TB4-02354

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 : TB4-02354 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 25, 2014 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Geraldine MacDonald 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 (de la) ministre Reasons and Decision [1] XXXX XXXX (the Appellant), a citizen of Eqypt, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and either find her to be a Convention refugee or refer the matter back to the RPD for redetermination by 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, together with her husband and minor children, made a joint claim for refugee protection. The Appellant's husband was the principal claimant and designated representative for the minor children. The principal claimant and the minor children are Shia Muslims. The Appellant, who is a Sunni Muslim, married the principal claimant in 1998 in Egypt. They lived most of their married life in Saudi Arabia where the principal claimant was employed. They returned to Egypt in XXXX 2013, and they soon began to experience violence and threats from extremist Muslims in their community. The principal claimant and minor claimants alleged before the RPD that they are at risk of persecution in Egypt at the hands of extremist Muslims due to their Shia faith. The Appellant alleged before the RPD that she would be at risk of persecution due to the belief that she had rejected her Sunni Muslim faith by marrying outside of her religion. [4] Fearing for their safety in Egypt, the Appellant and her family traveled to Canada where they made refugee claims. [5] Their refugee protection claims were heard on February 4, 2014. In a decision of February 14, 2014, the RPD found that the Appellant's husband and children were Convention Refugees but rejected the claim of the Appellant. The RPD found that the Appellant's husband and children would be persecuted on the basis of their Shia faith in Egypt but found that, given the Appellant is a Sunni Muslim, she is not at risk of persecution upon her return to Egypt. [6] The Appellant submits that the RPD's decision was based, in part, on erroneous findings of fact and as a result is unreasonable. The Appellant further submits that the RPD breached procedural fairness and violated the principles of natural justice by failing to properly assess the Appellant's risk upon return to Egypt. ANALYSIS Standard of Review [7] 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. The Federal Court, in Iyamuremye,1 addressed the question of standard of review to be applied by the RAD in reviewing RPD findings. The Federal Court found that it was reasonable for the RAD to apply a standard of reasonableness for questions of fact and mixed fact and law, and correctness for questions of law. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as per Dunsmuir.2 The correctness standard is applicable to questions of law and issues of general legal importance.3 ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [8] As provided for in s. 110(3) of 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 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. [9] The Appellant has tendered the following proposed new evidence in support of her appeal. (a) An affidavit deposed by the Appellant which contains facts concerning testimony at the hearing and evidence concerning her fear if she returned to Egypt without her family. [10] The RAD finds that, although the document tendered is dated after the rejection of the Appellant's claim, it is relative to events which occurred prior to the rejection of the claim. [11] The Appellant submits that the proposed new evidence ought to be admitted because she could not have reasonably been expected to have tendered the evidence prior to the rejection of the claim. The Appellant argues that the RPD did not raise the issue of the Appellant's return to Egypt and the risk that she faced there. As such, the Appellant argues that these issues only became known after the RPD's Decision and Reasons were made known to the Appellant and her counsel. [12] The RAD is not persuaded by the Appellant's argument in this regard. The Appellant and her counsel knew the issues raised by the claim and could have sought to elicit the Appellant's testimony at the RPD hearing. There is no evidence before the RAD that suggests that there was a statement made by the RPD that would have unfairly led the Appellant and her counsel to believe that the basis for her claim would be accepted without hearing evidence from her. The RAD finds that the evidence contained in her affidavit could reasonably have been expected to have been submitted to the RPD at the time of the rejection. Therefore, the RAD finds that the affidavit is not admissible under subsection 110(4). Application for an Oral Hearing [13] The Appellant has requested an oral hearing pursuant to Section 110(6). Section 110(6) states that 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). [14] 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. [15] The RAD has not admitted the Appellant's proposed new evidence as evidence in this appeal. As such, the RAD must proceed without a hearing in his appeal, and her application for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL Was there a breach of procedural fairness and a denial of natural justice? [16] Although the RPD found that the Appellant's husband and children are Convention refugees based on persecution due to their Shia faith, the RPD found that the Appellant was not a Convention refugee. The RPD reasoned that, unlike her husband and children, the Appellant is a Sunni Muslim and that there is not a reasonable possibility that she would be persecuted because of her past association with her Shia husband and children. [17] The Appellant submits that the RPD's finding in this regard is unreasonable. The Appellant submits that the RPD failed to consider the potential risk to the Appellant as a Sunni woman who is married to a Shia male. The Appellant argues that the RPD failed to ask any questions during the hearing concerning her risk in this regard and failed to make a fulsome assessment concerning her risk of returning to Egypt alone. [18] The Appellant furthers argues that the RPD's assessment of risk was in part based on the RPD's erroneous finding that the Appellant did not reside with her husband and children in Egypt. The Appellant argues that the RPD misconstrued the evidence in this regard and that the evidence in the record demonstrates that they resided together in Egypt. [19] The RAD finds that the Appellant's arguments have merit. The RAD notes that the Appellant's Basis of Claim (BoC) narrative clearly states that the family lived together in a rented apartment in Egypt when they returned in XXXX 2013. Additionally, the record reflects that the Appellant and her family traveled to Egypt on numerous occasions while they were living in Saudi Arabia. [20] The RAD finds that the RPD's finding that the Appellant did not reside with her husband or children in Egypt is based on a misapprehension of the evidence and is therefore unreasonable. [21] The RAD finds that the RPD's findings regarding the risk faced by the Appellant upon her return to Egypt rest largely on its finding that no one in Egypt would be aware of the relationship with her husband and children if she were to return on her own. The RPD seems to suggest that the Appellant would only be at risk if she were to return to Egypt with her husband and children. This finding would imply that, if it became known that the Appellant was married to a Shia man and that she is the mother of Shia children, she would be at risk of persecution. [22] The RAD finds that the RPD's finding that the Appellant would not be perceived to have an association to her Shia family is simply unreasonable. The evidence reflects that they traveled frequently as a family from Saudi Arabia to visit their families in Egypt and that since XXXX 2013, they resided together in Egypt. The RAD finds it is reasonable to expect that persons there would know of their relationship either through personal contact with them or through contact with the Appellant's extended family. [23] The RAD also finds that the RPD's characterization of the Appellant's relationship with her family as a "past association" is misleading. The RPD's choice of words seems to imply that the Appellant is no longer the mother of her children or the spouse of her husband. However, that is not the case, and there is no evidence in the record which suggests that she would be perceived any differently if she were to return to Egypt unaccompanied by her husband and children. [24] The RAD also notes that the record does reveal that the Appellant has alleged that she would be considered to have abandoned her Sunni faith by marrying her Shia husband and that she would be at risk from Muslim extremists as a result. The RAD notes that the RPD did not address this issue in the hearing and has failed to consider this particular risk in its reasons. The RAD finds that the RPD has a duty to assess this risk if the situation of her relationship became known before determining that she could safely return to Egypt. In assessing the objective element of the Appellant's subjective fear, one asks what objectively will happen if the situation becomes known; one does not ask whether it is likely that the situation will become known (Sadeghi; AB). It is irrelevant how likely or unlikely it is that the facts on which the persecution is based would become known to the agents of persecution. In fact, any analysis on the part of the Board on this question would largely be an exercise in speculation, absent a finding on the evidence that it would never become known.4 [25] The RAD finds that the RPD's failure to do so constitutes a breach of procedural fairness. [26] In light of the foregoing, the RAD finds that the RPD's reasons are not justifiable, intelligible, and transparent, and, as such, its determination is unreasonable. DISPOSITION [27] The RPD erred in its findings of fact and in its assessment of risk to the Appellant. The RAD therefore sets aside the decision of the RPD in the Appellant's refugee claim. [28] The Appellant asks that the RAD find her to be a Convention refugee. The RAD notes that the RPD has not raised any credibility concerns. The RPD has accepted that the Appellant is a national of Egypt and that she is married to a Shia man and is the mother of Shia children. [29] The RAD has carefully considered the RPD's findings. The RPD has found the Appellant's husband and children are at risk of persecution due to their Shia faith. The RPD has also found that the Appellant would not be at risk of persecution if it were not known that she was associated to Shia persons. This implies that the Appellant would be at risk of persecution if her association to her husband and children were known. The RAD has found that the RPD's finding that the Appellant's "past association" to her husband and children would not become known is unreasonable, and, as such, the RAD finds that given the RPD's findings with regard to the Appellant's husband and children, the Appellant would also be at risk of persecution. [30] The principle asserted in Maldonado5 is that when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness. The Appellant has alleged that she would be considered to have abandoned her faith by marrying a Shia man and that this would place her at risk at the hands of Muslim extremists. The RAD has found that the RPD did not provide reasons to discount the Appellant's allegation in this regard. As a result, the RAD finds that there is no reason to rebut the presumption of truthfulness or to find the claimant's allegation to be not credible. The RAD finds, on a balance of probabilities, that the Appellant has a well-founded fear of persecution if she returns to Egypt. [31] The Appellant is a Convention refugee. CONCLUSION [32] This appeal is allowed. Pursuant to Section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "L. Favreau" L. Favreau June 25, 2014 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 2 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 3 Ibid. 4 Sheikh, Muddassir v. M.C.I. (F.C., no. IMM-2178-13), Zinn, March 18, 2014; 2014 FC 264. 5 Maldonado v. M.E.I., [1980] 2 F.C. 302 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-02354