TB5-07451

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 : TB5-07451 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX (A.K.A. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 14, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mordechai Wasserman 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 Saint Vincent and the Grenadines (St. Vincent), appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that this Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. DETERMINATION [2] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Background [3] The Appellant alleged before the RPD that she fears returning to St. Vincent because she will be persecuted by XXXX XXXX and others. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [4] The Appellant's application for refugee protection was heard on June 10, 2015. A negative decision was rendered in writing on July 14, 2015. The RPD found that the Appellant had failed to rebut the presumption of state protection in St. Vincent. [5] The Appellant submits that the RPD erred in its assessment of whether or not the Appellant did everything, which could be reasonably expected for her to do, to access state protection. ANALYSIS Role of the RAD [6] Counsel has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent 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. 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. [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'. [7] 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. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. Chairman's Gender Guidelines [8] The basis of the original claim and now, of the appeal, is that the Appellant was, over a period of years, repeatedly raped by at least two men, the latter being XXXX XXXX. When the Board is dealing with a refugee claim which is gender specific, that is the persecution claim is based solely on the gender of the claimant/Appellant, the Board must turn to the Chairperson's Guidelines, specifically Guideline 4 which deals with women refugee claimants fearing gender-related persecution. The Guideline3 reads in part: Although gender is not specifically enumerated as one of the grounds for establishing Convention refugee status, the definition of Convention refugee may properly be interpreted as providing protection for women who demonstrate a well-founded fear of gender-related persecution by reason of any one, or a combination of, the enumerated grounds. Before determining the appropriate ground(s) applicable to the claim, decision-makers must first identify the nature of the persecution feared by the claimant. Generally speaking, women refugee claimants may be put into four broad categories, although these categories are not mutually exclusive or exhaustive: Women who fear persecution on the same Convention grounds, and in similar circumstances, as men. That is, the risk factor is not their sexual status, per se, but rather their particular identity (i.e. racial, national or social) or what they believe in, or are perceived to believe in (i.e. religion or political opinion). In such claims, the substantive analysis does not vary as a function of the person's gender, although the nature of the harm feared and procedural issues at the hearing may vary as a function of the claimant's gender. Women who fear persecution solely for reasons pertaining to kinship, i.e. because of the status, activities or views of their spouses, parents, and siblings, or other family members . Such cases of "persecution of kin" typically involve violence or other forms of harassment against women, who are not themselves accused of any antagonistic views or political convictions, in order to pressure them into revealing information about the whereabouts or the political activities of their family members. Women may also have political opinions imputed to them based on the activities of members of their family. Women who fear persecution resulting from certain circumstances of severe discrimination on grounds of gender or acts of violence either by public authorities or at the hands of private citizens from whose actions the state is unwilling or unable to adequately protect the concerned persons. In the refugee law context, such discrimination may amount to persecution if it leads to consequences of a substantially prejudicial nature for the claimant and if it is imposed on account of any one, or a combination, of the statutory grounds for persecution. The acts of violence which a woman may fear include violence inflicted in situations of domestic violence and situations of civil war. Women who fear persecution as the consequence of failing to conform to, or for transgressing, certain gender-discriminating religious or customary laws and practices in their country of origin. Such laws and practices, by singling out women and placing them in a more vulnerable position than men, may create conditions for the existence of a gender-defined social group. The religious precepts, social traditions or cultural norms which women may be accused of violating can range from choosing their own spouses instead of accepting an arranged marriage, to such matters as the wearing of make-up, the visibility or length of hair, or the type of clothing a woman chooses to wear. [9] In regards to evidentiary matters, the Guidelines4 say the following: When considering whether it is objectively unreasonable for the claimant not to have sought the protection of the state, the decision-maker should consider, among other relevant factors, the social, cultural, religious, and economic context in which the claimant finds herself. If, for example, a woman has suffered gender-related persecution in the form of rape, she may be ostracized from her community for seeking protection from the state. Decision-makers should consider this type of information when determining if the claimant should reasonably have sought state protection. [10] The RAD, having perused Guideline 4 in particular, finds it to be very relevant to the decision to be made herein. The RPD's Findings [11] The Appellant argues that the RPD failed to consider the Appellant's special circumstances as outlined in her psychological report5 in regards to the presumption of state protection. The RPD assessed state protection in St. Vincent and found it to be adequate. The panel also made a finding that the rapes suffered by the Appellant would not be considered as "domestic violence" as the Appellant's relationship with the rapist was not one of a domestic nature. Consequently, the panel wrote that the rapist would properly be dealt with in accordance to the criminal code of St. Vincent, through which the rapist would be investigated and his crimes heard in a court of criminal law. The panel quoted from the National Documentation Package,6 which very clearly indicates that rape is a criminal offense and that the government dealt with it accordingly, "when victims came forward". These last four words are key words. [12] The Appellant argues that it is not objectively unreasonable that the Appellant did not seek state protection, basing that assessment on the psychological report7 which clearly assesses the Appellant with issues of such a magnitude that those issues would, almost certainly, prevent her from going to report a rape to the police. Further, the Appellant reminds the RAD to listen to the audio recording of the hearing, which the RAD has done. In the recording,8 when asked by counsel, the Appellant explains that being "turned over to the community" (a threat by the rapist should she tell anyone about the rapes) meant being publically shamed and humiliated, "a shameful thing". When counsel asks the Appellant whether she has ever seen this happen to anyone, the Appellant testified that she had. [13] In the psychological report,9 the Psychologist writes in reference to her findings on the Appellant's personality and trauma, "In such cases it is common for victims, out of fear and shame, to keep these crimes a secret rather that report them, both from their close contacts and from authorities." [14] The RAD has considered the RPD's assessment of credibility and as previously mentioned, will respect that finding. As the RPD found no credibility issues with the Appellant, then the RAD accepts that the allegations of the rape are true. This brings the RAD to the determinative issue of state protection, which the RPD found to be adequate. [15] A contextual approach is required when assessing the availability of state protection and determining whether the claimant has rebutted the presumption of state protection.10 The RPD should take into consideration the personal situation of the claimant, the particular risk alleged, the agent of persecution, and the country conditions.11 It is insufficient to merely summarize large volumes of evidence and then state a conclusion that state protection is adequate. The evidence and the conclusion must be connected with a line of reasoning that is transparent and intelligible.12 [16] In the case at hand, we have a young woman who has been abused and abandoned since childhood. She has suffered rape at the hands of a high profile local man as well as from a low level criminal. According to the Appellant's psychological report,13 she would simply not have been able, mentally, to report such crimes to police due to the stigma which would then attach itself to her, and the shame she would be subjected to as a result of that report. The RPD wrote in its Reasons and Decision in paragraph 10 that "...the issue before me is whether it is objectively unreasonable for her to have sought state protection."14 The RPD however, does not specifically and fully address in its Reasons, the Appellant's reasons for not reporting the crimes against her. The RPD does write that the Appellant testified that she feared her rapist would kill her if she went to the police and, in fact, the RPD then quotes a Response to Information Request15 which essentially confirms the commonality of this response of a victim. The RPD does not mention in its Reasons the impact of the psychological report,16 which the RAD finds to be a very important document as it shows how it would be objectively unreasonable for the Board to require a person suffering such disorders, to actually take such a crime to the police. As the Appellant points out in her memorandum at paragraph 15, the difference between reporting the rapes to the police and reporting what was essentially a burglar, is that reporting a burglar does not result in the scorn of the general population against the victim of the burglar. Reporting a rape does bring shame and scorn down on the victim. [17] The RAD, in its independent assessment of the evidence, finds that the psychologist's report is a strong piece of supportive evidence which explains to the RAD why this Appellant did not, and would not in the future, report the crime of rape against her. For the Appellant, in the case of rape, state protection cannot exist as the state will never know about the crime. Whether this attitude of the Appellant towards reporting the rapes is correct or not, it is a fact, and according to the evidence, it is one fact not likely to change due to her personality disorders, which is something beyond her control. For this reason, in this particular case, the RAD finds that the presumption of state protection in St. Vincent has been rebutted. Disposition [18] The RAD has found that the RPD's decision cannot stand. CONCLUSION [19] Pursuant to Section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe September 14, 2015 Date 1 Exhibit RPD-1, RPD's Record, BOC form, pp. 11-24. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 4 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 5 Exhibit RPD-1, RPD's Record, Mental Health Assessment, pp. 168-179. 6 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Saint Vincent and the Grenadines (November 28, 2014), item 2.1. 7 Exhibit RPD-1, RPD's Record, Mental Health Assessment, pp. 168- 179. 8 Exhibit RPD-1, RPD's Record, Audio Recording, at 00:47:27 to 00:48:09. 9 Exhibit RPD-1, RPD's Record, Mental Health Assessment, p. 178. 10 Gonzalez Torres, Luis Felipe v. M.C.I. (F.C., no. IMM-1351-09), Zinn, March 1, 2010; 2010 FC 234. Reported: Gonzalez Torres v. Canada (Minister of Citizenship and Immigration), [2011] 2 F.C.R. 480 (F.C.). 11 Quevedo, Rodolfo Manuel Torres Rico v. M.C.I. (F.C. no. IMM-7097-05), de Montigny, October 25, 2006; 2006 FC 1264. 12 Navarette, Ana Maria v. M.C.I. (F.C., no. IMM-6187-12), Rennie, April 26, 2013; 2013 FC 436 at para. 28. 13 Exhibit RPD-1, RPD's Record, Mental Health Assessment, p. 178. 14 Exhibit RPD-1, RPD's Record, Reasons and Decision, p. 5, para. 10. 15 Exhibit RPD-1, RPD's Record, NDP for Saint Vincent and the Grenadines, item 7.5. 16 Exhibit RPD-1, RPD's Record, Mental Health Assessment, pp. 168- 179. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07451