TB4-08756

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 : TB4-08756 TB4-08757 TB4-08758 TB4-08759 TB4-08760 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 XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 7, 2015 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal Maria Norka Zagazeta Garcia 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the Appellants), citizens of Trinidad and Tobago, appealed a negative determination of the Refugee Protection Division (RPD) dated August 19, 2014, and have submitted new evidence in support of their appeal. The Appellants are asking for an oral hearing. The Appellants request that the Refugee Appeal Division (RAD) set aside the RPD's decision and substitute it with a finding that the Appellants are Convention refugees or persons in need of protection under section 97 of the Immigration and Refugee Protection Act (IRPA). In the alternative, the Appellants request that the RAD refer the matter back to the RPD with a differently constituted panel. DETERMINATION [2] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for re-determination. BACKGROUND [3] The Appellants allege they are at risk in Trinidad and Tobago because they are Indo-Trinidadians and business owners who are perceived to be wealthy. They lived in fear of the rampant violence and possible kidnappings. The adult male Appellant was robbed on numerous occasions at gunpoint. Their home was also robbed and ransacked in broad daylight. They reported the incidents to the police. The adult Appellants fear for the safety of their children. Their eldest daughter, also an Appellant, received several anonymous phone calls on her cell phone from an unknown male, indicating they knew where her parents lived. The Appellants changed her cell phone number and reported this incident to the police. Their fear was reinforced when their daughter's best friend was brutally raped in her bed by three men. The Appellants left their home country for Canada because they believe it is only a matter of time before the incidents that they experienced are repeated. They do not believe that the government of Trinidad and Tobago is able to protect them. [4] The Minister did not participate in the hearing or in this appeal. Admissibility of Evidence Submitted on Appeal [5] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [6] Even where a document meets the test in section 110(4), this does not require the RAD to admit it into evidence without any further consideration. It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.1 The merits of accepting this evidence are addressed by the Appellant in the Memorandum. [7] The Appellants provided the following evidence to the RAD for consideration as new evidence: a) Application to submit documents not previously provided in their Appellants' Record, pursuant to Rules 29 and 37. b) Statutory Declaration of XXXX XXXX XXXX, dated October 23, 2014. c) Statutory Declaration of XXXX XXXX, dated October 23, 2014. d) Proof that a copy of the Appellants' Application was provided to the other party (FedEx waybill). [8] Given that the matter will be returned to the RPD for re-determination and given that the RPD's decision was based on the issue of credibility, nexus and generalized risk, performing an analysis on whether or not the evidence was admissible as new evidence was moot, as the Appellants will have the opportunity to present this evidence at their next hearing. In addition, the Appellants will have the opportunity to present any evidence that was deemed inadmissible at their first hearing. ROLE OF THE RAD [9] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision and submits that "the appropriate standard of review should be of "reasonableness" as set out in Dunsmuir2 and adopted by Newton.3" [10] However, the RAD finds that the recent Federal Court decision, in Huruglica,4 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. 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.5 [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."6 [11] 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 Alyafi7 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. [12] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellants are Convention refugees or persons 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 [13] The RAD focused on the following issue in assessing this appeal: Did the RPD fail to consider the specific circumstances of the Appellants? [14] The RPD based its determination on the issues of credibility, nexus and generalized risk. [15] The RPD found the Appellants testified in a straightforward manner, however, their evidence was only partly credible. [16] The RPD found the risks faced by the Appellants are of the same nature and degree as those of other Trinidadians, and more specifically, of other Indo-Trinidadians. [17] The RPD found the Appellants were "victims of criminality for which there is no nexus." The RPD concluded that the risk of criminality facing the Appellants is a generalized risk. [18] The RPD concluded the Appellants' claim failed under sections 96 and 97 of the IRPA. [19] The Appellants argue the RPD erred in fact in its credibility finding and erred in both fact and law by concluding that the Appellants' fear of persecution had no nexus with any of the five grounds contained in the definition of the Convention refugee; and erred in both fact and law by a) Failing to give the appropriate consideration to the evidence of personal risk to the Appellants; and b) Categorizing the Appellants' claim as "generalized risk" under paragraph 97(1)(b) of the Act. [20] The RAD reviewed the audio recording of the hearing and the record. While the Appellants were assisted in completing their Basis of Claim (BoC) forms, they did not have representation at their hearing. [21] The RAD notes the Appellants stated they left their home country and fear returning because of violence that was perpetrated against them. They clearly put forth evidence, both in their BOCs and in testimony that the risk to them is higher in Trinidad and Tobago because they are business owners and it is perceived by criminals that they have money. The RAD finds that none of this evidence was referred to in the RPD decision. [22] The Appellants agreed with the RPD that Trinidad and Tobago is a democratic country; however, they do not believe the state can protect them from the rampant crime. The Appellant put forth in testimony, the example that a Canadian was appointed as the Trinidad and Tobago Police Commissioner because the Trinidadian government could not find any person within their own police force who would be suitable; therefore, it is not reasonable to conclude that the state is able to protect its own citizens. [23] The record shows the RPD accepted the police reports from Trinidad, for incidents that occurred in XXXX and XXXX 2014. [24] The audio recording shows the RPD accepted the Appellants' evidence concerning the problems with state protection in their homeland and acknowledged the documentary evidence8 that speaks of the public's confidence in Trinidad and Tobago regarding the police and security apparatus because of high crime, including the corruption of the police and senior officials throughout the country. Once again, none of this evidence was referred to in the RPD decision. [25] The Appellants argue that the RPD, in making a negative decision, did not address the evidence that corroborated the Appellants' story. The Appellants state that they are at risk because they are Indo-Trinidadians. While the RPD accepted the Appellants are Indo-Trinidadians, they found there was no credible or trustworthy evidence, whether in the oral testimony or in the documentation on file, showing that Indo-Trinidadians are at risk in general, or that this particular family is personally at risk because they are Indo-Trinidadian. In this matter, the RPD considered the documentary evidence9 that speaks of tensions between Afro-Trinidadian and Indo-Trinidadian communities that surface only sporadically and are usually due to political opportunism and/or adverse economic conditions. The RAD accepts the Appellants' argument and finds there is no persuasive evidence to show that the RPD addressed this evidence in its consideration of the Appellants' allegations. [26] In assessing the claim, the RAD considered the test for analyzing a claim under section 97 put forward by Justice Gleason in Portillo10 to: a) Determine the nature of the risk faced by the claimant; and b) Compare the risk faced by the claimant to that faced by a significant group in the country to determine whether the risks are of the same nature and degree. [27] While the RPD considered the Appellants' ethnicity in their analysis, the RAD finds the RPD failed to consider the totality of the evidence. The RPD's error is central to its decision. As a result of the RPD's flawed analysis, they failed to consider the Appellants' allegations that: they are Indo-Trinidadian business owners, they are targeted by criminals because they are perceived to be wealthy, and they will be targeted upon their return because they are business owners. [28] The RPD had the duty to clearly consider the details of the Appellants' claim in the context of its risk assessment. The RAD finds the RPD failed to consider the specific circumstances of the Appellants. In addition, the RPD failed to consider the personal characteristics of the Appellants, including the fact that they went to the police for protection. As such, the RPD decision cannot stand. Disposition and Remedy [29] Section 111(1) of IRPA allows the RAD to: a) set aside a decision of the Refugee Protection Division, b) set aside a decision and substitute a determination that, in its opinion, should have been made; or c) refer the matter back to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. [30] The RAD can make the referral described in 111(1)(c) only 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 the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.11 [31] The RAD finds that the RPD's decision in this matter was wrong as it erred in the treatment of the evidence. The RAD considered the totality of the evidence before it and found that it could not substitute a decision for that of the RPD without hearing evidence that was presented to the RPD. [32] The Appellants ask the RAD to set aside the RPD's decision and substitute it with a finding that the Appellants are Convention refugees or persons in need of protection under section 97 of the IRPA. The RAD is not in a position to do so. [33] The RAD noted that under section 111(1)(b) it has the jurisdiction to substitute a determination that should have been made. The RAD noted that several credibility issues were raised in evidence presented at the hearing and throughout the proceedings, including: the adult male Appellant's omission from his BoC form of when his fear for his life began, discrepancies and inconsistencies in his testimony respecting the omission of the race of the perpetrator of the rape of the daughter's friend and the individual who robbed the adult male Appellant. [34] The RAD noted that the RPD is in the best position to make a finding on the credibility of a claimant given that they have the opportunity to hear directly from a claimant at the hearing. The RAD's ability to hold a hearing is limited to new evidence. The new evidence presented did not address the credibility concerns noted by the RPD. Given the credibility concerns, the RAD finds that it is not in a position to substitute its own determination for that of the RPD, and it cannot find the Appellants to be Convention refugees or persons in need of protection. As such, the RAD refers the matter back to the RPD for a de novo hearing. DETERMINATION [35] This appeal is allowed. Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. (signed) "C. Forbes" C. Forbes January 7, 2015 Date 1 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 2 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 43, 44. 4 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 5 Ibid., para 54. 6 Ibid., para 55. 7 Alyafi, Aghiad v. M.C.I. (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 8 RPD's Record, National Documentation Package for Trinidad and Tobago, 14 March 2014, Item 2.1, United States Department of State Country Reports on Human Rights Practices for 2013, 27 February 2014. 9 Ibid., Item 13.1. 10 Portillo, Jonatan Guzman v. M.C.I. (F.C., no. IMM-5429-11), Gleason, June 4, 2012; 2012 FC 678. 11 IRPA, Section 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-08756 TB4-08757 TB4-08758 TB4-08759 TB4-08760