TB4-04577

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 File No. / N° de dossier de la SAR : TB4-04577 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 September 9, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lani Gozlan 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 ministre Reasons and Decision [1] XXXX XXXX (the Appellant), a citizen of Bangladesh, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either substitute its own positive determination or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she suffered abuse for many years at the hands of her violent husband, a powerful businessman with political connections. After a violent incident in XXXX of 2012, she fled to her sister's house, and then travelled to Canada to visit another sister who was expecting a child. She arrived in XXXX of 2013 and filed a refugee claim in XXXX of 2013. [4] The Appellant's application for refugee protection was heard on June 24 and July 19 of 2013. By a decision of May 5, 2014, the RPD rejected her claim. The panel cited numerous contradictions and inconsistencies in the Appellant's evidence and found that she was lacking in credibility. [5] The Appellant submits new evidence on appeal, and argues that this establishes her profile as a victim of domestic abuse. She also submits that the RPD erred in its consideration of the evidence and in its credibility findings. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: (a) Documents relating to her husband's financial status;1 (b) Affidavits corroborating that the Appellant was abused by her husband;2 (c) A handwritten medical record from Dr. XXXX XXXX XXXX XXXX, dated in 2012;3 and (d) Birth certificates relating to the Appellant's children.4 [8] The Appellant also provided a copy of an envelope in which she alleges the documents arrived, which bears a date of XXXX XXXX, 2014. [9] With her Appeal Record, the Appellant provided an affidavit. While most of that document recounts the basis for her claim and seeks to provide explanations for difficulties in her testimony, it also speaks to the new documents she has provided on appeal. She declared that: I was unaware prior to my hearing of the requirement to obtain supporting documents for my claim. At the time of the hearing I was made aware that I should have brought documents to corroborate my story. However, it took time for me to be able to collect these documents from Bangladesh as I am not there as I had to rely on the help of my children and sister who reside in that country. It therefore took several months for the documents to arrive in Canada. They have only recently arrived and include affidavits from my family members and letters of support illustrating the violence I experienced at the hands of my husband, proof of my husband's financial wealth.5 [10] In her Memorandum, the Appellant submits that her new documents are credible, that they contradict credibility findings made by the RPD, and corroborate her testimony in front of the RPD. They are material, and she was unable to obtain these documents earlier as she is estranged from her husband.6 [11] The documents in (a) are dated in 2010, 2011, 2012, and XXXX of 2014, with an affidavit dated XXXX XXXX, 2014 but referring to facts existing well before that time.7 They did not arise after the rejection of the claim. The Appellant argues that this evidence was not reasonably available at the time of her refugee claim, as they only arrived recently. [12] The Refugee Appeal Division Rules require the Appellant to make full and detailed submissions about how any new evidence submitted meets the requirements of Section 110(4) of IRPA. According to the Appellant's affidavit, she became aware at her hearing-which took place in June and July of 2013-of the need to provide corroborating documents. The RPD did not reject her claim until almost one year later-in early May of 2014. The RAD accepts that the Appellant may indeed have had difficulty in obtaining her documents, given her circumstances. However, she has failed to explain why these documents were not obtained in the many months following the RPD hearing, but became available about two weeks after her claim was rejected. [13] Section 110(4) provides that the Appellant may present evidence that arose after the rejection of her claim. It is for the Appellant to make full and detailed submissions on why this evidence was not available at the time of the rejection of her claim. As the Appellant became aware of the need for these documents in the summer of 2013, she is obligated to explain why this evidence was not available up to May 5, 2014, but became available almost immediately after the rejection of her claim. [14] The Appellant has not established that the documents in (a) meet the requirements of Section 110(4). The RAD finds that these documents are not new evidence and are not admissible in this appeal. [15] Even if these documents met the requirements of Section 110(4), the RAD would not admit them as new evidence. In Raza,8 the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA Section 110(4), it is based on the very similar wording of Section 113(a). The Court held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.9 [16] The documents in (a) are not material, in the sense that the refugee claim would probably have succeeded had the RPD seen this evidence. The documents only establish that the Appellant's husband held certain investments and properties. This in itself could not have led to the positive determination of a claim based on domestic abuse, and, as such, the documents are not admissible. [17] The affidavits in (b) are each dated May 21, 2014, but their contents relate to the time period before the Appellant's refugee claim. Again, the Appellant has not explained why these documents were not available to her at an earlier time. They come from sources such as her sister, her son, and her daughter. As the Appellant was aware in the summer of 2013 that corroborating documents were required, why were these affidavits only sworn two weeks after her refugee claim was rejected, and almost a year after she became aware that they were necessary? [18] The content of the documents in (b) did not arise after the rejection of the claim. Given that these documents speak to the key issue of the claim, the Appellant could reasonably have been expected to present these to the RPD. She has failed to establish that these documents were not reasonably available. The RAD finds that the documents in (b) do not meet the test in Section 110(4) and are therefore inadmissible in this appeal. [19] Document (c) is a medical record, dated in XXXX or XXXX of 2012 and attested on XXXX XXXX, 2014. This document did not arise after the rejection of the Appellant's refugee claim. As it purports to corroborate injuries she suffered as a result of domestic abuse, she could reasonably have been expected to present the document to the RPD. In fact, she became aware at the RPD hearing in the summer of 2013 that such a document would help corroborate her claim. Despite this, she has not explained to the RAD why this particular document was not available prior to the rejection of her claim in early May of 2014, but became available almost immediately thereafter. This document is not new evidence within the meaning of Section 110(4), and it is not admissible in this appeal. [20] The documents in (d) are birth certificates for the Appellant's children. In her refugee hearing, she had considerable difficulty in providing accurate testimony about the children's birth order and dates. She was therefore aware already at that time that these documents were important to her claim. Despite this, she did not provide these to the RAD in the many months between her hearing and the rejection of her claim. However, when her claim was rejected, she was able to obtain the documents, have them attested, and have them sent to Canada, all within a very short period of time. These documents did not arise after the rejection of the claim, and the Appellant could reasonably have been expected to provide them to the RPD. She has not established that they were not reasonably available in the months between her hearing and the rejection of her claim. The RAD finds that these documents are not admissible as new evidence. [21] Section 110(4) allows a refugee claimant to present evidence that is truly new-that is, it arose after the claim was rejected, or was not available to be presented to the RPD, or could not reasonably have been expected in the refugee proceeding. In the RAD's view, Section 110(4) does permit a refugee claimant to await the RPD's decision and then provide evidence in an attempt to rebut that decision, if such evidence could reasonably have been expected prior to the rejection of the claim. It is important to note that Section 110(4) does not refer to evidence arising after the refugee hearing, but after the rejection of the claim. In this case, the Appellant had almost a year between her hearings and the rejection of her claim, and has simply failed to provide an explanation of why these documents became available almost immediately after her claim was rejected, but not in the lengthy time period prior. [22] For these reasons, the Appellant's proposed new evidence is not admitted in this appeal. ROLE OF THE RAD What is the role of the RAD in considering an appeal against a decision of the RPD? [23] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [24] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [25] In Iyamuremye, the Court found itself : ...entirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law and by applying a reasonableness standard to those involving questions of mixed fact and law....10 [26] The Court went on to hold that the RAD must review the evidence that was before the RPD and conduct its own, independent assessment of that evidence to determine whether the lower tribunal had properly considered the evidence and "reasonably justified its conclusion".11 [27] In the subsequent case of Alvarez, the Court clarified the role of the RAD in relation to the RPD.12 It held that the RAD is not to undertake a process of judicial review, but rather must perform its own assessment of the facts in order to determine whether the RPD made an error of law or mis-assessed the facts to the point of making a "palpable and overriding error."13 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a standard of reasonableness-but then required the use of a higher standard. [28] After the Court's decisions in Alvarez and Eng, the RAD gave the Appellant an opportunity to provide additional submissions on the standard of review. Based on that jurisprudence, the Appellant submitted that the appropriate standard of review to be applied by the RAD to questions of mixed fact and law is one of "palpable and overriding error". [29] In Malhotra,14 issued after Alvarez and Eng, the Federal Court considered another decision of the RAD, in which the tribunal applied a standard of reasonableness to the RPD's decision under appeal. Although the Court did not specifically address the RAD's selection of the standard of review, it observed that the RAD had applied a standard of reasonableness and concluded that the RAD's decision did not contain any error which justified the intervention of the Court. [30] Most recently, the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.15 It found that the RAD erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.16 [31] While the Court had endorsed the standard of reasonableness in Iyamuremye, and accepted it in Malhotra, it found in Huruglica that the application of such standard was in error. In contrast to Alvarez and Eng, the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". As instructed by the Court, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. The RPD's Findings [32] The Appellant argues that the RPD made various errors in rejecting her claim for protection. [33] Children's birth dates: The Appellant had difficulty when asked by the RPD about her children's birth dates. She misstated birth years and even the order in which her son and daughter were born. She could not explain her inconsistencies, and the RPD found that this damaged her credibility. [34] The Appellant submits on appeal that she was nervous at her refugee hearing, and she argues that the panel was overly microscopic here. [35] On this matter, the RPD had an advantage over the RAD, having seen and heard the Appellant's testimony, and the RAD recognizes and respects that advantage. However, even if the RAD would accord no deference to the RPD's credibility finding here, it would reach the same conclusion, based on the evidence. The RAD recognizes that it is common for a claimant to be nervous and anxious at the refugee hearing, but this does not explain significant errors in providing her children's birth dates, or in recalling which child was born first. Further, the Appellant had ample time between her hearing and the rejection of her claim to provide the RPD with evidence corroborating her children's birth dates and order, but she did not. [36] Timing of abuse: The Appellant's Basis of Claim (BoC) form alleged that her husband started to mistreat her in XXXX of 2010. However, she gave oral testimony that she began to suffer abuse immediately after she was married, more than twenty years ago, and that the abuse became very bad in XXXX of 2010. Noting that the Appellant had confirmed her form to be complete, true, and correct, the RPD found that she was embellishing when she testified that the abuse had happened since early in the marriage. [37] The Appellant argues on appeal that it is not unusual in her country for men to be verbally abusive toward their wives, and only after 2010 did the mistreatment escalate to the point that she feared for her life. She submits that the RPD's examination of her evidence here was microscopic. [38] In making a credibility determination based on the Appellant's viva voce evidence, the RPD had an advantage that the RAD does not have, and the RAD must therefore recognize and respect that advantage. The RAD has reviewed the Appellant's BoC form. There is simply nothing in the information she provided in that form, including her written statement, which indicates that she suffered any abuse or mistreatment prior to her husband losing a large amount of money on the stock market in XXXX of 2010. The form directs the Appellant to "INCLUDE EVERYTHING THAT IS IMPORTANT TO YOUR CLAIM."17 The Appellant signed a declaration that the information provided via the form was complete, true, and correct, and again confirmed that at the outset of the refugee hearing. The omission of twenty years of mistreatment from the BoC is hardly minor, and it was not microscopic for the RPD to make a negative finding in this respect. Even if the RAD would show no deference to the finding of the RPD here, it would reach the same conclusion as the RPD did. [39] Interventions by family members: The RPD noted that the BoC alleges that family members were aware of the abuse but did nothing to resolve it. The panel found this evidence inconsistent with the Appellant's oral testimony, which explained that her mother-in-law warned the abusive husband to stop abusing the Appellant, that her sister and son intervened, and that on one occasion, her son took a knife away from his father. When asked why these interventions were not included in her BoC, the Appellant told the panel that she expected to testify about these things, and she therefore did not write them down. As the Appellant had confirmed that her BoC was complete, true, and correct, the RPD drew "an adverse inference" as to her credibility. [40] The Appellant submits on appeal that she was unaware of the requirement to provide a more detailed account of her persecution. She also argues that her family did not truly assist her in resolving the situation, but only intervened in a superficial way, and that the RPD erred in making a negative finding here. [41] The RAD cannot accept this argument. Not only did the Appellant write in her BoC that "our all family member, including my mother-in-law, were fully aware of the situation but they could not do anything to resolve the matter,"18 but she omitted important information, such as that her son physically took a knife from her angry husband. The RPD was not wrong in fact to make a negative finding in respect of this evidence. Even if the RAD accorded this finding no deference, it would, after reviewing the evidence, have reached its own conclusion that the inconsistency here was damaging to the Appellant's credibility. [42] Husband's failure to kill the Appellant: The RPD considered the Appellant's evidence that her husband threatened to kill her after she fled to her sister's home. The panel found that the Appellant's evidence shifted: her BoC claimed that her husband had called her family members to threaten her, but she initially denied this in the hearing. She then testified that he did threaten her to her family members, but only said that he would kill her if she returned home. [43] The RPD also found it implausible that the agent of persecution only called her and did not come to kill her at her sister's home, even though he knew its location. [44] The Appellant argues on appeal that this implausibility finding is an error. The RAD agrees. The Federal Court has cautioned that the RPD "...must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu." Plausibility findings should only be made in the clearest of cases.19 In fact, the RAD notes that agents of persecution also come from diverse cultures. On what basis could the RPD expect that the Appellant's husband should promptly seek her out at her sister's home in order to carry out his threat? It is difficult to see how any Canadian adjudicator can enter the mind of an allegedly violent and irrational abusive spouse and determine how he can be expected to conduct himself in specific circumstances. The RAD owes no deference to the RPD's conclusion here, as the lower tribunal has no advantage over the appellate tribunal in making findings of implausibility, and it finds that conclusion to be wrong. [45] The RAD must defer, however, to the RPD's finding with respect to the Appellant's shifting evidence about how her husband threatened her after she fled. Even if it owed no deference here, the RAD would, having reviewed the evidence, reach the same conclusion as did the RPD, and find that her inconsistent evidence was damaging to her credibility. [46] Departure from Bangladesh: The Appellant left her husband after a violent incident in late XXXX of 2012, and she did not see him again until she left for Canada more than XXXX XXXX later. She applied for a Canadian visa on XXXX XXXX, 2012, indicating that the purpose of her visit was to assist her sister in Canada, who was expecting a baby in early XXXX. The RPD noted that this was inconsistent with the Appellant's testimony: she claimed that she decided to come to Canada after she fled from her husband, and after her sister informed the family that she was XXXX XXXX pregnant. If the baby was indeed due in XXXX of 2013, the XXXX XXXX XXXX mark would have been well before the Appellant even left her husband. The RPD also found it telling that the Appellant did not contact her sister in Canada after fleeing from her husband, seeking safety, but only asked for an invitation to Canada after learning that her sister was pregnant. The RPD concluded that the Appellant was motivated by a desire to visit her sister, not to flee her husband, noting that the Appellant did not leave Bangladesh until XXXX XXXX after the visa was issued. [47] The Appellant submits on appeal that she provided the RPD with a reasonable explanation regarding this matter: she did not know she could leave the country, was suffering emotional upheaval, and she took the opportunity to leave when it presented itself. [48] The RPD had the advantage here of questioning the Appellant and hearing her testimony, and the RAD must recognize and respect that advantage. In the RAD's view, the Appellant was not able to reasonably explain her inconsistent evidence with respect to the timing of her sister's pregnancy, or her delay in leaving after obtaining the visa. The RPD was not wrong to make a negative credibility finding here. Even if the RAD would not defer to the RPD's finding here, it would reach the same conclusion on the basis of the evidence in the record. [49] The RPD also noted that the Appellant provided her home address in the visa application, despite the fact that she had left the home, where her abusive husband remained. As she was trying to escape from her husband, the RPD reasoned, it was not plausible that she would use an address that would cause visa-related correspondence to come to his attention and fall into his hands. The RPD considered the Appellant's first explanation-that she did not want her sister to know she was applying-and then her subsequent explanation, that she did not know that she would be gone from her house at that time. When the panel reminded her that she applied for the visa in XXXX, already having been in hiding for some weeks, she then testified that she gave the visa office her son's telephone number and e-mail. When asked why she would chance the visa office sending mail to her home, she then testified that she still lived there. When reminded that she had not lived there since late XXXX XXXX she then explained that it was not like she was divorced from her husband. [50] The RPD considered that the Appellant waited more than XXXX XXXX before seeking a visa, only applied for a visa after learning her sister in Canada was pregnant, provided shifting explanations for the use of her home address in the visa application, and then did not depart until XXXX XXXX after receiving the visa. It found that these inconsistencies undermined her credibility. [51] The Appellant submits that the RPD erred here, as she did not have a permanent address at the time of the visa application, provided her son's contact information, and arranged for her son to intercept the mail. [52] The RPD's finding was based on its questioning and observation of the Appellant, and the RAD must therefore recognize and respect the advantage enjoyed by the lower tribunal here. The RAD has reviewed the evidence in the record, and it finds that the RPD did not err. The Appellant's testimony was contradictory and shifting, and she did not provide a reasonable explanation for this. Even if the RAD would not defer to the RPD's finding here, however, it would reach the same conclusion based on its own assessment of the evidence. DISPOSITION [53] The RPD was wrong to make a finding of implausibility with respect to the actions of the agent of persecution. However, it is for the RAD to make its own independent assessment of the Appellant's refugee claim. Here, that claim was marred by significant inconsistencies and contradictions. Having reviewed the evidence, the RAD concludes that the Appellant has not established her refugee claim with credible or trustworthy evidence. That claim must fail, as must this appeal. CONCLUSION [54] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld September 9, 2014 Date 1 Appellant's Record, pp. 52-65. 2 Appellant's Record, pp. 66-84. 3 Appellant's Record, p. 85. 4 Appellant's Record, p. 86. 5 Appellant's Record, p. 21, paragraph 5. 6 Appellant's Record, p. 96-97, Memorandum, paragraph 8. 7 In Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, [2008] 1 F.C.R., para. 16, the Federal Court of Appeal endorsed the principle that a document's "newness" cannot be tested solely by its date of creation; what is important is the event or circumstance sought to be proved by the evidence. 8 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, [2008] 1 F.C.R. 9 Ibid., Raza, paras. 13-15. 10 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 2 11 Iyamuremye, para. 3. 12 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 13 Alvarez, para. 33. 14 Malhotra v. M.C.I., 2014 FC 768. 15 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 16 Huruglica, para. 45. 17 Appellant's Record, p. 26, Basis of Claim, Instructions to Question 2, emphasis in original. 18 Appellant's Record, p. 30, Basis of Claim, Statement, Line 9. 19 Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001; 2001 FCT 776, 208 FTR 267, para. 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04577