TA9-15589

RPD File No. / N° de dossier de la SPR : TA9-15589 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXXXXXXXXXXXXXXX Demandeur(e)(s) d'asile Date(s) of Hearing July 12, 2011 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision July 21, 2011 Date de la décision Panel J. M. Badowski Tribunal Counsel for the Claimant(s) Constance Nakatsu Barrister and Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) de tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] XXXXXXXXXXX (herein "the claimant"), a citizen of Brazil,1 seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act2 (the IRPA). ALLEGATIONS [2] The claimant alleges that she lived for five years with a XXXXXXXXXXXXX named XXXXXXXXX (herein "XXXXXX") who was abusive towards her. In February 2009 she entered the United States where she remained until she entered Canada on XXXXX, 2009 and filed a claim for refugee protection.3 DETERMINATION [3] I find the claimant is neither a Convention refugee nor a person in need of protection. ANALYSIS [4] This claim contains allegations of violence against a female. As such I have carefully considered the Chairperson's Gender Guidelines4 throughout this decision. [5] Counsel submitted that the claimant was uneducated and was not good with dates, which I understand and accept. I do not make a negative finding against the claimant because of her failure to accurately relate any events to time or dates. [6] However, the only determinative issue in this claim is credibility. The Board must examine whether or not the claimant has provided credible and trustworthy evidence in support of her claim. I do not find it credible that the claimant has been assaulted or threatened by anyone in Brazil, or that anyone in Brazil is currently looking for the claimant to harm her. [7] The claimant alleges in her PIF: "I started living with XXX in 2004. He worked as a XXXXXXXXXXXX in XXX XXXX. I was living in a slum but he could not live there. We moved into a better neighbourhood. ...5 [8] The claimant testified that after meeting XXXX, he rented a house and invited the claimant and her three children, as well as her four nieces and nephews6 who she cared for after the death of her brother, to live with him. [9] She then testified that shortly after this arrangement began XXXXX would leave for "ten days at a time" to live with other women, and only "came back to beat me". [10] I find the very core of this claim implausible. The claimant alleges that XXXXX rented a home for them, and invited not only the claimant but also her seven dependants to move into the rented home, only to abandon the home himself and continue to pay their rent while he lived elsewhere, returning only to assault her occasionally. I find this implausible. The Board has been upheld when making reasonable findings based upon implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole, even if that evidence is uncontradicted.7 [11] The claimant alleges that she lived with XXXXX for five years. She was asked if she could show the Board a photograph of XXXXXXXXXXX with her. She testified that she had not brought any photos with her. Counsel submitted that this was reasonable as the photographs would only bring back bad memories for her. [12] I respectfully reject this submission. The onus is placed upon the claimant to establish her claim, and she is directed in the Notices to Appear which was sent to the claimant by the Board to present documents to establish her claim. The claimant has been in Canada since XXX 2009. She was asked what efforts she had made in the past two years to obtain evidence, such as photographs, to support her claim. She testified that she had made no efforts. When asked by counsel, she testified that she remained in touch with her children in Brazil, and that her daughter XXXXX had "post-secondary" education. Finally, I note that the claimant has been represented by legal counsel since the very beginning of her claim. [13] I find the claimant has made no efforts, despite being in Canada for two years, to obtain documentary evidence which would positively support her claim. She has at least one well-educated daughter still living in Brazil and with whom she is in contact with, yet did not ask her daughter to obtain any documents which might positively support her claim. Although the claimant is poorly educated, she has been represented by legal counsel for the two-year lifespan of her claim. The Board may draw a negative inference from a claimant's lack of effort in acquiring evidence to corroborate central elements of a claim since Rule 7 of the Refugee Protection Division Rules clearly states that the claimant must provide such documents. It is entirely reasonable for the Board to attach great importance to documentation which would have supported the allegations.8 [14] The claimant alleges in her PIF, previously quoted, that she moved in with XXXXX shortly after meeting him in either 2004 or 2005. However, her PIF shows that she lived at the same address during the period "XXXX to "XXXX".9 I note that the exact same address is shown, for the same period, in her statement at the port of entry.10 The claimant was asked to explain why no address change was shown in either document for 2004 or 2005 if she moved in with XXXXX at a different address. She testified "I don't know why." [15] I find this contradiction was not reasonably explained. I find, on a balance of probabilities, the claimant never moved. The Board has been upheld by the Federal Court when finding that the existence of contradictions or inconsistencies in the evidence can be a valid basis for a finding of a lack of evidence.11 [16] The claimant alleges that "... he began to abuse me physically."12 The claimant testified that XXXXX abused her physically and sexually. When asked if she ever sought medical assistance she testified that she did not, because "he would not allow it." The claimant was asked to explain why she would not go to the doctor if she needed medical assistance, when she had already testified that XXXXX would allegedly leave home for "ten days at a time". She then testified that she felt that "he would find out." [17] I again find this implausible. While I understand that women facing violence react differently then men, I find no persuasive evidence that the claimant faced any violence while living in Brazil. I find it implausible that the claimant, who left the home daily to go to work, would not seek medical attention if she seriously required it, knowing that the agent of persecution was going to be absent for at least ten days at a time.13 [18] The claimant alleges that after she fled Brazil, her children, nieces and nephews continued to live in the house rented by XXXXX. She testified that he never harmed the children. I again find this implausible, that the agent of persecution would continue to shelter the seven dependants of a common-law spouse, after the spouse had fled.14 [19] The claimant further alleges that XXXXX is still visiting family members in an attempt to locate her. The claimant was asked if she had any supporting documents from anyone to confirm this. As previously cited in this claim, the claimant produced no supporting documents despite having two years to do so, and despite being represented by counsel throughout this two-year period. The claimant did tender a letter from a former roommate15 which does not refer to any element of the claim and, therefore, does not advance the claim in any way. Again, I find her lack of effort to obtain any supporting documents support for my finding of a lack of credibility to this claim.16 [20] The claimant travelled to the United States where she remained for three months. Despite allegedly fleeing persecution in Brazil she did not speak to anyone in authority in the United States and elected to remain in the country illegally, subject to deportation. When asked why she made no efforts to regularize her status she testified that she did not have the money to speak with a lawyer to begin a claim for asylum. [21] The claimant also testified that she stayed with a friend of her sister, and that her sister had been living in the United States for "thirty years." The claimant testified that she never asked the woman that she was staying with for advice, but did ask her sister, who in turn allegedly spoke to a lawyer. However, the claimant herself took no action to speak to a lawyer, or to anyone in authority, personally herself. The Board has been upheld by the Federal Court when making a negative credibility finding when the claimant's actions do not appear consistent with persons allegedly fearing for their lives. Delays in claiming for refugee protection can lead to a negative credibility finding.17 Further, a finding that the claimant lacked subjective fear due to her failure to apply for asylum in the United States is sufficient, alone, for the Board to reasonably deny the refugee claim.18 [22] In a review of the totality of the evidence I find, on a balance of probabilities, that there is no one named XXXXX; that the claimant never relocated while in Brazil; that the claimant was not assaulted by anyone in that country; and that the claimant is an economic migrant, and not a refugee or a person in need of protection. [23] I base this decision on: * No documents were tendered to the Board to support the existence of the agent of persecution, nor were any efforts made to secure such supporting evidence; * It is implausible that the claimant and her dependants were invited to live with the alleged agent of persecution, just to be abandoned by him while he lived with other women but continued to support eight of them, and that said support would continue for the many dependants even after the claimant fled the country; * Medical attention was never sought for alleged physical and sexual abuse, despite having the time and opportunity to do so had the need been required; * No documents were tendered to the Board to support the allegation that the agent of persecution continues to look for the claimant, nor were any efforts made to secure such supporting evidence which could reasonably be presumed to exist; * The claimant failed to initiate a claim or seek competent legal advice while in the United States and remained there illegally, subject to deportation; * Despite the limited education of the claimant herself, she has been represented by counsel since the beginning of the claim. [24] The onus to establish a claim rests on the claimant. I do not find that the claimant has established her claim. I have considered the evidence before me in the claimant's file, and the fact that no documentary evidence which would positively support her claim was presented at her hearing, despite having more than two years while in Canada to obtain such evidence. The Board has been upheld when drawing a negative conclusion from a claimant's lack of efforts to obtain evidence which would corroborate the central elements of a claim.19 Further, I find her testimony to be without credibility with regard to the material aspects of his claim. The unexplained discrepancies and omissions that arose within the story, the implausible elements of the claim itself, and the lack of any supporting documents which could reasonably be presumed to exist added to her total lack of effort to obtain any documents, are cumulatively fatal to this claim and give the claimant no credibility. I determine that she has not satisfied the burden of establishing that it is more likely than not20 that she would face a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture, if she were to return to Brazil. [25] I am obligated to make a determination on the evidence deemed credible and trustworthy. I find none, other than the claimant is a citizen of Brazil based upon her identification. The Federal Court has found that the onus to produce independent and credible evidence to support a claim remains solely on the claimant.21 It is my determination that the claimant has not established a subjective or an objective basis to her fear, nor has she established any other element of the material aspects of her claim. CONCLUSION [26] In accordance with section 107(2) of the IRPA I am required to state that there is no credible basis for this claim. As I find there is no credible or trustworthy evidence upon which the Board could have determined the claimant is a Convention refugee or a person in need of protection, her claim is rejected. (signed) "J.M. Badowski" J. M. Badowski July 21, 2011 Date REFUGEE PROTECTION DIVISION / DOMESTIC VIOLENCE / GUIDELINES / GENDER / PRODUCTION OF DOCUMENTS / ONUS / RULES / FEMALE / NEGATIVE / BRAZIL 1 Exhibit R/A-2, Identity was established by a certified copy of a passport provided by Citizenship and Immigration Canada (CIC). 2 As enacted by S.C. 2001, c. 27. 3 Exhibit C-1, Personal Information Form (PIF) of the claimant dated August 12, 2009. 4 Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993. Update: November 1996, as continued in effect by the Chairperson on June 28, 2002 pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act. 5 Exhibit C-3, Amended PIF narrative, paragraph 2. 6 Exhibit C-3, Amended PIF. 7 Giron v. Canada (Minister of Employment and Immigration), (1992), 143 N.R. 238 (F.C.A.) 152; Alizadeh, Satar v .Canada (Minister of Employment and Immigration), (F.C.A., no. A-26-90), Stone, Desjardins, Decary, January 11, 1993. 8 Luzi, Tshongo Ngongo v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-4183-03) Pinard, June 28, 2004; 2004 FC 916. 9 Exhibit C-1, PIF, Question 11. 10 Exhibit R/A-2, Claim for Refugee Protection in Canada, Question 45. 11 Dan-Ash v. Canada (Minister of Employment and Immigration), (1988), 93 N.R. 33 (F.C.A.). 12 Exhibit C-1, PIF narrative, paragraph 3. 13 Giron v. Canada (Minister of Employment and Immigration), (1992), 143 N.R. 238 (F.C.A.) 152; Alizadeh, Satar v .Canada (Minister of Employment and Immigration), (F.C.A., no. A-26-90), Stone, Desjardins, Decary, January 11, 1993. 14 Giron v. Canada (Minister of Employment and Immigration), (1992), 143 N.R. 238 (F.C.A.) 152; Alizadeh, Satar v .Canada (Minister of Employment and Immigration), (F.C.A., no. A-26-90), Stone, Desjardins, Decary, January 11, 1993. 15 Exhibit C-3, Letter dated July 9, 2011 from Jaclara Hegmann. 16 Toure, Oumarouba v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-6906-03), Snider, October 8, 2004; 2004 FC 1388. 17 Onofre, Sofia Ramirez v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-2084-10), Bedard, December 2, 2010; 2010 FC 1219. 18 Goltsberg, Yuriy v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-117-10), Kelen, September 9, 2010; 2010 FC 886. 19 Luzi, Tshomba Ngongo v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-4183-03), Pinard, June 28, 2004; 2004 FC 916. 20 Li v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 239 (F.C.A.). 21 Canada (Minister of Citizenship and Immigration v. Sellan, Thayaseelan (F.C.A., no. A-116-08), Desjardin, Nedon, Blais, December 3, 2008; 2008 FCA 381. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TA9-15589 RPD File No. :TA9-15589