TB5-00977

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 : TB5-00977 TB5-00978 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 22, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Kingsley I. Jesuorobo Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre Reasons and Decision [1] XXXX XXXX XXXX (the Appellant) and her daughter, XXXX XXXX (the minor Appellant) are citizens of Nigeria. They appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. They have submitted new evidence in support of their appeal. The Appellants ask that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a positive decision or, in the alternative, refer the matter back to the RPD for redetermination by a differently constituted panel. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that she fears her abusive former partner. She alleges that, shortly after moving in with her partner and becoming pregnant, her partner began to physically abuse her. She reported the abuse to the police, but they did not assist her in any way. She obtained visas to the United States for her and the minor Appellant, traveling there in September 2014. The Appellant and her daughter lived in the US with a friend. The Appellant became frightened when she ran into a cousin of her ex-partner at a grocery store and decided to go to Canada. The Appellants made an inland claim in October 2014. [4] The Appellant's application for refugee protection was heard on December 19, 2014. In a decision of January 7, 2015, the RPD rejected the claim finding the Appellant was not credible. [5] The Appellants submit that the RPD erred in making its credibility findings. ROLE OF THE RAD [6] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,1 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] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [8] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [9] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of the 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. [10] The Appellants have tendered the following proposed new evidence in support of their appeal. 1. Affidavit from the Appellant's mother, dated February 13, 2015; and 2. Medical report, dated February 2, 2015. [11] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: 1. First, did the evidence arise after the rejection of the Appellant's refugee claim? 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. 2. 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 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. 3. It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. 4. 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 probative value of the evidence. 5. 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 s. 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, or that it proves a fact that was unknown to the Appellant at the time of the hearing? If so, the RAD will proceed to assess the probative value of the evidence. 6. 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 s. 110(4) test: 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. If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the probative value of the evidence. [12] In the case at hand, the Appellants have argued that the medical report meets the criteria of Section 110(4) of the IRPA because this evidence was not available on or before the Appellant's hearing. The Appellants further argue that the affidavit of the Appellant's mother addresses a grammatical error on the original affidavit she tendered before the RPD and that this only arose after the rejection of the Appellants' claim [13] The RAD is not persuaded by the Appellants' and their counsel's argument. First, the RAD notes that the Appellants argue that they could not have tendered the medical report because it was not reasonably available "on or before the Appellant's hearing". In this regard, the RAD finds the Appellants have misstated the statutory requirements of Section 110(4) of the IRPA. As stated previously, Section 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the claim, and it is necessary for the RAD to consider if the Appellants could have tendered the documents to the RPD by way of a post-hearing document. [14] The RAD finds that the Appellant has not provided a sufficient explanation why this report could not have been tendered prior to the rejection of the Appellants' claim. The RAD notes that, while the Appellant has explained that she was unable to obtain the report because she was preoccupied with the birth of her child and in finding lodging after arriving in Canada, she has not explained why should could not have asked her mother or other family members to obtain and send the documents to her. The RAD notes that the Appellants were represented by competent counsel at their RPD hearing and that the Appellant's mother prepared an affidavit in support of the Appellant's RPD claim. The RAD finds it reasonable to expect that she or her counsel could have also asked her mother to obtain medical documents on her behalf. [15] In addition, the RAD notes the absence of medical records was raised at the RPD hearing. The Appellant had over three weeks prior to the rejection of the claim to make efforts to obtain medical records and to submit them to the RPD as post-hearing documents; however, there is no evidence in the record that she made any efforts to do so, and she has not offered any explanation why she was prevented from doing so. [16] On the basis of the foregoing, the RAD finds that the medical report does not satisfy the statutory requirements of section 110(4) of the IRPA, and, as such, it is not admitted as evidence in this appeal. [17] The RAD also finds that the affidavit of the Appellant's mother also does not meet the statutory requirements of section 110(4) of the IRPA. The RAD finds the affidavit adds little to the explanation given to the RPD at the hearing. The Appellant was questioned at the hearing about the identified deficiencies on the face of the affidavits; however, she was unable to offer an explanation. The affidavit offers the explanation that a mistake was made when preparing the affidavits. The RPD already knew that there was a mistake on the face of the affidavit as the issue was raised by the RPD during the hearing. [18] The Appellant had over three weeks prior to the rejection of the claim to make efforts to obtain documents that provided a fulsome explanation for the identified error and to submit them to the RPD as post-hearing documents; however, there is no evidence in the record that they made any efforts to do so, and they have not offered any explanation why they were prevented from doing so. [19] In light of the foregoing, the RAD finds that the Appellants' have not established that they could not have reasonably tendered these documents prior to the rejection of their claim. [20] On the basis of the foregoing, the RAD finds the affidavit does not satisfy the statutory requirements of section 110(4) of the IRPA, and, as such, it is not admitted as evidence in this appeal. THE MERITS OF THE APPEAL [21] The RPD found that the determinative issue in this claim was credibility. The RPD found that the Appellant was not credible with regard to the material elements of her claim, including accounts of the abuse she endured, how her partner repeatedly found her in each location, and her account of why she failed to seek asylum in the United States. The Appellant argues that the findings of the RPD are in error. [22] The RPD drew an adverse credibility finding based the Appellant's unreasonable explanation for repeatedly returning to her abusive partner. The RPD found that her explanation that she believed he would change was not reasonable. The RPD also found it unreasonable that the Appellant would return to her abusive partner given her level of sophistication and the repeated abuse she suffered at his hands. [23] The Appellants essentially indirectly argue that the RPD failed to apply the Gender Guideline.4 The RAD finds the Appellants' argument in this regard has merit. [24] The RPD has stated that the Chairperson's Gender Guideline has been considered in this claim; however, the RAD finds that the RPD has failed to apply that guideline. The RAD acknowledges that the application of the Gender Guideline does not shield a claimant from having her evidence tested and does not entitle her to have her evidence accepted without inquiry. However, in applying the Gender Guideline, a panel must understand that women refugee claimants face special problems in demonstrating that their claims are credible and trustworthy and that some of the difficulties may arise because of cross-cultural misunderstandings. [25] The RAD finds that, while the RPD acknowledged that abused women will sometimes return to abusive partners, the RPD fails to address the reasons why women return to abusive relationships. Moreover, the RPD found that, although the Appellant did provide a reason for returning, the RPD found that it was not a good enough reason. The RAD finds that the RPD based its findings on its own standard of expected behaviour. While the RPD found that it was not reasonable for the Appellant to return to her abusive partner, the RPD failed to understand that returning to her abusive partner only had to seem reasonable to the Appellant. [26] In assessing the credibility of someone who alleges mistreatment by her spouse, the RPD must not rely on the "objective" standard, but rather on the standard of a person who finds herself in the same situation. The tribunal must also be aware that the credibility of a plaintiff's actions should not be assessed by an "objective" standard that does not take the plaintiff's situation into account, namely the fact that she is an abused person. Accordingly, the standard used to determine the credibility of the actions of a plaintiff who alleges she was abused is that of a person who is in the same position as the plaintiff, namely an abused person, and assessment of credibility must involve the use of specialized knowledge of this area.5 [27] The RAD finds, after its own review and assessment of the evidence, that the RPD has failed to properly apply the Gender Guideline. A failure to apply the Guideline is an error in law which renders the RPD's finding unsustainable. [28] In light of the RPD's failure to properly apply the Gender Guideline, its remaining credibility findings are called into question. [29] Accordingly, the RAD finds the RPD's decision must be set aside. DISPOSITION AND REMEDY [30] Section 111(1) of the IRPA allows the RAD to: (a) confirm the determination of the RPD; (b) set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made; (c) refer the matter back to the RPD, giving the directions to the RPD that it considers appropriate. [31] The RAD can only make the referral described in 111(1)(c) if it was of the opinion that the decision of the RPD was wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.6 [32] The Appellant asks the RAD to substitute its own determination that she is a Convention refugee. The RAD is not in a position to do so. There remain significant credibility concerns which need to be addressed in the context of the Gender Guideline by the RPD, and the RAD is therefore not able to substitute its own determination. The RAD has not seen or questioned the Appellants and is therefore in no position to make its own credibility finding on their refugee claim. In addition, consideration should be given to the applicability of an internal flight alternative in Nigeria. [33] For these reasons, the RAD cannot substitute its own determination for that of the RPD, and it cannot find the Appellant to be a Convention refugee or a person in need of protection. [34] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently-constituted panel. (signed) "L. Favreau" L. Favreau April 22, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, para. 16. 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 Bennis, Fatima Zohra et al v. M.C.I. (F.C.T.D., no. IMM-5825-00), Blais, August 29, 2001; 2001 FCT 968. 6 IRPA, Section 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-00977 TB5-00978