TB9-31920

RAD File No. / No de dossier de la SAR : TB9-31920 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX) Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision November 5, 2020 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Shelley S Levine Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] Ms. XXXX XXXX (a.k.a. XXXX XXXX), a citizen of Taiwan, is appealing the decision of the Refugee Protection Division (RPD) rejecting her refugee protection claim. [2] In rendering its decision, the panel took into account the Chairperson's Guideline on Women Refugee Claimants Fearing Gender-Related Persecution. [3] The appeal is dismissed for the reasons that follow. BACKGROUND [4] In her Basis of Claim Form (BOC Form), signed on December 3, 2015, the appellant alleges that her name is XXXX XXXX, that she is a Chinese citizen and that she fears the Chinese authorities because she practises Falun Gong. [5] On September 5, 2019, four days before the RPD hearing, the appellant filed an amended BOC Form in which she alleges that her name is XXXX XXXX, that she is a Taiwanese citizen and that she fears her former spouse in Taiwan because he threatened and assaulted her. [6] In this second BOC Form, the appellant states that she was born in China, that she left China for Taiwan in 1997 and that she subsequently changed her name. [7] On XXXX XXXX, 2015, she left Taiwan for Canada, where she claimed refugee protection in December 2015. She alleges that a [translation] "human smuggler" told her to use her own Taiwanese passport to travel to Canada and to declare that she is a Chinese citizen, using her "former" name, in order to give her refugee protection claim a better chance of being allowed. [8] Following a hearing held on September 9, 2019, the RPD rejected the refugee protection claim on the basis that the appellant's allegations were not credible and, secondarily, that she had failed to rebut the presumption that her country's authorities would be able to adequately protect her. [9] The appellant submits before the Refugee Appeal Division (RAD) that the RPD erred in its assessment of her credibility for reasons that will be detailed below under Analysis, as needed. [10] For these reasons, the appellant is asking the RAD to set aside the RPD's determination and grant her refugee protection, or to refer the matter to the RPD for re-determination. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [11] The role of the RAD is to review RPD decisions applying the correctness standard of review after conducting its own analysis of the record in order to determine whether the RPD erred, as submitted by the appellant. The exception to this rule concerns the RPD's findings when assessing the credibility of or the weight to be given to the oral testimony it hears, in situations where it enjoyed a meaningful advantage. The RAD must then show a degree of deference to the RPD's findings.1 If I am of the opinion that the RPD enjoyed a meaningful advantage, I will provide reasons in my analysis. ANALYSIS State protection [12] While it presumed that the allegations of mistreatment by her former spouse were credible, the RPD was of the opinion that the appellant did not rebut the presumption that the Taiwanese state would be able to adequately protect her. [13] When asked whether she had approached the authorities after being assaulted by her former spouse, the appellant answered that the police had come to her home on two occasions, spoken to her former spouse and suggested that she obtain a protection order, which she did not do on either occasion. [14] When asked why she had not followed the police officers' suggestion, the appellant answered that the best solution for her was to leave her country. [15] The RPD then analyzed the documentary evidence on Taiwan, which indicates that Taiwan is a democracy, that its government respects human rights and that it enforces its laws to prevent and condemn sexual assaults and spousal abuse. [16] The appellant is not challenging the RPD's conclusion regarding state protection, and I fail to see where the RPD might have erred. [17] In evaluating the evidence presented, I can only come to the same conclusion as the RPD. The appellant did not take the necessary steps to obtain protection from her country's authorities; instead, she preferred to leave the country. I note that the documentary evidence in the Immigration and Refugee Board of Canada's National Documentation Package (NDP) on Taiwan, specifically the U.S. Department of State document at Tab 2.1 of the most recent NDP dated March 31, 2020,2 indicates that this type of protection is available. [18] The conclusion reached by the RPD and the RAD on this matter is in itself sufficient to dispose of the case and dismiss the appeal. [19] However, I am of the opinion that the RPD's decision regarding the appellant's credibility is also correct. Credibility [20] Having analyzed the entirety of the evidence presented, the RPD's reasons for the decision and the appellant's submissions, I am also of the opinion that the RPD did not err in its finding regarding the appellant's credibility. [21] The RPD's decision is based on a series of contradictions noted in the evidence presented. In the RPD's opinion, these contradictions, which are set out below, necessarily undermine the credibility of the appellant's allegations. A. The appellant was unable to explain why she waited four years after filing her first BOC Form to amend it only four days before the RPD hearing. [22] When asked about this, the appellant answered that what she did was [translation] "wrong." When asked about it again, she answered that she was "struggling." B. The appellant was unable to explain why she would have needed a "human smuggler" when she used her genuine Taiwanese passport to travel to Canada. [23] When questioned about this, the appellant answered that the human smuggler had told her to inform the Canadian authorities that she had used a fraudulent Hong Kong passport to travel. C. The appellant's testimony regarding the dates on which she allegedly filed complaints with the police against her former spouse was vague and contradictory. [24] When questioned about this, the appellant answered, [translation] "it was six years ago." When asked to confirm that she had filed a complaint in 2013, the appellant answered that by that time she was already separated and had not filed a complaint. She then stated that she had filed a complaint in 2011. Questioned about the date of her second complaint, the appellant answered: in 2013. Confronted with her statement that she had not filed a complaint in 2013, the appellant finally answered that she did not remember the dates. D. The appellant made no efforts to obtain documents to corroborate her allegations, such as police or medical reports. [25] When asked about this, the appellant answered that she [translation] "did not know." [26] It is my opinion that, taken together, these factors noted by the RPD are sufficient to undermine the credibility of the appellant's key allegations. [27] In her memorandum, the appellant submits that the RPD erred in its analysis by failing to consider the appellant's cultural context. [28] I cannot agree with this submission. [29] First, this explanation was not raised before the RPD. Second, one cannot simply invoke the cultural context to explain contradictions and omissions in the evidence presented: it must be established, which the appellant did not do in this case. The appellant submitted no evidence indicating that the Chinese or Taiwanese cultural context could explain her contradictions and omissions. [30] Although the panel can appreciate that women may find it difficult to discuss spousal abuse problems, the fact remains, in this case, that the appellant waited more than four years in Canada to disclose these problems and that her testimony on this subject, as noted above, was vague and contradictory. [31] The appellant also submits in her memorandum that the RPD erred in failing to consider that testimony given under oath is presumed to be true. [32] I do not agree with this submission. The presumption of truthfulness can be rebutted, and it is both my opinion and that of the RPD that this presumption was rebutted in this case, for the reasons provided above. [33] Consequently, in light of the foregoing, I conclude that the appellant has failed to establish that the RPD committed errors that warrant the RAD setting aside its determination. REMEDY [34] For these reasons, I confirm the RPD's determination, that XXXX XXXX (a.k.a. XXXX XXXX) is neither a "Convention refugee" under section 96 of the Immigration and Refugee Protection Act (IRPA) nor a "person in need of protection" within the meaning of section 97 of the IRPA. [35] The appeal is dismissed. (signed) Normand Leduc Normand Leduc November 5, 2020 Date IRB translation Original language: French 1 Canada v. Huruglica, F.C.A., No. A-470-14. 2 National Documentation Package on Taiwan, March 31, 2020, Tab 2.1: Taiwan. Country Reports on Human Rights Practices for 2019. United States. Department of State. March 11, 2020. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : TB9-31920 RAD.25.02 (January 2020) Disponible en français 3 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.25.02 (January 2020) Disponible en français