TB5-08022

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 : TB5-08022 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 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 Nadine Edirmanasinghe 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 (the Appellant), a citizen of Jordan, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. 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 the Appellant is a person in need of protection. In the alternative, the Appellant requests that a hearing be convened before the RAD or that the RAD refer the matter back to the RPD for re-determination. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that he cannot return to Jordan because he fears a risk to his life. Specifically, the Appellant alleges he would be a victim of an honour crime at the hands of his male cousins and paternal uncle because of his intimate relationship with his female cousin. [4] The Appellant's RPD hearing was held on January 19, 2015. In a decision of February 26, 2015, the RPD rejected the Appellant's claim for refugee protection finding that he was not credible. [5] The Appellant submits that the RPD ignored evidence and failed to properly assess the objective basis of his claim. The Appellant further submits that the RPD erred in its assessment of his credibility and erred in the assessment of his risk under section 97 of the IRPA. ROLE OF THE RAD [6] Counsel has 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. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [9] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of the IRPA provides 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. [10] The Appellant has tendered the following proposed new evidence in support of his appeal: a) Clinical follow-up notes for the Appellant's brother; b) Police report relating to an assault against the Appellant's brother; and c) Paragraph 37 of Appellant's accompanying affidavit. [11] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred, or a circumstance that arose after the rejection of the refugee claim. b) The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove.5 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. c) It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD's hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the probative value of the evidence. e) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, or that it proves a fact that was unknown to the Appellant at the time of the hearing? If so, the RAD will proceed to assess the probative value of the evidence. f) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered. If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the probative value of the evidence. [12] In the case at hand, the RAD finds that the new evidence tendered meets the statutory requirement to be admitted as evidence in this appeal. The probative value of this evidence will be assessed on the merits of the claim. ANALYSIS OF THE MERITS OF THE APPEAL [13] The RPD found that the Appellant does not have a nexus to a Convention ground and rejected his claim under section 96 of the IRPA and conducted its analysis of the merits of the claim solely under section 97 of the IRPA. The Appellant does not contest the RPD's findings on section 96. The RAD finds that the determinative issue in this appeal is the credibility of the Appellant's allegation that his life is at risk at the hands of his cousins and paternal uncle. Were the Credibility findings of the RPD Improper? [14] The Appellant submits that the RPD erred in its credibility assessment by: 1) Making an improper determination that his claim was not plausible; 2) Expecting him to know what was in the mind of his persecutor; and 3) Being overzealous in its determination of the evidence. [15] The Appellant argues that the RPD found that it was implausible that he would be targeted while the woman with whom he was accused of having an illicit relationship with was not targeted. The Appellant argues that the documentary evidence does not support the RPD's conclusion in this regard. The Appellant argues that the two references to men being killed in honour killings did not cite that the women they were involved with were also killed. The Appellant argues that it is an unreasonable and erroneous inference of plausibility to find that he would not be targeted because the woman he was involved with was not targeted. [16] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the documentary evidence as a whole indicates that the issue of honour in Jordan is generally related to the conduct of women6 and that women are generally blamed when it comes to illicit sex.7 The objective evidence also states that women are generally the victim of an honour crime by the men in their family as they believe that this is how they can restore their family honour.8 The Appellant's testimony is that his female cousin continues to live with her family and has not apparently suffered any consequence for her part in the relationship. The RAD agrees with the RPD that the documentary evidence establishes that the issue of honour is related to the conduct of women. The RAD finds on this basis, and on a balance of probabilities, that the Appellant's female cousin, as a willing participant in the relationship, would be at least subject to the same consequences for the relationship as he alleges he faces. [17] The RAD finds that in light of the fact that the alleged agents of harm have not harmed the Appellant's female cousin seriously undermines his allegations of risk of harm if he were to return to Jordan. [18] The RAD also found it implausible that in light of the documentary evidence, the Appellant's uncle would refuse the opportunity to restore honour to his family by allowing the Appellant to marry his cousin. The Appellant submits that while the documentary evidence states that normal methods of saving face include marrying off a young woman, it does not preclude the plausibility of her family refusing marriage. Furthermore, the Appellant argues that the documentary evidence stated that there were no reported incidents of forced marriage as an alternative to a potential honour killing during the year, which directly contradicts the RPD's plausibility finding. [19] The RAD is not persuaded by the Appellant's argument in this regard. While it is quite true that the US Department of State (DOS) Report states that there were no reported incidents of forced marriage as an alternative to a potential honour killing, it must be noted that the Appellant's female cousin continues to live with her family, without any apparent consequence for her part in the relationship, and that there has been no allegation that she would be the victim of an honour killing. The Appellant has alleged that he is the only one targeted. The RAD finds that this makes little sense in light of the objective evidence already discussed. The RAD also notes that the objective evidence is clear that an honour crime is committed in order to restore family honour. Given that the objective evidence establishes that honour crimes are generally related to the conduct of women and that it is the Appellant's testimony that his female cousin willfully engaged in the relationship with him, the RAD finds that, on a balance of probabilities, the Appellant's cousin would be considered to have dishonoured her family. [20] The RAD notes that the Appellant has testified that his female cousin is the youngest in her family and her mother's favourite as explanation for why she was not harmed. The RAD finds that under these circumstances, it is reasonable to expect that if the Appellant's cousins and paternal uncle believed they were dishonoured, they would take the alternative measure of marrying her to the Appellant in order to restore the family honour. As noted by the RPD, given the context of honour killing in Jordan as outlined in the objective evidence, the Appellant has not established how his murder would restore his female cousin's family honour as she continues to live with her family without consequences of her alleged participation in the relationship. [21] The Appellant further argues that the RPD erred when it based its adverse credibility finding on its perceived inadequacy of his explanation for the persecutors' motives, in particular his inability to explain why his paternal uncle would not harm his female cousin and why he refused his offer of marriage. [22] The RAD is not persuaded by the Appellant's argument. The RAD finds that the questions put to the Appellant in this regard were made to ascertain if the Appellant had a reasonable explanation for the contradictions between the actions of the alleged agents of harm and the objective evidence. As no reasonable explanation was provided, the RPD found that, given the objective evidence, the Appellant's account was implausible. After its own review and assessment of the evidence, the RAD concurs with the RPD's finding in this regard. [23] The RAD finds, on a balance of probabilities, that in the context of the objective evidence and in light of the fact that no harm has come to the female cousin of the Appellant and that no readily available alternative measures were taken to restore family honour, the Appellant's allegations that he is under threat of harm from his female cousin's family is not credible. Overzealous Examination of the Evidence [24] The RPD drew an adverse inference from the Appellant's failure to include the name of his female cousin or his paternal uncle in his Basis of Claim (BoC) forms. The RPD stated that although the omission was not determinative, because his paternal uncle and female cousin were central to his claim, it was reasonable to expect that he include their names in his BoC. The Appellant submits that it is not a major omission and that the main allegations were included in his narrative. The Appellant argues that the RPD's finding is overzealous and microscopic. [25] The RAD finds that in this regard the Appellant's argument has merit. The RAD finds that the omission (if an omission at all) is very minor in nature and has no impact on the overall allegations. The RAD finds that this finding of the RPD is microscopic in nature and cannot be sustained. Failing to Consider Risk of Cruel and Unusual Treatment as a Basis of Risk [26] The Appellant submits that the RPD failed to undertake its own independent analysis on whether he faces a risk of cruel and unusual treatment or punishment in Jordan. The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the RPD's entire analysis was based on section 97 as the Appellant's claim was rejected on section 96 on the basis of a lack of nexus to a Convention ground. The RAD also notes that the RPD found that he was not credible, and as such his allegations of risk of harm were also found not to be credible. He has not alleged risk for any other reason, and as such the RPD did not err in this regard. Treatment of the Evidence [27] The Appellant submits that the RPD failed to account for the full contents of the objective evidence with the National Documentation Package (NDP) articles submitted by him and personal documents which support the basis of his claim. Documentary Evidence [28] The RPD found that the Appellant has not established the objective basis of his fear. The Appellant submits that the RPD failed to properly consider all of the evidence contained within the objective evidence regarding the risk of honour related crimes to men, and/or failed to adequately outline why it rejected information contained therein on the risk to Jordanian men. [29] The Appellant argues that the RPD cited the Response to Information Request (RIR) JOR42883.E9 in finding that women make up the vast majority of honour crimes in Jordan. Although the RPD acknowledged that men can be victims of honour crimes, the RPD seems to discount the statement when stating in its reasons that there were no known cases in which a man had reportedly been killed in an honour crime. The Appellant argues that a closer look at the RIR makes it clear that two independent anthropologists gave their expert opinion that men can also be victims of honour crimes and while one anthropologist could not give a specific example, the other provided an example of an unmarried Muslim man who was murdered for having eloped with a Christian woman: The anthropologist was aware of one case in Jordan in which an unmarried Muslim man eloped with a Christian girl (their marriage would not be legal in Jordan). The girl's brother tracked them down and attacked the man and both men were killed in the ensuing gun battle.10 [30] The Appellant further argues that documentary evidence that he tendered in support of his claim also provided verification that men are victims of honour killings. Specifically, the Appellant argues he tendered an article11 in which it was noted that two brothers murdered and disfigured a young man due to out of marriage relationships with their sister. [31] The Appellant argues that "this evidence directly and squarely contradicts the RPD's finding that there is no objective basis for his fear of harm [because] the documentary evidence does not support the targeting or murder of young men on account of honour related crimes."12 The Appellant further argues that it bears noting that while the US DOS report cited by the RPD does only outline cases of women who are targeted in honour killings, it notes that many cases go unreported and that this may account for the lack of data on men being targeted. The Appellant argues that the RPD ought to have noted the evidence which contradicts the RPD's negative determination and provide an explanation why it did not find this evidence persuasive. [32] The RAD finds that it is not persuaded by the Appellant's argument in this regard. The RAD finds that the RPD did not determine that there was no objective basis for the Appellant's fear, but rather that he failed to demonstrate the objective basis of his fear. Furthermore, the RAD notes that the RPD did not state that the documentary evidence does not support the targeting or murder of young men in relation to honour crimes. The RPD clearly states that the documentary evidence establishes that men can be victims of honour crimes. [33] While it is unfortunate that the RPD misstated the evidence in the RIR, the RAD nonetheless finds, after its own review and assessment of the evidence, that it agrees with the RPD that the preponderance of evidence in the record establishes that women are the primary victims of honour crimes. Although the Appellant has argued that two independent anthropologists gave their expert opinion that men can also be victims of honour crimes, the RAD notes that the RIR JOR42883.E, which deals specifically with the risk to men who have been threatened with death for having engaged in an illicit relationship, states that murder is not a typical outcome of honour crimes and occurs only in the most extreme scenarios; normal methods of saving face include divorcing an adulterous woman, marrying off a young woman, moving away, or "finding excuses" for certain behaviours.13 While one anthropologist found only one historical incident of an honour killing of a man, the other anthropologist found no such cases. Although the Appellant suggests that reluctance to report may account for the lack of documentary evidence on honour killings involving men, the RAD finds that this is highly speculative. The RAD finds it reasonable to expect that, in light of the research that has been conducted on this issue, if there were a high incidence of men as victims of honour crimes that this information would be contained in the objective evidence. [34] The RAD finds that, although the RPD failed to note the two reported incidents of men being killed in relation to honour crimes, the preponderance of evidence in the record establishes that women are predominately the target of honour crimes and that the risk of harm he faces from an honour killing is less than a mere possibility. Personal Documents [35] The Appellant submits that he tendered a number of personal documents to the RPD from his family and from a clan official14 which also corroborates the objective basis for his fear, and that the RPD failed to address these documents in its reasons. The Appellant argues that the RPD's failure to address these documents is an error. [36] While it is problematic that the RPD did not mention these documents in its reasons, the RAD finds that in light of the jurisprudence established in Huruglica,15 the RAD is required to conduct its own assessment of the corroborating documentary evidence. [37] The RAD finds, after its own review of the documents, that little weight can be given to these documents. The RAD notes that all of the letters purportedly from the Appellant's family are documents which were produced on the same day and have the appearance of having been generated on a word processer. The RAD notes that the documents are not in the form of affidavits and while the documents are signed, the signatures are illegible, and it is impossible to verify who signed the documents. The RAD also notes that none of these individuals who signed the documents were made available to the RPD as witnesses. The RAD further notes that, although the Appellant argues that they provide a first-hand account of his risk, the documents do not provide evidence of the source of the facts they give. The authors of the documents do not provide any indication how they came to know the information they have provided, only that they had come to learn the information. [38] The RAD also finds that little weight can be given to the letter purportedly from the clan official. The RAD notes that this letter is also drafted in the same manner as the letters from the Appellant's family and was drafted on the same date (the translation of the document states it was written on XXXX XXXX XXXX 2014; however, the original document indicates it was actually written on XXXX XXXX XXXX 2014.) Although the letter signed by the clan official was authenticated by the Minister of the Interior, the RAD notes that the Minister of the Interior does not verify the contents of the document. The RAD further notes that, according to the allegations in the Appellant's BoC, the information contained in the letter is based upon information received by the Appellant's family and is not an independent verification of the facts alleged. New Evidence [39] The Appellant tendered two new pieces of evidence16 in addition to his own affidavit17 in which he submits further evidence of ongoing targeting of his family. Clinical follow-up notes [40] The RAD has reviewed and assessed the clinical follow-up notes and finds that little weight can be given to the document. The RAD notes that the document in question is a computer-generated document. It is a single sheet entitled "clinic follow up notes". The term "clinic follow-up notes" suggests that the report is a follow up to an earlier report. However, the Appellant has not provided additional medical documents to corroborate this document. The RAD notes that the report indicates that the Appellant was seen and treated by a specialist and that he was prescribed medication. However, there is no mention of the specialist's observations or the medication he was alleged to have been prescribed. The follow-up notes contain considerable information unrelated to his medical treatment such as personal details about his alleged family problems and the names of his attackers. The RAD finds it makes little sense that this medical report would provide details unimportant to the medical treatment when more significant medical treatment information was not included. Police Report [41] After its review and assessment of the police report, the RAD finds that it can give this document little weight. The RAD notes that the police report is a computer-generated document that bears no letterhead, logo, address, identifiable stamps, security features or legible signatures to verify it is a police document. The RAD finds there is nothing on this document from which to verify its authenticity. Affidavit of the Appellant [42] The RAD notes that, in paragraph 37 of his affidavit, he included new evidence of ongoing harassment and assault perpetrated on his family by his cousins and paternal uncle. The RAD notes, however, that, although the Appellant has alleged that the medical report and police report were received prior to the date the Affidavit was signed, there was no mention in the affidavit of this serious allegation of assault and interaction with the police. The Appellant only refers to the ongoing problems and harassment of his family and an incident in which a rock was thrown at his sister. The RAD finds it reasonable to expect that, given the seriousness of the attack and the importance of this information to his claim, the Appellant would have included this information in his affidavit. The RAD finds that its omission undermines the genuineness of the medical and police report and the allegations of ongoing risk of harm from the agents of persecution. Accordingly, the RAD gives little weight to this new evidence. Oral Hearing [43] 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 s. 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 new 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). [44] 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. [45] While the RAD has admitted new evidence in this appeal, the RAD finds that the evidence does not raise a serious issue with respect to the Appellant's credibility that would justify accepting or denying the Appellant's refugee protection claim. As such, the RAD must proceed without a hearing. Summary [46] Having considered all of the evidence in the appeal, the RAD finds that the Appellant's allegation that he has been targeted for harm by his cousins and paternal uncle is not credible. CONCLUSION [47] Having reviewed all of the evidence in this appeal, the RAD agrees with the RPD, on a balance of probabilities, that there is not a serious possibility that the Appellant would be persecuted in Jordan, or that, on a balance of probabilities, he would be personally subjected to a danger of torture, or face a risk to his life, or to a risk of cruel and unusual treatment or punishment in Jordan. [48] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (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 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, para. 16. 6 RPD's Record, National Documentation Package (NDP) for Jordan (August 29, 2014), item 2.1. 7 Ibid., item 5.1. 8 Ibid., item 5.4. 9 RPD's Record, RPD's Reasons and Decision, p. 13, paras. 15-16. 10 Exhibit P-2, Appellant's Record, p.131, para. 43. 11 Exhibit P-2, Appellant's Record, p. 59. 12 Exhibit P-2, Appellant's Record, p. 132, Memorandum of Argument, para. 45. 13 RPD's Record, National Documentation Package (NDP) for Jordan (August 29, 2014), item 5.1. 14 Exhibit P-2, Appellant's Record, pp. 43-54. 15 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 16 Exhibit P-2, Appellant's Record, Clinic Follow-up Notes, Police Report, pp. 116-119. 17 Exhibit P-2, Appellant's Record, Appellant's Affidavit, pp. 9-15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08022