TB5-06643

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-06643 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 8, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A. Kaminker Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX is a citizen of Libya. She appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant has not submitted new evidence but requests a hearing under the provisions of section 110(6) of the Immigration and Refugee Protection Act (IRPA). The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a decision with its own determination that she is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD for re-determination. DETERMINATION [2] Pursuant to s. 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant and her husband were co-claimants before the RPD. They alleged that they are at risk in Libya. The Appellant's claim before the RPD was based on her husband's claim. They alleged before the RPD that the husband was XXXX XXXX XXXX XXXX emergency department of a hospital in XXXX during the civil war or uprising in 2011. The husband treated numerous patients who were fighting on behalf of the Gaddafi government. Since that time, the husband has been targeted by militia groups that considered his actions to be unacceptable. [4] The Appellant's refugee claim was heard on May 26, 2015. In an oral decision, the RPD accepted the refugee claim of the husband but rejected the claim of the Appellant finding that the Appellant does not have a well-founded fear of persecution from the militia in Libya. [5] The Appellant submits that the RPD made errors of mixed fact and law in rendering its determination. ROLE OF THE RAD [6] Counsel has not made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.2 [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error".3 [7] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi, 4 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [8] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. Application for an Oral Hearing [9] The Appellant argues that, pursuant to section 110(6) of the IRPA the Appellant should be granted an oral hearing to address the risk she will face should she have to return to Libya. [10] The RAD is not persuaded by the Appellant's argument in this regard. Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), 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." [11] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in Section 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [12] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] The Appellant has not submitted new evidence in support of her appeal. As such, the RAD must proceed without a hearing in their appeal, and their application for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL Family in XXXX [14] The Appellant submits that it was unreasonable for the RPD to determine that she would not face a well-founded fear of persecution "simply" because her husband's family had not been arrested or directly harmed by the militia who came to look for him. The Appellant argues that in finding that her husband would be targeted and face a well-founded fear of persecution based on his high profile position, the RPD ought to have found her to hold the same risk. The Appellant argues that if one spouse can be found to be at risk, the same could reasonably be true of the other spouse. [15] She also submits that the RPD is misguided because it fails to take into account the cultural and patriarchal context of Libyan social norms regarding spousal relationships or the more general social norms surrounding marriage that are held in the majority of the world. The Appellant argues that married couples are considered to be a whole familial unit and are most likely to be associated with one another than their own siblings. [16] The Appellant further argues that her husband's testimony demonstrates that there is a perception in his mind that siblings would not necessarily be at risk in the same way that a spouse would be and a further persecution that female siblings, if married, are associated then with their own husbands and own husband's activities. These perceptions are valid and logical which give rise to his belief that there is a reason to fear for her safety but not necessarily those of his siblings and as such they ought to have been considered by the RPD in coming to its determinations. However the RPD failed to give thoughtful and careful consideration to the arguments raised. [17] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds, after its own review of the evidence, that the Appellant has failed to provide sufficient credible or trustworthy evidence to establish her claim. The RAD finds that contrary to the Appellant's argument that the RPD did not base it determination solely on the fact that the Appellant's husband's family had not been arrested or directly harmed by the militia who came to look for him. Rather, in addition to that factor, the RPD also noted that the Appellant and her husband tendered personal documentary evidence5 in support of their claims for refugee protection. As noted by the RPD, the RAD finds that none of the documentary evidence makes any reference to any risk of harm faced by the Appellant. The documents only speak of the pursuit of the Appellant's husband, and there is no reference to the militia having any interest in locating the Appellant. The Appellant argues that she would be at risk due to her relationship with her husband; however, insufficient evidence was adduced that the militia, who are in pursuit of her husband, were also intent on locating her. [18] The RAD finds that the Appellant's argument that she would be associated with her husband's activities by virtue of their relationship alone amounts to speculation. The Appellant has not provided the evidence which supports her argument that the militia would view her in the same light as her husband. The RAD also notes that the objective evidence referred to by the RPD in its decision states that, while people that are perceived to be Gaddafi loyalists are at risk, in general family members of those are not at risk of persecution or a breach of their protected rights on return. The RAD finds, as previously noted, that the Appellant has failed to provide sufficient credible evidence that establishes that she would be perceived to be a Gaddafi loyalist through the actions of her husband. [19] The RAD's finding in this regard is supported by the testimony at the RPD hearing. The RAD notes that the oral testimony provided confirmed that, while the militia searched for the Appellant's husband at the homes of his family, there was no evidence adduced that they were also searching for the Appellant. In addition, the RAD notes that apart from searching for the Appellant's husband, the Militia showed no other interest in his other family members. The Appellant argues that, as a wife, she would be treated differently than her husband's other family members; however, the Appellant has not provided sufficient persuasive evidence that this would be the case. [20] The Appellant also submits that, if her husband can be found to be at risk despite having family in XXXX XXXX the same could true of her. She argues the fact that she has family in XXXX is not a factor that excludes her from harm or makes it any safer for her to live in XXXX than her husband. The Appellant submits that it was unreasonable for the RPD to make this determination for her husband but then ignore the implications of such a finding for her. The Appellant further submits that, if the RPD truly believe that the Appellant had the opportunity of fleeing to and safely finding refuge in XXXX, the issue of an internal flight alternative (IFA) ought to have been raised as an issue and explored by questioning her. [21] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the Appellant's argument has no merit. The Appellant's husband was found to be at risk from a militia group due to his own actions. The RPD's reference to his family members in XXXX was relative to the agents of persecution's lack of interest in his family members and their sole interest in pursuing him. The RPD did not suggest that the Appellant would be at less risk from the agents of persecution because she had family in XXXX but rather made reference to her family in XXXX as a result of concerns expressed during the hearing about her re-establishment in XXXX and the kind of challenges that she as a woman would have in re-establishment. [22] Furthermore, the RAD finds that the Appellant's argument that the RPD ought to have explored an IFA for the Appellant in XXXX makes little sense. The RAD notes that the record reveals that the Appellant lived in XXXX all of her life and was living there at the time she and her husband traveled to Canada. Furthermore, the risk she alleges her husband faced and that she faces is in XXXX. Again, the RAD notes that the RPD's findings with regard to her family in XXXX were made not to suggest an IFA was possible but rather were stated to make the point that any concerns that the Appellant might have about returning to XXXX would be mitigated by the fact that she had access to her family there, who could assist her in her re-establishment. [23] The RAD concurs with the RPD's findings in this regard and finds that the Appellant's argument fails. [24] The Appellant submits that the RPD erred in not offering her an opportunity to speak to the circumstances of her family's living conditions in XXXX. [25] The RAD is not persuaded by the Appellant's argument in this regard. After its own review and assessment of the evidence in the record, the RAD notes that the RPD specifically questioned the principal claimant (the Appellant's husband) regarding the risk the Appellant faced in Libya. The RAD further notes that the Appellant was represented by competent counsel at her RPD hearing and that her counsel had the opportunity to question the Appellant about any risk she faced. The RAD finds that the evidence that was adduced about the Appellant's risk of harm at the hands of the agents of persecution was highly speculative and not supported by the documentary evidence. The RAD further notes that no evidence was adduced that the agents of persecution showed any interest in pursuing the Appellant either before she and her husband traveled to Canada or since. The RAD finds that the Appellant's argument fails in this regard. Appellant's Education [26] The Appellant submits that the RPD erred when it used her education as part of the basis for reaching its negative determination. The Appellant argues that there is no documentary evidence in the record which establishes that educated women are not vulnerable. The Appellant argues that it was unreasonable for the RPD to equate that any level of education with an arbitrary likelihood that such a person would be protected from the risks posed by the militias that populate Libyan towns and cities. [27] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that, contrary to the argument of the Appellant, the RPD did not state anywhere in its reasons that the Appellant would be less likely to be targeted by militia because of her education. The RAD finds that the reference to the Appellant's education was relative to the issue raised by the Appellant in her hearing that she would face difficulties re-establishing herself in Libya. The RAD agrees with the RPD that the Appellant's education would mitigate concern she had about her ability to re-establish herself in Libya without her husband. The RAD also notes that the Appellant did not allege at her RPD hearing that she was at risk of all militias, but, rather, she alleged that she was at risk from the specific militia group who was pursing her husband because of his actions and for no other reason. [28] The Appellant also argues that her higher education puts her at greater risk because educated women in XXXX are frequently targeted by extremist militias. The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the evidence relied upon by the Appellant to support her argument is that there are many woman who have been targeted by the militia. The evidence the Appellant relies on to support that argument speaks to women being targeted for activism and the avocation of rights. While it is true there is evidence of the targeting of women activists, the RAD notes that there was no evidence before the RPD and none before the RAD that the Appellant was or is an activist. Her only allegation was that she would be targeted through her association with her husband's activities. As previously noted, there was insufficient evidence adduced to establish that the Appellant would be targeted by the agents of persecution because of the actions of her husband. [29] The RAD finds that the Appellant's argument fails. CONCLUSION [30] The RAD agrees with the RPD and finds, based on the totality of the evidence, that the Appellant has not established that there is a serious possibility that she would be persecuted or that, on a balance of probabilities, she would be personally subjected to a danger of torture, or face a risk to life, or to a risk of cruel and unusual treatment or punishment in Libya. [31] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD. (signed) "L. Favreau" L. Favreau September 8, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Ibid., para 54. 3 Ibid., para 55. 4 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014, 2014 FC 952. 5 RPD's Record, Personal Documentary Evidence, pp 290 -306 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06643