TB4-02207

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 : TB4-02207 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 XXXXXXXXa.k.a.XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 4, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mercy Dadepo Barrister & 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 (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX, a citizen of Nigeria, appeals a decision of the Refugee Protection (RPD) denying her claim for refugee protection. The Appellant has submitted new evidence in support of her appeal and she has requested an oral hearing. The Appellant requests the Refugee Appeal Division (RAD) set aside the determination and substitute a positive determination, or in the alternative, refer the matter to the Refugee Protection Division for re-determination, giving directions to the RPD to accept the Appellant's claim. DETERMINATION: [2] This appeal is allowed. Pursuant to Section 111 (1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers this claim to the Refugee Protection Division for re-determination by a differently-constituted panel. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL: Express statutory conditions: [3] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [4] If the statutory requirements have been met, the panel must then consider the factors in Raza,1 in which the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA Section 110(4), it is based on the very similar wording of Section 113(a) for the PPRA. The Court held that new evidence should be considered for its newness, credibility, relevance, and materiality, in addition to any express statutory provisions. Newness: [5] 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. Credibility: [6] Evidence that passes the test in Section 110(4) must be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. Relevance: [7] The RAD must consider whether the evidence is relevant to the appeal. Is it capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. Materiality: [8] Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been available to the RPD? If not, the evidence need not be considered. [9] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: * A Summons made by Mr. XXXX addressed to the Appellant's father in regards to the disappearance of the Appellant, reneging on an agreement of marriage. This letter is dated XXXX XXXX, 2013, prior to the rejection of the claim on January 21, 2014. * Letter from Mercy Dadepo (counsel) in Ontario addressed to XXXX XXXX requesting information with respect to further developments with respect to the Appellant's relationship with Mr. XXXX. This letter is dated XXXX XXXX, 2014, and postdates the rejection of the claim on January 21, 2014. * Letter from XXXX XXXX addressed to his Royal Highness requesting that the Appellant's father produce his daughter to produce a favorable resolution of their impasse. This letter is dated XXXX XXXX XXXX 2013 and pre-dates the rejection of the claim on January 21, 2014. * Letter from His Royal Highness XXXX XXXX XXXX in reply to Mercy Dadepo, with respect to the consequences to the Appellant and her family due to her failure to abide by the customs of her land and the agreement made by her father. This letter is dated XXXX XXXX, 2014 and post-dates the rejection of the claim. * Photograph of XXXX XXXX on Facebook dated XXXX XXXX XXXX 2014. This postdates the rejection of the claim on January 21, 2014. * Daily Times Article , dated September 28, 2013 - predating the rejection of the claim on January 21, 2014. * Human Rights Watch: Corruption Fueling Police Abuses dated August 27, 2010, pre-dating the rejection of the claim on January 21, 2014. ANALYIS OF THE NEW DOCUMENTS: [10] The summons is dated XXXX XXXX XXXX 2013, and pre-dates the rejection of the claim on January 21, 2014, and the Appellant provided no explanation for it not being available at the time of the RPD hearing. Therefore, it is not admissible as it does not meet the statutory requirement. [11] The letter from XXXX XXXX directed to XXXX XXXX dated XXXX XXXX, 2013, pre-dates the rejection of the claim on January 21, 2014. The Appellant has provided no reason for why it was not available before the rejection of the claim and, therefore, it is not admissible as it does not meet the statutory requirement. [12] The Facebook photograph of XXXX XXXX while dated XXXX XXXX, 2014, after the rejection of the claim on January 21, 2014, could reasonably have been available at the time of the hearing. Therefore, it does not meet the Statutory requirement. [13] The Daily Times Article, predating the rejection of the claim on January 21, 2004, is not admissible as it does not meet the statutory requirement. The Appellant has provided no reason for it not being available at the time of the hearing. [14] The Human Rights Watch article dated August 27, 2010, predates the rejection of the claim on January 21, 2004, and is not admissible as it does not meet the statutory requirement. The Appellant has provided no reason for it not being available at the time of the hearing. Analysis with respect to letter from XXXX XXXX XXXX: [15] This letter is dated XXXX XXXX, 2014 and thus postdates the rejection of the claim on January 21, 2014. It is in response to a letter from the Appellant's counsel dated XXXX XXXX XXXX 2014, which also postdates the rejection of the claim. Accordingly, this document would not have been reasonably available at the time of the rejection of the claim. [16] However, the RAD has considered the credibility of this document, considering its source and the circumstances in which it came into existence. In addition to the credibility factor in Raza, the RAD refers to section 171 (a.3) of IRPA wherein it states that: (a.3) The Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. [17] We find that after the deficiencies in evidence were pointed out to the Appellant in the RPD reasons, her counsel then wrote a letter to Nigeria in order to respond to the concerns expressed by the RPD. This is not "new" evidence in terms of missing corroboration. The RAD finds that the circumstances leading to the production of this document are too coincidental and lead the RAD to conclude that it was manufactured for the purpose of the appeal. Accordingly, this evidence is not admitted pursuant to 110(4) of IRPA as it does not meet the Statutory requirement. BACKGROUND [18] The Appellant came from a poor family, whose father "hawked his daughters" and she was sent to serve a Mr. XXXX XXXX in 1993, until such time as he got married. However, shortly after her arrival, Mr. XXXX sexually assaulted the Appellant. Fortunately, he went to England and the Appellant returned to live with her family, believing that Mr. XXXX no longer wanted her. [19] The Appellant worked hard and saved money for her schooling and attended university in 2011 to obtain a XXXX XXXX XXXX XXXX. The Appellant did not hear anything about Mr. XXXX until December 2012, when he returned to Nigeria. The Appellant had been working at the XXXX XXXX XXXX XXXX XXXX XXXX XXXX since 2008 when she received a call that Mr. XXXX had visited her father and was inquiring about the Appellant. Her father repeatedly asked the Appellant to meet with him. Finally, the Appellant agreed to a meeting in XXXX 2013 when he discovered that Mr. XXXX wanted her for his wife. The Appellant refused and continued with her work until XXXX 2013 when Mr. XXXX began to visit her house and place of work. On XXXX XXXX, 2013, he came to the Appellant's house and refused to leave, indicating that he owned her. That night, when he returned to a locked door, he was drunk and kicked open the door. [20] The Appellant called the police repeatedly. On one occasion she was raped, she called the police, but they just laughed. The Appellant's boss, when she was unable to come to work, visited and then called the police and the police's boss, without success. The Appellant's boss, XXXX XXXX XXXX, took her to a medical clinic and, as a result, he was threatened by Mr. XXXX. [21] Pressure was put on the Appellant's father to convince her to accede to the demands of Mr. XXXX, otherwise her father would lose his honour in the community. On XXXX XXXX, 2013, Mr. XXXX came to the Appellant's workplace and dragged her out and beat her. Some of the workers called the police, but they did not arrive at the scene. Two security men escorted Mr. XXXX out of the office. That night, the perpetrator came to the Appellant's house with his army cousin and beat her. She went to the doctor and the police, after being encouraged by the doctor to report the incident. The police did nothing. [22] Finally, the Appellant could take it no longer and decided to accede to Mr. XXXX demands, however, her employer then told her she could not work in a place for XXXX XXXX XXXX XXXX. Luckily, in XXXX, he called the Appellant to tell her that he had included her name for a conference in Canada. She worked as a XXXX initially until XXXX XXXX, 2013, and then was told about the refugee process. SUBMISSIONS BY THE APPELLANT [23] The Appellant submits that the RPD erred in its finding on Internal Flight Alternative (I.F.A.) in presuming that state protection was available to her. [24] The Appellant submits that where the Appellant lived in her Igbo indigenous commune, there is an umbrella organization called "indigbo" and because of this cultural affinity, she would not be safe in XXXX. ISSUES TO BE DETERMINED [25] Counsel for the Appellant raises many issues within her submissions listed above. However, the RAD will restrict its analysis to the issue of Internal Flight Alternative and the Gender guidelines (Guideline 4) and it is therefore not necessary to examine all of counsel's submissions. Standard of Review [26] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [27] In Dunsmuir,2 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,3 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation.4 [28] 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:5 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. [29] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.6 An appeal to RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [30] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [31] The nature of the question in issue: In this appeal, the question at issue is one of fact, which has generally, in both the appellate court and judicial review contexts, attracted a deferential standard of review.7 In this particular case, the Appellant's claim for refugee protection was based on its conclusion that his alleged basis of claim lacked credibility. Credibility findings raise issues of fact, which generally, in both Appellate court and judicial review contexts, have attracted a deferential standard of review.8 [32] The interpretation of the statute as a whole: 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. [33] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: 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 opinion 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's 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 frequently not have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD should show deference to the RPD on findings of fact and particularly in respect to credibility,13 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [34] The appropriate standard of review for issues of mixed fact and law raised in this appeal is one of 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.14 Gender Guidelines [35] The RAD has considered the reasoning by the Federal Court in Pierrette Sophie Manege, wherein it is submitted that the Chairperson's Guidelines are flexible and failure to mention or to fully apply them does not in itself vitiate a decision. In that case: "The respondent notes that the jurisprudence has established that the Chairperson Guidelines cannot cure the deficiency the Board found in the applicants' claim; the Guidelines cannot be used to salvage the inconsistencies and omission. ... I acknowledge that 'the Board need not specifically mention the Guidelines and that the Guidelines are not the law but, as the name implies, are intended to guide the Board. But if the Board is not so guided, the Guidelines have no purpose." 15 [36] The Guidelines, in the case at hand, are not mentioned in the RPD decision, nor are the incidents involving rape and sexual assault. [37] The failure to mention or fully apply the Guidelines does not, on its own, render the decision unreasonable. In Henry v Canada (Minister of Citizenship and Immigration),16 Justice Noël held that, although the Guidelines were not mentioned, they had been considered: The relationship between the Gender Guidelines and the onus of the applicant to prove her claim with credible evidence is set out in Karanja v. Canada (MCI), 2006 FC 574, per Justice Pinard at paragraphs 5-7 of his decision: The applicant is correct that the Gender Guidelines (issued on March 9, 1993 by the Chairperson of the Immigration and Refugee Board pursuant to paragraph 159(1)(h) of the Immigration Act and entitled Women Refugee Claimants Fearing Gender-Related Persecution) indicate that in the context of a gender-based claim, the Board should be particularly sensitive to a female applicant's difficulty in testifying. However, the Gender Guidelines, in and of themselves, are not intended to serve as a cure for all deficiencies in the applicant's claim or evidence. The applicant bears the onus of proving her claim. As Justice Pelletier indicated in Newton v. Minister of Citizenship and Immigration (2002), 182 F.T.R. 294, at paragraph 18, "the Guidelines cannot be treated as corroborating any evidence of gender-based persecution so that the giving of the evidence becomes proof of its truth" and, at paragraph 17: The Guidelines are an aid for the CRDD panel in the assessment of the evidence of women who allege that they have been victims of gender-based persecution. The Guidelines do not create new grounds for finding a person to be a victim of persecution. To that extent, the grounds remain the same, but the question becomes whether the panel was sensitive to the factors which may influence the testimony of women who have been the victims of persecution... The Guidelines have not provided guidance to the RAD in the present case as it appears that the RPD did not acknowledge or consider the Guidelines at all; there is nothing in this decision to signal that the RPD was sensitive to the situation of the Appellant with respect to the rape and sexual assaults and the circumstances surrounding these incidents. However, as the RPD is silent on the issue of credibility, the RAD assumes that the RPD accepted that these incidents took place and so the consequence of not referring to the Guidelines in the Reasons will be assessed in relation to the RPD's assessment of the Appellant's I.F.A. [38] With this in mind, the RAD examined the second prong of the Internal Flight Alternative test, to determine if these Gender Guidelines were taken into consideration, when canvassing the reasonableness of an I.F.A. Internal Flight Alternative [39] The law on "Internal Flight Alternative" has been clearly defined by the Federal Court. In this particular case, I will address only the second prong of the test. [40] In order to determine whether a viable IFA exists, the Board must consider a two-pronged test: 1. The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted, or in this case, that the claimant would not be subject personally to a risk to their life or a risk of cruel and unusual treatment or punishment or to a danger of torture, in the part of the country to which it finds an internal flight alternative exists; and, 2. Conditions in that part of the country must be such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for the claimant to seek refuge there.17 [41] The RPD did not make a negative credibility finding with respect to the actions of the perpetrator, but rather concentrated on the lack of corroborative evidence with respect to the perpetrator's profile. [42] Nothing in the decision demonstrates that the RPD turned its mind to the vulnerability of the Appellant, in the context of the rape or the sexual assault and therefore, the reasonableness of an I.F.A. [43] In the RPD decision, the panel's application of the second prong of the I.F.A. test deals only with the issue of the ability to remarry based on the fact that a dowry has already been paid. A proper and full assessment of the reasonableness of an I.F.A. for the Appellant who was the subject of repeated sexual assaults, should refer to the particular vulnerabilities of the Appellant and to the Gender Guidelines in that regard. [44] The standard of correctness/reasonableness will be applied to errors in law. When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.18 [45] The RAD concludes that it is unnecessary to examine the remainder of the submissions, as we find that failure to consider the Gender Guidelines and the particular situation of the Appellant in the context of being raped when applying the second prong of the I.F.A. test, i.e. the reasonableness, is an error which makes the finding of the RPD unreasonable as it was not supported by a full analysis of the particular circumstances of the Appellant. Accordingly, this appeal is allowed. DECISION [46] Pursuant to Section 111 (1)(c) of the Immigration and Refugee Protection Act, the RAD refers this claim to the Refugee Protection Division for re-determination by a differently-constituted panel. (signed) "Roslyn Ahara" Roslyn Ahara June 4, 2014 Date 1 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 See X (Re), 2014 Can LII 10968 (CA IRB) at para. 15. 5 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA, 399, para. 43. 6 IRPA, Sections 96 and 97. 7 Khosa, para. 89. 8 X (Re), 2013 CanLII 88254 (CA IRB) online: http://canlii.ca/t/g2wpq 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 Khosa, para. 89. 14 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 15 Manege v. Canada (Citizenship and Immigration), 2014 FC 374, para. 23 and 26. 16 Henry v Canada (Minister of Citizenship and Immigration), 2013 FC 1084 at para 50, [2013] FCJ No 1222 17 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. 18 Dunsmuir, at para 50. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-02207