TB4-06527

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 : TB4-06527 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 XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of Hearing December 4, 2014 January 14, 2015 Date of decision January 14, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Douglas Lehrer Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor 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 XXXX XXXX XXXX, (the Appellant), is a citizen of Egypt. She appeals a decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. [2] On appeal, the Appellant submitted new documents pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA or the Act). The Appellant submitted additional documents on September 22, 2014 pursuant to the Refugee Appeal Division (RAD) rules 29 and 37. With this application, the Appellants requested a hearing pursuant to ss. 110(6). [3] The Appellant requests that the RAD allow his appeal, and set aside the decision of the RPD and find that the Appellant is a Convention refugee or a person in need of protection, or in the alternative, order that the RPD reconsider these claims. DETERMINATION [4] Pursuant to subsection 168(1) of the Act, the RAD finds that the Appellant has abandoned her appeal. Background [5] The Appellant's claim and appeal was initially joined with that of her husband and her claim was based on the narrative of her husband (male Appellant). It was alleged before the RPD that her husband's father was involved with politics as an active member of the Muslim Brotherhood which is now banned in Egypt. His father suffered numerous detentions lasting several months to years. The male Appellant was not politically active but he undertook some of his father's responsibilities when his father was in detention. The male Appellant was subjected to several short detentions and interrogations regarding his involvement with the Muslim Brotherhood. [6] In 2011, when the Mubarak regime was toppled and political parties were permitted in Egypt, the male Appellant joined the Freedom and Justice Party (FJP). In XXXX 2012, he became the Branch Assistant Secretary for the Tanta area branch of the party. [7] The male Appellant was arrested on XXXX XXXX, 2013, and was detained for two weeks. He was interrogated three times and was eventually released after he promised to provide information about activities of other party members. [8] The male Appellant was released on XXXX XXXX, 2013. On XXXX XXXX, 2013, the male Appellant learned from his wife, the Appellant, that their bank accounts were frozen by the order of the public prosecutor when he was in hospital. They left Egypt on XXXX XXXX, 2013 using visas that they had acquired earlier in 2012 and made claims inland on November 11, 2013. [9] Their claims for refugee protection were heard jointly on May 28 and June 20, 2014. By way of written decision dated July 3, 2014, the RPD rejected their claims. [10] In this joint appeal, the Appellants submit that the RPD made a number of errors in its credibility analysis. The Appellants further add that the new evidence contradicts at least two of the RPD findings. [11] A hearing was scheduled for December 4 (reasons for holding the hearing are discussed in the following sections) and at that hearing the Appellant was not present. The male Appellant and counsel were present and they informed the RAD that the Appellant has left the male Appellant and that she left no forwarding information. [12] Her appeal was disjoined and a show cause hearing was scheduled for her hearing. Thus this decision is the female Appellant only. Application pursuant to the RAD rules 29 and 37 [13] In this joint appeal, the Appellants provided three documents pursuant to RAD rules 29 and 37. These include an Egyptian court document convicting the appellant for his political activities, and two employment and business related documents. [14] The Appellants submitted in the appellant's record that they had received only a partial copy of the court judgement and would submit this document along with the translation after they have the complete document. [15] The application for late submission of the court document, and business related activity documents is allowed because the Appellants had mentioned those in the appellant's record stating that they could not get these translated in time. Moreover, these documents appear to have relevance and probative value of in considering the appeal. Therefore, the documents submitted pursuant to rule 29 and 37 will be considered for their possible acceptance as new evidence pursuant to the statutory requirements of the Act. [16] The Appellants submit that the documents submitted on appeal, including the documents pursuant to RAD rule 29, meet the test under section 110 (4) of the Act because the court document arose after the RPD rejected the claim, and the other documents were not reasonably available nor could the RPD have reasonably expected the Appellants to provide it when the RPD rejected the claims. [17] Subsection 110(4) of 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. [18] In considering the statutory provisions of Section 110(4), the RAD first considered whether the evidence arose after the rejection of the Appellants' refugee claims? 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.1 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 credibility, relevance, and materiality of the document.2 [19] 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.3 Subsection 110(4) contemplates the evidence that arose only after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, the RAD is to consider whether the Appellant could have reasonably presented the document to the RPD by way of a post-hearing submission. [20] 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 Section 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,4 or that it proves a fact that was unknown to him/her at the time of the hearing?5 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [21] 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 Section 110(4) test, i.e. 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.6 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [22] The court document is a court order indicating that the male Appellant was tried and convicted in absentia and sentenced to three years imprisonment. The counsel for the Appellants stated that he received this court document on August 14, the day the appellants' record was submitted to the RAD, and the reason for not including it in the appellants' record was due to difficulties in getting this document translated. These documents were finally submitted on September 22, 2014. [23] I note that the court document, the court's decision is the evidence of the conviction of the male Appellant in absentia, and thus it seems central to the decision. However, I note that it is only a photocopy of the court's decision and not the original. This evidence was accepted considering its potential probative value. The hearing was therefore scheduled and held on December 4, 2014 to establish whether the court document is credible. ROLE OF THE RAD [24] The Appellants made extensive submissions in regard to the role that the RAD in the review of an RPD decision. I find that the Federal Court decision, in Huruglica,7 provides clear 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. [25] I am guided by Huruglica where the court stated in paragraphs 54 and 55: [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. [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." [26] Based on the guidance above, the RAD will make its own assessment of the RPD's decision and arrive at a determination respecting the findings of the RPD where it had a particular advantage in reaching its conclusions. Abandonment: [27] Section 168(1) of IRPA provides that: A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default of the proceedings, including by failing to appear for a hearing, to provide information required by the Division, or to communicate with the Division on being requested to do so. Section 68(1) of the RAD Rules requires the Division to give the Appellant an opportunity, by way of a special hearing, to explain why her appeal should not be declared abandoned. In deciding if the appeal should be declared abandoned, the Division must consider the explanation given by the Appellant and any other relevant factors. [28] As stated earlier, at the hearing on December 4, 2015, the Appellant did not show up. The Appellant's husband and counsel did not have any forwarding address for her. Her appeal was disjoined from that of her husband. [29] The Appellant was notified in writing of the first oral hearing, but she failed to appear, and she did not communicate to the RAD any reason for her absence. The Appellant was sent a written notice at the last known address and to her counsel of record that a second, special hearing had been scheduled for January 14 at which she could explain why her appeal should not be declared abandoned. [30] The Appellant again failed to appear and made no attempts to contact the Board or her counsel. Thus, the Appellant did not provide any explanation for her failure to appear at the oral hearings before the RAD. [31] The RAD finds that the Appellant is in default of the proceedings and determines that she has abandoned her appeal. CONCLUSION [32] Pursuant to Section 168(1) of IRPA, the RAD declares this appeal to be abandoned. (signed) 'Atam Uppal' Atam Uppal January 14, 2015 Date 1 Raza, Syed Masood v. M.C.I (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, para. 13.3(a). 2 Raza, para. 13.5(b) 3 Raza, para. 16. 4 Raza, para. 13.5(a) 5 Raza, para. 13.3(b) 6 Raza, para. 13.5(a) 7 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06527