TB5-02608

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 : TB5-02608 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX (a.k.a.XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 27, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Robin Edoh 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 (the Appellant) is a citizen of Nigeria. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She did not submit new evidence in support of her appeal, but she did request an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that she is a Convention refugee. In the alternative, the Appellant asks that the matter be referred back to the RPD to a differently-constituted panel. 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 Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. BACKGROUND [3] The Appellant alleged before the RPD that she fears returning to Antigua and Barbuda because of her sexual orientation. She fears she will be harmed by members of her and her same-sex partner's family as well as the Antiguan society in general. [4] Her application for refugee protection was heard on February 3, 2015. In a decision of February 20, 2015, the RPD denied the Appellant's claim finding that the Appellant was not credible and that she had not rebutted the presumption of state protection. [5] The Appellant submits that the RPD's decision is replete with errors of law and fact but only raises the following two issues. a) The RPD failed to take into consideration the reasonable explanations offered by the Appellant in describing the mistreatment, torture, death threats she received from the community in Antigua and Barbuda because of her sexual orientation; and b) The RPD committed a fundamental error when it failed to place weight and trust on the documentary evidence before it. Application for an Oral Hearing [6] The Appellant requests an oral hearing pursuant to Section 110(6) of the IRPA. [7] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), 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." [8] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [9] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [10] The Appellant has not submitted new evidence in support of her appeal. As such, the RAD must proceed without a hearing in his appeal, and her application for an oral hearing is denied. ROLE OF THE RAD [11] 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." [12] 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 Alyafi2 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. [13] 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. ANALYSIS OF THE MERITS OF THE APPEAL The RPD failed to take into consideration the reasonable explanations offered by the Appellant in describing the mistreatment, torture, death threats she received from the community in Antigua and Barbuda because of her sexual orientation. [14] The Appellant's submission is decidedly vague and does not specify which explanations she alleges the RPD did not consider or where in the record those explanations are located or how the explanations offered overcome the RPD's findings of fact. The RAD notes that the Rule 3(3)(g) of the RAD Rules requires the Appellant's memorandum to include among other things (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing [15] The Appellant has not indicated where in the record the alleged errors can be found. However, the Appellant seems to submit that the RPD's findings of fact regarding the credibility of the Appellant's testimony concerning her mistreatment, torture and death threats are rendered unreasonable because the RPD failed to take into consideration her explanation for her perceived testimonial failings. The RAD's own review and assessment of the evidence fails to reveal any perceptible error to support the Appellant's argument. The RAD finds that the Appellant has not established that the RPD erred in this regard. [16] Furthermore, the RAD notes that the Appellant has drawn a number of adverse credibility findings which the Appellant does not directly contest. The RAD finds, after its own review and assessment of the evidence, that the Appellant's argument has not established why the RAD should not recognize and respect these credibility findings. In light of the above, the RAD finds that the RPD's argument fails. The RPD committed a fundamental error when it failed to place weight and trust on the documentary evidence before it. [17] The Appellant submits that the documentary evidence she submitted should have been afforded more weight and trust by the RPD. However, the Appellant does not provide any argument for this submission and it is impossible to determine which documentary evidence the Appellant is referring to and how that evidence overcomes the findings of the RPD. [18] The RAD notes that the RPD has assessed the Appellant's personal documentary evidence and has provided sound reasons to support its determination of the weight applied to those documents. The RAD's own review and assessment of the evidence fails to reveal any perceptible error to support the Appellant's argument. The RAD finds that the Appellant has not established that the RPD erred in this regard and as such her argument must fail. State Protection [19] The RPD has found that the Appellant has not rebutted the presumption of state protection in Antigua and Barbuda. The RAD notes that the responsibility to provide international protection only arises when protection is unavailable to refugee claimants in their country of nationality.3 In considering the Appellant's refugee claim, the RPD was required to presume that Antigua and Barbuda is capable of protecting its citizens; it was for the Appellant to rebut that presumption with clear and convincing evidence of the state's inability to protect.4 [20] However, the Appellant has not contested the RPD's finding on State Protection. As State Protection is a determinative issue this claim can be fairly disposed of on the State Protection analysis alone. [21] The RAD has conducted its own review and assessment of the evidence and finds no perceptible error with the RPD's findings on State Protection. The RAD finds that the RPD undertook a contextual approach in determining whether the Appellant has rebutted the presumption of state protection. The RAD notes that the RPD's analysis considered many factors including: 1. The nature of the human rights violation; 2. The profile of the alleged human rights abuser; 3. The efforts that the victim took to seek protection from authorities; 4. The response of the authorities to requests for their assistance; and 5. The available documentary evidence5 [22] The RAD agrees with the RPD that the Appellant has failed to rebut the presumption of state protection in Antigua and Barbuda with clear and convincing evidence. DISPOSITION [23] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "L. Favreau" L. Favreau May 27, 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 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 4 Ward, pp. 724-726. 5 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. M.C.I., [2011] 2 F.C.R. 480 (F.C.) at para. 37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB5-02608