MB3-02469

N° de dossier de la SAR/RAD File No.: MB3-02469 Huis clos/Private Proceeding Motifs et décision - Reasons and Decision Personne(s) en cause XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Person(s) who is(are) the subject of the appeal Appel instruit à Montreal, Québec Appeal considered / heard at Date de la décision October 2, 2013 Date of Decision Tribunal Stephen J. Gallagher Panel Conseil(s) du (de la/des) personne(s) en cause Bruce Perreault Counsel for the person(s) who is (are) the subject of the appeal Représentant(e)(s) désigné(e)(s) S/O Designated Representative(s) Conseil du (de la) Ministre S/O Counsel for the Minister REASONS AND DECISION [1] Ms. XXXX XXXX XXXX is appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. She has not presented new evidence and has not requested an oral hearing. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the RPD, namely, that Ms. XXXX is neither a "Convention Refugee" pursuant to s. 96 of IRPA nor a "person in need of protection" pursuant to s. 97 of IRPA. BACKGROUND [3] The Appellant is a citizen of Ghana who alleges that she is at risk of gender related persecution at the hands of her former common-law husband, identified as Mr. XXXX XXXX (agent of persecution). [4] The Appellant alleges that when her family fell into economic hard times she and her family accepted an offer of aid from Mr. XXXX to help the Appellant undertake university studies. In time this altruistic relationship developed into an intimate relationship. The Appellant alleges that Mr. XXXX eventually became controlling and abusive. The Appellant alleges that her family would not aid her and she did not believe state authorities could or would be of assistance to her. [5] The Appellant alleges that the pressure of situation caused her to become despondent and threaten suicide. In an effort to appear conciliatory, Mr. XXXX organized a trip for Ms. XXXX to visit Canada. [6] On arrival Ms. XXXX was refused entry and chose to claim protection rather than be returned to Ghana. Core Issue: Did the RPD reach a conclusion on the credibility of the Appellant which was 'reasonable'? [7] The basic thrust of the 'written statement' of the Appellant is that the RPD's determinations with respect to her credibility and the credibility of her claim are not reasonable. The Appellant argues that the RPD did not effectively take into consideration the fact that the behaviour of the Appellant was influenced by the psychological hardship which allegedly flowed from her abusive relationship with Mr. XXXX. Also the RPD is viewed as speculating about the motivation for the Appellant's behaviour when her explanations are fully intelligible when viewed through the lens of an individual living in an abusive relationship. The Appellant is essentially arguing that although the RPD recognized that Guideline 4 on Gender-Related Persecution was applicable in this case, it was not properly applied or given enough weight. [8] The Appellant seeks to have this RPD decision "set aside and a finding in favour of the claimant should be made". STANDARD OF REVIEW [9] The core of this appeal is the Appellant's argument that the RPD reached a wrong conclusion with respect to the credibility of the Appellant. The RAD is expected to bring finality to decisions of the RPD and in this case, because there is no new evidence there is no provision for a hearing, I must conclude that a degree of deference should be granted the RPD's decision-making. Therefore the standard of review should be 'reasonableness'. [10] This conclusion about my role derives from a reading of a decision of the Alberta Court of Appeal in Newton v. Criminal Trial Lawyers' Association (2010) ABCA 399, which is one of the few Canadian judicial decisions where the role of an appellate branch of a specialized knowledge tribunal is analyzed. The Newton decision provides an analysis of the role of an Alberta based appellate board vis-à-vis a first instance determination process (undertaken by a 'presiding officer') to consider whether a de novo hearing is required in every case where there is an appeal. The Court in this case notes that "(t)he Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".1 The Court went on to conclude that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".2 [11] I conclude that an analysis of the RPD's credibility assessment which in this appeal constitutes a determinative issue involves an analysis of issues of fact and mixed fact and law and using Newton as a guide I conclude that such issues attract a deferential standard of review which is 'reasonableness'. This is because this appeal does not qualify for a hearing and the RPD did hold a hearing and directly questioned Ms. XXXX. The RPD was also directly reviewing the evidence in a hearing setting to reach its conclusion. My objective is therefore to review the RPD decision for reasonableness which is defined in the jurisprudence as the "existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". This understanding flows from Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. ANALYSIS: [12] As noted above, the Appellant argues that the RPD's credibility conclusion is faulty in several areas and that the RPD did not recognize that some inconsistencies or memory lapses might be explained by referencing the psychological impact of years of abuse. This can also explain why the Appellant did not know of any "state assistance program" in Ghana. The Appellant also submits that this reality also explains why the Appellant might not seek to contact the police. A further explanation might be that the agent of persecution allegedly had 'friends' in the police service.3 [13] The Appellant also argues that RPD conclusion related to the implausibility of the agent of persecution aiding the Appellant to travel to Canada is merely speculative. Also held to be 'speculative' is the RPD conclusion suggesting that Ms. XXXX did not have subjective fear by returning to Ghana after living in South Africa for a lengthy period. [14] After reviewing the various arguments I conclude that the RPD clearly articulated its reasons for finding that the Appellant's claim was not credible. Although the jurisprudence found in Maldonado (Maldonado v. M.E.I. [1980] 2 F.C. 302 (C.A.)) is clear that a presumption of truth is created when a claimant swears to the truthfulness of their testimony, the fact remains that this presumption is rebuttable and the burden is on the claimant to support their claim. In this case the RPD provided arguments to rebut the presumption of truth on the basis of inconsistences, omissions and implausibility and there appears to be little if any evidence aside from testimony to support the Appellant's allegations of gender related persecution. [15] I also find persuasive the RPD's analysis which stems from an assessment of the Appellant's socio-demographic characteristics. The Appellant is educated at the university level, well travelled and has been employed in various capacities. She also comes from a larger family which includes two older brothers and was allegedly in this abusive relationship for several years. The RPD reasons that even accepting the Appellant's arguments with respect to the psychological impact of her experiences (which were not documented with any medical report) the RPD finds that given the Appellant's socio-demographic characteristics and opportunities over her alleged 6-7 year relationship with the agent of persecution, the absence of an attempt to seek state protection or have knowledge of the resources available indicates a lack of subjective fear. [16] The RPD goes further to conclude that the Appellant has failed to establish that it was "was objectively unreasonable for her to have taken steps to seek state protection". This conclusion is also based on an assessment of the Appellant's socio-demographic characteristics, the lengthy time period and opportunities available the Appellant to seek aid and a review of the documentation which identifies specific state protection instruments (RPD, Paragraph 18). The RPD dismisses the general logic and supposition of the Appellant that because the agent of persecution has "friends in the police" that state assistance is unavailable. Again I find the conclusion of the RPD reasonable and not an error. [17] In addition, the RPD reaches a negative credibility assessment based on vagueness and inconsistency including the fact that the Appellant omitted important information in the BOC narrative. It is the conclusion of the RPD that the Appellant is adding elements to a broad and vague narrative. These additions during testimony include being raped three times and being threatened with a gun. [18] The RPD also does not accept as plausible the logic of the Appellant with respect to why the agent of persecution would help her secure a visa to visit Canada. The Appellant alleges that the agent of persecution sought to get her away from her friends and the possibility that she might "run away" (BOC, Question 29[f]). The Appellant alleges that the agent of persecution has 'friends' in Canada and according to testimony they would "take good care of me" and "return" her "safely". The RPD does not find plausible that the agent of persecution as described by the Appellant would provide the Appellant with $5000 and facilitate travel to Canada. This is because this would provide the Appellant with an opportunity to escape which is inconsistent with the Appellant's description of the agent of persecution as possessive and controlling. The RPD also draws a negative inference from the fact that the Appellant did not make a refugee claim immediately on entry but only as a defence against removal. I conclude that it is reasonable for the RPD to reach a general adverse conclusion on credibility based on the problems identified. [19] Overall in terms of the logic of the RPD decision coupled with the evidence surveyed I must conclude that this RPD decision "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". REMEDIES [20] For all these reasons, I confirm the determination of the RPD, namely, that Ms. XXXX is neither a "Convention refugee" nor a "person in need of protection". Therefore, the appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher October 2, 2013 Date /sb/kp 1 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 3 Appellant's record, written statement, p. 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 N° de dossier de la SAR/RAD File No.: MB3-02469 2