violence, sexual violence, police protection and institutions such as women's shelters. There is no doubt that domestic violence and sexual abuse are major concerns in SVG. In Alexander,7 the court stated: There is something wrong in the relationship between men and women in St Vincent and the Grenadines. Year after year, woman after woman washes up on our shores seeking protection from abusive, violent husbands or boyfriends. In fact, last year (2008) 495 refugee claims were filed by citizens of that country. Only ten other countries were the source of more claimants. In 10th place, with 551 claimants, was India. Considering India has a population of 1.2 billion and St Vincent and the Grenadines 118,000, one has to wonder. If the cases which come to this Court by way of judicial review or stay applications are any indication, nearly all the claimants are women who assert domestic abuse. [22] Documents8 at the Board indicate that SVG has the third highest rate in the world of reported rapes at a rate of 112 per 100,000 persons. Further, that same document speaks to the lack of effectiveness of the police in rape investigations when, of 55 cases of rape and attempted rape were brought to the police, only 18 of those were brought to trial. [23] When the RAD is presented with such evidence of both the rate of sexual violence in SVG and the lack of police effectiveness, it is sufficient to move the RAD to determine that there is insufficient state protection for victims of sexual abuse in SVG. The question for the RAD at this time is whether or not there is a serious possibility that this Appellant would be subject to such sexual violence if she were to return to SVG. The RAD has considered the evidence before it, including some transcripts of the hearing, country condition documents and submissions from both counsel and the DR. The RAD finds insufficient evidence to support the conclusion that the Appellant would be subject to sexual violence or for that matter, targeted violence of any kind contemplated within the confines of the IRPA, and consequently finds that there is less than a serious possibility that the Appellant would face persecution should she return to SVG. However; the RAD has also considered the risk to the Appellant as a vulnerable woman in a country with a very high rate of sexual violence.9Although such a risk would be generalized and not specific to any particular individual, the RAD has looked for evidence which would suggest that a vulnerable person may be targeted for sexual violence. It would be speculative of the RAD, as it was unable to find evidence to support such a theory, to conclude that this Appellant would be specifically targeted and persecuted should she return to SVG. As the Appellant has failed to provide sufficient evidence that she meets the lower standard or "serious possibility" under Section 96, she certainly would not meet the standard of Section 97 which requires a "balance of probabilities" and a non-generalized or a personalized risk, neither of which the Appellant has been able to show, exists. The RAD finds that the Appellant does not face a personalized risk of harm should she return to SVG. Disposition [24] The RAD has found that the RPD decision can stand albeit with different reasons. The RPD found the delay in claiming to be so egregious as to cause the claim to fail. With the new evidence allowed by the RAD, this is no longer a major issue and therefore, the RAD has looked further into the claim. [25] The RAD concludes that the Appellant did have a nexus to a Section 96 claim however, in the ensuing great length of time passed since the abuses alleged to have happened would have happened, and the lack of sufficient evidence to even suggest that such abuse would occur now or in the future, the RAD finds that the basis of this claim simply no longer exists. CONCLUSION [26] Pursuant to Section 111(1) (a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe January 21, 2015 Date 1 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 2 Appellant's Record, Exhibits F and J. 3 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 4 RPD Reasons for Decision para 22 5 Singh, Pritam v. M.C.I. (F.C., No. IMM-2513-06), Shore, January 25, 2007; 2007 FC 62, at para. 24. 6 Brown v. Canada (Minsierof Citizenship and Immigration), 2011 FC 585 (CnLII), 2011 FC 585 at paras. 39-40. 7 Alexander v. Canada 2009 FC 1305 8 NDP 5.6 9 NDP 7.5 at item 1.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07700