TB6-13168

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 : TB6-13168 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 December 8, 2016 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Anabella Kananiye 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 FOR DECISION [1] XXXX XXXX (the Appellant), appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal and does not request an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to grant his appeal. DETERMINATION [2] Pursuant to subsection 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, upon return to Jamaica, he will be harmed or killed by gang members because he did nothing to stop the murder of one of their members and because he has knowledge of their activities that would implicate them in the murder of another individual. [4] The claim for refugee protection was heard on July 23, 2015, October 16, 2015 and April 14, 2016. By a decision dated June 6, 2016, the RPD rejected the claim finding that the Appellant was not credible. The RPD did not believe several of the points forming the basis of the Appellant's refugee protection claim. [5] On appeal to the RAD, the Appellant submits that the RPD erred by failing to consider the evidence he submitted. He further submits that the RPD erred by drawing negative credibility findings due to amendments he made to his Basis of Claim Form. ANALYSIS Role of the RAD [6] As noted by the Appellant, the Federal Court of Appeal, in Huruglica, indicated that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law; and this translates into an application of the correctness standard of review. 1 The Court held that, with respect to findings of fact (and mixed fact and law), which raises no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. It went on to indicate that after carefully considering the RPD decision, the RAD is to carry out its own analysis of the record to determine whether the RPD erred. The Court also stated that having done the above, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination.2 [7] Considering the recent jurisprudence, the RAD will conduct its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Where no issue of credibility of oral evidence was raised, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of oral evidence was raised, the RAD will defer to certain findings of the RPD where the RPD enjoyed an advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with the RAD's own analysis of the record as a whole. In addition, the standard of correctness will be used for any error of law including a breach of natural justice or procedural fairness found in the RPD decision on appeal to the RAD. MERITS OF THE APPEAL Credibility Inconsistency in the evidence regarding the date the Appellant's friend was killed [8] The RPD noted that the Appellant, at his hearing and in the second amendment to his Basis of Claim Form (BoC) narrative indicated that his friend, XXXX, was killed on XXXX XXXX, 2014; however, in his original BoC narrative and in the first amendment to his BoC narrative, the Appellant had indicated that XXXX was killed on XXXX XXXX, 2014 or XXXX XXXX, 2014. The RPD was of the opinion that the changes made in the second amendment to the BoC were an attempt by the Appellant to adapt his account to objective evidence, and this undermined his credibility. [9] The Appellant submits that the error made about the day his friend was murdered was explained and supported by a psychological report which indicated that he suffered from loss of memory from time to time. [10] In the RAD's view, the Appellant's argument fails for the following reasons. The Appellant provided two psychological reports to the RPD. The psychologist, in her first report, indicated that the Appellant "may have difficulty expressing himself clearly, remembering dates, etc." in a hearing because he had only primary schooling and was under great stress.3 In her second report, the psychologist indicated that the Appellant's psychological condition and other reasons "explain why in a hearing he may have difficulty expressing himself clearly, remembering dates, etc." 4 There is no mention in the psychological reports that the Appellant suffered from loss of memory from time to time, as the Appellant alleges. The psychological report does not explain what to expect from the Appellant's evidence that was adduced outside of the hearing. Inconsistencies in the Appellant's evidence regarding dates highly significant to the Appellant's allegations are not explained by the psychological report. [11] The date the Appellant's friend, XXXX, was killed is highly significant to the Appellant's story because it is the starting date for a chain of events that allegedly caused the Appellant to fear for his life in Jamaica. Even if the Appellant did not remember the exact date his friend was killed, when he prepared his original BoC, it would be reasonable to expect him to remember the correct month, especially since he left Jamaica shortly afterwards (in XXXX 2014). One would expect a refugee claimant to remember if he experienced a kidnapping and hid for two months or three months. Also, if the Appellant made an error in his original BoC, it would be reasonable to expect him to have made the correction in the first amendment to his BoC. The RAD finds that the inconsistency noted above, without a reasonable explanation, seriously undermines the Appellant's credibility. Inconsistent spelling of names [12] It was noted by the RPD that the names of certain individuals in the Appellant's story changed between the original BoC narrative, the first amended BoC narrative, and the second amended BoC narrative. It noted that the spelling of certain names was changed after news articles were disclosed. The RPD was of the opinion that the Appellant was trying to adapt his story to objective documentary evidence, and found that it raised significant doubts as to the Appellant's good faith. [13] The Appellant submits that the RPD failed to consider that XXXX XXXX, in her declaration, confirmed that XXXX was also called XXXX and XXXX. He argues that the RPD's failure to mention evidence that clearly supported his explanation is an indication that the RPD did not consider the evidence. [14] In the RAD's opinion, the RPD was not wrong to find that the inconsistent spelling of names, and the use of different names for the same person, in the various versions of the Appellant's story were a credibility concern. The RAD accepts that individuals are often known by names other than their official birth names. However, when refugee claimants are naming an individual in their narrative, even if the individual is known by other names, it would be reasonable to expect the name of the individual to be consistent in the various versions of their narrative. The fact that the Appellant was inconsistent in the spelling of certain names and used different names for the same person in the three versions of his BoC narrative undermines the credibility of his story. Omission of Appellant's abduction from Basis of Claim Form [15] The RPD noted that the Appellant, in the second amendment to his BoC narrative, indicated that he had been kidnapped in Jamaica by members of the XXXX XXXX XXXX gang; however, there is no mention of this in his original BoC narrative or his first amended BoC narrative. The RPD believed that the third version of the Appellant's BoC was not only intended to adapt the Appellant's account to the objective evidence, but was also designed to embellish his story. The RPD did not believe that the Appellant was kidnapped on XXXX XXXX, 2014, and found that the Appellant's credibility was undermined by the above-noted omission and embellishment. [16] The Appellant notes that the declaration of XXXX XXXX confirmed that he was tortured by members of the XXXX XXXX XXXX gang. He submits that it was unreasonable for the RPD to draw negative credibility findings simply because he had not included the incident in his original BoC, when such amendments are allowed by the RPD rules. The Appellant maintains that he did not disclose all the details of his story in his original BoC and first amended BoC because he did not know that it was necessary. He alleges that his first lawyer did not have the time to inquire about his case, and he provided further details about his story when he found out it was necessary. He maintains that he always had the intention to provide all the required information but could not have guessed what was needed from him or that he was supposed to provide all the details, if not clearly explained by a lawyer. The Appellant submits that the RPD failed to consider his explanation. [17] In the RAD's view, the RPD was not wrong to find that the omission of the Appellant's abduction in the Appellant's original and first amended BoC narrative, undermined the Appellant's credibility. The Appellant's alleged abduction on XXXX XXXX, 2014 is a significant element of the Appellant's story, particularly because he alleges that it stemmed from his knowledge of two murders and led to his going into hiding and fearing for his life. It is reasonable to expect the Appellant to have not omitted this incident in his original and first amended BoC narrative. [18] Even if the Appellant did not have a lawyer to tell him what was important to include in his original BoC narrative and even if his first lawyer did not ask him questions about his case, the Appellant ought to have known that his abduction was important and central to his claim for refugee protection and should be included in his BoC. Instructions for completing the BoC are clear in asking persons claiming refugee protection in Canada to include everything that is important for their claim and to include dates, names and places wherever possible. Not only did the Appellant fail to indicate in his original and first amended BoC narrative that he had been abducted and harmed by gang members in Jamaica, he failed to provide that information in his original and first amended BoC in the section that asks for details of being harmed, mistreated or threatened by any person or group (section 2(a)). One does not require legal advice to determine that an abduction and near fatal beating by gang members is important information for a protection claim alleging fear of that exact harm. [19] The RAD finds that the omission of the abduction incident from the Appellant's original and first amended BoC, without a reasonable explanation, further undermines the Appellant's credibility, including the credibility of the alleged abduction. Omission from two versions of the Basis of Claim Form narrative regarding the Appellant witnessing a murder [20] It was noted by the RPD that the Appellant, at his hearing and in the second amendment to his BoC, indicated that he witnessed the murder of an individual named XXXX; however, there is no mention of this in the Appellant's original BoC or in the first amendment to his BoC. The RPD was of the opinion that the fact that the information about witnessing XXXX murder is missing from the Appellant's original BoC and in the first amendment to the Appellant's BoC, it reinforced its conclusion that the second amendment to the BoC was simply designed to enhance the Appellant's account. [21] The murder of an individual named XXXX is allegedly the incident that precipitated all subsequent events that led to the targeting of the Appellant by gang members. It is another significant event in the Appellant's story. It would be reasonable to expect the Appellant to not omit his allegation that he had witnessed the murder of XXXX in his original BoC and in the first amendments to his BoC. The omission further undermines the Appellant's credibility, including the credibility of the allegation. Other omissions from the Appellant's original Basis of Claim Form [22] The RPD noted the following changes in the second amendment to the Appellant's BoC that were not part of his original BoC: * The Appellant's brother supposedly called the Appellant to say that gang members had threatened him to find out where he was; * The Appellant's mother and brother may have died due to the fear instilled by a visit or visits from members of the XXXX XXXX XXXX gang; and * The Appellant allegedly received treatment for his injuries from his friend's sister, XXXX XXXX, after his kidnapping. [23] The RPD was of the opinion that the changes were simply an attempt by the Appellant to improve his story, and that those elements should also have been included in his original account. [24] The allegation that gang members were looking for the Appellant and had threatened his brother; the allegation that the Appellant's mother and brother may have died as a result of fear associated with the gang's pursuit of the Appellant; and the allegation that the Appellant received treatment for his injuries after his abduction are yet more material allegations in the Appellant's story that the Appellant would reasonably be expected to include in his original BoC and in the first amendments to his BoC. The omission of these allegations in his original BoC and in the first amendment to his BoC further undermine the Appellant's credibility, including the credibility of the allegations. Inconsistency in the evidence regarding the Appellant's whereabouts while in hiding [25] Another credibility issue noted by the RPD concerns the measures the Appellant took to protect himself after his friend, XXXX, was killed. The RPD noted the Appellant's statement that he did not go back to XXXX XXXX after he was kidnapped, that he stayed on the street, and that he temporarily stayed with a friend on XXXX XXXX; however, according to his Schedule A-Background/Declaration, the Appellant resided in XXXX XXXX until he left Jamaica in XXXX 2014. The RPD drew a negative inference concerning the Appellant's credibility due to the contradiction, and did not believe that the Appellant did not return to XXXX XXXX after XXXX 2014. [26] The Appellant provided inconsistent evidence regarding his whereabouts after his alleged abduction. He indicated in the second amendment to his BoC that after the abduction, he never stayed in the same place twice and became a wanderer. He indicated at his hearing that he did not go back to XXXX XXXX after he was abducted. However, according to his Schedule A-Background/Declaration the Appellant indicated that he lived in XXXX XXXX up to the time he left Jamaica in XXXX 2014.5 The RAD finds that the inconsistency further undermines the Appellant's credibility, including the credibility of his allegation that he was in hiding in the months before he last left Jamaica. Inconsistency or omission in the evidence regarding the individuals who killed the Appellant's friend [27] It was noted by the RPD that the Appellant testified that XXXX cousin, XXXX, told him that the people who killed XXXX were XXXX, XXXX XXXX and two other individuals; however, in the second amendment to his BoC, there is no mention that XXXX XXXX was one of XXXX killers. The RAD finds that the inconsistency further undermines the Appellant's credibility. Inconsistency regarding the actions of police [28] The RPD noted that it was the Appellant's testimony that XXXX, XXXX nephew, was killed by the police; whereas the evidence on record indicates that police were looking for XXXX. It was also noted that police were looking for XXXX and XXXX XXXX, which is contrary to the Appellants statements that the police were not taking action. The RAD finds that the inconsistencies in the evidence regarding XXXX and the actions of police further undermine the Appellant's credibility. Delay in claiming [29] The RPD noted that the Appellant did not claim refugee protection upon his arrival in Canada in XXXX 2014 and waited until he was apprehended by Canadian authorities before he claimed refugee protection. The RPD rejected the Appellant's explanations for the delay and found that the fact that the Appellant waited until he was detained to claim refugee protection undermined his credibility. [30] The Appellant began operating a XXXX XXXX business in Jamaica in 2004. He obtained his Jamaican passport in 2007. He applied and was selected for the Jamaican XXXX XXXX XXXX XXXX Program. Under the program, the Appellant travelled to and worked XXXX XXXX in the United States and Canada in each year between 2007 and 2014. Each year the Appellant renewed his work permit for the country he was planning to work in. The Appellant's evidence suggests that he had the requisite skills to pursue a refugee claim in Canada when he arrived in XXXX 2014, if he feared returning to Jamaica, however he did not. He had the requisite skills to investigate the protection that Canada would provide to individuals who face harm in their home country, yet he did not do so for over one year and only claimed protection after his work permit had expired and he was in detention for having overstayed in Canada. [31] One would expect the Appellant, who alleges a fear of returning to Jamaica due to threats from gang members and was seeking protection elsewhere, to have researched and sought the advice of an immigration professional regarding a refugee claim immediately upon his most recent arrival in Canada. His evidence suggests that he had researched the requirements for the XXXX XXXX program and the Canadian work visas that he applied for. The Appellant went to great lengths to be part of the Jamaican XXXX XXXX XXXX XXXX Program and to travel to and work XXXX XXXX in the United States and Canada in each year between 2007 and 2014. One would expect him to have made similar efforts, if not more, to seek protection in Canada from the alleged harm he fears in Jamaica. [32] The Appellant's work visa in Canada was temporary in nature. The fact that it expired exemplifies the temporary nature of the visa. If the Appellant truly feared returning to Jamaica as alleged, it would be reasonable to expect him to pursue a permanent type of protection, such as refugee protection, immediately upon his arrival in Canada. At the very least, it would be reasonable to expect him to research his options, given his particular circumstances, immediately upon arrival. There was no risk for the Appellant to research and seek out legal advice about protection in Canada but there was a risk that his work visa would expire or not be renewed. [33] A refugee claimant's delay in claiming refugee status is an important factor which the Board is entitled to consider in weighing a claim for refugee status.6 Delays in leaving, exiting their country and/or claiming refugee protection can lead to a negative credibility finding.7 [34] Considering the factors outlined above, the RAD finds that the Appellant had the wherewithal to investigate the possibility of filing a refugee claim in Canada immediately upon arrival or shortly afterwards. The Appellant maintains that he left Jamaica in fear of harm from gang members. One would expect a refugee claimant, who leaves his home country in fear for his life, to immediately seek protection in the safe country he travels to. It would be reasonable to expect refugee claimants to immediately seek protection in Canada if they feared returning to their home country. The Appellant in this case knew that it was likely he would have to return to Jamaica when his work visa expired or if it was not extended, however he failed to inquire about protection for individuals in his circumstances immediately after he arrived or shortly afterwards and only claimed protection after he was detained by the authorities for overstaying in Canada. It is not credible that the Appellant remained in Canada for over one year and did not pursue a claim for protection or even inquire about it or tell an immigration professional about his situation, in light of his alleged fear of returning to Jamaica. [35] In this case, the Appellant's reasons for not making a claim for protection immediately upon arriving in Canada, or shortly afterwards, are not credible or reasonable and the RAD finds it undermines his credibility with regards to his subjective fear of returning to Jamaica, his allegations and his overall credibility. XXXX XXXX declaration [36] The Appellant maintains that the declaration made by XXXX XXXX corroborates and explains various aspects of his story. He submits that the RPD did not consider this evidence. [37] The RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record.8 XXXX XXXX, in her declaration, largely reiterates what the Appellant told her. However, the Appellant's story has been found to lack credibility and XXXX XXXX declaration does not repair the Appellant's credibility or the credibility of his story. As noted by the Federal Court, corroboration does not make an incredible story credible.9 Psychological reports [38] The RPD was of the opinion that neither the two psychological reports presented by the Appellant, nor the Appellant's lack of formal education, can explain the credibility issues that were raised in the Appellant's refugee protection claim. [39] The RAD accepts that the Appellant suffers from post-traumatic stress disorder as opined in his psychological reports.10 However, after reviewing all the testimony and evidence, the RAD finds that the significant inconsistencies and omissions noted in the Appellant's evidence are not explained by the psychological report. The report is absent any information explaining how the Appellant's condition could affect his evidence such as his BoCs, if at all. The RAD finds that the Appellant's mental state, as opined in his psychological reports, does not affect the credibility conclusions noted above. The RAD gives the psychological report little weight in terms of justifying the anomalies in the Appellant's evidence, including his testimony at the hearing. [40] Furthermore, in the RAD's view, a psychological report presented by a refugee claimant does not serve to prove the alleged persecution suffered by that individual. Of course, such a report may establish that the Appellant suffers from a condition or exhibits symptoms that are consistent with the alleged trauma. A psychological report might assist the RPD in conducting the hearing in an appropriately sensitive manner or to consider whether apparent credibility problems are instead the result of a psychological condition. The Federal Court has commented that, "Just because a patient is suffering from psychological problems and manifests symptoms associated with those problems does not mean that the patient's account of past persecution as the cause of those problems can be believed."11 It is the Board's responsibility to determine whether the Appellant is credible, and the Board is not required to defer to a psychologist's report when making findings of fact in respect to alleged past persecution. The RPD was not wrong to RPD find that the psychological reports did not explain the credibility issues that were raised in the Appellant's refugee protection claim. Disposition [41] The Appellant has alleged that the RPD erred by failing to consider the evidence and by drawing negative credibility findings due to amendments he made to his Basis of Claim Form narrative. Based on its own analysis of the record, the RAD has found that the RPD did not err in its credibility assessment or in its assessment of the documentary evidence. The RPD's findings are extensive, thorough, and based on the evidence. Upon a review of the evidence, the RAD has reached the same conclusion as the RPD. [42] As a cumulative result of the anomalies in the Appellant's evidence, the RAD finds that the Appellant lacks credibility. The RAD does not accept, on a balance of probabilities, that the material events, as described by the Appellant in his Basis of Claim Form and at his hearing with the RPD, occurred as described. [43] Therefore, the RAD finds that there is not a serious possibility of persecution should the Appellant return to Jamaica. The RAD therefore concludes that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and, for these same reasons - the lack of credibility - the RAD finds that the Appellant is not a person in need of protection or at a risk to life, or at risk of cruel and unusual treatment or punishment, or in danger of torture as set out in section 97 of the IRPA. CONCLUSION [44] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division and dismisses the appeal. (signed) "M. Pettinella" M. Pettinella December 8, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93, para. 78. 2 M.C.I. v. Huruglica, para. 103. 3 Exhibit RPD-1, RPD Record, at p. 49. 4 Exhibit RPD-1, RPD Record, at p. 43. 5 Exhibit RPD-1, RPD Record, at p. 134. 6 Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988. 7 Onofre, Sofia Ramirez v. M.C.I. (F.C., no. IMM-2084-10), Bédard, December 2, 2010, 2010 FC 1219. 8 Hassan v Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946. 9 Gomez, Hector Cisneros v. M.C.I. (F.C., no. IMM-5741-04), Harrington, June 16, 2005, 2005 FC 859. 10 Exhibit RPD-1, RPD Record, at pp. 42-43, 47-49. 11 Mico v. Canada (Citizenship and Immigration), 2011 FC 964, para. 54. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-13168