TB5-00620

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 : TB5-00620 Private Proceeding / Huis clos Redetermination of the Appeal 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 February 24, 2016 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dilani Mohan Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Jamaica, appeals a decision of the Refugee Protection Division (RPD), dated December 10, 2014, rejecting her claim for refugee protection. Determination [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA or the Act), the Refugee Appeal Division (RAD) refers the matter back to the RPD for redetermination. This appeal is allowed. BACKGROUND [3] The Appellant alleged before the RPD that she was abused (physically, emotionally and sexually) by her common-law husband XXXX XXXX who became abusive after the Appellant gave birth to their first child. [4] The Appellant's attempts to seek police assistance were futile. The Appellant testified that her common-law spouse has a firearm and has used it to threaten to kill her. The Appellant attempted to leave XXXX on several occasions, but returned to him after he beat her and threatened to kill her and her family members. After another assault by XXXX in XXXX 2009, the Appellant left Jamaica and arrived in Canada on XXXX XXXX, 2009, and claimed refugee protection in April, 2014. [5] The RPD in rejecting the claim found that the Appellant lacks credibility. [6] The Appellant is relying on new evidence referred to in section 110(4), and requests an oral hearing pursuant to section 110(6). [7] The Appellant requests the RAD set aside the determination of the RPD and find the Appellant to be a Convention refugee. In the alternative, the Appellant requests the RAD refer the matter to the RPD for redetermination. New Documentary Evidence: [8] Documents to be considered as new evidence have to be considered pursuant to section 110(4) of the Act that reads: Evidence that may be presented (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. [9] The Federal Court in many cases1 such as Chen stated the following regarding statutory conditions: Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) 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 (unless it is rejected because it is not credible, not relevant, not new or not material). [10] The new documents submitted by the Appellant for consideration as new evidence include: a) Receipt (copy) from Ms. XXXX, the lawyer in Jamaica with whom the Appellant consulted regarding custody of her children; b) Death certificate for the Appellant's brother (copy) and his funeral photos; c) Psychiatric report by Dr. XXXX, dated February 24, 2015; d) Letter from the Appellant's daughter, XXXX XXXX, describing her father's treatment of her; e) Letter from XXXX XXXX, the Appellant's sister, explaining the abuse that she witnessed and heard about during the Appellant's visits with her; f) Letter from XXXX XXXX, the Appellant's niece, attesting to her knowledge of the Appellant's abuse; and, g) Letter from XXXX XXXX XXXX, who supported the Appellant through her depression in Canada and is aware of XXXX attempts to reach her. [11] The RAD will not make a finding whether to accept these documents as new evidence because the RAD is reemitting the matter back to the RPD for redetermination. Role of the RAD [12] The Appellant did not make submissions on the issue of standard of review or the role of the RAD. The Federal Court in Huruglica2 stated that the RAD is to conduct its own independent assessment of the evidence and decide if the person is in need of refugee protection, and that the RAD is to show deference to RPD credibility findings and findings in areas where the RPD has a particular advantage (over the RAD). The Court's decision reads as follows: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error". [13] At present, the Federal Court of Appeal is considering the certified question following Huruglica regarding the role of the RAD. In the interim, Huruglica is widely accepted and followed. The RAD will follow the direction of the Court in Huruglica and will conduct its own assessment of the evidence. The RAD would also recognize and respect the RPD's credibility determination where it enjoyed a particular advantage. THE ISSUES: [14] The Appellant's issues are: a) Are the Board's credibility findings perverse and unreasonable? b) Did the Board incorrectly apply the test for reavailment? [15] I will rephrase the issues: was there a breach of natural justice and fairness for the Appellant at the RPD hearing; and, is the Appellant a Convention refugee or a person in need of protection? Procedural fairness and interest of Justice [16] In this section, I will rely on the RAD's reasons of January 18, 2016, and the decision of the Federal Court rescinding its earlier order. [17] The Appellant made an application to the RAD to re-open her appeal of a RPD "decision which was closed for lack of perfection. The Applicant states that there were errors and misunderstandings with respect to her previous counsel who could not continue to work for her. The Applicant also had financial problems and family problems, including a death in the family, which impacted her capacity to perfect her appeal".3 [18] The RAD received a Notice of Appeal from the Applicant on January 19, 2015. The Notice stated that the Applicant was appealing a decision of the RPD, with written reasons deemed received on January 2, 2015. The Applicant's appeal was to be perfected on or before February 5, 2015. [19] On March 13, 2015 the RAD dismissed the appeal for lack of perfection and on April 20, 2015 the Applicant filed an application to the Federal Court seeking a review of the RAD decision. The Federal Court dismissed this application on June 19, 2015 because the Applicant had failed to file an application record. [20] The Applicant filed a Motion for Reconsideration with the Federal Court arguing that it was her former counsel's fault, compounded by forces outside her control, that led to a situation where she was caught in a web of deadlines which passed and which denied her the opportunity to challenge the RPD's decision on the substance of her claim. [21] On October 20, 2015 the Federal Court concluded that the 'interests of justice' require that the Federal Court decision of June 19, 2015, upon which the July 10, 2015 RAD decision not to reopen the RAD appeal was based, be set aside. This allowed the Applicant the opportunity to apply once more to re-open her appeal before the RAD. [22] The RAD's reasons state: [10] Rule 49(6) provides that the RAD must not allow the application unless it is established that there was a failure to observe a principle of natural justice (emphasis added). Rule 49(7) requires that the RAD consider any relevant factors, including those set out in the Rule. As such, while the RAD can only re-open an appeal if there has been a failure to observe a principle of natural justice, it may reject an application on broader grounds. [11] The Federal Court has stated: "There is a great deal of jurisprudence in these matters to the effect that a party must suffer the consequences of his or her own counsel. I subscribe to that view. If the case has been poorly prepared; if relevant jurisprudence was not brought to the attention of the Court in a civil case; if there was a bad choice in witness selection, the consequences fall on that party. Is there a difference, however, between malfeasance and nonfeasance? In this case, it is not a question of a lawyer doing something poorly. He did not do something he should have done." [23] The Chief Justice of the Federal Court, the Honourable Paul S. Crampton, quashed his own decision and issued a new order after making a finding that the Appellant's counsel at the RPD did not do what he was supposed to do. [24] In this case, it has been established that the Appellant was denied natural justice by the actions or inactions of a counsel who was supposed to represent her. I note that the RAD, in its decision dated January 18, 2016 stated, "the Applicant has met her burden of demonstrating that there has been a breach of natural justice or fairness in her case." [25] Based on the foregoing, this RAD panel notes that the RPD was not the cause of this denial of natural justice. The RPD's finding was based solely on credibility, which may have been affected by a lack of opportunity to present her case completely and fairly. [26] The RAD finds that even if it accepts the documents submitted as new evidence, this RAD panel is not in a position to reverse the RPD's finding on credibility. It is trite law that the RAD owes deference to the RPD on the issue of credibility where the RPD enjoys a particular advantage. [27] Therefore the RAD remits the matter back to the RPD for redetermination by a differently constituted panel. DETERMINATION [28] The RAD remits the matter back to the RPD pursuant to section 111(1)(c) of the IRPA, for redetermination by a differently constituted panel. [29] The RAD allows this Appeal. (signed) "Atam Uppal" Atam Uppal February 24, 2016 Date 1 Chen, Qin Hang v. M.C.I. (F.C., no. IMM-7099-14), Phelan, April 30, 2015, 2015 FC 565. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit RAD-2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :