TB1-14150

RPD File No. / N° de dossier de la SPR : TB1-14150 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXXXXXXXXXXXXXXXX Demandeur(e)(s) d'asile Date(s) of Hearing April 12, 2012 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision May 23, 2012 Date de la décision Panel M. Sterlin Tribunal Counsel for the Claimant(s) El-Farouk Khaki 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 [1] The claimant, XXXXXXXXXXXXXXX, is a citizen of Swaziland. She claims protection under ss. 96 and 97 of Immigration and Refugee Protection Act (IRPA).1 ALLEGATIONS (From Expanded PIF Narrative in Exhibit C-2) [2] Around XXXXX 1990, the claimant met XXXXXXXXX, XXXXXXXXXXXXXXXX. In 1998 they started to live together. They separated, he said he had HIV, and he died in 2000. In 2002, she was informed that his mother wanted her to marry her son, XXXXX brother, so he could inherit XXXXX money and children, under the "Kungenwa" tradition. She refused, and was ready to call the police. [3] The son kept looking for her, and had her followed. In XXXXX 2003, he tried to break into her house. She reported to the police several times, but they said it was a domestic matter. She got death threats. In XXXXX 2005, she tried to relocate. [4] In XXXXX 2007, he broke in and raped her. He threatened to kill her if she went to the police, and as a rape victim she would have to go to the police before treatment. [5] In 2008, she was diagnosed with XX. In XXXX 2009, she discovered she had HIV, and got treatment for it. XXXX's brother lost his job and went into hiding from XXXXXX 2010, until XXXX, 2011. She heard he moved to South Africa. [6] Word got out that she was HIV+, and people confronted her. There was a protest march on XXXXXX, 2011, which attracted media attention. Teachers were to participate. The next Wednesday she was arrested by the same police officer who had confronted her during the political activity. However, luckily she was released. She was then followed by the authorities. Thus, she fled to Canada. IDENTITY [7] The Panel confirms the claimant's personal identity and identity as a citizen of Swaziland from the copy of her passport contained in Exhibit R/A-2. DETERMINATION [8] The Panel finds the claimant not to be a Convention refugee under section 96, as she does not have a well-founded fear of persecution in Swaziland on any of the five Convention grounds. The Panel also finds that the claimant is not a person in need of protection under section 97, as, on a balance of probabilities, her removal to Swaziland would not subject her personally to a risk to life or to a risk of cruel and unusual treatment or punishment, or to a danger of torture. The Panel's reasons are as follows. ANALYSIS [9] The Panel considered the issue of credibility, including subjective fear. The Panel also considered whether what the claimant alleges to fear in Swaziland is truly persecution, or discrimination and/or harassment. [10] This claim has three separate parts. There is the fear of persecution due to the claimant's alleged political activity, as well as the fear she alleges from XXXX's brother. In addition, there is the issue of potential persecution due to the claimant's HIV+ status. [11] The claimant first set forth her refugee claim when she attended at an inland Immigration office, claiming fear of persecution from XXXX's brother, and also due to her HIV+ status. This is set forth in IMM 5611 in Exhibit R/A-2. She submitted her PIF shortly thereafter, in Exhibit C-1, where she repeated that there were her fears in Swaziland. In neither of these did she even mention or refer to the political aspect of her claim. [12] Approximately two months later the claimant submitted a much more detailed PIF Narrative. The Panel has no issue with the claimant expanding on her story and allegations. In fact, this was desirable, in that the original PIF Narrative was only two lines long. However, it was only in this expanded Narrative that the claimant first introduced the entire political aspect of her claim. [13] The alleged events relating to politics occurred in Swaziland, before the claimant came to Canada, and thus would have been known to the claimant when she provided the information to Immigration, and when she submitted her first PIF. The claimant was thus asked why she introduced this aspect of her claim only at a late stage of her submissions. Her responses were unsatisfactory. She said she was still traumatized by her son's death, even though it occurred in 2009, and she made her refugee claim in September 2011, close to two years later. It was pointed out to her that she was able to provide great detail in her first two submissions in regard to, for example, her employment and her relatives. To this she said she was still trying to come to terms with her HIV+ status. It was pointed out to her that she had indicated that she had this status since XXXX 2009, and she was thus asked again to explain how these long-standing conditions caused her to fail to initially mention the entire political aspect of her claim in her first two submissions. Her response was noteworthy - a very long pause, then a non-responsive answer by saying that Swaziland does not protect HIV+ people. Counsel rephrased the question for the claimant, and she reverted to her previous responses - she said she was still traumatized. It was pointed out to her that the political problem was the most recent one, and she was asked why she did not mention it. She said "I know." When asked if she had any psychological or psychiatric note to explain why she might have omitted this key allegation, she said she did not. [14] However, counsel did provide with his post-hearing submission a psychological report done for the claimant, post-hearing. The Panel can agree that the claimant may be depressed, although that was not evident at the hearing, and is still traumatized by the XXXX of her son. However, the Panel cannot accept that this accounted for the poor quality of her testimony. The Panel first notes that on p.3 of counsel's submission, he stated that the claimant did not understand the Panel's questions. The Panel did not note any difficulty in the claimant's comprehension abilities, and the hearing was conducted in English only, the claimant not having requested any interpreter for any other language. In addition, the Panel has reviewed the letter by Dr. XXXXX. On p.2 thereof, it is indicated that the claimant reported that she had difficulty with remaining focused and concentrating. However, Dr. XXXXX did not report that the claimant even reported that she had memory loss. In addition, Dr. XXXXX noted that the claimant did not have problems from a cognitive standpoint. As such, the Panel does not accept that the claimant's poor testimony resulted from mental concerns - rather, the Panel finds, they indicate a lack of credibility. It is possible that a claimant may have some depression or other mental issues and still be not credible, and the Panel finds such to be the case in this claim. The Panel in particular finds that the claimant's long pauses and failures to answer certain questions, while being able to answer others well, also illustrate a lack of credibility. The Panel incidentally notes from review of the report from Dr. XXXXX that the claimant apparently did not mention the political aspect of her claim to Dr. XXXXX either, while mentioning the alleged threat from XXXX's brother, and also that she is HIV+. [15] The Panel also notes counsel's submission that the claimant did not have counsel when she made her refugee claim at Immigration, and when she made her PIF. He further pointed out that the space to set out the essential nature of the claim is relatively short in IMM 5611, and the instructions are to keep her responses brief. However, this does not explain how the claimant can think to set forth two of her three key complaints, yet remain completely silent on the third. She did not allege that she was instructed by Immigration to not set out at least the heading, or summary, of an alleged fear of persecution. [16] The claimant thus was unable to explain this key omission. Stated otherwise, the Panel finds that the claimant embellished her claim by addition of this entire area of her allegations in her second PIF. From this the Panel makes a serious negative inference as to credibility. [17] The claimant in addition was unable to document any aspect of this allegation which she originally omitted. There was no summons or warrant issued against her. In addition, the political events alleged occurred in XXXX 2011, and the claimant claims that the police has been after her and monitoring her until XXXX, 2011. She was asked why the police did not arrest her, if that was their intention. She could provide no answer, and confirmed that it would have been easy to find her if that was the intention of the authorities. Thus, this aspect of the claim is dismissed, and the Panel finds that the authorities have no interest in the claimant for her political opinions or activities, perceived or otherwise. [18] The next head of fear has to do with the Kungenwa tradition. The claimant testified that the brother was after her from XXXX 2003, to XXXXX 2007, but was unable to explain why he did not harm her if that was her intention. She said she went to the police on two occasions to complain, but was unable to document these alleged recourses to the police, because, she said, they did not intervene. She did allege that in XXXXX 2007, the brother broke into her residence and raped her. She was unable, though, to document this event by way of police or medical report, photos, or insurance or other similar documentation. [19] The claimant alleged in paragraphs 22 and 23 of her Narrative that the brother hid between XXXXX 2010, and XXXXX, 2011. Then she indicated that she heard that he had moved to South Africa. It would thus appear if the claimant would not be in danger in Swaziland from the brother, as he is no longer even in the country. However, at the hearing, the claimant said that she did not believe the brother really moved to South Africa. The claimant was asked why, if she believed the brother was still in Swaziland, she did not write this in her expanded Narrative, only writing that she heard he had moved to South Africa. The claimant said nothing at all in response, that is, she could not even attempt to explain it. From this inconsistency the Panel makes a negative inference as to credibility. [20] The claimant was asked when was the last time the brother actually showed any interest at all in pursuing the claimant. She said it was in XXXXX 2007, when he allegedly raped her. From this the Panel finds that the brother has no current interest in the claimant, if he ever did, and, as well, he is not even in Swaziland. Thus, this aspect of the claim is dismissed as well. [21] Incidentally, the claimant explained that she didn't call the police over the alleged rape, because the brother has friends in the police force. The claimant was asked why she did not mention this important allegation in her lengthy second Narrative, and all she could say is that she just remembered it at the hearing. The Panel thus finds this to be an embellishment as well, and from it the Panel makes a negative inference as to credibility. [22] There is also a general credibility issue in relation to delay in departure. The claimant had a visa to USA as of 2009, and could have gone to USA as soon as she started to fear Swaziland, which she says was in XXXX, 2011. However, she stayed in Swaziland another approximately four months. She was asked why she delayed so long. She paused for a very long time, said she was trying to think, and then said nothing. Counsel rephrased the question for the claimant, and she took a long pause, and then said nothing again. When the Panel had finished its initial questioning, counsel questioned the claimant on the same topic, and this time she said she needed to stay to raise money to buy a ticket to USA. However, the Panel then asked her why she did not provide this explanation when first asked, when she twice paused for a lengthy period before providing no explanation. In response, she paused yet again for a lengthy period, and then said nothing again. [23] The Panel thus finds that the claimant was unable to satisfactorily explain her lengthy delay in departure, given that she said she was in fear of Swaziland throughout this period, and had a visa to USA as well. The Panel thus finds that the claimant did not have a subjective fear of remaining in Swaziland. Given that she said she had such a fear, from this the Panel makes a negative inference as to credibility. [24] The claimant volunteered that one of the reasons she came to Canada was that Canada would give her better health care than Swaziland. She later confirmed again that this was one of the main reasons she came to Canada. The claimant was asked why she had not mentioned this in her extensive second Narrative. She did not answer directly, but said at times her medication would be out of stock in Swaziland. The Panel makes a negative inference as to credibility from her late addition of this other reason for wanting to come to Canada. [25] It is possible that the claimant did not mention this in the PIF because she was aware that this head of concern would not likely qualify her as a Convention refugee, and the Panel finds that it does not. She did not allege that these drugs would not be available to her because of her HIV+ status, which could have been a basis for a claim of persecution. Rather, she said that the drugs for HIV patients are not always available there, and are sometimes out of stock. [26] The Panel also considered whether the claimant requires Canada's protection merely because she is HIV+. She said she fears discrimination against her for this reason. She said people won't share glasses of water with her, and would not go to food preparation areas where HIV+ people are. However, she said that very few people know she is HIV+. She indicates she was able to get her medications, but, as indicated, sometimes they run out of stock, and medical insurance is expensive. [27] The Panel has also reviewed the documentation on file in this regard. Item 2.1 of Exhibit R/A-1 is the US DOS Human Rights Report for Swaziland. HIV/AIDS is generally a huge problem, with some 26 percent of the population age 15-49 suffering. The report indicates that there is social stigma associated with being HIV+, discouraging people from being tested. However, this was not a problem for the claimant. Some HIV+ people are discriminated against at work and at school. [28] The Panel also examined counsel's extensive disclosure on this topic. Exhibit C-6 appeared to be the most directly on point. On p.1 it says about a quarter of the population is HIV+. The government has active treatment, testing and prevention initiatives, which it takes seriously. On p.16 and following, some negative societal attitudes against HIV+ women are set out, and on p.22 it is set out that, at least in 2007, there were shortages of medication. Polygamy is said to be a major cause of AIDS, and there is a movement to circumcise men. Some men refuse to use condoms. There was an assault on an HIV+ woman. [29] Thus, there are some assaults on HIV+ women. However, there are also very many women in this class. There is a chance the claimant could be assaulted or persecuted because she in HIV+, but the Panel finds that this is a mere possibility only, not a serious possibility. [30] The Panel also examined counsel's materials sent in his post-hearing submission. On p.11, it is re-iterated that there is stigma associated with HIV+, as well as discrimination. It also mentions that health care for HIV+ persons is lacking. On p.15 it is indicated that even in the health care system there is some stigma in the minds and actions of health care providers towards HIV+ persons. On p.22 counsel submits that discrimination and stigma for HIV+ persons in Swaziland collectively comprise persecution. However, as per the analysis above, and in particular the claimant's particular personal circumstances, the Panel does not agree. [31] Considering all the above, the Panel finds that the claimant may suffer discrimination and / or harassment because she is HIV+. However, the Panel finds that all the above, even considered cumulatively, does not constitute persecution, or serious harm or a systematic or sustained fundamental violation of the claimant's human rights. [32] With respect to counsel's submissions in regard to violence against women, the Panel finds, due to the analysis above with regard to XXXX's brother, that there is not a serious possibility that the claimant would be subject to same. CONCLUSION [33] The Panel has considered all of the evidence and submissions, including counsel's written post-hearing submission, dated May 12, 2012. As a result of the above findings, the Panel finds that the claimant does not have a well-founded fear of persecution, or a risk to her life, or a risk of cruel and unusual treatment or punishment, or a danger of torture upon a potential return to Swaziland. The Panel thus finds the claimant to not be a Convention refugee under s. 96 nor a person in need of protection under s. 97 of the IRPA. [34] For these reasons, the claim is rejected. (signed) "M. Sterlin" M. Sterlin May 23, 2012 Date REFUGEE PROTECTION DIVISION / POLITICAL OPINION / PERSECUTION BY A FAMILY MEMBER / RAPE / DISEASE / HIV / VISA / POST-HEARING / PSYCHOLOGICAL REPORT / OMISSIONS / AMENDMENTS / PERSONAL INFORMATION FORM / DELAY IN LEAVING THE COUNTRY / DISCRIMINATION / FEMALE / NEGATIVE / SWAZILAND 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TB1-14150 RPD File No. :TB1-14150