TB3-09196

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 : TB3-09196 TB3-09197 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 12, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael F Loebach Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) XXXX XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (The Appellant) and her minor son XXXX XXXX (the Minor) are citizens of Palestine; they are appealing the Refugee Protection Division's (RPD's) determination which rejected their claims for refugee protection. [2] The Appellant was appointed as the Designated Representative (DR) for the minor by the RPD. [3] The Appellants submitted new evidence in support of their appeals, and seek a new hearing pursuant to section 110(6) of the Act. [4] They want the RAD to set aside the RPD's decision and as remedy want the RAD to substitute it with a decision that the Appellants are Convention Refugees and persons in need of protection. Determination [5] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the negative determination, and substitutes it with the determination that the Appellants are Convention refugees. The Appeal is allowed. Background [6] The Appellant alleged before the RPD that she lived in West Bank Palestine and worked as a XXXX for a variety store. In about XXXX 2013, she noticed a strange customer visiting the store daily. Eventually he offered the applicant $3,000 each month in exchange for giving him information about her customers. [7] The Appellant refused but the man told the Appellant that she would regret her decision. She persuaded her husband to accompany her from work to their house. [8] In the middle of XXXX 2013, the applicant and her husband were attacked on the street when they were walking home; one man attacked her husband, and another man forced the Appellant into the back seat of a car where she saw the man, who offered her money for the information. She was sexually assaulted in the car and videotaped. Afterwards, they stopped the car and threw the applicant out and threatened her that if she fails to obey him, the pictures of her having sex with him will be everywhere. [9] The Appellant told her husband what had happened, and decided that the police would not be able to help her and that her reputation would suffer if she complains about the rape. [10] Her husband convinced the applicant to leave the country with their son. In Canada, she told her uncle about her problems in Palestine, and the uncle advised her to apply for refugee protection. [11] The Appellant believes that if her husband's family finds out about her rape they would be obliged to kill her to restore the family honour. [12] Their claims were heard on October 21, 2013 and the RPD rendered an oral decision at the end of the hearing. [13] The RPD found that the Appellant is credible and as her "fear is objectively well-founded, which is to say that there is more than a mere chance that you would be harmed if you should return". Despite this finding, the RPD determined that the Appellant has not tested the state protection and thus failed to rebut the presumption of state protection, and thus rejected the claims. New Evidence [14] The Appellants submitted an affidavit that essentially repeats her allegations and provides an explanation for why she is submitting new evidence; and that her husband's "...family is applying tremendous pressure on him seeking explanations for long absence of the applicant and her son." [15] The Appellant attached the current and dated information about the practice of honour killings and the state's unwillingness or inability to provide protection to young women pursuant to section 110(4) of the Act: (a) an affidavit from the Appellant, (b) Three Articles in tab 6 of the Appellant's Record. [16] The Appellant also requests a new hearing pursuant to subsection 110(6) of the Act.1 [17] In order for the RAD to consider this as new evidence, it must meet the criteria set out in subsection 110(4) of the Act which provides that the evidence proffered must not have been reasonably available at the time of the hearing, and states: S.110 (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. [18] Additionally, if the evidence meets the statutory criteria, it must also be assessed against the factors set out in Raza, which is the leading case on "new" evidence. Even though the Raza case was specific to the Pre-Removal Risk Assessment (PRRA) process, I consider it relevant to the RAD because the wording in s. 113(a) of the Act, which is regarding PRRA provisions, and ss. 110(4) of the IRPA regarding the RAD are similarly worded. [19] In Raza, the court posed the following questions that need to be asked in deciding whether to accept new evidence for a Pre-Removal Risk Assessment case. These, as summarized by the Court, are: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or, (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or, (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 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? If not, the evidence need not be considered. [20] The RAD applied Raza in considering whether to accept evidence that was provided after the RPD decision, [21] The Appellant's affidavit, at paragraph 10, states that the information she provided as new evidence predates the decision and states that she "did not provide the information in new evidence earlier because she was under the impression that the situation with women in my country is well known and that that national documentation package provides detailed description of the government's failure to protect government in Palestine. I wish to provide this additional evidence in addition to the information that can be found in the national documentation package". [22] Thus, the Affidavit provides information "that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection". Therefore, it meets the express statutory condition and it meets the Raza test that it is new; it is credible, material and relevant. It is therefore accepted as new evidence. [23] The Appellant's record at tab 6 has three items: item number one is a compilation of several news articles of women who have been killed by honour killings in the Palestinian Authority area. The last of these articles is a story dated September 2013 about a 21-year-old female who was beaten and then hung to death because her mother found out that she was pregnant.2 [24] The next item is an article about a man who slaughtered his wife in Bethlehem in a busy market. The article states that the husband of this woman had been abusing her by beating her for several years, causing injuries and forcing her to return to the house of her family to live with her poor father. Her father refused to receive her children due to poverty. As a result, her husband murdered her, instead of divorcing her. This article also states that this was "the second similar murder during the last 10 days". The article continues, "the blood of this woman is on the hands of the PA, who are nothing but thieving Mafia, and the EU, which each year transfer hundreds of millions of euros to Abbas and the many protégés of his media in Palestine and elsewhere. [25] The third item is an article from "American Thinker" dated November 8, 2013, and states that the leader of the Palestine (Mr Abbas) recently announced he will continue to retain the laws that allow males to kill their wives, sisters, mothers, grandmothers, daughters, nieces and aunts who dishonor or shame them or the family with virtually no punishment. Shame is self-defined, any excuse will do. The article continues that lax laws encourage murder suspects to claim honor in the defense. Officials and women's rights activists say because the penalty is one or two months, they consider killing them and dressing it up as honor according to the Minister of Women's Affairs. Sometimes these girls are abused by someone in the family and in order to cover this up they killed her. "In Palestine, this is the gap, that until now we don't have our own legislation that really can protect woman." The article continues that the Independent Commission of Human Rights says 13 women have been killed this year, but the real figure is likely to be higher.3 [26] Thus, the Affidavit, and these articles provide information "that the person, the Appellant, could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. The Appellant states in her affidavit that she believed that the RPD's National Documents show clearly the plight of women in Palestine and inadequacy of state protection for them. I note that the new documents predate the rejection of the claim; however, given that the Appellant was not reasonably expected to submit those prior to the hearing because of her belief, I find that these documents do meet the express statutory conditions of the Act, particularly considering the fact that she was unrepresented at the hearing. Moreover, these documents meet the Raza test because these are from credible sources including newspapers and reports by recognized NGO's and provide additional information on the situation of women in Palestine. I find that these documents are from credible sources, are material and relevant. In addition, these documents are capable of changing the result - i.e because they go to the issue of available (or lack of) state protection from Palestinian Authority. Thus, the affidavit and the articles submitted are accepted as new evidence pursuant to section 110 (4) of the Act. ANALYSIS Standard of Review [27] The Appellants submit the following questions in this appeal: (a) Did the Member err in not considering the totality of the evidence with the respect to the Appellants' claim for refugee protection? (b) Did the Member err in ignoring evidence which established the applicants' need for protection? (c) Did the Member provide adequate reasons in reaching his or her decision? (d) Does the Refugee Appeal Division have jurisdiction to consider the new evidence provided by the Appellants? [28] Issues "b, c and d" identified by the Appellant are questions of fact and or questions of fact and law. [29] Issue "e" has already been dealt with in the previous section and new evidence was accepted. [30] The Appellants submit on the issue of Standard of Review that it is " based on the RAD's relative expertise (there is no need) to accord any deference to decisions of the RPD", and " that the RAD must render its own independent de novo decisions on the merits of the claims that come before it, to do otherwise would be to squander its expertise and to fetter the discretion granted to the RAD granted by Parliament. As such, it is submitted that the standard of review is correctness". [31] I am not persuaded by the Appellant's submissions on the issue of Standard of Review. [32] The Immigration and Refugee Protect Act (IRPA or the Act) does not provide direction or guidance as to what is the appropriate standard of review to be applied in its appeals brought before it. [33] In Dunsmuir,4 the Supreme Court of Canada concluded that there are two standards of review: correctness and reasonableness. [34] In Khosa,5 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute. This case was not specifically in the context of an appeal's tribunal charged with reviewing the decision of a tribunal of first instance. [35] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:6 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [36] The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.7 The subject of the RPD proceedings or the Minister may appeal decisions of the RPD to the RAD. The appeal may be regarding a question of law, a question of fact, or a question of mixed law and fact. The Immigration and Refugee Protection Act empowers the RAD to determine questions of jurisdiction as well as questions of law and fact. The RAD is charged with a review of the appeal and determines whether to confirm the RPD's decision; or set aside that determination and substitute another; or refer the matter back to the RPD for redetermination with or without directions it deems appropriate. [37] The respective roles of the RPD and the RAD in the Act suggest that deference is owed to the RPD on findings of fact, or findings of mixed fact and law, that RPD finds based on the evidence and the testimony of the refugee claimants given at the RPD hearing. However, in cases where the RAD accepts new evidence, relatively less deference may be owed to the RPD because the RPD did not have the new evidence before it. [38] The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [39] Canada's refugee system is, in the first instance, about saving lives and offering protection to the displaced and persecuted.8 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [40] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [41] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [42] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. d: The Expertise and Advantageous Position of the Tribunals: [43] Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,9 and each can take notice of information and opinions within its specialized knowledge.10 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,11 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD proceeding.12 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will not have this opportunity in all cases. Despite several similarities between the two tribunals, this fact that the RPD directly takes testimony suggests that the RPD is owed deference on findings of fact, particularly in respect to credibility,13 other than in situations where the RAD holds an oral hearing and therefore has the opportunity to consider evidence firsthand. e. The Need to Limit the Number, Length and Cost of Appeals: [44] In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.14 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would, in effect, be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one important objective of the IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [45] The interpretation of the legislation as a whole, and the intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, other factors suggest a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. If the question is one of fact, the Courts have held that triers of fact are better situated to make findings of fact at first instance.15 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD proceedings would be reduced to little more than preliminary inquiries. [46] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to the administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.16 Thus, the RAD does not agree with the Appellant's submission that the RAD should not defer to the findings of the RPD. [47] The issues in this appeal concern findings of fact regarding state protection which is an issue of mixed law and fact where the appropriate standard of review is reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process but also with whether the decision falls within a range of possible, acceptable outcomes, which are defensible in respect of the facts and the law.17 [48] The Appellant also alleged that the panel did not consider the totality of evidence, did not provide adequate reasons and therefore erred. I will rephrase the Appellant's issue as follows: is the RPD's determination that adequate state protection is available to the Appellant based on an error on the part of the RPD panel by his failure to take into consideration the totality of evidence before the RPD. [49] A thorough review of the RPD's decision makes it clear that the RPD found the Appellant to be a credible witness, and stated (in paragraph 6 after Bold word Member, page 3), " I am accepting that your fear is objectively well-founded, which is to say that there is more than a mere chance that you would be harmed if you should return". [50] Thus, the only issue remaining in this appeal is whether the RPD's finding that the Appellant failed to rebut the presumption of state protection is reasonable. [51] I note that the RPD focused on several articles which show that the state has made some efforts in the area of state protection. I also note that the RPD focused on the testimony of the Appellant that she did not approach any authorities to seek help. The RPD erred in saying she didn't try to access state protection without assessing if it was reasonable for her to try to access state protection given the abysmal record of the Palestinian Authority in keeping such women safe/ efforts are not enough - there has to be an assessment of effectiveness. [52] The RPD stated in its reasons, "In this case your fear takes, for simplification, two basic forms. One is that you could be harmed by the very individuals who abducted you and assaulted you to begin with. This harm could take a number of forms, further violence or more likely simply release of the video, as they threatened to do while you were there", a clear indication that the RPD understood the risk. The RPD further stated, "There is a further concern on your part, however, if the video were released that your husband's family, whom you describe as being very conservative, would take matters into their own hands and you could be harmed or even killed as a result". [53] There is a further concern on your part, however, that if the video were released, that your husband's family, whom you describe as being very conservative, would take matters into their own hands and that you could be harmed or even killed as a result. [54] The RPD also stated, "while it is a male dominated society, and while there are problems with enforcement, the state does address rape, and it does address and is addressing honour crimes, so-called honour crimes." [55] The RPD rejected the claim and stated, "In your case you did not approach the authorities, at no time did you go to the police. You never tested the willingness of the state to provide adequate protection for you. You have indicated that your failure to do so was because of fear, and your counsel has referred to this in her submissions. However, reasonable that might seem to you from a subjective standpoint, and I have case law on this, subjective fear by itself cannot rebut the presumption of state protection". [56] The Canadian jurisprudence is clear and it is trite law that in state protection analysis the RPD must take into consideration the particular situation of the claimant and the effectiveness of the state activities, not just identify what the state is doing. Moreover, it is also trite law that the RPD must acknowledge and take into account contradictory documentary evidence in arriving at its decisions. [57] The particular situation of the Appellant is that she is a Palestinian who was sexually abused and filmed for the purpose of pressuring her and using the video to blackmail her. Evidence shows that if the video of her having sex with a stranger, albeit forced, may result in death by her husband's family. The RPD did not doubt any of that and made a clear finding. [58] The RPD record confirms that the Appellant testified that she did not go to the authorities because it would make matters worse for her. Documentary evidence mentioned above as new evidence clearly shows that the Palestinian Authority is unwilling to provide protection to women and girls in her situation. [59] Documentary evidence of the Board itself also shows that the heinous practice of honour killings is still being practiced and the state does not want to change laws in order to eradicate this problem. The culprits, if apprehended and tried, are released after a very short jail sentence. [60] Based on the foregoing, I find that the RPD was selective in using documentary evidence before it and it did not take into consideration the particular situation of the Appellant or the evidence about the lack of effectiveness of state attempts. [61] I am also of the opinion that the RPD's statement, "The RPD found that the Appellant is credible and as her "fear is objectively well-founded, which is to say that there is more than a mere chance that you would be harmed if you should return" was sufficient to find her as a Convention refugee. [62] Based on the foregoing, I find that the RPD's decision is not reasonable as it does not meet the test that is cogent, intelligible, justifiable and transparent. Thus, the RPD's finding does not fall within a range of possible, acceptable outcomes defensible in respect of the facts and the law. [63] Since the RPD had no concerns about the credibility of the Appellant, I set aside the negative determination of the RPD, and substitute it with the determination that the Appellant is a Convention refugee. [64] The claim of the minor is also accepted as being a member of a particular social group, a minor dependent on his mother who may be victimized by the same man and his gang to punish the Appellant for not continuing with providing him with the information the agent of persecution seeks. Moreover, if the video is released, it can have a traumatic impact on the minor. CONCLUSION [65] The RAD, pursuant to subsection 111 (1)(b) of the Immigration and Refugee Protection Act, sets aside the RPD's negative determination, and substitutes it with the determination that the Appellants are Convention refugees. The Appeal is allowed. (signed) 'Atam Uppal' Atam Uppal March 12, 2014 Date 1 Appellant's record page 10, paragraph 11 2 Appellant's Record, pages 48-54 3 Appellant's Record, pages 57 and 58 4 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. 5 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 6 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 43. 7 IRPA, Sections 96 and 97. 8 IRPA, Section 3(2)(a). 9 IRPA, Sections 170(g) and 171(a.2). 10 IRPA, Sections 170(i) and 171 (b). 11 IRPA, Section 170(b). 12 IRPA, Section 110(3). 13 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 89. 14 Newton, para. 80. 15 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 89. 16 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 17 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------