TB4-04856

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 : TB4-04856 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 December 10, 2014 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Gary McCallum 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 AND DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Colombia,1 appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant asks the Refugee Appeal Division (RAD) to set aside the RPD's determination and refer her refugee claim to the RPD for re-determination by a differently-constituted panel. [3] The Appellant is not relying on any evidence as per Section 110(4) of the Immigration and Refugee Protection Act ("IRPA" or the "Act").2 The Appellant is not requesting a hearing pursuant to Section 110(6) of the IRPA. The Minister is not intervening in the appeal. DETERMINATION [4] Pursuant to Section 111 (1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination, before a differently-constituted panel. This appeal is allowed. BACKGROUND [5] The Appellant is a citizen of Colombia. The Appellant's husband, XXXX XXXX XXXX is a citizen of the United States of America (US), where he resides. The Appellant's husband is also a citizen of Colombia. The Appellant is a victim of domestic abuse at the hands of her abusive husband. Upon return to Colombia, the Appellant fears her husband and members of her husband's family who are allegedly members of the paramilitary. [6] The Appellant's application for refugee protection was heard on September 6, 2013 and October 4, 2013. In a decision of April 22, 2014, the RPD rejected the claim. MERITS OF THE APPEAL [7] The RPD accepted that the Appellant suffered abuse at the hands of her abusive husband. The RPD, however, did not believe that the Appellant's husband and/or his family are members of the paramilitary(ies). The RPD also found that the Appellant did not discharge her onus to demonstrate that adequate state protection at the operational level would not be afforded to her. The RPD rejected the claim pursuant to sections 96 and 97 of the IRPA.3 [8] The Appellant submits that the RPD's fact determinations are not supported by the evidence. The Appellant added that the RPD did not accept the Appellant's reliable and trustworthy evidence supporting the Appellant's testimony regarding threats to her should she return to Colombia.4 The Appellant submits that the RPD paid lip service to the psychological report by Dr. XXXX stating that the Appellant might have difficulty in remembering and concentrating.5 The Appellant submits that she would not receive adequate state protection upon return to Colombia.6 THE ROLE OF THE RAD [9] In considering an appeal against a decision of the RPD, while the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [10] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [11] In Iyamuremye, the Court found itself: [E]ntirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law and by applying a reasonableness standard to those involving questions of mixed fact and law...7 The Court went on to hold that the RAD must review the evidence that was before the RPD and conduct its own, independent assessment of that evidence to determine whether the lower tribunal had properly considered the evidence and "reasonably justified its conclusion".8 [12] In the subsequent case of Alvarez, the Court clarified the role of the RAD in relation to the RPD.9 It held that the RAD is not to undertake a process of judicial review, but rather must perform its own assessments of the facts in order to determine whether the RPD made an error of law or misassessed the facts to the point of making a "palpable and overriding error."10 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a Standard of Reasonableness, but then required the use of a higher Standard. The Eng case, released on the same day as Alvarez, contained the same analysis of the issue of Standard of review. [13] In Malhotra,11 issued after Alvarez and Eng, the Federal Court considered another decision of the RAD, in which the tribunal applied a Standard of reasonableness to the RPD's decision under appeal. Although the Court did not specifically address the RAD's selection of the Standard of Review, it observed that the RAD had applied a Standard of Reasonableness and concluded that the RAD's decision did not contain any error which justified the intervention of the Court. [14] More recently, the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.12 It found that the RAD erred in simply reviewing the RPD's decision on a Standard of Reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of reasonableness Standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a Standard of Review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.13 [15] While the Court had endorsed the Standard of Reasonableness in Iyamuremye, and accepted it in Malhotra, it found in Huruglica that the application of such Standard was in error. In contrast to Alvarez and Eng, the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." As instructed by the Court, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [16] In this appeal, the RAD adopts and will follow guidance from the case law in Huruglica. THE RAD ANALYSIS [17] The Appellant submits that the RPD's fact determinations are not supported by the evidence. The Appellant submits that the RPD did not accept her reliable and trustworthy evidence regarding threats to her upon return to Colombia.14 [18] The RPD found that the Appellant has established, on a balance of probabilities, with credible and trustworthy evidence that she was in a relationship with a man named XXXX XXXX, whom she ultimately married.15 The RPD found that the Appellant has established, on a balance of probabilities, with credible and trustworthy evidence that her relationship with her husband, XXXX XXXX, was abusive.16 [19] In regard to the above, the RPD found that the Appellant's testimony was internally consistent, detailed, and fluid. The RPD found that the Appellant's testimony was also consistent with the information in her Basis of Claim (BoC) Form. The RPD also found that the Appellant's testimony was supported by reliable documentary evidence that she had submitted. In this regard, the RPD also acknowledges the testimony provided by the Appellant's mother.17 [20] The RPD, however, did not believe the Appellant`s allegations that her husband and/or his family are members of the paramilitary(ies); the RPD found that the Appellant and her mother provided inconsistent testimony in this regard. Further, the RPD found the Appellant's mother's return to Colombia to be inconsistent with their allegations of the Appellant's husband's and/or his family's connection to the paramilitary(ies) in Colombia.18 [21] The RPD found that the Appellant provided inconsistent testimony when she learned of her husband's connection to the paramilitary(ies).19 The RAD finds the Appellant testified that she learned about it in Colombia. The RAD finds this to be consistent with the Appellant's mother's testimony as well who testified that she had told the Appellant about it prior to the Appellant's engagement. The RAD finds the Appellant and her husband had their engagement in Colombia. The RAD finds there is a lot of fluff around the Appellant's testimony and her mother's testimony, but it is nonetheless clear that they both knew and/or came to know of the Appellant's husband's family's connection to the paramilitary(ies) in Colombia. Considering the totality of the evidence in this case, the RAD does not concur with the RPD in that the Appellant provided inconsistent testimony when she learned of her husband's connection to the paramilitary(ies). [22] Based on the totality of the evidence adduced in this case, the RAD finds the RPD`s analysis was microscopic in nature.20 The RPD noted discrepancies in the Appellant's evidence such as `...while the claimant testified that the visits were made in XXXX XXXX 2013, the claimant`s mother testified that the visits were made in or about XXXX XXXX 2013 and later stated that they were made in XXXX and early XXXX 2013.'21 Moreover, the RPD wrote that the Appellant was unable to say how many visits were made by the alleged perpetrators to the Appellant's XXXX XXXX, three or four. The RPD wrote that the Appellant had no information regarding the number of persons who visited her XXXX XXXX XXXX The RPD also noted that the Appellant did not know the gender of the persons who visited her XXXX XXXX; and further noted that the Appellant did not know if the persons who visited her XXXX XXXX were armed. The RAD considers that with respect to the alleged perpetrators' visits to her mother's café the Appellant is providing second-hand information, i.e., what she had been told by her mother;22 in this respect, the RAD agrees with the Appellant that the RPD does not account for this in its assessment of the Appellant`s testimony.23 [23] Based on the evidence adduced in this case including the Appellant's testimony, the RAD finds it's clear that the Appellant's husband's family was involved in XXXX XXXX. The RAD finds it is unclear, however, whether or not the Appellant's husband's family had association with any paramilitary(ies) group. [24] Regardless, the RAD finds the RPD was microscopic in its analysis in discounting the Appellant's testimony primarily because the Appellant was not accurate in eliciting precise details about how many perpetrators' visits were made, and how many people visited the Appellant's XXXX XXXX, and on what dates, and whether or not those persons were armed. The RPD accepted that the Appellant was a victim of domestic abuse. The RPD refers to the Gender Guidelines24 and acknowledges the Appellant's psychological assessment.25 The Appellant submits that the RPD paid lip service to the psychological report by Dr. XXXX XXXX stating that the Appellant might have difficulty in remembering and concentrating.26 Dr. XXXX, in his report, stated that the Appellant was having stress-related symptoms including problems with concentration and memory. Dr. XXXX wrote that the symptoms may arise during the Hearing in the form of difficulty in understanding questions, requests for questions to be repeated or rephrased, inability to retrieve specific details of the past, or an apparent inability to formulate a coherent response. Dr. XXXX XXXX added that stress-related cognitive problems can lead to difficulties in providing clear and consistent testimony. In reference to the Appellant's psychological assessment, the RPD stated, in its 'Reasons and Decision', that the credibility concerns relating to the paramilitary allegation and the allegation of searches for the claimant in Colombia cannot be attributed to such matters.27 In reviewing the recording of the proceedings, the RAD found the Appellant to be exasperated when expected to provide answers in exact terms. The RAD finds the evidence in this case shows that the RPD did not appropriately apply the gender guidelines and did not duly engage the Appellant`s psychological report when asking the Appellant questions at the hearing, and subsequently in making its credibility findings. [25] Based on the foregoing analysis and reasons, the RAD finds the RPD's credibility findings relating to the issue of whether or not the Appellant's husband and his family belong to the paramilitary(ies) cannot stand. [26] Regarding state protection, the onus is on the Appellant to rebut with "clear and convincing" evidence the presumption that the state of Colombia is incapable of adequately protecting her at the operational level. The RPD found that the Appellant has not discharged her onus on a balance of probabilities.28 [27] In this regard, the RAD finds the RPD's characterization of the profile of the perpetrator(s) is important in determining whether or not the Appellant would be provided adequate state protection upon return to Colombia. The totality of the evidence in this case shows that the RPD considered the availability of state protection for the Appellant as a victim of domestic abuse, without making any clear reference to her being a target of her husband and his family as belonging to the paramilitary(ies).29 Based on the reasons provided earlier, since the RAD finds the RPD's failure to resolve the matter relating to the profile of the perpetrator(s) was wrong; the RAD finds the RPD's state protection analysis cannot, therefore, stand. [28] Despite the above, the RPD found the following to be also distracting from the Appellant's credibility as well: `Furthermore, the claimant`s mother`s return to Colombia is inconsistent with this allegation of a paramilitary connection and visits having been made to her XXXX.`30 The RPD provided similar statements in other parts of its `Reasons and decision` as well.31 The RAD finds these assessments are not valid generally. For example, the Appellant's mother was not subject to threats prior to her decision to return to Colombia. The RAD finds the preponderance of the evidence in this case shows that the alleged perpetrators were interested to locate to harm the Appellant specifically, not her mother. It is true that the Appellant and her mother both testified that the alleged perpetrators had issued threats against the Appellant's family, but the RAD finds the evidence clearly establishes that their subject of interest was specifically the Appellant. [29] Based on all of the foregoing, the RAD finds the RPD was wrong in its assessment of the evidence relating to the core elements of the claim; i.e., the profile of the perpetrator(s), and the credibility of the Appellant's allegations relating to the risk of harm feared upon return to Colombia. Therefore, the RAD cannot confirm the RPD decision, and must either substitute its own determination or refer the matter back to the RPD for re-determination. [30] The RAD finds that there is insufficient evidence in the RPD record upon which the RAD could base its own determination. Based on the RPD Record, the RAD finds it unclear whether or not the Appellant's husband's family in Colombia would have the motivation and/or the capacity to locate to harm the Appellant upon return to Colombia. In view of a lack of evidence in this regard, in order to make its own determination in this case, it would be necessary for the RAD to convene an oral hearing. It is clear from Section 110(3) of the IRPA that the oral RAD hearings are to be the exception, as the RAD "must proceed on the basis of the record of the proceeding of the Refugee Protection Division....".32 Section 110(6) of the IRPA gives the RAD discretion to hold a hearing if there is new documentary evidence which meets certain requirements, including that it is central to the decision with respect to the refugee claim.33 The Appellant has submitted no new evidence. In this case, it would be necessary for the RAD to re-hear the entire refugee claim. The IRPA prohibits RAD from re-hearing evidence that was presented to the RPD.34 [31] The RAD refers this matter back to the RPD for re-determination. DETERMINATION [32] Pursuant to Section 111 (1) (c) of the IRPA the RAD refers the matter to the RPD for re-determination, before a differently-constituted panel. [33] This appeal is allowed. (signed) 'S.S. Kular' S.S. Kular December 10, 2014 Date 1 Exhibit RPD-1, RPD Record, Exhibit 1. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 3 Exhibit P-2, Appellant's Record, Reasons and Decision, para. 5. 4 Exhibit P-2, Appellant's Record, Argument and Submissions, para. 7. 5 Exhibit P-2, Appellant's Record, Argument and Submissions, para. 10. 6 Exhibit P-2, Appellant's Record, Argument and Submissions, paras. 13-18. 7 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 2. 8 Iyamuremye, para. 3. 9 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 10 Alvarez, para. 33. 11 Malhotra, Sunil v. M.C.I. (F.C., no. IMM-6899-13), Bédard, August 1, 2014, 2014 FC 768. 12 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 13 Huruglica, para. 45. 14 Exhibit P-2, Appellant's Record, Argument and Submissions, para. 7. 15 Exhibit P-2, Appellant's Record, Reasons and Decision, para. 6. 16 Exhibit P-2, Appellant's Record, Reasons and Decision, para. 7. 17 Exhibit P-2, Appellant's Record, Reasons and Decision, paras. 6-7. 18 Exhibit P-2, Appellant's Record, Reasons and Decision, para. 8. 19 Exhibit P-2, Appellant's Record, Reasons and Decision, para. 10. 20 Exhibit P-2, Appellant's Record, Reasons and Decision, paras. 10-14. 21 Exhibit P-2, Appellant's Record, Reasons and Decision, para. 14. 22 The Appellant's evidence and her testimony 23 Exhibit P-2, Appellant's Record, Argument and Submissions. 24 Exhibit P-2, Appellant's Record, Reasons and Decision, para. 4. 25 Exhibit P-2, Appellant's Record, Reasons and Decision, para. 17. 26 Exhibit P-2, Appellant's Record, Argument and Submissions, para. 10. 27 Exhibit P-2, Appellant's Record, Reasons and Decision, para. 17. 28 Exhibit P-2, Appellant's Record, Reasons and Decision, para. 20. 29 Exhibit P-2, Appellant's Record, Reasons and Decision, para. 38. 30 Exhibit P-2, Appellant's Record, Reasons and Decision, para. 8. 31 Exhibit P-2, Appellant's Record, Reason's and Decision, para. 15. 32 IRPA, Section 110(3). 33 IRPA, Section 110(6). 34 IRPA Section 112(2)(b). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04856