TB5-02505

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 : TB5-02505 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 June 9, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Bola Adetunji 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, (the Appellant) is a citizen of Tanzania. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant is asking for verification of the newspaper article, and a substitution by the RAD finding that the Appellant is a Convention Refugee, or alternatively returning the matter back to the RPD for redetermination. DETERMINATION [2] The RAD pursuant to section 111(1)(c) of the IRPA, refers the matter back to the Refugee Protection Division for re-determination by a differently-constituted panel. New Evidence [3] The Appellant submitted a document, on April 14, 2015, after the Appeal had been perfected and submitted. [4] Evidence is submitted as part of a Rule 29 application. Under such an application, in addition to 110 (4), the rule requires that you consider the factors set out in Rule 29 (4). 29. (4) In deciding whether to allow an application, the Division must consider any relevant factors, including: (a) the documents relevance and probative value; (c) a new evidence the document brings to the appeal; and (c) whether the person who is subject of the appeal, with reasonable effort, could've provided the document or written submissions with the appellant's record, respondent's record, or reply record [5] The document provided verifies that there was an error in the page numbering of the newspaper submitted in evidence and addressed by the RPD in its decision. As pointed out in the RAD decision, there are a number of issues that need to be addressed regarding the newspaper. The new evidence is not probative or relevant to the RAD's decision. Memorandum of Appeal [6] The RAD's decision, in this case, will deal with only one aspect of the Memorandum of appeal. [7] The Appellant submits that the RPD took and kept the original of the newspaper for authentication purposes and does not seem to have authenticated the newspaper at all. BACKGROUND [8] The Appellant alleges that she is a lesbian and has had a number of gay relationships with women in Tanzania. She alleges that in 1985 she was forced into marriage by her parents to XXXX XXXX who died in 1998. The Appellant has two daughters who are currently residing in Tanzania. The Appellant's most recent partner was XXXX XXXX by suspected Muslim fanatics in XXXX 2014 as a result of her sexual orientation. XXXX, the Appellant, was also attacked by these fanatics; she managed to escape the attack and went into hiding in XXXX, XXXX, XXXX, and XXXX XXXX XXXX XXXX XXXX. In her last place of hiding, she met an agent to help facilitate her eventual flight to Canada. The Appellant came to Canada on XXXX XXXX, 2014 and made a refugee claim on the basis of her alleged sexual orientation on October 30, 2014. [9] The Appellant's application for refugee protection was heard on, January 30, 2015. In a decision of February 5, 2015 (January 29, 2015), the RPD rejected her claim finding that there is not a serious possibility that the Appellant would be persecuted in Tanzania, or that, on a balance of probabilities, she would be personally subjected to a danger of torture, or face a risk to her life, or to a risk of cruel and unusual treatment or punishment in Tanzania. ROLE OF THE RAD [10] The Appellant supports the Huruglica,1 decision in that the RAD should conduct a hybrid appeal. The Appellant has not requested an oral hearing. [11] The RAD finds that Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. The Appellant agrees with the RAD role as described. 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 [Appellant] 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. [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." [12] 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. Merits of the Appeal [13] The RPD noted several issues that caused it to find that the newspaper was not a credible evidence. The RPD noted that the picture in the newspaper did not resemble her and there was an error in her name. The Appellant testified that this was her picture and that they had made an error in spelling her first name, "XXXX" instead of "XXXX." [14] The RPD made the following observations with respect to the newspaper: two different dates appeared, XXXX XXXX, and XXXX XXXX, on the top right and left numbering of its pages, the font size, and the inconsistent type of the page numbers as well as the inconsistency of type throughout the newspaper articles. The RPD also noted that the front and back of the newspaper were printed in colour while the rest of the pages were printed in black and white. The Appellant gave an explanation for the different colourations in print, but had no explanation as to why the paper had two different dates. As a result of the RPD's observations, and on the overall credibility of the Appellant, the RPD did not accept the newspaper as genuine. [15] In the Appellant's appeal, she noted that the RPD kept the original of the newspaper for the purpose of authentication. There is no evidence or documentation in the file to indicate that this verification was done. The basis of the Appellant's appeal is that the newspaper presented in evidence is genuine, and indicates that the Appellant was wanted by the XXXX XXXX XXXX XXXX 2014, the RAD is unable to support the RPD's decision on this issue. [16] The newspaper presented in evidence is critical to making the final determination in this decision. First, the newspaper was not translated so that it was impossible for the RPD to make an informed decision regarding the alleged charge, or charges. If the charges outlined were sufficient, Citizenship and Immigration Canada (CIC) should have been contacted in order to deal with the possibility of exclusion on 1(f)(b), or charges that would have supported her claim. [17] In that a major credibility issue is the RPD's finding that this newspaper was not genuine, the newspaper presented in evidence should have been sent for authentication. Even if the newspaper article had been translated and authenticated, the RAD would be unable to substitute a decision because the issue goes to the heart of the claim, and has an impact upon all other issues of the claim. Major determinations of the RPD regarding credibility are based on the lack of genuineness of the newspaper presented. [18] The RAD will not, at this time, make findings on the other issues written in the RPD's decision, and commented on by the Appellant in the Memorandum of Appeal. CONCLUSION [19] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter back to the Refugee Protection Division for re-determination by a differently-constituted panel. (signed) "Robert S. Garner" Robert S. Garner June 9, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-02505