TB7-13643

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 / Dossier de la SAR : TB7-13643 TB8-08218 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 30, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal Orr Kolesnik Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX XXXX (the "Principal Appellant" or "PA") and her minor daughter, XXXX XXXX XXXX (the "minor Appellant"), citizens of both South Africa and Mozambique, appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. They have not submitted new evidence in support of this appeal. The Appellants are requesting an oral hearing. The Appellants ask the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be returned to the RPD for a new hearing under a differently-constituted panel. Designated Representative [2] XXXX XXXXhas been appointed by the Board as a designated representative of the minor Appellant, XXXX XXXX XXXX. Oral Hearing [3] The Appellants had requested an oral hearing; however, subsection 110(6) of the Immigration and Refugee Protection Act (IRPA) requires new evidence to be accepted into the appeal before such a request is granted. No new evidence has been adduced. Consequently, in accordance with the statutory requirements, the request for an oral hearing is refused. BACKGROUND [4] The PA is a XXXX (approx.) year old woman, born in Mozambique but holds citizenship also in South Africa, who alleges that she is bi-sexual. The PA states that after she and her daughter arrived in Canada for vacation, she was notified that the PA's female lover had been caught kissing another woman. After being caught, the lover's telephone was searched and compromising pictures of the lover and the PA were discovered. The PA alleges that the news that she was sexually involved with another woman got out to members of the PA's deceased husband's family who now seek to harm the PA and the minor Appellant as well. RPD's Reasons [5] In its reasons, the RPD found that the PA was not credible. The panel noted many inconsistencies, contradictions and embellishments. The panel also found that the PA's documentary evidence was not only unpersuasive but was discordant with the PA's oral evidence. The panel found that the presumption of truth available to a refugee claimant had been clearly rebutted. [6] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. Appellants' Issues [7] The Appellants raise one issue at the RAD: a. Did the RPD err by coming to a negative credibility finding based on an incorrect assessment of the evidence before it? ANALYSIS Determinative Issue [8] The determinative issue in this appeal is the Appellants' credibility. Standard of Review [9] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.1 [10] The Appellants have not submitted any new evidence but has requested an oral hearing. An oral hearing may only be allowed by the RAD if there is new documentary evidence that raises a serious question with respect to the credibility of the person who is subject of the appeal, that is central to the decision with respect to the refugee protection claim and that, if accepted, would justify allowing or rejecting the refugee protection claim. [11] As there was no new evidence submitted, the RAD, by statute (IRPA subsection 110(6)) may not hold a hearing. Therefore, the application for an oral hearing is dismissed. [12] The RAD takes notice that the panel did consider the Chairperson's Guidelines for child refugee claims, for gender related claims and for sexual orientation claims. Arguments [13] Counsel argues that the panel erred in its credibility findings and points the RAD specifically to an issue of negative inference drawn on the grounds that the Principal Appellant had informed the Board that she was bi-sexual. Counsel argues that the panel inferred that the PA could not have been bi-sexual since she was "attracted to one gender, female, between 1987 and 2002."2 [14] However, counsel's quote is taken out of context and there is no evidence that the panel inferred that the PA could not be bi-sexual for the reason stated above. It is obvious when one reads the Reasons and Decision that the panel was making a negative inference due to the inconsistencies between the PA's oral testimonies. The PA had testified that she was visited by a spirit in 1987 after which she was only attracted to women, from then on. That is not bi-sexuality. The PA later testified that in 2002, she once again became attracted to men. However, that statement contradicted her testimony that in 1992 she told another girlfriend that the PA was bisexual. [15] According to the PA's own testimony, between 1987 and 2002, she was attracted only to females which, according to the Collin's English Dictionary is the definition of lesbianism.3 The PA then contradicted her testimony saying that she also felt attracted to men, but more so to women. The panel had questioned the PA as to why, if as she testified, she was only attracted to women between 1987 and 2002, she would tell a girlfriend in 1992 that she (PA) was bisexual. At that point, the PA changed her testimony and stated that she was only attracted to one gender, not two. [16] This entire conversation around the sexuality of the PA was contradictory. At one point, the PA is bi-sexual at the next she is not and then again she is bisexual. Counsel argues that there is no "time limit" for the PA to discover herself. Counsel is correct; however, that is not the issue here. The PA may have "discovered herself" over the decades, changing from heterosexual, to homosexual, to bisexual; however, that does not explain her inconsistent and contradictory testimony at her hearing thirty years after she was visited by the spirit she alleges came to her in 1987. I find that the panel's negative inference is well founded and reasonable in this issue. [17] Counsel argues that the panel has indicated that the PA omitted key events in her narrative, thereby making negative inferences again. Counsel argues that it is impossible for a claimant to capture every event in their lives in their written statement, which is why sworn testimony forms part of the claim. Counsel further argues that the events omitted do not go to the heart of the claim and that the PA, when writing her narrative, was only concerned with the issues which put her and her daughter at risk. [18] I disagree with counsel. The panel was correct in the reasons and decision when the panel iterated that the Basis of Claim (BOC) form is clear in its instructions to a claimant to ensure that everything of importance, including dates, names and places is included in the BOC. Counsel argues that the homophobia witnessed by the PA in 1996 does not go to the heart of the claim; however, counsel is wrong. The Appellants are claiming that they cannot return to South Africa or Mozambique due to the homophobia of both nations. For that reason alone, the 1996 event witnessed by the PA is important in substantiating her subjective fear. Likewise, the testimony that the PA gave that she participated in clandestine meetings of the LGBTQ people in South Africa, which was also omitted, would be important information in support of her claim and should have been in the BOC, if it truly occurred. I find that the panel was correct and reasonable in its negative inference on the lack of this important information in the BOC. [19] As correctly pointed out by the panel, the PA was represented by able and experienced counsel during her entire refugee process. The PA also swore that the BOC was true, correct and complete, both when she signed the declaration and again, orally in the hearing room. It is not expected of a claimant that she includes endless minutia in the BOC; however, events which would support a claim are important and should have been included. [20] Counsel argues that the panel erred in its credibility assessment of the testimonies of the PA and her witness. The PA had testified that she had her first kiss from the witness on XXXX XXXX XXXX The PA's witness testified that, although she could not remember the exact date, the kiss occurred two to three weeks after they met on XXXX XXXX. Counsel argues that because the witness testified that she could not remember the exact date, it is unreasonable for the panel to make a negative inference over this issue. [21] If the witness had stopped at saying she could not remember the exact date, then counsel would be correct; however, the witness went on to testify that the intimate moment occurred between 2 and 3 weeks after XXXX XXXX, the day the witness and the PA first met. That would make the date of the first kiss at the earliest, XXXX XXXX and the latest, XXXX XXXX. Either date is inconsistent with the PA's testimony of XXXX XXXX being the date. Although on its own, this would be almost inconsequential, taken in the totality of the inconsistencies, omissions and contradictions, it is but one further credibility issue. [22] Counsel argues that the other inconsistencies identified by the panel regarding the witness testimony versus the PA's testimony were not inconsistencies but misunderstandings. Counsel does not go on to explain this argument; however, I have looked at the testimony of the witness and agree with the panel. In testimony, the witness and the PA did not agree on simple things such as which side of the bed each of them slept on, how they woke up in the morning and which one of them cooked their meals. These are simple, everyday routines that it is reasonable to believe any two people living together for whatever reason would be able to answer and those answers would be expected to be the same as each other. There was no misunderstanding of the questions or of the answers. The witness and the PA contradicted each other. The panel's negative inference was reasonable and correct. [23] The panel gave no weight to letters4 of support from the LGBTQ organization (XXXX XXXX) because the letters did not indicate that the organization responsible for the letters did anything to evaluate the PA's sexual orientation. Even more reason to give these letters little weight is the fact that the PA did not participate in any of the LGBTQ events or with this organization until after her claim was filed. The PA filed the claims for refugee protection on or about January 17, 2017 and joined the XXXX XXXX sometime in February 2017. Joining XXXX XXXX after filing her claim appears to be nothing more than an attempt to bolster her claim. I find that the panel did not err in making a negative inference in this issue. [24] Counsel argues that the panel erred in assigning no weight to the photographs5 adduced as evidence. The panel gave the photographs no weight because the photos were only consistent with a platonic relationship and were not of value in establishing any other kind of relationship between the PA and her friend. The pictures did nothing to establish that the PA and her friend had any kind of romantic relationship. It is not expected of a refugee claimant to adduce explicit photographs to help document a relationship and the panel was not asking for such photos. The panel simply stated that these photos did not establish the relationship claimed by the PA and consequently were of no probative value. I concur with the panel on the value of the photos rendered. Other photos adduced as evidence, including very poor shots of what appears to be the interior of a store after it had been vandalized, were not identifiable in any way as belonging to the PA. These photos could have come from anywhere. Given the multitude of credibility concerns already enumerated in this claim, the benefit of the doubt cannot be assigned to this PA and these photos. I find that the panel did not err when the panel assigned little weight to these photos. [25] Counsel argues that the panel erred when the panel made a negative inference because the Appellants failed to submit certain documentary evidence. Counsel argues that the panel failed to consider the difficulties that claimants have in obtaining all relevant documents to support a claim. I disagree with counsel. The panel made a negative inference because the PA did not obtain documents which were, technically in her possession. The PA testified that certain documents requested by the panel were in South Africa. The panel then asked whether the PA's sister could send the documents to the PA. The PA testified that the documents were in a locked safe. The panel asked the PA why she could not give her sister the combination to the safe so the sister could access the documents and send them to the PA. The PA's reply was very unresponsive when she replied simply that she had a lot of important documents there (in the safe). [26] In spite of the PA's non responsive reply, she did provide some of the requested documents at the second sitting of her hearing. The panel found that the unreasonableness of the PA's initial explanation at the first sitting of her hearing diminished her credibility. Given the fact that she did in fact provide some of the documents at the second sitting, in my view, does diminish her credibility. I find that the panel did not err here in his or her assessment of credibility. Counsel argues that the panel erred in its assessment of the document6 signed at the police station. The panel had found it to be unlikely that a police officer would spend his time acting as a notary public when he had more important work to do. The panel erred for two reasons on this issue. In the first case, the documents were not sworn before a notary public but were sworn before a Commissioner of Oaths. In the second case, police officers in South Africa have been designated by the Minister of Justice as Commissioners of Oaths.7 It would be highly unlikely that the Minister of Justice would designate police officers to act as Commissioners of Oaths, unless the Minister expected those police officers to do so. Therefore, I find that the panel did err in this issue. [27] However, this error does not relieve the issue of the overall credibility of these documents. For example, the letters speak to incidents alleged to have occurred but provide no dates of these events. Another issue is that the one letter allegedly signed by the PA's sister indicates that the sister is 24 years old, which contradicts the PA's BOC in which the PA has her sister listed as being born in 1989, making her 29 years old. When confronted by the panel with this inconsistency, the PA testified that she had made an error in the BOC and that her sister was born in 1993. As the panel pointed out, the BOC states that a different sister was born in 1993. The panel wrote that the panel does not accept that the two sisters were twins because it would be very unlikely that a person would not list twins adjacently in the BOC and then make a mistake about one twin's birthday, but not the other's. [28] Therefore, even given that the panel erred in its assessment of the probability of police acting as Commissioners of Oaths, there is sufficient reason not to give credibility to those documents. In that issue, I find that the panel did not err. [29] Lastly, counsel argues that the panel erred in not giving weight to the psychological report of Dr. XXXX because Dr. XXXX did not attend the hearing and made a diagnosis that was "... well beyond her scope of qualified report ..." [30] Counsel argues that the evidence provided by the psychologist should be given much weight as it speaks to the state of mind of the patient. Counsel argues that it is unreasonable to dismiss the evidence of this expert on the grounds that the doctor went beyond her scope. Counsel argues that Dr. XXXX has been in practice for many years and knows what lies within her scope of practice. [31] I must disagree with counsel on the issue of Dr. XXXX. Framework of Analysis for Psychological Reports [32] When confronted with psychologist or psychotherapist reports such as the one here, it would be helpful for the RPD to apply a framework of analysis, as the RAD will do below. This might include consideration of the following factors: (a) The qualifications and experience of the report's author. Is the writer a medical doctor, a psychologist, a psychotherapist, a counsellor, or a psychiatrist?8 What experience and training does the author have in the issue at hand? The author's qualifications, training, and experience are relevant to the consideration of the report's probative value. (b) How the assessment was conducted. How much time did the report's author spend with the appellant? Are the author's conclusions based on objective testing, on other medical evidence, on interviews, on expert observations,9 or a combination of these methods?10 A report based on clinical observations, independent of the appellant's credibility, may have more probative value than an opinion based solely on the appellant's recounting of his or her story.11 (c) Why did the appellant see the author of the report, and why was the report written? Was the appellant a patient of the author for some period of time, or was the appellant seen, and the report written, solely for the purpose of the refugee proceeding?12 The Federal Court has cautioned that "expert opinion reports should not be given exalted status in administrative proceedings simply because they are prepared by a licensed professional," and noted that "decision-makers should be wary of reliance upon forensic expert evidence obtained for the purpose of litigation, unless it is subject to some form of validation."13 Here it might be helpful to consider whether the appellant was seeing the report's author for treatment, rather than just to obtain a report, and whether treatment recommendations were made and followed.14 A report written solely for the purpose of the refugee proceeding, from a medical professional who did not see the appellant for any other reason, may deserve less weight than a report from a professional providing on-going treatment of the appellant. (d) Is the report restricted to providing an expert opinion, or is it advocacy disguised as opinion?15 Such advocacy may take the form of the author arguing for the appellant to be allowed to remain in Canada, or giving a non-expert opinion on conditions in the appellant's country of origin, or attempting to resolve an issue such as credibility, which is for the tribunal to solve.16 Where the report's author crosses the line between opinion and advocacy, this may negatively affect the probative value of the report. [33] There may be other relevant factors to consider in assessing such a report. If, having considered these factors, the panel determines that the report has probative value, it must then consider how the report is to affect the panel's assessment of the appellant's refugee claim. [34] It is important to note here that a psychological report is often tendered not to prove past persecution, but to alert the IRB to the appellant's mental condition and to the effect this might have on his or her testimony.17 However, the existence of such mental difficulties does not in itself establish the veracity of the appellant's allegations: "Just because a patient is suffering from psychological problems and manifests symptoms associated with those problems does not mean that the patient's account of past persecution as the cause of those problems can be believed."18 Further, the Court has repeatedly observed that a psychological report is not a cure-all for any and all deficiencies in a refugee claimant's testimony.19 [35] Where a refugee claimant or an appellant provides a psychological report to the RPD or RAD, and the tribunal finds that the document has probative value, it must consider the report and credibility in the proper order: it must use the report in its assessment of the appellant's credibility, rather than drawing conclusions about credibility and then using them to impugn the report.20 The tribunal is not obligated to accept the psychological report as an explanation for the faults it finds with the appellant's testimony; however, it is required to say why the evidence of the appellant's mental state does not affect its conclusions.21 [36] It is necessary for the RAD to consider other legislation such as the Ontario "Regulated Health Professions Act", as follows: REGULATED HEALTH PROFESSIONS ACT, S.O. 1991, CHAPTER 18 27 (1) No person shall perform a controlled act set out in subsection (2) in the course of providing health care services to an individual unless, (a) the person is a member authorized by a health profession Act to perform the controlled act; or (b) the performance of the controlled act has been delegated to the person by a member described in clause (a). 1991, c. 18, s. 27 (1); 1998, c. 18, Sched. G, s. 6. Controlled acts (2) A "controlled act" is any one of the following done with respect to an individual: 1. Communicating to the individual or his or her personal representative a diagnosis identifying a disease or disorder as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the diagnosis. [37] In Ontario, in order to give out a diagnosis as a psychologist in Ontario at the time of this hearing, one must have been a member of the College of Psychologists of Ontario. Although Dr. XXXX advises that she is a member of a number of associations, she did not mention that she was a member of the College of Psychologists of Ontario (the College), the most important membership she needs to hold in order to make a diagnosis in Ontario. If Dr. XXXX is not a member of the College, then she has no legal right to "communicate a diagnosis" as she has done. Absent any proof that Dr. XXXX is a member of the College, I must presume that she is not a member. If she is not a member of the College, then I can attach no credibility to her report. Even if she is a member and has simply failed to relay that information, I would have to consider the other elements listed above in the framework. [38] Regards the framework, Dr. XXXX has not satisfied me that she is qualified to give the diagnosis she has given simply because she has failed to identify herself as a member of the College. [39] Dr. XXXX has also failed to advise details of her treatment and/or assessment of the PA in as much as there is no indication of the length of time taken to interview and test the PA. Also, it appears that the PA attended Dr. XXXX office for the sole purpose of obtaining a report for the RPD hearing, rather than to seek treatment and care for an ongoing issue. [40] Dr. XXXX oversteps the jobs of a psychologist when she begins to advocate on the part of the PA. I quote Dr. XXXX, "Once Ms. XXXX is able to remain in the safety of Canada, her inhibitions and worries of being unsafe would most likely disappear, as she would have no reason to fear for her life and her daughter's safety." Dr. XXXX is basically finding that the PA's story is credible and the cure for the PA's issues based on her "credible" story is for her to remain in Canada. That is advocacy and that is also Dr. XXXX making a credibility finding in a RPD/RAD case in which she has no standing as a decision maker. [41] Lastly, I take the words of Justice Annis, in Czesak,22 very seriously. The Justice in his decision, cautioned decision makers regarding the reliance upon forensic expert evidence obtained for the purpose of litigation, unless it is subject to some form of validation, and without the opportunity of the decision-maker to assess the reliability of expert opinions under cross examination. Justice Annis concludes by stating, "In my view therefore, unless there is some means to corroborate either the neutrality or the lack of self-interest of the expert in relation to the litigation process, they generally should be accorded little weight." [42] I have no means before me to assess the neutrality or the lack of self-interest of Dr. XXXX. Nor did the panel have such means. For the reasons enumerated above, I find that the panel made no error in the assessment of Dr. XXXX report. [43] Counsel alleges that the panel came to the hearing without an open mind and was determined to make a negative decision on the claim. Counsel fails totally in this allegation as he provides no details of any evidence of the panel having prejudged the claim. This claim failed on its own lack of merit and lack of credibility of the PA, in the panel's reasoning. [44] After a fulsome assessment of this case, I find that the panel made only one error, which has been discussed. That error was not significant enough to alter the findings of the panel or of the RAD. [45] I also have studied the Chairperson's Guidelines and in this particular case, Guidelines 3, 4 and 9 which deal with Child Refugee Claimants, Women Refugee Claimants fearing Gender related Persecution, and Sexual Orientation and Gender Identity and Expression (SOGIE) in relation to refugee claims. The Guidelines are in place to assist decision makers in dealing with specific claims which may require special handling, such as a sensitivity in questioning or an understanding of the difficulties a claimant may face when asked to produce documentary evidence of persecution. [46] I have considered these Guidelines. For example, the photographs adduced as evidence were very platonic in nature. As stated earlier, it would not be expected for a person who is from a homophobic country to be able to produce photos of a more intimate nature due to the risk to that claimant in having such photos. In the case at bar, this was considered, which is why the photos adduced were simply given no weight (as they proved nothing) rather than a negative inference being made because of a lack of demonstrative photos. [47] Another example of these considerations occurs when the RAD looked at the issue of the documentary evidence requested by the panel, which was in a safe back in South Africa. I considered that retrieving such evidence may have been difficult because of the SOGIE issue in South Africa. However, at the second sitting of the hearing, some of this evidence was submitted, indicating to me that the SOGIE guideline dealing with availability of evidence did not apply here. Summary [48] I have analyzed all of the evidence before me and have considered all of the Appellants' arguments. I find that the panel made no significant errors and made only one error of little consequence. I also find that there is insufficient evidence before me to convince me that the panel had any pre-conceived notion of a decision in this matter. Disposition [49] The RAD has found that the RPD decision will stand. CONCLUSION [50] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe July 30, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD's Record, Reasons and Decision, at p. 7, at para. 11. 3 Collin's Dictionary, Lesbianism refers to homosexual relationships between women or the preference that a woman shows for sexual relationships with women. 4 Exhibit RPD-1, RPD's Record, at pp. 236 and 237. 5 Exhibit RPD-1, RPD's Record, at pp. 212-220. 6 Exhibit RPD-1, RPD's Record, at p. 245. 7 Justices of the Peace and Commissioners of Oaths Act - South Africa, Act 16 OF 1963, Designation of Commissioners of Oaths in terms of Section 6, Schedule. 8 Boros v. Canada (Minister of Citizenship and Immigration), 2002 FCT 661, at para. 13. 9 Mico v. Canada (Citizenship and Immigration), 2011 FC 964, at para. 55. 10 Mendez Santos v. Canada (Citizenship and Immigration), 2015 FC 1326, at para. 18; also Ameir v. Canada (Minister of Citizenship and Immigration), 2005 FC 876, 140 ACWS (3d) 338, at para. 27. 11 Ibid., Mendez Santos, at para. 19; Ameir, at para. 27. 12 See Arizaj v. Canada (Citizenship and Immigration), 2008 FC 774, at para. 26. 13 Molefe v. Canada (Minister of Citizenship and Immigration), 2015 FC 317, [2015] FCJ No 304 (QL), at para. 31. 14 See Verma, v. Canada (Citizenship and Immigration), 2016 FC 404, at para. 29; Arizaj, supra, footnote 12, at para. 26. 15 Czesak v. Canada (Citizenship and Immigration), 2013 FC 1149, at paras. 37-40. 16 Ibid., Czesak, at para. 40; Molefe, supra, footnote 13, at para. 32; also Egbesola v. Canada (Citizenship and Immigration), 2016 FC 204, paras. 13-15. 17 Mico, supra, footnote 9, at para. 49. 18 Mico, supra, footnote 9, at para. 54. 19 Arizaj, supra, footnote 12, at para. 26. 20 Mendez Santos, supra, footnote 10, at para. 19. 21 Mico, supra, footnote 9, at para. 56. 22 Czesak, supra, footnote 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-13643 TB8-08218 RAD.25.02 (July 05, 2018) Disponible en français 16 RAD.25.02 (July 05, 2018) Disponible en français