TB4-00832

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 : TB4-00832 TB4-00833 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXXa.k.a.XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 15, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX (the principal Appellant) and her son, XXXX XXXX XXXX (the minor Appellant), citizens of Nigeria, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted new evidence in support of their appeals. The Appellants ask the Refugee Appeal Division (RAD) to set aside the decision of the RPD and either substitute its own positive determination or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are dismissed. Background [3] The principal Appellant alleged before the RPD that, after she gave birth to the minor Appellant in 2013, her mother-in-law demanded that the child be given tribal facial markings. The principal Appellant and her husband resisted this demand, which was supported by other members of his family. The mother-in-law then accused the principal Appellant of being a witch, and told her that she must take an oath to prove that she is not. The principal Appellant does not wish to take this oath, as it conflicts with her Christian beliefs. She was threatened with death, and the police refused to assist. The Appellants obtained Canadian visas and travelled to Canada on XXXX XXXX XXXX 2013. They made refugee claims in November, 2013. [4] The Appellants' applications for refugee protection were heard on January 13, 2014. By a decision of January 15, 2014, the RPD rejected the claims, finding that the Appellants can expect adequate state protection in Nigeria. [5] The Appellants seek to introduce new evidence showing that the RPD's decision was in error and that new threats have been made against them. They also argue that the panel erred in its analysis of state protection, failed to apply the Chairperson's Guidelines concerning gender1 and minor claimants,2 and it disregarded evidence. They also submit that the RPD only recorded part of their hearing, and that this has prejudiced them, as their full testimony cannot be determined with respect to state protection. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The following evidence was submitted by the Appellants to the RAD and must meet the test described above in order to be admissible: (a) The Appellant's affidavit, dated XXXX XXXX XXXX 2014;3 (b) A listing of local government areas in XXXX XXXX, Nigeria;4 (c) An affidavit, dated XXXX XXXX, 2014, from the principal Appellant's husband;5 and (d) A medical report from XXXX XXXX XXXX XXXX XXXX XXXX., about the principal Appellant.6 [8] Document (a) is the principal Appellant's affidavit. The RAD accepts those portions of the affidavit that are necessary to explain the origins of the Appellants' other new evidence.7 Document (a) also includes new allegations that there are new threats to the lives of the principal and minor Appellants.8 While these portions of the affidavit meet the test in Section 110(4), the RAD declines to admit them as new evidence. This information is not material to this appeal. For reasons set out below, the RAD finds that the RPD reasonably concluded that adequate state protection is available to the Appellants, both against tribal facial markings and against allegations of witchcraft. The claim that there are new allegations of witchcraft is not material to the RPD's determinative finding of state protection, and this information is therefore not admitted as new evidence. [9] Document (b) is submitted by the Appellants to show that the RPD erred in assuming that local government areas are rural, when in fact their large city belongs to a local government area. The RAD finds that the Appellants could not reasonably have been expected to present this document prior to the rejection of their refugee claim, as they could not have anticipated that the RPD would misunderstand evidence about local government areas. The document appears to come from a government website, and, as such, the RAD does not have credibility concerns with its contents. It is relevant to an issue in this appeal, and it is material in the sense that it is capable of showing that a portion of the RPD's reasons are in error. The RAD admits document (b) as new evidence in this appeal. [10] In document (c), the principal Appellant's husband declares that, on XXXX XXXX XXXX 2014, his mother and uncle demanded the return of the principal Appellant. They alleged that both Appellants are witches and must be cleansed with rituals, including the circumcision of the principal Appellant, and they must worship the god Ogan. When the husband objected to these demands, his uncle threatened him. He sought help from the police in his state and even in XXXX state, but each time he was refused help, and the police even told him that his wife should cooperate with his family. [11] This document passes the test set out in Section 110(4), as both its date of creation and its contents are subsequent to the rejection of the Appellants' refugee claims. This does not, however, require the RAD to admit the document without further consideration. Section 171(a.3) of IRPA allows the RAD to receive evidence considered credible or trustworthy in the circumstances. The RAD has concerns about the credibility of this document. [12] The Federal Court has cautioned the RPD against rejecting a refugee claimant's evidence only because it is self-serving, because just about any evidence tendered in support of a refugee claim could be considered self-serving.9 In the RAD's view, however, there are good reasons for characterizing document (c) as self-serving. [13] The Appellants' claims were heard on January 13, 2014, rejected by a decision dated January 14, and sent with a Notice of Decision dated January 15, 2014. According to their Notice of Appeal, the Appellants received the decision on January 20, 2014. The decision rejected their claims on the basis of state protection. On XXXX XXXX, 2014-only two weeks later and just before the Appellants' Notice of Appeal was due-the principal Appellant's husband prepared and swore an affidavit, claiming that, on XXXX XXXX, he had received new threats from his family, who had consulted an oracle on XXXX XXXX and determined that the Appellants are both witches. While the Appellants claim that the husband had previously gone to the police once, he did not include that in his first affidavit to the RPD. However, his new affidavit claims that he "reported these threats to the police in XXXX State and even when I travelled to XXXX State I went to the police station but each time I was told that it was a family matter...." The affidavit goes on to declare that the police refused to be of further help and "even suggested that my wife should do what is needed and stop making such a fuss because this is tradition." [14] The RAD finds the affidavit to be too coincidental to be credible; in fact, it appears to have been created for the purpose of bolstering weak areas of the claim. Just as the Appellants' claims were rejected on the basis of state protection, new threats were allegedly being made, and the husband who had previously made little effort to seek state help was making multiple visits to police stations, even in different states. There are no specifics of these visits-the affidavit does not set out when he sought police assistance, how many times, or at which stations, nor are there any documents whatsoever to show that a police report was made. Although it lacks these important details, the document repeats the claim that the police refused to assist. This affidavit is self-serving: the RAD finds, on a balance of probabilities, that the document and its contents were created in a last-minute attempt to rebut the state protection findings of the RPD and to shore up the Appellants' refugee claims.10 For these reasons, the RAD declines to accept document (c) as new evidence. [15] Document (d) is a report from a medical doctor who examined the principal Appellant and discovered that she apparently had been subjected to female circumcision, though neither she nor her husband was aware of this. The report also indicates that the Appellant has scars that are consistent with a partial thyroidectomy. The doctor offers his opinion on human rights issues in Nigeria and his view on whether state protection is available to the Appellants. [16] This document appears to pass the test in Section 110(4), as it arose after the rejection of the Appellants' refugee claim. However, the report is not material to this appeal, where the determinative issue is state protection. The doctor's findings about circumcision and the principal Appellant's thyroid do not affect the RPD's findings on state protection. While the report speaks to "the failure of the state to protect women" in Nigeria and to the "spotty" implementation of laws to protect women's rights, there is no indication in the doctor's qualifications that he has the expertise to speak to such matters. In fact, the discussion of an issue that goes well beyond the Appellant's medical condition calls into question the objectivity of the report, as it appears it has been written to advocate for the acceptance of the Appellants' claims rather than to provide an objective medical diagnosis. The RAD declines to admit this document as new evidence. Standard of Review [17] The Appellants allege that they are denied procedural fairness by the allegedly partial transcript, which raises an issue of natural justice. They also submit that the RPD erred in its analysis of state protection, which raises a question of mixed fact and law. Their challenge to the RPD's consideration of their evidence and of the application of the Chairperson's Guidelines to that evidence raises questions of fact. [18] 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. [19] The Appellants make no submissions on the appropriate standard of review to be applied here. [20] In Dunsmuir,11 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,12 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. [21] In Newton,13 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:14 (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. [22] 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.15 An appeal to the 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. [23] 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. [24] The nature of the question in issue: These appeals raise questions of fact. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.16 There are also questions of mixed fact and law here, and these have also attracted a deferential standard in the judicial review and appellate court contexts.17 The issue of state protection has been found, in the judicial review context, to be reviewable on a standard of reasonableness.18 The courts have not shown deference on questions of natural justice, finding either that these are beyond the scope of the standard of review or that they are subject to a standard of correctness.19 [25] 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. [26] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.20 Section 3(2)(e) of IRPA identifies one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [27] In the context of an appeal to the RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [28] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [29] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [30] 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,21 and each can take notice of information and opinion within its specialized knowledge.22 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,23 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.24 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,25 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [31] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.26 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [32] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in these appeals, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact and of mixed fact and law. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. Some questions in issue here are ones of fact and of mixed fact and law, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.27 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to the RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [33] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the RPD on matters of fact and of mixed fact and law. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.28 [34] The appropriate standard of review here for issues of fact and of mixed fact and law 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.29 [35] The RAD owes no deference to the RPD's decision, however, on questions of law. It is an appropriate function for the RAD to ensure that the RPD is applying the correct law; this approach promotes just decisions and avoids inconsistent application of the law.30 A correctness standard on questions of law ensures universality in the application of the law.31 [36] The appropriate standard of review for the question of law raised in this appeal is one of correctness. The RAD will not show deference to the RPD's reasoning process on such issues, but will undertake its own analysis of the question to determine whether it agrees with the RPD on the matter.32 The RPD's Findings [37] The Appellants submit that the RPD made various errors in rejecting their refugee claims. [38] Partial recording: The Appellants contend that the hearing was only partially recorded and that they are prejudiced by this as their full testimony cannot be determined with respect to state protection. [39] The Appellants submitted a transcript of the proceeding, which ends just before their counsel was to make submissions to the RPD.33 [40] The RAD has reviewed the recording of the proceeding. That recording consists of two files, one of which the Appellants have transcribed. The other audio file is a recording of the remainder of the proceeding, including counsel's submissions. [41] There is no basis for the Appellants' allegation that the hearing was not fully recorded, and there was therefore no denial of natural justice or breach of procedural fairness. [42] State protection: The RPD cited evidence that the use of tribal markings is in decline in Nigeria and is increasingly restricted to people in rural areas. It noted that this practice has been made illegal in some areas, that there has been little resistance to this ban and that parents can obtain protection from the police if family members want to apply tribal markings to the parent's child. The panel considered that the principal Appellant and her husband are well-educated and live in an urban, not rural, area and that the infliction of tribal markings on children has been made illegal in their state. [43] The RPD also considered the principal Appellant's fear of being accused of witchcraft, and it cited objective evidence that Nigerian police responded to attacks on suspected witches. The panel dismissed the Appellants' evidence that police do not respond in some situations, noting that the victims in those circumstances are often very poor or vulnerable because they are widowed or orphaned, that they do not live in the Appellants' part of Nigeria, and that these incidents happen in villages and rural areas. [44] In these circumstances, the RPD found that neither the objective evidence nor the Appellants' one unsuccessful approach to the police was sufficient to rebut the presumption of adequate state protection. [45] The Appellants argue that the RPD erred in focusing on the efforts of the state rather than the adequacy of state protection. They point to evidence that police in Nigeria are corrupt and ineffective, and that the authorities fail to protect children from abuse. The RPD ignored this evidence, they submit, and instead focused on the fact that they only approached the police once. They also argue that the evidence is mixed in respect to the infliction of tribal marks on children; while the practice has been outlawed in some areas, there is no evidence that this step has been effective. In their submission, the RPD erred by ignoring a psychological report which states that they will not be safe in Nigeria, as well as other documents to the same effect. They argue that the RPD erred in its understanding of "local government areas" as rural, when in fact these districts include large cities as well. [46] Did the RPD focus only on the efforts of the state to protect, rather than the results of those efforts? It is not enough that a government is willing to provide protection and is making efforts to do so. In order for state protection to be present, efforts must be made to adequately protect citizens in practice; protection must have a certain degree of effectiveness.34 The RPD cited objective evidence about tribal marking: that there is a good level of awareness of, and little resistance to, the legal prohibition on markings; that parents can obtain protection from the police if they have family members who want to apply tribal markings; that there is not very much trouble enforcing the law, even in rural parts of the country; and that usually just the threat of reporting to police can be enough to deter. The RAD finds that the RPD considered both the state's efforts and the concrete results of those efforts. [47] The RPD also considered state protection for those accused of witchcraft. It noted that, where the evidence described the response of the police, that response appears to be adequate, including investigation, arrest, and prosecution. Where the evidence indicated the lack of a police response, the RPD noted that the victims were not similarly situated to the Appellants; both the principal Appellant and her husband are well-educated; they live in an urban setting, and they are unified in their opposition to both tribal markings and anti-witchcraft rituals. The RPD reasonably concluded that the presumption of state protection was not rebutted with clear and convincing evidence, and it reasonably rejected the Appellants' invitation to consider their situation in light of objective evidence about spousal abuse. [48] The Appellants also argue that the RPD erred by expecting them to approach the authorities more than once, by ignoring evidence that the Nigerian police are corrupt and ineffective, and by failing to consider that child abuse is rampant in Nigeria. The RPD disagrees. While there is indeed much objective documentation of child abuse in Nigeria, the Appellants have not pointed to any evidence that children such as the minor Appellant-who has two supportive, protective, well-educated parents-are at risk of child abuse. The fact that there is significant corruption within Nigerian law enforcement does not mean that the police are incapable of providing any protection, and in fact the objective evidence set out above indicates that the authorities do provide some protection against tribal markings and witchcraft allegations. The RPD considered the Appellants' single approach to the police, and it found that they could reasonably have been expected to ask to speak to a senior officer or make a written complaint. In the Appellants' particular circumstances and in the context of the objective evidence, it was reasonable for the RPD to expect them to do more than speak to one officer at the front desk of a police station and then conclude that protection would not be forthcoming. [49] The Appellants argue that the RPD: ... ignored the psychological report of Dr. XXXX that not only speak[s] to the psychological issues the principal Appellant was having but also speaks to the fact that she will not be safe anywhere in Nigeria. The Member also ignored the counselling document and the Affidavit of support provided by the principal appellant.35 [50] Although the panel did not make specific reference to the psychological report, the RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record.36 Here, the RPD accepted the Appellants as credible and determined the claim based on state protection. The Appellants argue on appeal that the psychological report "speaks to the fact that she will not be safe anywhere in Nigeria," but this is a misstatement of the contents of the report. In fact, the document states that "it will be impossible for Ms. XXXX to feel safe anywhere in Nigeria."37 This was not a statement about country conditions in Nigeria; it was a reporting of the principal Appellant's feelings about returning there. The RPD considered Ms. XXXX testimony about her fear of return, and it did not err by failing to specifically cite a medical report which also mentions that fear. [51] The Appellants provided the RPD with other documents, including a letter of support from the XXXX XXXX XXXX XXXX.38 That letter repeats the principal Appellant's refugee claim and reports on her emotional state. It does not speak to the determinative issue of state protection, and there was no need for the RPD to specifically address this document. Nor was the RPD obligated to make specific mention of affidavits from the principal Appellant's mother39 and husband,40 both of which repeat the allegations in her refugee claim and neither of which makes any reference to efforts to obtain state protection. Having accepted the Appellants' evidence as credible, there was no need for the RPD to address documents which simply corroborated that evidence. [52] The RPD considered an article, submitted by the Appellants, from Trinity International University (TIU).41 The document deals with the treatment of alleged witches in various countries in Africa. The panel found that the article did not assist the Appellants for three reasons, one of which was that it referred to "local government areas" and "villages" instead of "major cities like the claimants' home city of XXXX. In Nigeria, there are disparities between urban and rural conditions."42 The Appellants, relying on new evidence showing that "local government areas" include major cities, submit that the RPD erred here in concluding that such areas are rural. [53] The RPD's reasons here are difficult to follow. Although the panel writes about a TIU article, the accompanying citation appears to relate to another piece of evidence, an article from Ghanaweb.com. That article does not refer to "local government areas," as the RPD writes; instead, it sets out several instances in which suspected witches were killed, and it reports that one such murder happened in the Ado local government area of Central Nigeria.43 While it was an error of the RPD to make a distinction between local government areas and large cities, this is not fatal to the panel's reasoning. It is clear in both articles that those most frequently treated as witches are "society's most vulnerable: the elderly, widows, orphans, and strangers"44 and that "most of the killings take place in rural poor communities."45 Although the RPD erred in its understanding of the term "local government area," it reasonably concluded that the Appellants do not fit the profile of those most at risk of, or unable to obtain protection against, witchcraft allegations. [54] The Appellants submit that the RPD ignored another aspect of their claim: whether the principal Appellant could expect state protection against being forced to swear an oath to another god, which goes against her Christian beliefs. The RAD has reviewed the evidence, and it is clear that the matter of such an oath is part of the witchcraft allegations made against the principal Appellant, and the RPD reasonably found that the Appellant had not rebutted the presumption of state protection in respect to such allegations. [55] The Chairperson's Guidelines: The Appellants argue that the RPD failed to consider the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (the Gender Guidelines)46 when it considered the principal Appellant's efforts to seek state protection. They argue that the panel, in assessing whether it was objectively unreasonable for the Appellants to have sought state protection, should have considered the social, cultural, religious, and economic context in which they found themselves. [56] The RPD does not necessarily have to cite the Gender Guidelines in its reasons, but it must display the knowledge and sensitivity that those Guidelines require.47 Here, the RPD noted that the principal Appellant does not fear spousal abuse-which the Nigerian police are known to ignore-and that she and her husband are united in their opposition to demands of tribal markings and accusations of witchcraft. The principal Appellant and her husband only approached the police once, and they took no further steps when the police did not assist. This was not a situation where the Appellant was prevented from seeking state protection because of gender-related considerations. She had the full support of her husband, and he could have assisted her, or sought protection on her behalf. The RPD did not err in its application of the Gender Guidelines. [57] The Appellants' Memorandum sets out the issues which they seek to raise in their appeal. Among other matters, they raise whether the RPD "assessed the claim in a manner that was consistent with IRB's Guideline 4: the Chairperson's Gender Guidelines or the Chairperson's Guideline on Minor Claimants?"48 While the Memorandum subsequently addresses the issue of the Gender Guidelines, it does not speak to the matter of Guideline 3, or set out how the RPD failed to apply this Guideline. The RAD Rules require the Appellants to make full and detailed submissions about the errors that are the grounds of the appeal and to identify where such errors are located in the RPD's decision.49 The Appellants have failed to make such submissions and, as such, have not established that the RPD erred in respect to Guideline 3. Disposition [58] While the RPD's decision contains one relatively minor error, the remainder of the decision is justifiable, transparent, and intelligible. The panel's rejection of the Appellants' claims on the basis of the availability of adequate state protection falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law. CONCLUSION [59] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are dismissed. (signed) "Edward Bosveld" Edward Bosveld May 15, 2014 Date 1 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. 2 Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, September 10, 1996 as continued in effect by the Chairperson on June 28, 2002 in section 159(1)(h) of the Immigration and Refugee Protection Act. 3 Appellants' Record, p. 12. 4 Appellants' Record, p. 186. 5 Appellants' Record, p. 189. 6 Appellants' Record, p. 191. 7 Appellants' Record, pp. 12-15, paras. 2, 6, 9, and sentences 2-4 of para. 13. 8 Appellants' Record, p. 15, para. 13, first sentence. 9 Murillo Taborda, Lissed Omaira v. M.C.I. (F.C., no. IMM-9365-12), Kane, September 17, 2013; 2013 FC 957, paras. 26-29. 10 Bhandal, Bikkar Singh v. M.C.I. (F.C.T.D., no. IMM-3895-99), Reed, July 19, 2000, 13th paragraph. 11 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 12 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 13 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 14 Newton, para. 43. 15 IRPA, Sections 96 and 97. 16 Khosa, para. 89. 17 Khosa, para. 89. 18 Andoni v. M.C.I., 2012 FC 516, para. 35. 19 Sohal, Manwinder Singh v. M.P.S.E.P. (F.C., no. IMM-1078-11), Harrington, October 18, 2011; 2011 FC 1175, para. 12. 20 IRPA, Section 3(2)(a). 21 IRPA, Sections 170(g) and 171(a.2). 22 IRPA, Sections 170(i) and 171 (b). 23 IRPA, Section 170(b). 24 IRPA, Section 110(3). 25 Khosa, para. 89. 26 Newton, para. 80. 27 Khosa, para. 89. 28 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 29 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 30 Dunsmuir, para. 50. 31 Khosa, para. 90. 32 Dunsmuir, para. 50. 33 Appellants' Record, pp. 173-184. 34 Koky, Milan et. al. v. M.C.I. (F.C., no. IMM-2577-11), Russell, December 2, 2011; 2011 FC 1407, paras. 61-70. 35 Appellants' Record, p. 206, Memorandum, para. 29. 36 Hassan v. M.E.I. (1992), 147 NR 317, [1992] FCJ no. 946 (CA). 37 RPD's Record, p. 223, Report of Dr. XXXX XXXX XXXX, p. 4, emphasis added. 38 RPD's Record, p. 224. 39 RPD's Record, p. 214, affidavit of XXXX XXXX. 40 RPD's Record, p. 209, Affidavit of XXXX XXXX XXXX XXXX 41 RPD's Record, p. 202, The Challenge of Witch Accusations in Africa, Trinity International University. 42 RPD's Reasons, para. 22. 43 RPD's Record, p. 204, Witch Killing and Africans, Ghanaweb.com. 44 RPD's Record, p. 203, 3rd para. 45 RPD's Record, p. 204, 4th para. 46 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. 47 Keleta, Sara Belay v. M.C.I. (F.C., IMM-4378-04), Tremblay-Lamer, January 17, 2005; 2005 FC 56, at para 14. 48 Appellants' Record, p. 199, Memorandum, para. 9. 49 Refugee Appeal Division Rules, Section 3(3)(g). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-00832 TB4-00833