TB4-00955

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 : TB4-00955 TB4-00956 TB4-00957 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 XXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 16, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mercy Dadepo Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) and her two minor daughters, XXXX XXXX XXXX and XXXX XXXX XXXX are all citizens of Nigeria and are permanent residents of Italy. They appeal a decision of the Refugee Protection Division denying their claims for refugee protection dated December 19, 2013. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the Refugee Protection Division that the Appellants are not Convention refugees nor persons in need of protection because claimants are excluded under Article 1(e) of the Refugee Convention. These appeals are denied. BACKGROUND [3] The Appellant alleged before the RPD that she fears returning to both Italy and Nigeria. She fled Nigeria in 1997 and settled in Italy where she obtained permanent resident status. [4] Both of the minors were born in Italy in 2000 and 2005 respectively and are Nigerian citizens by reason of their parentage. [5] The Appellant's common-law husband was arrested in 2006 and he was sentenced to two years in jail and released in 2008. Later, the Italian police began to look for him and shortly thereafter he disappeared. She is afraid that the police will harass her should she return to Italy. [6] The Appellant met an American man online in 2011; she visited him in the United States in XXXX 2011 and returned to Italy in XXXX 2011. The American man proposed marriage to her. The Appellant with the minors went to the United States in XXXX 2012, and she got married in XXXX 2012. Her marriage to the American ended in divorce in XXXX 2013. The Appellant and her children decided to come to Canada, and they claimed protection shortly after arrival. [7] Their claims were heard on June 3, 2013. The Minister intervened at the RPD by submitting only documentary evidence. The RPD rendered its decision on December 19, 2013, denying the claim and finding that the Appellants have permanent resident status in Italy and that adequate state protection was available for them in Italy. [8] On appeal, the Appellant did not submit new documents to be considered as new evidence pursuant to subsection 110(4) of the IRPA, even though the Appellant's Statement1 dated January 30, 2014 states that they rely on new evidence referred to in RAD Rule 3(D). [9] The Appellant requests an oral hearing before the RAD pursuant to ss. 110(6) of the Act. [10] The Appellant requests the Refugee Appeal Division to, a) Set aside the RPD's determination and substitute a positive determination; namely to accept the Appellant's claim for protection; b) in the alternative, refer the matter to the Refugee Protection Division for redetermination, giving the directions to the Refugee Protection Division to accept the Appellant's claim; c) Grant any other requests that counsel may make on behalf of the Appellant. New Evidence - s. 110(4) [11] On March 13, the Appellant submitted, by fax, two documents, an affidavit of the Appellant's mother and a copy of her medical expenses without any explanation. On March 14, the Board received another fax with one more document, a letter from the Appellant's friend in Italy. [12] The Appellant mentioned Rule 3(D) in the Statement. However, the Appellant is also required to follow RPD Rule 3(g)(iii) which states: "how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant" and paragraph (e) reads," (e) any documentary evidence that the appellant wants to rely on in the appeal". [13] The Appellant wishes to submit documents that were not previously provided in the appeal record. The Refugee Appeal Division Rule 29 applies in such situations and Rule 29(2) states, "If a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37." [14] The documents submitted on March 13 and 14 do not comply with the RAD rules and thus will not be considered. [15] Thus, this appeal is considered on the basis of the Appellant's record, the RPD record, the Memorandum of the Appellant and one new document accepted pursuant to ss. 110(4) of the Act. Since there is no evidence pursuant to s. 110(4), I deny the request for an oral hearing pursuant to s. 110(6). STANDARD OF REVIEW [16] The Appellant submits, in the Appellant's record paragraph 7, that the RPD "Panel misunderstood the evidence presented before it. Consequently, its decision was not based on the totality of the evidence but on its own speculations and unwarranted inferences. Furthermore, the Panel misconstrued the facts and failed to take into consideration vital evidence given by the Appellants in both the documentary evidence and oral testimony, which support his application for Convention refugee". The Appellant did not make submissions on the issue of Standard of Review. [17] The Immigration and Refugee Protection Act (IRPA) sets out grounds for appeal as well as possible remedies, however it does not specify the standard of review to be applied by the RAD. [18] The RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,2 in assessing and selecting the appropriate standard of review for findings of fact. Newton takes into account the list of factors in Dunsmuir3 that include: 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. [20] The Newton factors specifically deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance. Therefore, these factors are relevant to the relationship between the RPD and the RAD. Based on Newton, the RAD focused on the factors listed below to determine the standard of review. [21] The Supreme Court of Canada, in Khosa,4 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. [22] In light of Newton, the RAD considers the following factors as the three most important: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and, * the nature of the question in issue. [23] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute - the Immigration and Refugee Protection Act (IRPA). Section 162 of IRPA empowers both Divisions "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." [24] The respective roles of the RPD and the RAD in the context of IRPA are not the same. The primary role of the RPD is to hear testimony, review evidence and determine a claim based on its merits. The RAD generally reviews those determinations based on questions of law, fact or mixed fact and law. The RAD may substitute a different determination than that made by the RPD and make its role somewhat similar to that of the RPD in that each Division is engaged in refugee determination. [25] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;5 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the proscribed relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA highlighted below. [26] The RPD is a tribunal of first instance which has the authority in IRPA to make a decision on a claim for protection.6 RPD members have expertise in interpreting and applying IRPA and, as well, are considered to be experts in assessing claims based on country conditions. The RPD must conduct a hearing7 and assess the totality of the evidence before it. This includes evidence related to the credibility of the Appellant, the witnesses, if any, it sees the claimants and hears their testimony first hand and questions them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [27] In contrast, the IRPA limits the RAD's ability to consider evidence. The RAD is to review the decision made by the RPD and review the RPD's decision in light of new evidence. In most cases, the RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.8 The RAD's authority to consider new evidence and hold hearings is limited to evidence; in most cases, that arose after the rejection of the 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 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.10 [28] The RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim because the RPD holds a hearing and takes direct testimony from the claimant, and considers the totality of the evidence before it. [29] The RAD's authority to consider new evidence is limited by IRPA. Newton, at paragraph 82, states, with respect to the appellate division, the following: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".11 [30] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".12 [31] Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process and, if the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.13 [32] The issue is whether the RPD's decision is reasonable; this being an issue of fact, the reasonableness standard will apply. ANALYSIS [33] The undisputed facts in this case are that the Appellants are citizens of Nigeria and that the minors were born in Italy. [34] On the issue of permanent residency status, there appears to be a divergence of opinion. The RPD found that the Appellants "are excluded from protection either as refugees or as persons in need of protection under the application of s. 98 of the Act and Article 1E of the Refugee Convention"; however, the Appellant submits, in Paragraph 5 at page 60 of the Appellant's Record, that the Appellants in Italy had a temporary residence. [35] I note that the memorandum above contradicts the direct testimony of the Appellant at the RPD hearing. According to the RPD record: [16] During the hearing, the adult claimant confirmed that both she and the minor claimants are permanent residents of Italy. This accords with information contained in the CIC documents. [36] Based on this and a review of the record before me, that they enjoyed the rights and privileges significantly similar to those enjoyed by citizens of Italy, I am satisfied that the RPD's finding that they all have permanent resident status in Italy is reasonable. [37] The RPD accordingly decided to apply s. 98 of the Act and Article 1E of the Refugee Convention. [38] Article 1E of the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (the Convention) is an exclusion clause and it reads:14 This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. [39] The Appellant in his arguments makes an unsupported statement such as "...it is very clear that the Panel misunderstood the evidence presented before it" (in paragraph 8, page 62) without providing details how is it clear to the Appellant; "the Panel engaged in a process of substituting its own speculative views as to what was plausible over and above the Appellants' uncontradicted evidence. Consequently, its decision was not based on the totality of the evidence but on its own speculations and unwarranted inferences", (also in paragraph 8, page 62) again the Appellant provides no supportive information. [40] The Appellants make another serious allegation of bias against the panel and states, "the panel failed to comply with the unstated principle that in weighing the evidence and assessing credibility the Board should act reasonably and in good faith. The Board appears to have come to the hearing with a preconceived bias deferring more to the Minister's objection and thereby looks for reasons which are not tenable to support the Minister's position". [41] Bias is a serious charge. If the Appellant was concerned about bias or more properly a reasonable apprehension of bias on the part of the panel, the burden is on the Appellant to raise the issue at the hearing and provide evidence to that effect. There is no evidence of either. I have reviewed the RPD reasons carefully and am at a loss to find evidence that supports the allegations made by the Appellant in this appeal. Thus, due to a lack of evidentiary basis for this allegation, I reject it. [42] The Appellant further submits that: "In paragraph 16 of the panel decision the panel noted "I find the adult claimant to have been at times, a poor witness" however being a poor witness is not the same as being found not credible"". Had the panel done so, I would agree with the Appellant, however, that paragraph 16 of the reasons makes no such mention. In fact, it reads: [16] During the hearing, the adult claimant confirmed that both she and the minor claimants are permanent residents of Italy. This accords with information contained in the CIC documents. [43] The RPD, in fact, states in paragraph 22: "On a balance of probabilities, however, I accept as credible the general history of the claimants. For reasons I shall set out below, I do not accept inferences drawn in certain areas, notably state protection and fear of harm in Italy". [44] The burden is on the Appellant to provide the RAD with specific details of problems; the RAD Rule 3 (g) requires the Appellants to provide "a memorandum that includes full and detailed submissions regarding: (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, (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant. [45] In the absence of the specific information required, I reviewed the record and a thorough review of the RPD's decision and record shows that the RPD considered the evidence before it properly and applied the principles of state protection correctly taking into consideration the particular situation of the Appellants and considered the gender guidelines with sensitivity expected of a trained RPD decision maker. [46] The RPD considered whether the Appellant can get adequate state protection in Italy because the Appellant alleged subjective fear in Italy. Much of the Appellant's arguments are on the issue of state protection and submits, in paragraph 12, that the Appellant provided "clear convincing evidence that authority in her country would be either unwilling or unable to protect her. Even if the state wants to the person making such decision may have been bought so that he could not make decision that will favour the appellant. (sic)" I am at a loss as I cannot understand what the Appellant is suggesting in the last sentence. Therefore, I am unable to make any comments on this issue. Moreover, I find that the Appellant did not provide clear and convincing evidence that the state of Italy cannot provide her with adequate state protection. [47] The Appellant further submitted that the Appellant testified: "the police came in said they wanted to search my house. they search and found some documents ..... they ask me question concerning my partner XXXX ..... They said I was lying because the information they had suggests he is still very much in the city of Torino." "The police did not believe me." The RPD in its reasons stated, "...the Italian police who were trying to get information about the adult claimant's common-law husband" and that she did not know what he had done. The RPD also noted that, "She testified that she would be able to get legal assistance if she were to have such problems, but that she did not think a lawyer would be able to help". She never sought legal assistance and if she felt harassed by police because they were asking her about her missing common-law partner, she could have gone to higher authorities in Italy. There is no evidence that the Appellant sought either. Thus, the Appellant failed to provide clear and convincing evidence that the state is unwilling or unable to give her adequate protection. [48] The Appellant, in paragraph 16, states: It is submitted further that the conduct of the police authority is a clear evidence of clear and convincing proof of failure of state protection, it is further submitted that the appellant has rebutted the presumption state protection and the conclusion of the panel that "adequate protection-is not the same as perfection also state can provide perfect protection" was faulty reasoning since any forms of weakness in the system should not be tolerable to any civilized world. Indirectly the panel is itself siding with states who use such arguments to never improved. [49] The law in Canada is that states are presumed to be able to provide adequate protection to her citizens. The RPD is correct in stating that no state can provide perfect protection. Perfect protection essentially means that all citizens are protected at all the times, or 24-hour perfect security for all citizens, what the Appellant seems to expect. [50] The Appellant also submits at paragraph 18, "The Italian police could have offered the appellant a witness protection program and that would have made a difference but rather did not do that. And the question is who protect the appellant from the organized crime which are at the heart of the matter". There is no evidence that the Appellant was a witness in a court proceeding; or that she sought "witness protection" or that she is sought by the organized crime in Italy. The police are making enquiries about her ex-common law partner and if she is not involved in a crime, it is not clear why she fears arrest upon return or that her minor children will be taken away. [51] The Appellant also submits that the RPD applied the wrong burden of proof in paragraph 38. I disagree. It is evident in paragraph 29 of the RPD reasons that the right test was used in weighing the evidence, "a claimant who alleges that state protection is inadequate must persuade the Board on a balance of probabilities that state is unwilling or unable to provide adequate protection, and such evidence must be clear and convincing". I also note that just a few weeks ago the Court in Horvath,15 at paragraph 28, re-confirmed that "it is not the Board's duty to prove that state protection exists. Rather, it is the applicant's burden to establish that it does not". In this case, the RPD found that the Appellant had not done so and I find that the RPD's finding is reasonable. [52] Among other issues raised by the Appellant, the Appellant also submits (paragraph 24 of his memorandum) that the RPD applied the wrong test for s.96 analysis. I find that this argument is not compelling given that the RPD went on to determine whether the 1E country, Italy, was safe for the Appellants. [53] Based on the foregoing, I find the RPD applied the law correctly, considered the Appellant's particular situation and came to a reasonable conclusion as it is justifiable, is transparent and is intelligible within the decision-making process and the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [54] The Courts in Canada have decided that once the RPD finds a person to be excludable, it need not continue with the analysis of the claim. Having considered the documentary evidence and the audio recording, I cannot find sufficient credible evidence to find that the RPD erred in its analysis of state protection. I also find that the RPD's analysis and determination that adequate state protection is available to the Appellant should she return to Italy are reasonable, as these are cogent, transparent and justifiable. Disposition [55] The RAD finds that the RPD's decision does fall within a range of possible, acceptable outcomes defensible in respect of the facts and is therefore is not unreasonable. [56] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the Refugee Protection Division. [57] This appeal is therefore dismissed. (signed) 'Atam Uppal' Atam Uppal April 16, 2014 Date 1 Appellants Record, page 12 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 5 IRPA, s. 110 (1). 6 IRPA, s. 107. 7 IRPA, s. 170. 8 IRPA, s. 110.3. 9 IRPA, s. 110.4. 10 RAD Rule 57. 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 13 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 14 United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 15 Horvath v. Canada (Citizenship and Immigration), 2014 FC 313 (CanLII), --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------