MB3-02701

RAD File No. / N° de dossier de la SAR : MB3-02701 Private Proceeding/ Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXXX XXXXX XXXXX XXXXX XXXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision October 31, 2013 Date de la décision Panel Normand Leduc Tribunal Counsel for the Appellant(s) Me Lia Cristinariu Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) XXXXX XXXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister Éric Terriault (Filing of documents) Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXXX XXXXX XXXXX XXXXX, a citizen of Peru, is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] He submitted new evidence in support of his appeal. [3] He is leaving it at the RAD's discretion of whether or not to hold a hearing pursuant to subsection 106(6) of the Immigration and Refugee Protection Act (IRPA). [4] Given that the appellant is 15 years old, his aunt, XXXXX XXXXX, was appointed to be his designated representative. DETERMINATION OF THE APPEAL [5] I have determined that the RPD decision is wrong in fact and in law. I am unable to confirm or set aside the RPD decision without holding a new hearing and reviewing the evidence that was submitted to the RPD regarding the issue of whether the appellant has a well-founded fear of persecution or whether he would be subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment should he have to return to his country of citizenship, Peru. [6] Pursuant to subsection 111(1) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently constituted panel. BACKGROUND [7] The appellant alleged before the RPD that he fears his stepfather and mother in Peru, his country of citizenship, as well as in the United States. He alleged that at age five he went to live in Florida, United States. He alleged that he was taken there by his mother, who lived there with her spouse, the appellant's stepfather. He stated that he was continually threatened and physically and sexually abused by his stepfather since that time. The appellant alleged that he told his mother about these abuses at some point, and that the Florida child welfare services were informed, but that he subsequently had to withdraw his complaint with the authorities as a result of his mother's pressure. [8] The appellant alleged that, in 2011, he informed his aunt, whom he was visiting in Quebec at the time, of the abuses he suffered at the hands of his stepfather. When he visited that aunt in XXXXX 2013, he decided to claim refugee protection in Canada based on her advice. [9] The RPD found the appellant's allegations credible, although it determined that he was excluded from refugee protection under Article 1E of the Convention and under section 98 of the IRPA, and, accordingly, rejected his claim for refugee protection. The RPD determined that, at the time of the hearing, the appellant had permanent resident status in the United States, which gave him a substantially similar status to nationals from that country. The RPD also determined that the appellant did not establish that the American authorities would be unable to provide him with adequate protection. As a result, the RPD did not consider the fear of return to Peru that the appellant alleged before the panel. [10] Before the RAD, the appellant filed a form1 from the United States immigration services entitled "I-407, Abandonment of Lawful Permanent Resident Status," which was completed by him and dated XXXXX, 2013. He alleged that, in view of the fact that he renounced his permanent resident status in the United States on XXXXX, 2013, and based on the criteria set out by the Federal Court of Appeal in Zeng,2 the RPD's analysis regarding his legal status in the United States on the date of the hearing, XXXXX, 2013, is incomplete. [11] The appellant also alleged that the RPD should have considered, in light of the evidence establishing the abuse that he experienced in the United States, that there were compelling reasons for him to not be removed to this country. [12] For these reasons, the appellant is requesting that the RAD set aside the determination of the RPD and grant him refugee status, or refer this matter to the RPD for re-determination of his claim for refugee protection. Admissibility of new evidence presented on appeal [13] The appellant presented the following new evidence on appeal: * Exhibit B: Email sent by the appellant to the immigration office in the city of XXXXX, Florida, dated May 21, 2013. * Exhibit C: Form I-407, Abandonment of Lawful Permanent Resident Status, dated XXXXX, 2013. * Exhibit D: Report of the responding officer at the XXXXX crime victims assistance centre (XXXXX), dated XXXXX, 2013. * Exhibit E: Psychosocial report from the Centre XXXXX de la XXXXX et du Centre-du- XXXXX [XXXXX and Central XXXXX centre], dated XXXXX, 2013. [14] Subsection 110(4) of the IRPA states 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. [15] There is currently no case law from higher courts with respect to the application of subsection 110(4). However, there is a similar provision in the IRPA that applies to the pre-removal risk assessment (PRRA), namely, paragraph 113(a), which reads as follows: 113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection [16] Although the provisions are almost identical, and while the functions of the RAD and the PRRA are not the same either, I am nonetheless of the opinion that, because of their similarity, the case law related to the application of paragraph 113(a) also applies, making the necessary adaptations, to subsection 110(4) of the Act. [17] The key decision regarding the application of paragraph 113(a) is the Federal Court of Appeal decision in Raza.3 At paragraphs 13 to 15 of Raza, the Honourable Justice explains the criteria and the manner in which new evidence submitted should or should not be considered, as follows: [13] ... Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its sources and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relative to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) 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 (unless it is rejected because it is not credible, not relevant, not new or not material). [14] The first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a) within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a). [15] I do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above. [18] Exhibits B and C arose after the hearing was held before the RPD on May 1, 2013. Both of these pieces of evidence were submitted to the RAD for the purpose of establishing that the appellant took steps, following the hearing held before the RPD, to renounce his permanent resident status in the United States. I am satisfied that these two exhibits meet the criteria of subsection 110(4) of the IRPA, as well as the criteria established in Raza. Therefore, I accept these two documents into evidence before the RAD. [19] Exhibits D and E were also issued after the date of the hearing on May 1, 2013. Exhibit D is a report by a CAVAC criminologist that specifically describes the appellant's psychological situation. Exhibit E is a psychosocial report by a social worker from the Centre XXXXX de la XXXXX et du Centre-du- XXXXX; having noted the abuses that the appellant experienced, her recommendations include entrusting his custody to his aunt in Canada. [20] In his memorandum, the appellant does not state how these two exhibits constitute new evidence. However, after mentioning the submission of these two exhibits, he writes: [translation] "The decision clearly indicates that, despite the psychological report prepared by XXXXX XXXXX and the evidence as a whole, the Division did not taken into account the negative or psychological effects of the acts of persecution and sexual abuses previously experienced by the child" (see paragraph 17 of the appellant's memorandum). [21] After reading the content of these two exhibits, I nonetheless conclude that neither of them meet the newness criteria stated in Raza, in the sense that they are not capable of proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing of the refugee protection claim; of proving a fact that was unknown at the time of the hearing of his claim; or of contradicting a finding of fact by the RPD. In fact, in my opinion, the appellant's psychological condition was established before the RPD with the submission of Ms. XXXXX psychological report (see the RPD file, pages 115 to 141)-a condition that was not called into question by the RPD and which is therefore not a circumstance or event that took place after the hearing date or that was unknown at the time. I am also of the opinion that Ms. XXXXX report is sufficient to establish that the appellant's psychological condition is essentially the same now as at the hearing that was held before the RPD in May 2013. [22] Consequently, I do not accept exhibits D and E in evidence before the RAD. DECISION ON WHETHER TO HOLD A HEARING [23] Under subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, the new evidence presented on appeal is admissible and meets the three following criteria: 1) it raises a serious issue with respect to the credibility of the person; 2) it is central to the decision with respect to the refugee protection claim; and 3), if accepted, it would justify allowing or rejecting the refugee protection claim. [24] I am of the opinion that a hearing before the RAD need not be held in this case because the new evidence that I admitted does not raise a serious issue with respect to the appellant's credibility. For reasons that will be outlined later, I find that this new evidence changes the legal status of the appellant in the United States, but it does not undermine his credibility. STANDARD OF REVIEW [25] The IRPA does not expressly specify the standard of review that the RAD should apply when reviewing RPD decisions, and this standard of review is also not directly established by the case law. In this case, the appellants also did not propose a standard of review in their memorandum. [26] In the 2008 Dunsmuir decision,4 the Supreme Court of Canada revisited the foundations of judicial review and the standards of review applicable in various situations. In its attempt to simplify the analysis, the Supreme Court determined that there should now only be two standards of review: correctness and reasonableness. [27] While the RAD does not conduct judicial reviews of RPD decisions, but rather acts as an appellate body within the same administrative tribunal, the IRB, I am of the opinion that, in the absence of more direct guidance from higher courts, it is possible to apply to the RAD the principles developed in Dunsmuir. [28] At paragraph 51 of its decision in Dunsmuir, the Supreme Court writes that "...where the legal issues cannot easily be separated from the factual issues generally attract a standard of reasonableness." However, in this case, new evidence was filed before the RAD by the appellant, and the RAD will be required to make its own findings in relation to the new evidence. The RAD will also have to determine the impact of those findings of fact on the RPD's determination and, if necessary, re-assess the reasonableness of the RPD's findings of fact, as well as the application of the law to those facts, in light of the additional evidence received. [29] At paragraph 47 of Dunsmuir, the Court states that reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, but it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Judicial deference is therefore required and deference must be given to the decision of the RPD. [30] The second error alleged by the appellant regarding the RPD's failure to conduct an analysis of the "compelling reasons" under subsection 108(4) of the IRPA is a question of law and is therefore reviewable on the correctness standard. If this analysis has to be conducted, in my opinion, the application of the facts of the case to the criteria in subsection 108(4) is a question of mixed fact and law and therefore reviewable on the reasonableness standard. [31] At paragraph 50 of Dunsmuir, the Court stated the following regarding the correctness standard: When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct. [32] However, for reasons that will be outlined later, I will not need to assess whether the RAD erred by failing to analyze the "compelling reasons" in this case. ANALYSIS [33] The first issue is whether the new evidence admitted by the RAD has an impact on the RPD determination that the appellant was excluded from protection under Article 1E of the Convention. [34] The appellant's argument is not that the RPD erred when it determined him to be excluded, but, rather, as he wrote: [translation] "Considering the appellant's new situation today, he no longer has a status similar to that of US nationals" (see paragraph 13 of the appellant's memorandum). [35] The RPD applied the correct criteria in its decision in order to determine whether the appellant was excluded under exclusion clause E-those set out in paragraph 28 of the Federal Court of Appeal's reasons in Zeng, which read as follows: [28] Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts. [36] After weighing the evidence presented before it by the Minister of Citizenship and Immigration and by the appellant, the RPD concluded that the appellant still had permanent resident status in the United States as of the hearing date (see paragraph 28 of the RPD's decision). [37] In my opinion, the RPD's decision was reasonable at the time that it was rendered. In my view, the aforementioned criteria set out in Zeng could not be clearer: it is on the date of the hearing that the RPD must determine whether a claimant has a status that is substantially similar to that of nationals in the third country. The RPD determined that, owing to his permanent resident status, the appellant did have a status that is similar to that of citizens of the United States. [38] However, in my view, it is on the date of the hearing before the RAD, or on the date it renders its decision if no hearing is held, as in this case, that the RAD must apply the criteria set out by the case law to the appellant's situation, while taking into account the new evidence presented before it, and thereby re-assess the reasonableness of the RPD's findings of fact, as well as the application of the Act to those facts. [39] The criteria set out in Zeng in order to determine whether the appellant is currently excluded under clause E are the following: 1. At the time of these proceedings, does the appellant have a status in the United States that is substantially similar to that of nationals from that country? [40] In my view, exhibits B and C, submitted before the RAD, show that the appellant, on a balance of probabilities, no longer has permanent resident status in the United States. Although Exhibit B is simply an email sent by the appellant on XXXXX, 2012, to a United States immigration office in Florida, it still shows the appellant's willingness to renounce his status in that country, and it is part of the steps that he took to that end. [41] In my view, Exhibit C has greater probative value with respect to the appellant's loss of status in the United States: it is an official abandonment of permanent residence in the United States form filed by the appellant at the United States consulate in Montréal, which was officially received by the Vice-Consul of the United States on XXXXX, 2013. The form states that the appellant voluntarily submitted his resident card to the consulate. It also states that if the appellant were to seek admission to the United States thereafter, he would be brought before an American immigration judge, who would have to determine his admissibility while considering all the statements that the appellant made regarding the abandonment of his status in the United States. [42] In my view, the appellant's loss of his permanent resident status in the United States shows, on a balance of probabilities, that, at the time of these proceedings, he does not have a substantially similar status to that of nationals of that country, in particular, the right to return there, and other rights associated with permanent resident status. 2. Given that the answer to question 1 was no, did the appellant previously have this status? [43] In my view, the answer to this question is yes. I found the RPD's decision regarding the appellant's status in the United States to be reasonable at the time that it was made. Also, as mentioned earlier, the appellant is not challenging the reasonableness of the RPD's decision in this regard insomuch as he is alleging that the new evidence filed before the RAD shows that his legal status in the United States has changed since the hearing before the RPD. 3. Given that the answer to the second question was yes, in weighing various factors, such as the reason for the loss of status (voluntary or involuntary), whether the appellant could return to the third country, the risk he would face in his country of origin, Canada's international obligations, and all the other relevant facts, is the appellant nonetheless excluded under clause E? [44] In my opinion, in this case, there is no doubt that the appellant voluntarily renounced his permanent resident status in the United States; more importantly, he did so after receiving the RPD's decision excluding him from protection because of his legal status in the United States in order to somehow counter that RPD decision. [45] This voluntary renunciation of permanent residence in the United States could be held against the appellant. However, in my view, this is a special case: first, because of the appellant's young age and, second, because the appellant credibly established that he had been persecuted at the hands of his stepfather in the United States. The RPD did not question the appellant's allegations, but instead determined that, in his case, he did not establish that the protection offered by the United States would not be adequate. The psychological consequences of the events experienced by the appellant in the United States are also reported in the psychological report submitted before the RPD, which concludes emphatically on the negative consequences for the appellant (see the RPD record, pages 136 and 137). [46] In my opinion, this is not a matter of the refugee protection claimant in this case renouncing his permanent resident status in a third country where he was not alleging a fear of returning in order to find a way around the application of exclusion clause E and to possibly remain in Canada. [47] In my view, the appellant in this case, given his young age, could have been removed to the United States to the people who persecuted him in the past, and the practical steps he would have to take to obtain protection, again because of his age and his psychological state, could be difficult, and he had valid reasons to voluntarily renounce his permanent resident status in the United States. [48] For these reasons, and because this is a special case, the other criteria mentioned above need not be assessed in order to conclude that, as of the date of these proceedings, the appellant does not have a status in the United States that is substantially similar to that of nationals from that country. Consequently, he is not excluded under Article 1E of the Convention. [49] The second issue is whether the RPD erred by failing to analyze, faced with the appellant's potential return to the United States, whether he demonstrated that there would be compelling reasons for which he could refuse to seek the protection of the United States under paragraph 108(1)(e) and subsection 108(4) of the Act, which read as follows: 108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: ... (e) the reasons for which the person sought refugee protection have ceased to exist. (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment. [50] In view of my finding that the appellant is not excluded under clause E, and that he cannot therefore be removed to the United States, it is no longer necessary or relevant to determine whether the concept of "compelling reasons" applies in his case, regarding a possible return to the United States. REMEDIES [51] I conclude that the RPD's determination is wrong in fact and in law, considering the new evidence. I am unable to confirm or set aside the determination of the RPD without hearing evidence that was presented to the RPD on whether the appellant has a well-founded fear of persecution or would be subjected to a risk to his life or a risk of cruel and unusual treatment or punishment should he return to his country of citizenship, Peru. [52] Pursuant to subsection 111(1) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. [53] The appeal is allowed. Normand Leduc Normand Leduc October 31, 2013 Date IRB translation Original language: French REFUGEE APPEAL DIVISION / CLAIMANT'S APPEAL / MINOR / DOMESTIC VIOLENCE / SEXUAL ABUSE / EXCLUSION / ART. 1E / PERMANENT RESIDENT / NEW EVIDENCE / LOSS OF PERMANENT RESIDENT STATUS / MALE / REFER THE MATTER / PERU / UNITED STATES 1 Exhibit C, pages 42 and 43 of the appellant's memorandum. 2 MCI v. Zeng, Guanqiu (F.C.A., No. A-275-09). 3 Raza v. MCI, 2007 FCA, 385. 4 Dunsmuir v. New Brunswick, 2008 SCC 9, (2008) 1 SCR 190. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB3-02701 14