TB3-05614

RAD File No. / N° de dossier de la SAR : TB3-05614 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 30, 2013 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jerome Fanmi Olorunpomi Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX, a citizen of Jamaica, has appealed a negative determination of the Refugee Protection Division (RPD) dated July 16, 2013. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection. BACKGROUND [3] Ms. XXXX (the Appellant) alleges that she is a lesbian and that she has been harassed, humiliated, scolded, called names and threatened because of her sexual orientation. The Appellant alleges that, on XXXX XXXX, 2012, she and her partner had returned from a party and were having sexual relations in the Appellant's room. The door was not locked, and the couple was discovered by her brother. He called the rest of the family who came around and started to hurl insults. They dragged the couple, drenched them in cold water, and beat them. They were threatened with death. [4] The Appellant fears death or torture in Jamaica because of her and her partner's families and general homophobia. [5] The Appellant had applied for a visitor's visa to Canada on XXXX XXXX, 2011, and a multiple entry visa was issued on XXXX XXXX, 2011. The Appellant came to Canada on XXXX XXXX, 2012 and made her claim for protection on April 25, 2013. [6] The Appellant had a refugee determination hearing on June 21, 2013. Written reasons dismissing the claim were issued on July 16, 2013. In its decision, the RPD panel found the following: 1. The RPD found that the Appellant has not established that she was in a long-term same-sex relationship that was discovered by her family. 2. Credibility concerns with the Appellant's testimony and a lack of corroborative evidence led the RPD to find that there was insufficient credible or trustworthy evidence to find that the XXXX XXXX, 2012 incident ever occurred. These concerns included the fact that the Appellant provided inconsistent testimony regarding whether or not others in Jamaica knew that she was in a relationship with a woman. In addition, the Appellant omitted from her oral testimony the fact that she had been dragged out and drenched in cold water by her brothers. The Appellant was unable to provide an explanation for the omission. The Appellant's testimony that, after the attack, she ran to hide at the home of the person who hosted the lesbian birthday party was not consistent with the Appellant's testimony that she did not know other lesbians and that she and her partner had never previously socialized as a couple. The RPD found that this inconsistency detracted from the Appellant's credibility as a witness. Finally, the RPD found the fact that her partner ran to her own home after being threatened with death was not plausible given that the Appellant's brother knew where she lived. This did not support the Appellant's allegations of the violent reaction by her family. 3. The Appellant did not provide any corroborative documents related to the XXXX XXXX, 2012 incident and did not provide a reasonable explanation for not doing so. 4. The Appellant did not make reasonable attempts to obtain documentation attesting to the relationship between the Appellant and her partner. The Appellant's evidence about her partner and their relationship did not reflect the type of knowledge or connection that could reasonably be expected to have given the long length of the relationship. 5. The Appellant's lack of a subjective fear based on her sexual orientation before the XXXX XXXX, 2012 incident, and her changing testimony related to the fear undermined her claim of being a lesbian who was in a secret, long-term same-sex relationship. 6. The RPD found it implausible that the Appellant would not have taken the opportunity to gain some awareness of the situation of gays and lesbians in Canada on her several previous visits to Canada if she was in a long-term lesbian relationship. 7. The Appellant's credibility as a witness was undermined by her inconsistent testimony related to why she has not seen her daughter who has lived in Canada since 2008. 8. The Appellant has not presented any credible evidence that she has embraced a lesbian lifestyle since coming to Canada. The Appellant's alleged girlfriend in Canada did not provide testimony at the hearing, and the Appellant did not provide any evidence that the two had participated in any gay community events or socialized as a lesbian couple. 9. The failure to mention the fact that the Appellant was a lesbian in the Pastor's letter undermined the credibility of the Appellant's allegations. [7] The Appellant's counsel submitted pleadings on September 6, 2013. In the pleadings, the Appellant's representative alleged that the RPD made several errors including: 1. The RPD erred in law by imposing a higher standard of proof on the Appellant by requiring proof that she would be persecuted as opposed to the "reasonable chance or more than a mere possibility" test in Adjei.1 2. The RPD erred by imposing an excessive burden on the Appellant when it assigned a negative credibility inference related to the Appellant's failure to accompany her partner to Barbados. 3. The RPD erred in assigning a negative inference to the Appellant's failure to arrange any corroboration from her former partner of the XXXX XXXX, 2012 incident, or of their relationship including letters or photos. The RPD erred by assigning little weight to the Appellant's explanations. 4. The RPD erred in not taking into account the totality of the evidence. 5. The RPD erred by assigning a negative inference to the Appellant's failure to corroborate the allegations with clear and consistent testimony, and the RPD erred by not taking into account the explanations for the inconsistencies provided by the Appellant. [8] The Appellant did not provide any new evidence to be considered by the RAD. The Appellant asks the RAD to set aside and substitute the negative determination with a positive determination. In the alternative, the Appellant asks that the matter be referred back to the RPD for re-determination. STANDARD OF REVIEW [9] The RAD focused on two issues in assessing this appeal: a) Did the RPD err in law in its application of the Adjei test? b) Did the RPD err in fact in its finding that the Appellant was not a lesbian? [10] In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,2 which take into account the list of factors in Dunsmuir.3 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. These factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [11] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. [12] Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,4 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [13] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: the Immigration and Refugee Protection Act (IRPA). Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." With respect to the respective roles of the RPD and RAD in the context of IRPA, the powers of each Division are the same, although their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [14] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;5 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the proscribed relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA highlighted below. [15] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.6 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing7 and assesses the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [16] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD's ability to consider evidence. The RAD is not a tribunal of first instance but reviews decisions made by the RPD or considers the decision in light of new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.8 The RAD's authority to consider new evidence and hold hearings in the case of appeals brought by a refugee protection claimant, unless responding to evidence presented by the Minister, is limited to evidence that arose after the rejection of the claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.9 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.10 [17] Given that the RPD has held a hearing on the totality of the evidence and given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA; the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".11 [18] Newton concludes 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".12 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.13 [19] Counsel argued that the RPD erred in law in its application of the Adjei test. Both the RAD and the RPD have similar expertise with respect to IRPA, their home statue. The Adjei test relates directly to the assessment that a decision-maker must make related to the concept of persecution. Given that the interpretation of the Adjei test falls within the specialized expertise of both the RPD and the RAD under s. 162 of IRPA, the RAD finds that the correctness standard applies to the analysis of the interpretation of the Adjei test. [20] In addition, the Appellant alleges that the RPD made errors of fact in the assessment of the evidence. Based on the analysis of Newton highlighted above, the RAD afforded the RPD with deference and considered the reasonableness of the determination for these errors of fact. ANALYSIS OF THE MERITS OF THE APPEAL [21] The RAD focused on two issues in assessing this appeal: a) Did the RPD err in law in its application of the Adjei test? b) Did the RPD err in fact in its finding that the Appellant was not a lesbian? Adjei Test [22] The Appellant's counsel argued that the RPD imposed a higher standard of proof on the Appellant by requiring proof that she would be persecuted as opposed to proof of a "reasonable chance" or "more than a mere possibility of persecution", as per Adjei. The RAD noted that counsel did not identify any particular example of where in the RPD's decision-making, or in its reasons, the RPD required a higher standard of proof. Counsel's pleadings did not conform to RAD Rule 3(g)(ii) which directs Appellants to specify where errors are located in the written reasons or audio transcript. [23] The RAD reviewed the reasons and found that the RPD correctly stated the test in its treatment of the risk of persecution in paragraph 27 of its decision where it concluded: "on the basis of the totality of the evidence, finds that there is not a serious possibility that the claimant would be persecuted in Jamaica". Given the lack of evidence provided by counsel and the reasons of the RPD supporting its decision, the RAD finds that the RPD did not err in law in its application of the Adjei test. Appellant's Sexual Orientation [24] The RPD found that there was not sufficient credible or trustworthy evidence to establish that the central allegations of the Appellant's claim are true. The Appellant's claim is based on a fear of persecution because of her identity as a lesbian. Counsel argued that the RPD erred in its assessment of the evidence by not taking into account the totality of the evidence. [25] A review of the RPD's reasons reveals that the RPD based this overall finding regarding the central allegations of the claim on a review of the entirety of the evidence before it. The RPD found that: * the Appellant provided inconsistent evidence regarding the incident of XXXX XXXX, 2012, e.g., the Appellant omitted being dragged and drenched in cold water in her oral testimony; * the Appellant provided inconsistent evidence regarding whether or not she and her partner socialized with other lesbians; * the Appellant failed to provide corroborating documents related to the incident and her relationship with her partner; * the Appellant's failure to identify a fear of being a lesbian in Jamaica before the XXXX XXXX, 2012 incident, and her failure to seek refugee protection on various trips to Canada before the incident detracted from her credibility; and * the Appellant failed to provide credible evidence that she has embraced a lesbian lifestyle since coming to Canada. [26] Based on a review of the RPD's reasons, the RAD finds that the RPD based its determination regarding the Appellant's sexual orientation and the XXXX XXXX incident on its assessment of the totality of the evidence before it. The RPD grounded its overall negative credibility finding on cumulative credibility concerns with the Appellant's oral testimony, the evidence presented in support of the claim, and the lack of evidence presented in support of the claim. The Appellant's counsel alleged that the RPD's analysis was microscopic; however, no particular example of a microscopic analysis was cited. The RAD finds that the RPD's individual and cumulative findings were reasonable (with the exception of one non-determinative finding which will be addressed below) in that they were transparent, justified and fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. For the reasons outlined above, the RAD finds that the RPD did not err as alleged by counsel in not assessing the entirety of the evidence. [27] Counsel argued that the RPD erred in its finding that the Appellant failed to corroborate the allegations in her Basis of Claim (BoC) form with clear and consistent testimony. The alleged error cited p. 5 of the Appeal Record which relates to paragraphs 10 - 12 of the RPD's decision. This section of the RPD's decision highlights inconsistencies between the BoC allegations and the Appellant's oral testimony. The RPD confronted the Appellant with her contradictory statements at the hearing that no one knew that she and her partner were in a relationship, and that she did not socialize or have any contact with other lesbians in Jamaica. This did not conform to the BoC statement that she and her partner attended a lesbian birthday party. The Appellant explained that they just went to the party but did not share it (their sexuality) with anyone. The RPD found that the inconsistency undermined her credibility. The RAD finds that this finding was reasonable as it would be reasonable to expect the Appellant to provide consistent evidence related to who knew about her sexuality given that being discovered as a lesbian was the foundation of her claim. [28] The RPD highlighted another inconsistency in the Appellant's oral testimony which it found did not corroborate the BoC narrative. The Appellant omitted in her oral testimony that she was dragged and drenched with cold water. A review of the recording indicates that the RPD member asked the Appellant several times to provide all of the details of the XXXX XXXX incident. When confronted with the omission, the Appellant did not provide an explanation; rather, she repeated the allegations. The XXXX XXXX incident was significant in that it was the only incident of persecution or harm that the Appellant alleged, and it was the incident which allegedly caused her to leave Jamaica. [29] After reviewing the recording, the RAD noted that the Appellant failed to include in her BoC narrative that she had been beaten with a cutlass (machete). The RAD noted that being attacked with a deadly instrument was a significant detail, and the omission of this from her BoC narrative further strengthened the RPD's finding that the Appellant's oral testimony did not corroborate the facts included in her BoC. [30] Given the Appellant's background (education and age) and given that the inconsistencies dealt with the one and only incident of persecution the Appellant allegedly experienced in Jamaica, the RAD finds that it was reasonably open to the RPD to find that the inconsistencies related to the only allegation of persecution or harm alleged undermined the Appellant's credibility. The RPD provided transparent and justified reasons for its finding that the oral testimony did not corroborate the BoC allegations. As such, the RAD finds that the RPD did not err in finding that the Appellant did not corroborate her BoC allegations through her oral testimony. [31] Counsel argued that the RPD erred in its assessment of the issue of a lack of corroborating documents from her partner related to the incident and the relationship. Counsel indicated that the RPD failed to take into account the explanations provided by the Appellant. The RAD noted that the RPD's decision went beyond commenting on the Appellant's failure to provide documents from her partner. The RPD's decision also commented on the Appellant's failure to provide documents from any source. The Appellant explained the lack of documents on the fact that she left Jamaica in haste and that most of the "things" were at her partner's house. The RAD noted that the Appellant testified at the hearing that she contacted her mother who provided her things before she travelled to Canada. The Appellant failed to request any documentary evidence from her mother to attest to the XXXX XXXX incident or the Appellant's allegations. Given that the Appellant was able to obtain some things from her mother before she left Jamaica, and in the absence of any evidence to support an argument that the Appellant could not obtain a letter or affidavit from her mother to bolster the allegations, the RAD finds that the RPD did not err in assigning a negative inference to the Appellant's failure to obtain documents in support of her claim. [32] The Appellant indicated that she was in contact with her partner for 1.5 months after arriving in Canada. The Appellant did not request any documentation from her partner. The Appellant testified that she did not make any efforts to gather evidence of the relationship or of the XXXX XXXX incident such as contacting her former partner's family. The RAD noted that the Appellant did not indicate as part of her pleadings that she made any efforts to obtain corroborative documents from her former partner or others after the negative determination was rendered. The RAD noted that the Appellant could have made attempts to obtain corroborative documents of the lesbian birthday party and the fact that she went into hiding at the home of the person who invited the Appellant to the party. Given that both the Appellant and the host were both allegedly lesbians, it would be reasonable that the Appellant contact her to obtain documents in support of the claim. [33] The RPD found the Appellant's failure to make efforts to obtain documents to corroborate her claim since being in Canada was not reasonable. The RAD noted that the RPD took into account the Appellant's explanations and actions in light of the jurisprudence14 related to the lack of corroborating documentation when credibility concerns are raised. The RAD finds that the RPD assessed the totality of the evidence related to the XXXX XXXX, 2012 incident, analyzed the Appellant's explanations for the lack of evidence, and referred to the appropriate jurisprudence. The RAD therefore finds that the RPD did not err in its assessment of the lack of corroborating documents, especially as it relates to the credibility of the Appellant's allegations. [34] Counsel argued that the RPD imposed an excessive burden it is finding that the Appellant's failure to travel with her partner to Barbados undermined the alleged relationship. The RAD finds that the issue does not relate to imposing a burden on the Appellant; rather, it deals with whether or not the finding was reasonable or not. The RAD finds that the negative credibility finding of the RPD was based on what: "could reasonably be expected from someone allegedly in an intimate, long-term relationship". The RAD noted that the reasonable expectations are subjective and are affected by a person's culture, background and experience. There could be many reasons why the Appellant did not try to obtain a visa to go to Barbados, other than a lack of credibility of the relationship. As such, the RAD finds that the RPD's finding did not take into account the social and cultural context of the Appellant. The RAD finds that the RPD erred in assessment of the Appellant's failure to travel to Barbados. The RAD finds that this erroneous finding was not significant and did not impact on the reasonableness of the remaining credibility findings in the reasons. [35] The RAD noted that the RPD assessed the credibility of the documents provided in support of the Appellant's sexuality in Canada. The RPD noted that the letter from Rev. XXXX15 makes no mention of the Appellant's sexuality despite indicating that the Appellant receives counselling twice per week. The Appellant testified that the Reverend knew of her sexual orientation and disapproved of it. The RAD finds that it was reasonable for the RPD to assign little weight to the letter given that it omitted any reference to the Appellant's sexuality, which was the basis of the claim. [36] The RPD noted that the Appellant's girlfriend was not called as a witness. The Appellant did not provide any evidence that the couple had participated in gay community events or socialized as a lesbian couple. The RPD considered the evidence from the XXXX XXXX XXXX;16 however, the RPD noted that the Welcome letter and membership card did not indicate the Appellant's sexual orientation as a lesbian, and there is no evidence that being a member of the LGBT community is a requirement of membership. The RPD assigned no weight to this evidence in establishing the Appellant's allegations. [37] Based on the credibility concerns with the Appellant's oral testimony, the lack of corroborating documents of the relationship and XXXX XXXX incident, and the Appellant's failure to provide satisfactory explanations, the RPD found that the Appellant has not established, on a balance of probabilities, that she was in a long-term same-sex relationship, and that the relationship was discovered by her family members, or that she has a well-founded fear of persecution based on her sexual orientation should she return to Jamaica. The RAD noted that the RPD carefully considered all of the evidence before it and made findings which were reasonably available to it based on the totality of the evidence. For these reasons, the RAD finds that the RPD's determination was reasonable in that it fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. SUMMARY AND DETERMINATION [38] The RAD finds that the RPD's determination that the Appellant had not provided sufficient credible and trustworthy evidence to establish the central allegations of her claim, being her sexual orientation and the XXXX XXXX incident, was reasonable. Therefore, the Refugee Appeal Division confirms the determination of the Refugee Protection Division that the Appellant is not a Convention refugee, nor is she a person in need of protection as per Section 111(1)(a) of IRPA. [39] The RAD dismisses the Appeal. (signed) "Daniel McSweeney" Daniel McSweeney October 30, 2013 Date 1 Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989), 57 D.L.R. (4th) 153 (C.A.). 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 5 IRPA, s. 110 (1). 6 IRPA, s. 107. 7 IRPA, s. 170. 8 IRPA, s. 110(3). 9 IRPA, s. 110(4). 10 RAD Rule 57. 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 13 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 14 Syed, Naqeeb-Ur-Rehman v. M.C.I. (F.C.T.D., no IMM-1613-97), MacKay, March 13, 1998; and Quinchindo, Esperance Rocha v. M.C.I., (F.C.T.D., no IMM-3225-01), Lemieux, March 28, 2002. 15 RPD Record, Exhibit, 5, Letter from Rev. XXXX, p. 26. 16 RPD's Record, Exhibit 2, Membership Receipt. p. 31. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-05614