TB7-11439

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 : TB7-11439 TB7-11440 TB7-11441 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(A.K.A.XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX(A.K.AXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX(A.K.AXXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 19, 2018 Date de la décision Panel Cynthia Pay Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jack Davis Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] This decision is about XXXX XXXX (the Appellant) and her two minor children, Zudaysi XXXX and XXXX XXXX, who claim to be a citizens of Somalia. She is appealing a decision of the Refugee Protection Division (RPD) which denied their claims for refugee protection. The Appellant initially alleged that she fears persecution in Somalia by Al Shabaab because of her Sufi faith and minority clan membership. She also alleged that she fears that her children would become victims of forced recruitment to be child soldiers by Al Shabaab. During the second sitting of her hearing, after disclosure of documentary evidence indicating that the Appellant and two children had status in the Netherlands, the Appellant admitted that her claim was false, that she and her children had assumed false identities to make their refugee claim in Canada, and that they were in fact all Dutch citizens. The Appellant then made a new claim on the basis of physical abuse and death threats by her ex-husband in the Netherlands. [2] In its decision dated May 25, 2017, the RPD found that the Appellant did not establish her Somali nationality or this second claim of domestic violence in the Netherlands. The RPD found that she provided no supporting documentation or evidence to support her Somali identity, to corroborate her gender-based claim in the Netherlands, or to establish the existence of her ex-husband. In the alternative, the RPD found that even if the Appellant was abused by her ex-husband in the Netherlands, there is operationally effective protection available from the authorities there. It found that she did not establish the inability or unwillingness of Dutch authorities to provide state protection. [3] The Appellant has appealed this decision to the Refugee Appeal Division (RAD). She has not submitted new evidence or requested an oral hearing. She argues that the RPD erred by failing to apply Chairperson's Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution1; by dismissing her domestic violence claim and Somali nationality on the basis of a lack of corroborative evidence; and by ignoring relevant contradictory evidence regarding the adequacy of state protection for survivors of domestic violence in the Netherlands. She requests that the RAD set aside the determination of the RPD and find that she is a Convention refugee or a person in need of protection or, in the alternative, refer the matter back to the RPD. DECISION [4] After considering her arguments and the evidence, I dismiss the Appellant's appeal and confirm the determination of the RPD pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("the IRPA").2 ISSUES [5] The Appellant argues that the RPD erred as follows: a. in failing to apply Chairperson's Guidelines 4: Women Refugee Claimant's Fearing Gender-Related Persecution; b. in dismissing her domestic violence claim and Somali nationality on the basis of a lack of corroborative evidence; and c. in ignoring relevant contradictory evidence regarding the adequacy of state protection for survivors of domestic violence in the Netherlands. ANALYSIS [6] After conducting my own analysis of the record, I find that the RPD did not err, and dismiss the appeal. I turn now to explain my reasons for reaching this conclusion. a) Did the RPD err in failing to apply Chairperson's Guidelines 4: Women Refugee Claimant's Fearing Gender-Related Persecution? [7] During the Appellant's hearing, after disclosure of a letter dated April 18, 2017 from the Dutch authorities confirming that she and her two children are citizens of the Netherlands, she admitted that she had adopted a false identity, that her original allegations regarding Al Shabaab in Somalia were completely fabricated, and that she and her children were all citizens of the Netherlands. She then stated that she was claiming against the Netherlands on the basis of domestic violence by her ex-husband. The Appellant testified that her ex-husband physically abused her in the Netherlands between 2008 and 2011, and that he was threatening to kill her up until the time she left to come to Canada. She also alleged that she had reported his abuse to the police there, and that he had been arrested several times and had spent time in jail as a result. [8] The RPD made a number of findings regarding the Appellant's new claim. It did not accept her explanation for why she had adopted a false identity, that she wanted to start a new life and thought she would not be welcomed in Canada otherwise, because it was not based on any evidence. It found that if she was truly in need of protection regarding abuse from her ex-husband, she would have advanced a refugee claim on this basis at the first opportunity, rather than failing to raise this claim until confronted with evidence of her false identity and Dutch citizenship. It found that her failure to amend her Basis of Claim (BOC) earlier to indicate her claim as a victim of domestic violence undermined her credibility, especially since she was represented by a lawyer. It further found that her evidence regarding her ex-husband was inconsistent, contradictory, unclear and vague, and that she failed to provide any corroboration of the domestic violence or of her relationship with her ex-husband. [9] The Appellant argues that the RPD erred in failing to consider and apply Chairperson's Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution ("Gender Guideline"). She argues that nowhere in its reasons does the RPD indicate that it considered or applied this Guideline, but her argument ends there. She does not provide any examples of how the RPD failed to apply the principles set out in the Gender Guideline. [10] I disagree with the Appellant that the RPD failed to consider and apply the Gender Guideline. First, the RPD did cite the Gender Guideline in its decision and stated that it considered and was guided by it.3 Second, I see no reason to find that the RPD did not consider the Gender Guideline, and as previously noted, the Appellant provided no examples of how the RPD failed to do so. The RPD seriously considered the Appellant's gender-based domestic violence claim. I see no stereotyping or discriminatory assumptions in how it did so. It appropriately considered the issue of state protection for gender-based violence in the Netherlands. It asked for corroboration, but not inappropriate corroboration that would not be available to the Appellant based on her gender, culture or vulnerable situation. Further, based on my review of the recording of the hearing, I find that the RPD asked its questions regarding the Appellant's allegations of domestic violence in a neutral, non-discriminatory and sensitive manner. [11] The Appellant cited case law in support of its argument, but I find that these cases can be distinguished from her appeal. In Sy v. Canada,4 the Board erred in finding that it did not have to apply the Gender Guideline in a case involving forced marriage and female genital mutilation, and in failing to consider cross-cultural misunderstandings in its credibility findings. In Khon v. Canada5 the Board failed to apply the Gender Guideline in its finding that the claimant did not take the necessary steps to obtain protection from the authorities. Similarly, in Villareal Zempoalte v. Canada,6 Charles v. Canada,7 and Fontenelle v. Canada,8 the Board impugned the claimant's credibility based on her failure or lack of additional effort to report the abuse, demonstrating that it did not take the vulnerable situation of abused women into account, and based its reasoning on myths about the behaviour of women survivors of violence and their ability or willingness to report the abuse. This is not the case with the Appellant. She testified that she reported the abuse to the authorities in the Netherlands a number of times. Her explanation for not including these allegations in her original claim did not relate to this reason. The RPD did not make any findings on the basis of cross-cultural misunderstandings. It did acknowledge that the Gender Guideline applied and stated that it considered its principles. [12] As a result, I find that the RPD did not err in failing to consider and apply the Gender Guideline. b) Did the RPD err in dismissing the Appellant's domestic violence claim and Somali nationality on the basis of a lack of corroborative evidence? Domestic violence claim [13] The RPD found that the Appellant did not establish her claim of domestic violence in the Netherlands or that she was abused by her ex-husband. It made this determination on the basis of a number of findings. It rejected her explanation for not including these claims in her BOC or amending it at the earliest opportunity, and made a negative inference regarding her overall credibility as a result. It further found that her evidence regarding who her current husband was and whether she had a previous husband to be inconsistent, contradictory, unclear and vague, further undermining the credibility of her account. These findings were not challenged by the Appellant. [14] The RPD further found that the Appellant failed to corroborate her claim of domestic violence in the Netherlands. She had no documentation to show her marriage to her alleged abusive ex-husband, such as a letter from the mosque where they were married. She provided no photographs of her ex-husband, or copies of her children's birth certificates listing him as their biological father. She claimed to have been in contact with her ex-husband the night before her hearing via Facebook, but did not provide any copy of these communications. The Appellant testified that she had reported the abuse to the police in the Netherlands and that her ex-husband had been arrested and detained more than once, but provided no police records or other corroboration of this allegation. [15] The Appellant argues that the RPD erred by focusing on the lack of corroborative documentary evidence, as the sworn testimony of a refugee claimant should be taken as truthful unless there are reasons suggesting otherwise; and that the lack of corroborative evidence in and of itself cannot sustain a negative credibility determination. [16] I disagree with the Appellant's submission, and find that the RPD did not err in considering the lack of corroboration. In this case, the Appellant admitted that her BOC and initial claim were fabricated, and did not amend her BOC to reflect her new claim regarding domestic violence, which led to a negative credibility finding by the RPD. In addition, as outlined above, the RPD found that the Appellant's evidence regarding her husband was lacking in credibility. The Appellant did not challenge these findings. [17] I find that it was appropriate for the RPD to consider the lack of corroboration given that it had credibility concerns which were unchallenged by the Appellant. I agree with the Appellant's submission that negative inferences cannot be drawn solely from the failure to produce corroborating evidence, but further note that the failure to provide corroboration can be considered when there are valid reasons to doubt the claimant's credibility,9 or where the explanation for failing to provide this evidence when it would reasonably be expected is not accepted.10 Here there are credibility concerns that make it appropriate to consider a lack of corroboration of the Appellant's allegations. Further, corroborative evidence such as some corroboration of the ex-husband's existence and their marriage would reasonably be expected. I find that the RPD did not err in considering the lack of corroboration of the Appellant's claim, and agree with the RPD that this lack of corroboration diminishes the Appellant's credibility. [18] It should be noted that the Appellant advised the RAD in its Memorandum and an affidavit submitted in July 2017 that she planned to provide new corroborative evidence in support of her claim against the Netherlands, but no further evidence was received by the Board. Somali Nationality [19] The RPD found that the Appellant had not established her Somali citizenship because she failed to produce any persuasive evidence or documentation in support of this claim. The Appellant argues that the RAD should find the Appellant and her children to be citizens of Somalia, because the RPD made this finding on the basis of a lack of corroboration, and that this is an insufficient basis to make a negative determination. [20] I disagree with the Appellant. As noted above, the RPD made a number of credibility findings against the Appellant, which made it appropriate for it to consider a lack of corroboration. Further, as required under section 106 of the IRPA, the RPD must take into account whether a claimant has acceptable documentation establishing their identity. Section 11 of the Refugee Protection Division Rules requires that a claimant "must provide acceptable documents establishing identity [emphasis added]" or otherwise must explain why they were not provided and what steps were taken to provide them. The RPD found that the Appellant provided no persuasive evidence in support of her claim of Somali nationality, such as identity documents, letters from family or friends in support of her nationality, identity witnesses or statements, or letters of support from Somali community organizations. I find that the RPD did not err in its determination that the Appellant had not established her Somali identity, and I agree with this finding. c) Did the RPD err in ignoring relevant contradictory evidence regarding the adequacy of state protection for survivors of domestic violence in the Netherlands? [21] The RPD determined that the Appellant was generally not credible, and that she had not established her claim of domestic violence in the Netherlands. In the alternative, it found based on objective country condition information in the National Documentation Package (NDP) that there was a presumption of state protection, as the Netherlands is a democratic country that upholds fundamental human rights and has a robust security apparatus that extends meaningful, adequate and effective protection to its citizens. It found that the Appellant did not meet her burden of proving that the Dutch state was unable or unwilling to provide operationally effective protection to her. [22] The Appellant argues that the RPD erred in its finding that there was adequate state protection in the Netherlands for victims of domestic violence, as it did not make reference to documentary evidence that outlined shortcomings in state protection, such as a lack of progress in the areas of prevention and avoiding repeat offences, underreporting of violence against women, cuts to interpretation services for health care professionals, and the existence of discrimination against immigrants and Muslims in the Netherlands. The Appellant submits that the fact that the RPD did not make reference to this documentary evidence is an error, as it ignored relevant evidence that directly contradicts the conclusion reached. [23] I disagree with the Appellant. I do not agree that this documentary evidence directly contradicts the conclusions reached by the RPD. The RPD held that "operationally effective protection would be reasonably forthcoming to the claimant [emphasis added]11" but acknowledged that domestic violence is a human rights problem in the Netherlands, and that it "is not able to offer perfect protection to female victims of domestic violence, and there have been some shortcomings and some instances of local failures on the part of law enforcement to extend protection to victims of domestic violence...."12 [24] In summary, the RPD found that there were shortcomings in the Netherlands response to domestic violence, but that state protection was adequate. I find that the documentary evidence cited by the Appellant does not directly contradict this finding, but is actually consistent with it. The RPD demonstrated that it had considered this evidence by acknowledging the shortcomings of state protection for domestic violence survivors in the Netherlands. Further, I do not agree that the RPD errs if it does not specifically make reference to every piece of documentary evidence before it, especially regarding country condition evidence, which can be extremely voluminous. CONCLUSION [25] On the basis of the findings outlined above, I dismiss the appeal. I find that the Appellant did not establish that her new evidence meets the criteria for acceptance by the RAD. The RPD did not err in its finding that the Appellant did not establish her identity. As a result, I confirm the determination of the RPD pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act. The appeal is dismissed. (signed) "Cynthia Pay" Cynthia Pay February 19, 2018 Date 1 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993; Update: November 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant section 159(1)(h) of the Immigration and Refugee Protection Act. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 2. 3 Exhibit RPD-1, RPD's Record, RPD reasons, at p. 4, para 5. 4 Sy v. Canada (Minister of Citizenship and Immigration), 2005 FC 379, at paras 13-16. 5 Khon v. Canada (Minister of Citizenship and Immigration), 2004 FC 143, at para 14. 6 Villarreal Zempoalte v. Canada (Citizenship and Immigration), 2007 FC 263, at paras 13-20. 7 Charles v. Canada (Citizenship and Immigration), 2007 FC 103 at paras 4-6. 8 Fontenelle v. Canada (Citizenship and Immigration), 2011 FC 1155, at paras 58-61. 9 Amarapala v. Canada (Minister of Citizenship and Immigration), 2004 FC 12. 10 Rojas, Yoany Alexander v. M.C.I. (F.C., no. IMM-6992-10), Rennie, July 8, 2011, 2011 FC 849, at para 6. 11 Exhibit RPD-1, RPD reasons, at p. 18, para 45. 12 Ibid., at pp. 19-20, para 49. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-11439 TB7-11440 TB7-11441