TB3-06702

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 : TB3-06702 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 April 28, 2014 Date de la décision Panel Deborah Morrish Tribunal Counsel for the person(s) who is(are)the subject of the appeal Laura Brittain Barrister and Solicitor 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 (de la) ministre Reasons and Decision [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Cameroon, 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 does not ask for an oral hearing unless her credibility is brought into question by the documents submitted. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and find her to be a Convention refugee or a person in need of protection. The Appellant has been designated as a Vulnerable person1 and a Designated Representative2 was appointed by the Division. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division sets aside the decision of the Refugee Protection Division and substitutes its own determination that the Appellant is a person in need of protection. BACKGROUND [3] The Appellant was born in Nkongsamba, Cameroon and grew up witnessing her father physically and sexually assaulting her mother. At the age of puberty, the Appellant was subjected to the practice of "breast ironing", a practice performed on young girls by applying hot stones and binding the breasts to retard their growth. At the age of twelve years, she was routinely raped by a villager. The Appellant was also a victim of her father's violent and authoritarian behavior, and when she was a teenager, he would force her to go to the house of her teacher, who would rape her. At the age of 23 years, the Appellant moved to Douala, where she met "XXXX", a wealthy business owner. The couple had a son and later a daughter. In XXXX 2007, a dowry was paid to the Appellant's father when the couple married. XXXX began to control the Appellant by using verbal, sexual and physical abuse. He was not faithful, so she contracted syphilis and Hepatitis "B". On one occasion, she was beaten so badly that she was hospitalized. She tried to leave XXXX by going to the United States, but her visa application was denied. Her father would not allow her to return home because he would have to pay back the dowry. At one point, she spoke to a friend who was a police commissioner who indicated that he would try to help her, but once XXXX learned of this, his violent behaviour escalated. [4] XXXX late father had been the chief of the village of XXXX. In keeping with tradition, XXXX was expected to move back to his village and be anointed as chief when he reached the age of forty years. By this time, he was not interested in being chief and leading a traditional life. The circumstances of XXXX life were not conducive to his becoming chief and, moreover, he would have to give up his successful business in Douala. [5] The Appellant's in-laws blamed the Appellant for XXXX refusal to accept the chieftancy. They accused her of "bewitching" XXXX, and representatives from XXXX were very angry that he would not accept the chieftancy and put curses on them. When XXXX began to hear evil voices and see snakes and strange people in his household, the family moved to northern Cameroon to escape the curse, but these forces continued. Finally, XXXX and the Appellant decided to leave their children with his parents and come to Canada. [6] The couple made claims for refugee protection for which XXXX controlled all matters, and the Appellant was prevented from speaking at the meetings with their lawyer. Although the RPD found the claimants to be credible, the claims failed, as the RPD found a lack of an objective basis for their fear. Although they submitted appeals together, XXXX immediately abandoned his wife, leaving her destitute. She moved into a shelter, XXXX XXXX, where she confided to a counselor about her abusive life and suicidal ideation. She described feelings of depression, low mood, poor sleep, low appetite and poor concentration and, as a result, was hospitalized on XXXX XXXX XXXX 2013 for suicidality. Her condition worsened after she began a psychiatric assessment and treatment because recounting of the events triggered behaviours such as removing all of her clothing and sitting naked at school, confusion, unresponsiveness, suicidal ideation and dissociation. As a result, she again required hospitalization. [7] The Appellant has undergone a psychiatric evaluation and has been diagnosed with Battered Woman's Syndrome and severe Post-Traumatic Stress Disorder (PTSD). The psychiatrist also noted that the Appellant is in an extremely vulnerable psychological state. [8] On October 16, 2013, the RAD allowed her appeal to be separated from that of her spouse, XXXX. [9] Counsel made an application for the Appellant to be considered a Vulnerable Person in accordance with Guideline 8, Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada.3 This application, which was made on December 12, 2013, was allowed by the RAD, and therefore a Designated Representative was appointed for the purpose of the appeal. New Evidence [10] The Appellant submitted the following documents in evidence on appeal: 1. Affidavit of the Appellant;4 2. Photographs of incident with spouse in XXXX 2013;5 3. Letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX2013;6 4. An emergency report from XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2013, a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX, 2013; 5. A psychological assessment, XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2013;7 6. A letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2013;8 7. A letter from XXXX XXXX XXXX XXXX XXXX XXXX, Appellant's psychotherapist at XXXX XXXX XXXX, dated XXXX XXXX XXXX 2013; 8. A letter from the Appellant's mother, dated December 12, 2013;9 9. A letter from the Appellant's sister, XXXX, dated December 12, 2013;10 10. A letter from the Appellant's sister, XXXX, dated December 12, 2013;11 11. Two summonses issued in XXXX 2012 for the Appellant to appear for the preliminary opening of an investigation;12 12. A warrant for the Appellant's arrest, dated XXXX XXXX XXXX 2013;13 13. A letter from the Appellant's sister, XXXX XXXX, dated October 23, 2013;14 14. A letter from the Appellant's mother, dated October 21, 2013;15 15. A letter from the Appellant's sister XXXX, dated October 21, 2013;16 16. A letter from the Appellant's sister XXXX, dated November 2013;17 17. An affidavit from a Legal Aid worker18, dated XXXX XXXX XXXX 2014; 18. A transcript of a BBC World Service Health Check report on International Mental Health Day dealing with the treatment of the mentally ill in Cameroon and elsewhere,19 dated October 10, 2012. 19. A letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2014;20 20. Resident Consult by XXXX XXXX XXXX XXXX XXXX XXXX, 2013;21 21. Consultation Report by XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2013;22 22. Internet article on human rights issues in Cameroon, Global Conscience Initiative - Salus Populi Suprema Lex, undated although the copyright is 2013;23 23. Internet article from the Cameroon Center for Democracy and Human Rights, "Government Endorses Corruption";24 24. Internet article from AllAfrica.com, "Mob Justice Prevails in Cameroon";25 25. Personal blog of Zuzeeko Abeng, "Jungle Justice in Cameroon", undated;26 26. Global Conscience Initiative article, "Combatting Mob Justice: An Overview", November 2011;27 27. BBC News internet article, "Jungle justice sweeps Cameroon", dated June 27, 2006;28 28. Internet article Mail Online, "Cruel practice of ironing young girls' breasts with hot objects to delay appearance of puberty may have spread from Cameroon to Britain", dated September 27, 2013;29 29. Internet article, The Independent, "'Breast ironing': Girls 'have chests flattened out' to disguise the onset of puberty", dated September 26, 2013;30 30. "Republic of Cameroon", Amnesty International, January 2013;31 31. New Internationalist article, "Cameroon's women call time on breast ironing", May 1, 2013;32 32. CNN news article, "Breast ironing tradition targeted in Cameroon", July 27, 2011;33 33. Response to Information Requests on Cameroon, IRB, April 25, 2006;34 34. Violence against women in Cameroon: A report to the Committee against Torture, World Organization Against Torture, 2003;35 35. Expert Opinion from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2014;36 36. Une "chasse aux sorciers" dégénère au Cameroun, Mathias Mouendé, Les Observateurs, January 10, 2014;37 37. "Alleged 60 year old witch narrowly escapes lynching in Doula", Valentine Mulango, Cameroon Infonet, February 25, 2013;38 38. "Cameroon: Yaounde-suspected witch crashes on rooftop", Jessica Fouema, All Africa, May 10, 2012;39 39. "Using the law to tackle accusations of witchcraft: Help Age International's Position", Help Age International, 2011;40 40. "Witchcraft claims six lives through accident", The Vanguard, November 17, 2009;41 41. "Cameroon: 17 year old 'witch' claims responsibility for Mbanga Pongo crash", Olive Ejang Tebug Nhoh, All Africa, February 4, 2008;42 42. "Cameroon: Witchcraft in Cameroon; tribes or geographical areas in which witchcraft is practiced; the government's attitude, IRB, RefWorld, May 17, 2005;43 43. "Streets of Bamenda inundated with mad men", Hilary Nyingchuo, Cameroon Daily Journal, June 23, 2013;44 44. "Witchcraft is not responsible for mental disability, expert says", Emmanuel Verzeka, L'Effort Camerounais, February 25, 2011;45 45. "Mentally ill: A forgotten social class in Cameroon", Rev. Fr. Eugene Song, African Outlook Online, February 25, 2011;46 46. "Cameroon", World Health Organization, 2011;47 47. "Cases of Mental Health Illness on the Rise in Cameroon", Yemti Harry Ndienla, OhMyNews, February 6, 2008.48 Appellant's Argument [11] Counsel for the Appellant submits in her memorandum that: The Appellant has survived physical, sexual, and psychological violence all her life. She is seeking Canada's protection because she fears domestic violence at her husband's hands, as well as retribution from his family. She has been accused of witchcraft, an official crime in Cameroon, and thus may face official sanction or violent retaliation from members of the community and her husband's family alike. [12] It is further submitted that official summonses were issued for her and a document similar to an arrest warrant because she did not report to police in response to the summonses. It is further submitted that the Appellant has sought state protection in the past but this only resulted in an escalation of her spouse's violent behavior. [13] Counsel submits that all of the evidence provided on appeal is admissible under s. 110(4) of the Immigration and Refugee Protection Act (IRPA) because all of the evidence falls within 110(4) because, given her circumstances, the Appellant "could not reasonably have been expected to have presented, at the time of the rejection" evidence of her spouse's abuse given that he was present at the hearing. ANALYSIS Admissibility of new evidence [14] Section 110(4) of the IRPA provides the test for new evidence and states 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. Although the RAD may find that the evidence may be considered to be "new", according to one or more factors set out in s.110(4), the analysis for acceptance into evidence on appeal does not stop there. Due to the fact that the wording of this section is identical to the wording of s.113(a) of the IRPA, which governs new evidence allowable on a Pre-Removal Risk Assessment (PRRA) application, the RAD finds that it follows that the test for new evidence, as expressed in Raza,49 the Federal Court of Appeal case which set out factors to be considered when determining whether evidence is "new" for the purposes of s. 113(a) . These factors are credibility, relevance, newness, materiality and express statutory conditions. Counsel submits that just because the wording of s. 110(4) is identical to that of s.113(a), it does not automatically follow that the Raza test needs to be applied to the meaning of "new" evidence for the purposes of a RAD appeal. This is because the purpose of the two proceedings is markedly different: the RAD is a true appeal of the RPD's decision; whereas, the PRRA is not an appeal but a risk assessment to ensure the removals are Charter-compliant, and therefore the test for admissible evidence must be different. The RAD agrees with Counsel that a PRRA is not an appeal while the RAD proceeding clearly is. However, the RAD proceeding is not a de novo hearing of the claim for protection; in fact, ss. 110(3) of the IRPA provides, with certain exceptions, that the RAD must proceed without an oral hearing. Moreover, the RAD finds that, while the purposes of a PRRA and an appeal before the RAD differ, given the almost identical wording of the new evidence provisions, the RAD finds that the two provisions should be given the same interpretation. In wording the provisions identically, it would appear that the legislative intent was that these provisions were to be interpreted alike and that the jurisprudence in relation to the provisions for PRRA would be applicable to the RAD provisions. Therefore, the RAD finds that it is appropriate to consider Raza in interpreting the new evidence provision for the RAD. [15] Therefore, the RAD will assess the evidence presented on appeal in the context of the following Raza factors: 1. Credibility - Is the evidence credible, considering its source and the circumstances in which it came into existence? 2. Relevance - Is the evidence relevant to the appeal in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? 3. Newness - Is the evidence new in the sense that it is capable of providing the current state of affairs in the country of origin or proving a fact that was unknown to the Appellant at the time of the RPD hearing? 4. Materiality - Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? 5. Express statutory conditions - has the new evidence met the test in ss. 110(4)? [16] Beginning with the Appellant's affidavit (exhibit 1):50 The RAD finds that, while only one of the factors in s.110(4) must be met in order for the RAD to accept evidence from a person who is the subject of the appeal, the affidavit satisfies all three conditions set out in s.110(4). This affidavit explains all of the elements of the risk to the Appellant and the reasons for it. While the risk itself is not new, the Appellant's ability to raise it is. The Appellant could not reasonably have been expected in the circumstances to have presented this affidavit at the time of the rejection of her claim out of fear of her spouse. This affidavit, in fact, would not have even been contemplated nor have made sense in the context of the claim. The RAD has taken into consideration the Chairperson's Guidelines on Vulnerable Persons,51 the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution52 and the medical evidence submitted on appeal. The Appellant has been determined by the RAD to be a vulnerable person and appointed an independent designated representative because her ability to present her case before the IRB is severely impaired. The RAD finds that both of these guidelines apply to the Appellant. On the basis of the evidence provided on appeal, the RAD accepts that the Appellant is suffering from Battered Woman's Syndrome and PTSD. The Appellant could not have reasonably been expected to present at her RPD hearing the documentary evidence being provided on appeal. Furthermore, none of the medical evidence submitted existed at the time of the RPD hearing. Therefore, the RAD finds that the documentary evidence provided on appeal does meet the requirements of s. 110(4) because it was not reasonably available at the time of the decision of the RPD rejecting the Appellant's claim for refugee protection. [17] The Appellant's affidavit is relevant to her appeal, new and material, given that it sets out the facts behind the risk presented on appeal. The RPD found the Appellant to be a credible witness at her refugee hearing. The affidavit is consistent with corroborative evidence also provided on appeal which will be considered. The RAD has no reason not to find the affidavit of the Appellant to be credible and therefore admits it into evidence. [18] Exhibits 3 to 8 and 17, 18 and 19 provide corroborative medical evidence which the RAD accepts because it arose after the claim. The RAD finds this evidence to be credible since it is provided by experts who have no interest in the outcome of the appeal and it is all new because it provides medical diagnoses based upon incidents that occurred after the RPD's decision. When considered as a collective, this evidence is relevant and material in that the Appellant's claim probably would have succeeded had it been available at the time of the RPD hearing. [19] Specifically, the letter from Dr. XXXX XXXX states that the Appellant was treated in the emergency room of XXXX XXXX XXXX Hospital on XXXX XXXX XXXX 2013 where she remained as an in-patient until XXXX XXXX, 2013. A diagnosis of major depressive disorder was made, and a course of treatment was prescribed. An emergency report from XXXX XXXX XXXX Hospital, dated XXXX XXXX, 2013, indicates that the Appellant was depressed and suicidal. It also notes "longstanding abuse by husband". A Resident Consult, carried out at XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2013 , states, but is not limited to, the following: XXXX is a 32 year old woman with a significant history of both physical and sexual abuse, positive VDRL and Hepatitis status as well as major depressive disorder. She was brought in by police today after disrobing at school in a non-responsive state. A couple of hours later at XXXX, she was again alert and responsive. She did not recall the events leading up to her admission despite interacting appropriately and expressing herself in a linear fashion. On review of symptoms, she fulfills criteria for PTSD. This episode was likely triggered by the psychotherapy intake assessment on XXXX XXXX. [20] A psychological assessment by Dr. XXXX XXXX indicates, but is not limited to, the following, "She [the Appellant] is a vulnerable individual in need of protection. In addition to depression and anxiety, her clinical presentation is consistent with a diagnosis [of] PTSD, Battered Woman Syndrome, depression and is a victim of childhood and adult rape." The assessment also states that the Appellant continues to be in "an extremely vulnerable psychological state and she is at increased risk of suicide and merely thinking about or speaking about the traumatic events in her life is re-traumatizing for her, as it triggers disturbing flashbacks and severe anxiety." [21] A letter from Dr. XXXX XXXX indicates that the various scars on the Appellant's body are consistent with a history of trauma. A letter from the Appellant's psychotherapist at XXXX XXXX XXXX, dated XXXX XXXX, 2013, one month after she began counseling the Appellant. The letter reiterates the Appellant's history of physical and sexual abuse by her family and her spouse. It also states that the Appellant reported to her that "she currently has regular contact with her mother in Cameroon, who has related that her family is being harassed by her in-laws, who are actively looking for her, and that they have threatened that they will kill [the Appellant] if she returns to Cameroon." [22] A letter from Dr. XXXX XXXX, dated XXXX XXXX XXXX 2014, states that she is the Appellant's treating psychiatrist and has included copies of assessments performed in the XXXX XXXX XXXX XXXX XXXX Emergency Department on XXXX XXXX, 2013 and XXXX XXXX XXXX 2013 and makes the following remarks: At the time of my initial consultation, I was not fully aware of [the Appellant's] very extensive trauma history. It has been over the past several months that the true extent of her trauma has been revealed. She has a clear diagnosis of PTSD with both short and long term sequalae resulting from that diagnosis. She therefore continues to suffer from nightmares, flashbacks, and re-experiencing symptoms as well as hypervigilance, and significant numbing of general responsiveness which is manifest in multiple domains including detachment and a limited range of affect. In addition she experiences increased arousal leading to anxiety, sleep disturbance, and additional physical and cognitive manifestations. She has chronic dissociative episodes dating back to childhood or early adolescence which are consistent with the nature of her trauma. Dissociation in her case is the result of periods of prolonged and recurrent intense coercion and abuse. [23] A report by resident XXXX XXXX XXXX, dated XXXX XXXX, 2013, as requested by Dr. XXXX, concludes that the Appellant has a significant history of physical and sexual abuse, major depressive disorder, is positive for VDRL and Hepatitis B. She had been brought into the emergency that day by police in a non-responsive state after disrobing at school. [24] A consultation report by Dr. XXXX, dated XXXX XXXX XXXX 2013, provides a synopsis of the Appellant's hospitalizations, physicians and treatments in Canada and reiterates that the Appellant has a significant history of abuse, both during her early life and, more recently, by her spouse. The report warns that "She absolutely did not want to discuss the details of her trauma history and I felt that this was appropriate at this time given that it is documented in her chart and she is receiving trauma support through XXXX XXXX XXXX." The report concludes with the diagnoses of PTSD with dissociative episode and major depressive disorder. [25] The RAD finds that the sum of all this expert evidence consistently corroborates the Appellant's allegation regarding her lifetime of abuse, which had been continued by her spouse, and has resulted in her vulnerability. [26] The next body of evidence to be considered (exhibits 6, 7, 8, 11, 12, 13, 14) are the letters from the Appellant's family. A letter from the Appellant's mother, dated December 12, 2013, recounts previous incidents during which the Appellant became dissociated and had to be taken to hospital. The letter also confirms that the Appellant has suffered from mental illness for many years. A letter from the Appellant's sister, XXXX, dated December 12, 2013, recounts incidents of dissociation and confusion experienced by the Appellant. A letter from the Appellant's sister, XXXX, dated December 12, 2013, reiterates that the Appellant has suffered from mental illness since 1994 and that she has suffered from numerous periods of crisis. The letter also states that the Cameroonian society treats individuals with mental illness as if they practice witchcraft and must be killed. A letter from the Appellant's sister, XXXX XXXX, dated October 23, 2013, states that the Appellant's in-laws want their dowry money returned and that they promise to kill the Appellant if she returns to Cameroon. A letter from the Appellant's mother, dated October 21, 2013, recounts mistreatment by her spouse and regrets that her daughter has also married a similar type of man. A letter from the Appellant's sister, XXXX, dated October 21, 2013, corroborates the abusive marriage of the Appellant, incidents of physical abuse, and that her in-laws are threatening to kill her if they ever find her. A letter from the Appellant's sister, XXXX, dated November 2013, states that she had gone with her brother to the police station to Douala to have the documents regarding their father's abusive treatment of the family sworn; however, the police refused to do so and chased them away. [27] In finding that none of the letters from home could have been reasonably expected to be provided at the time of the RPD's determination, the RAD admits these letters into evidence on appeal. Given the consistency between the letters with respect to the expert evidence, the RAD has no reason to doubt their credibility. They are relevant, new and material to the appeal. [28] Also provided were an affidavit from a Legal Aid worker (exhibit 15) assisting counsel of record and transcript of a BBC World Service Health Check (exhibit 16). The Legal Aid worker attests to the fact that she has met with the Appellant to prepare her appeal on several occasions and reports that the Appellant would dissociate, break down or be unresponsive so that meetings with her had to be kept short. The attached transcript addresses the treatment of the mentally ill in Cameroon and elsewhere. The RAD admits the affidavit and exhibit as credible corroborative evidence of the vulnerability of the Appellant. The RAD finds the evidence to be new, relevant and material. [29] The Appellant has also provided three police documents (exhibits 9 and 10) including two summonses issued in XXXX 2012 for the Appellant and a warrant for the Appellant's arrest, dated XXXX XXXX XXXX 2013. Regardless of the factors in 110(4), the RAD finds that these documents are not credible. These allegedly bilingual government documents are replete with spelling and content errors. For example, the portion of the summonses indicating with whom the summons has been left is entitled, "Achnowledgement of Recupt of Summons", does not indicate the name of the person with whom the summons is being left; both documents have a stamp of the Republic of Cameroon, but the wording on them differs and both indicate that the copy of the summons was received by the Appellant herself, when, in fact, she was in Canada at the time when they were issued. All three documents have what could be described as a motto at the top of the page. The motto on both summonses is in both French "Republique du Cameroun, Paix - Travail - Patrie" and in English "Republic of Cameroon, Peace - Work - Fatherland. However, on the arrest warrant, it appears as only as "Republique du Cameroun, Paix - Travail - Travail". The RAD finds that the errors on the face of these documents are sufficient to lead to a finding that they are not credible and therefore not admitted into evidence. [30] The remaining documents submitted with respect to domestic violence, witchcraft and mental illness in Cameroon would not reasonably have been expected in the circumstances to have presented, at the time of the RPD's decision. These issues did not arise with respect to the RPD's claim and therefore would have borne no relevance to the determination. [31] Counsel has categorized the documentary evidence presented on appeal: General; Domestic Violence; Witchcraft and Mental Illness. The RAD finds that, while most of this evidence may have existed before the claim was decided, it would not have been reasonably expected given that the claim was not based on the same risk as the appeal. The RAD admits this evidence as it is credible, relevant and material to the new risk. Standard of review [32] The Appellant makes no submission on the issue of standard of review. It is submitted that, in this case, given that the evidence herein was not presented to the RPD, there can be no deference to its findings and that it would be inappropriate to impose the Dunsmuir framework. The Minister did not provide submissions on the issue of the standard of review. The RAD has already determined that appeals on questions of fact are to be assessed on a reasonableness standard. I adopt the reasoning from those cases and will apply the reasonableness standard of review in this appeal. The RAD has considered the factors as set out in the Supreme Court of Canada decision in Dunsmuir 53 and those found in the Alberta Court of Appeal decision in Newton,54 which more specifically apply to an administrative tribunal. [33] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [34] The RAD has already determined that appeals on issues of fact are to be assessed on a reasonableness standard. I adopt the reasoning from those cases55 and will apply the reasonableness standard of review in this appeal. [35] With respect to the case at hand, the RAD has chosen to show deference to the positive credibility finding made by the RPD. In the RAD's opinion, it is possible to adopt this finding since the RPD has had the benefit of first-hand observation of the Appellant and has found her to be credible. Oral Hearing [36] Subsection 110(6) of the IRPA is as follows: 110. (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal: (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [37] The RAD finds that this subsection is discretionary because it uses the express language "may" hold a hearing. This subsection is also conjunctive, because all three elements must be present before a hearing may be held. The RAD finds that, while the "new" evidence accepted on appeal is central to the decision with respect to the claim and would justify allowing or rejecting the claim, paragraph (a) is not satisfied, in that the new documentary evidence does not raise a serious issue with respect to the credibility of the Appellant. This is due to the fact that the Appellant is entitled to a presumption of truthfulness, and in fact no credibility concerns were raised by the RPD to rebut this presumption. The RPD, who has heard first-hand oral testimony from the Appellant, has already found her to be a credible witness. The Minister has not intervened with any evidence or submissions to the contrary. In the opinion of the RAD, this finding is reasonable. Although the RAD has found the credibility of the documents, allegedly from Cameroonian government authorities, to be lacking in credibility, they do not raise serious issues of credibility of the Appellant in the face of all of the other evidence. Therefore, since all three elements of the test for an oral hearing are not met, there is no opportunity for the RAD to hold an oral hearing. Risks [38] It is submitted by the Appellant that she is a survivor of gender violence as a young girl and that she is currently in an abusive relationship. Although her spouse's current status in Canada and whereabouts are unknown, there is a reasonable chance that he will return or be returned to Cameroon. The RAD finds that the Appellant is a member in a particular social group, namely Cameroonian women fearing gender violence, and that there is a serious possibility that the Appellant would be subjected to violence from her spouse if she were to return to Cameroon. [39] Furthermore, the Appellant's family has accused her of witchcraft and that, as a member in a particular social group of Cameroonians who are perceived to be engaged in witchcraft, there is a serious possibility that the Appellant would face persecution by her spouse's family and society at large. [40] Finally, as a person who suffers from mental illness, the Appellant belongs to a particular social group for whom there is a serious possibility of persecution by society at large. Internal Flight Alternative (IFA) [41] In assessing an internal flight alternative, the RPD applied the two-prong test as found in Rasaratnam56 in concluding that the Appellant and her spouse had a safe and reasonable IFA in Yaounde or Ebolowa. [42] As submitted by counsel on appeal, the circumstances have entirely changed for the Appellant. As such, it would not be reasonable for her to relocate within Cameroon given the fragility of her mental state. Furthermore, the RAD has accepted her evidence that her spouse's family would pursue her throughout the country and that there is a serious possibility of persecution by society at large due to her mental illness, if she were to return to Cameroon. State Protection [43] The IRB's National Documentation Package (NDP) on Cameroon contains consistent information on the situation for women in situations of domestic violence. The United States Department of State Country Report on Human Rights Practices in Cameroon57 indicates that "police and the courts rarely investigated or prosecuted rape cases". It is clear that the law does not address spousal rape nor does it prohibit domestic violence, and spousal abuse is not a legal ground for divorce. [44] The documents further indicate that gender violence is widespread.58 A 2007 shadow report submitted to the United Nations (UN) Committee on the Elimination of Discrimination Against Women (CEDAW), which was compiled by four non-governmental organizations (NGOs) and coordinated by Women in Research and Action (WIRA), indicates that "[d]omestic violence in the form of physical assault is very rampant" in Cameroon (WIRA et al. 2007, 46). The same shadow report submitted to CEDAW indicates that violence against women is "very prevalent but lacks recognition as a social problem due to the fact that it is sometimes invariably accepted as a way of life" (WIRA et al. 2007, 46). The United States (US) Department of State's Country Reports on Human Rights Practices for 2009 indicates that Cameroonian law does not "specifically prohibit domestic violence, although assault is prohibited and is punishable by prison terms and fines" (11 Mar. 2010, Sec. 6). A country sheet on Cameroon issued by the Country of Return Information Project (CRI Project), a project funded by the European Commission to focus on reintegration possibilities for potential returnees (CRI Project Nov. 2008, 1), also states that, according to an interview with the Executive Secretary of Cameroon Women in Leadership and Development (CAWOLED), there is no specific legislation that prohibits "[w]ife battering" in Cameroon (ibid., 7)." In 31 March 2010 correspondence with the Research Directorate, the President of the Association to Fight Violence Against Women (Association de lutte contre les violences faites aux femmes, ALVF) in Yaounde, Cameroon, provided the following information: Domestic violence is not recognised as a specific crime in Cameroon and we don't have a legal definition of domestic violence. ... Cameroon does not have specific legislation by which domestic violence can be prosecuted; the criminal law is notoriously silent and victims are left to [rely] on the general law of assault. Thus, acts of domestic violence must be prosecuted under other articles of the Cameroon's penal code. Spousal rape is "generally" not considered an offence under customary law; it is rather understood that a married woman "consents to sexual intercourse with her husband at any time" (Nov. 2008, 7). The CRI Project country fact sheet indicates that, although victims of domestic violence can lodge a complaint under the assault provision of the penal code, a man is traditionally considered to have "disciplinary rights over his wife" and that legislation related to "assault on women" is not effectively enforced by the authorities (Nov. 2008, 7). Two sources underline that domestic violence is perceived as a "private matter" (UN 4 Aug. 2010, 3; WIRA et al. 2007, 46). The shadow report submitted to CEDAW states that law enforcement officers do not consider domestic violence to be a serious issue and that victims are reluctant to report abuse (ibid., 45-46). The same report adds that law enforcement officers lack training on how to treat cases of domestic violence (ibid., 46). The President [of the ALVF] added that proceedings never go as "far as convicting men" (ibid.). However, no corroborating information could be found among the sources consulted by the Research Directorate. Nevertheless, the UN Human Rights Committee (HRC) expressed concern that "only a small proportion of cases [of rapes] are reported and investigated" (4 Aug. 2010, 3). According to Country Reports for 2009, women's rights advocates contend that the penalties for domestic violence are inadequate (US 11 Mar. 2010, Sec. 6). The President of the ALVF stated that victims of domestic violence who go to police stations are offered counselling and advice within the police stations (ALVF 31 Mar. 2010). Counselling and advice are also available to victims throughout Cameroon at social service centres provided by the Ministry of Social Affairs; social welfare services are available from the Ministry of Women's Empowerment and the Family (Ministère de la Promotion de la Femme et de la Famille, MINPROFF) (ibid.). However, the President of the ALVF noted that victims of domestic violence are frequently encouraged during counselling to return home without any action being taken to prevent a reoccurrence of the violence (ibid). The President of the ALVF indicated that the state operates hotlines but there are no shelters or safe houses "and that is why the word 'state protection' does not seem appropriate ... because we don't have any such protection" (ALVF 31 Mar. 2010). The UN Human Rights Committee (HRC) also states that the protection provided to women who are victims of domestic violence is "weak" (4 Aug. 2010, 3). With respect to the allegations of witchcraft regarding the Appellant, numerous media articles59 and a letter from a Professor of Region and Development at the Erasmus University Rotterdam. In a letter to counsel he states: In general, populations in all parts of Africa have a propensity to believe in the reality of witchcraft as a manifestation of spitirual evil that emanates from a human source. The ubiquity of this belief means that any accusation of witchcraft cannot be taken lightly. This is all the more so when the person accused exhibits some signs of unusual mental behaviour (which may perhaps be commensurate with a clinical psychological condition) or when a person occupies a social position that makes them vulnerable to accusation - often the close relative of a person afflicted by illness or misfortune. Women in particular are vulnerable to witchcraft accusations, many of which are made within families or groups of people who know each other intimately, such as local communities. While in many cases a witchcraft accusation may go no further than malicious gossip and slander, it can lead to violent action including physical attacks on alleged witches and even murder. ...witchcraft-related killings continue in Africa to this day.60 Furthermore, with respect to mental illness the World Health Organization61 states that in Cameroon, there is no mental health legislation and neither an officially approved mental health policy nor does a mental health plan exists. In an article entitled, "Mentally Ill: a forgotten social class in Cameroon", states that "there are many mentally sick people in the streets because most families reject their mentally ill members because of the social stigma associated with the illness and the high cost of treatment. Most of these patients have lost their social status, are abandoned, discriminated against and are isolated. Cameroonians need to understand that mental illness is neither a taboo nor an abomination, but an illness like any other.62 [45] The RAD finds that the Appellant has proven, on a balance of probabilities, that adequate state protection would not be available if she were to return to Cameroon. [46] The new documentary evidence provided, as cited above by the RAD, is sufficient to rebut the presumption of adequate state protection in the Appellant's circumstances. Having considered the Appellant's evidence, as well as the objective evidence in the RPD's record, the RAD also finds that the Appellant cannot avail herself of a viable internal flight alternative in Cameroon. As such, the RAD finds that the Appellant has established that she faces a risk to her life in Cameroon. CONCLUSION [47] This appeal is allowed. Pursuant to Section 111(1)(b) of IRPA, the Refugee Appeal Division sets aside the decision of the Refugee Protection Division and substitutes its own determination that the Appellant is a Convention refugee in accordance with s. 96 of IRPA. (signed) "Deborah Morrish" Deborah Morrish April 28, 2014 Date 1 Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB, issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, December 15, 2006 Amended: December 15, 2012. 2 Refugee Appeal Division rule 23(2). 3 Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada, December 15, 2006. 4 Appellant's record, p. 11. 5 Appellant's record, pp. 27 - 30. 6 Appellant's record, pp. 31. 7 Appellant's record, p. 36. 8 Appellant's record, p. 43. 9 Appellant's record, p. 53. 10 Appellant's record, p. 55. 11 Appellant's record, p. 56. 12 Appellant's record, p. 57. 13 Appellant's record, p. 59. 14 Appellant's record, p. 60. 15 Appellant's record, p. 62. 16 Appellant's record, p. 63. 17 Appellant's record, p. 64. 18 Appellant's record, p. 65. 19 Appellant's record, p. 67. 20 Appellant's record, p. 74. 21 Appellant's record, p. 76. 22 Appellant's record, p. 79. 23 Appellant's record, p. 87. 24 Appellant's record, p. 100, http://picam.org/press-releases/2009/06-25-GovernmentEndorsesCorruption.htm. 25 Appellant's record, p. 102, web address illegible. 26 Appellant's record, p. 103, http://www.zuzeeko.com/2010/05/jungle-justice-in-cameroon.html. 27 Appellant's record, p. 108. 28 Appellant's record, p. 116, http://news.bbc.co.uk/go/fr/-/2/hi/africa/5111106.stm. 29 Appellant's record, p. 118, http://www.dailymail.co.uk/news/article-2434768/Cruel-practice-ironing-young-girls 30 Appellant's record, p. 123, web address illegible. 31 Appellant's record, p. 125. 32 Appellant's record, p. 142, http://newint.org/features/2013/05/01/tales-of-taboo/ 33 Appellant's record, p. 146, web address illegible. 34 Appellant's record, p. 248. 35 Appellant's record, p. 152. 36 Appellant's record, p. 188. 37 Appellant's record, p. 191. 38 Appellant's record, p. 195. 39 Appellant's record, p. 196. 40 Appellant's record, p. 197. 41 Appellant's record, p. 202. 42 Appellant's record, p. 207. 43 Appellant's record, p. 208. 44 Appellant's record, p. 211. 45 Appellant's record, p. 213. 46 Appellant's record, p. 215. 47 Appellant's record, p. 218. 48 Appellant's record, p. 222. 49 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 50 Exhibit RPD-1. 51 Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB, issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, December 15, 2006 Amended: December 15, 2012. 52 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 53 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 2008 SCC9. 54 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 55 X (Re), 2013 CanLII 82622 at para. 29 (IRB), 56 Rasaratnam v. Canada (Minister of Employment and Immigration, [1992] 1 F.C. 706 (C.A.). 57 Exhibit RPD-1, National Documentation Package (NDP) on Cameroon (3 May 2013), Item 2.1, Immigration and Refugee Board of Canada, Ottawa. 58 Exhibit RPD-1, NDP on Cameroon (3 May 2013), item 5.1, Response to Information Request CMR103371.E , December 2, 2010. 59 Appellant's record, pp. 191 214. 60 Appellant's record, p. 190. 61 Appellant's record, p. 218. 62 Appellant's record, p. 216. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-06702