TB8-10868

RAD File / Dossier de la SAR : TB8-10868 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 3, 2019 Date de la décision Panel James Sloan Tribunal Counsel for the person who is the subject of the appeal James Hill Lawson Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX fears he will be persecuted or otherwise harmed due to his Roma ethnicity if he returns to Ukraine. He alleges that, due to his Roma ethnicity, he was subject to discrimination and harassment in Ukraine. In addition, he claims to have been attacked several times between 2000 and 2016: his neighbour injured him in 2000, when the Appellant was defending himself from vandalism by the neighbour; the neighbour attacked him again in April 2005, while they were playing football together; in October 2012, he was attacked by a stranger who overheard him speaking the Roma language; in 2015 he was beaten twice by nationalists who recognised him as Roma from his clothing; and, in July 2016, he was attacked by three men who recognized him as Roma from his clothing. [2] He applied for a Canadian visitor visa, which he received on September 9, 2016. He left Ukraine on XXXX XXXX XXXX 2016, leaving his wife and two children behind. His Basis of Claim (BOC) form was signed on December 1, 2016. [3] His claim was heard by the Refugee Protection Division (RPD) on April 5, 2018 and rejected on April 11, 2018 based on a finding that he was not of Roma ethnicity. He now appeals the Refugee Protection Division (RAD). [4] For the reasons that follow the appeal is dismissed. REQUEST FOR THE ADMISSION NEW DOCUMENTS AT APPEAL [5] The Appellant seeks the admission of the following new documents: 1. two letters elaborating upon a document provided to the RPD; 2. a map and brief text relating to the village of Lashkivka where the Appellant lived; and 3. a copy of his birth certificate. [6] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) limits the admission of evidence in an appeal before the RAD to evidence that: 1) arose after the RPD's rejection of the claim; 2) was not reasonably available at the time of the RPD's rejection of the claim; or 3) an appellant could not reasonably have been expected in the circumstances to have presented at the time of the RPD's rejection of the claim. RAD Rule 3(3)(g)(iii)1 provides that an appellant seeking the admission of new evidence must provide full and detailed submissions regarding how the evidence meets the requirements of subsection 110(4) and how that evidence relates to the appellant. If I find that the new evidence is admissible under subsection 110(4), I must then consider whether the evidence meets the factors elaborated by the Federal Court of Appeal in the Singh case, i.e. newness, credibility and relevance.2 Only then am I able to admit the new evidence. 1. Additional letters from signatories to a document previously submitted [7] At the hearing before the RPD, the Appellant submitted a document entitled "Agreed", dated November 8, 2016, signed by XXXX XXXX XXXX XXXX XXXX (a social worker), XXXX XXXX XXXX XXXX XXXX (a neighbour), and XXXX XXXX XXXX XXXX XXXX (a neighbour). The three individuals are described in the report as "the Commission".3 The document states where the Appellant lives, indicates who resides with him, and states: "According to the words of the below-signed neighbours, he is a Ukrainian of Roma origin, by maternal descent".4 [8] The Appellant has requested the admission of two letters relating to the document dated November 8, 2016: first, a letter, dated April 30, 2018, from NXXXX XXXX XXXX XXXX in which he states that he is a social worker and the Appellant's neighbour "so I can hereby confirm he is a person of Roma descent by his maternal line; however, I don't know his father."5 The second letter is from a person whose name is illegible and KXXXX XXXX XXXX XXXX, dated April 29, 2018.6 In it, the authors claim that they are neighbours of the Appellant ("XXXX XXXX XXXX XXXX XXXX"); that he is a person of Roma ancestry; that "his grandfather stelled [sic] in our town back in the 50s and then his daughter was born"; that the authors know very little about his father "for he also settled in our town a while ago with Roma people but he passed away a long time ago so be [sic] didn't mention him in previous document"; and that the Appellant has a stepfather. [9] The Appellant's explanation for not providing the documents before the rejection of his claim by the RPD is that he did not think it was necessary: "he didn't think he would have to provide additional corroborative evidence to confirm that the sworn statement from three witnesses was genuine."7 [10] The evidence in question is tailored to address two misgivings the RPD had about the credibility of the Appellant's testimony: first, the Appellant stated that the document dated November 8, 2016 was written by three neighbours when it said it was written by two neighbours and a social worker. Second, the Appellant testified that his Roma ethnicity was from his mother's side and, later, that it was from both sides but his father was not "pure Roma"; whereas the November 8, 2016 document stated that the Appellant was "of Roma origin, by maternal descent". These two ostensible inconsistencies contributed to the RPD's finding that the Appellant was not credible and, consequently, not Roma. [11] The Appellant's argument-that he did not think he would need to provide additional corroborative evidence to show that the November 8, 2016 document was genuine-is not persuasive. None of the requirements of subsection 110(4) envisage a situation where an Appellant who was found to have contradicted a supporting document in his testimony would be afforded the opportunity to modify the meaning of that supporting document so that it would jibe with his testimony. The evidence did not arise after the RPD's rejection of the claim and was reasonably available before the RPD's rejection of the claim. [12] His argument seems to be grounded in a claim that he could not reasonably have been expected to have presented the evidence at the time of the RPD's rejection because he thought the document he provided sufficed and was not expecting that more would be required. It falls to a claimant to provide sufficient evidence to establish his or her claim and to do so before the RPD.8 As noted by the Federal Court of Appeal in Singh: "The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD...."9 The Appellant was represented by experienced counsel who would have made clear the need to meet the burden of proof. Moreover, a claim by an appellant that he or she was surprised that his evidence did not suffice cannot be said to provide a basis for the admission of evidence under subsection 110(4). As the Federal Court held in Denis, the fact that the evidence an appellant presented to the RPD was judged insufficient in a decision "is not generally in itself a basis for presenting new evidence to the RAD."10 [13] I find the two additional letters to be inadmissible. 2. A google map and internet page relating to the village of Lashkivka [14] The google map shows where the village of Lashkivka is in relation to certain other towns and villages in Ukraine.11 It also shows, by virtue of a legend, that the village is less than a kilometre at its widest point. The other document, downloaded from the website "Ukraine 123" on 5/7/2018 but undated, states what cities are near Lashkivka, indicates where the closest airports are, and describes the village as being in the Chernivtsi region.12 [15] The Appellant argues that the evidence is admissible at appeal because he did not "know he would need to show how tiny his village was or otherwise explain the sworn statement from his neighbours, which is why he didn't provide any evidence as to how small his village is."13 [16] Again, the Appellant's apparent objective in submitting the new evidence is to overcome a negative credibility finding by the RPD. As noted above, the RPD expressed concern about his testimony that the November 8, 2016 document was written by three neighbours when the document itself said it was written by two neighbours and a social worker (XXXX XXXX XXXX XXXX XXXX). He explained to the RPD that, since his village is so smallXXXX XXXX XXXX XXXX XXXX XXXX is both a neighbour and a social worker. The new evidence appears to have the objective of proving that the village of Lashkivka is, indeed, small, thereby strengthening his explanation. [17] For the reasons outlined above, none of the requirements of subsection 110(4) envisage a situation where an Appellant who was found to have contradicted a supporting document in his testimony would be afforded the opportunity to provide evidence changing the ostensible meaning of that supporting document so that it would jibe with his testimony. 3. A copy of his birth certificate [18] The birth certificate states the Appellant's name, date of birth, his place of birth, the names of his parents, the place of registration, the registering institution, and the date of issue (April 30, 1992).14 It is signed by the Head of Civic Registration Department and sealed. [19] The Appellant states that he "knew his birth certificate did not confirm his Roma ethnicity and [because] he had other government documents confirming his Ukrainian citizenship, he saw no need to produce it."15 [20] The Appellant has, once again, submitted this piece of evidence to rebut a finding of the RPD, i.e. that because birth certificates issued before 1991 often list the bearer's ethnicity he ought to have submitted it in order to establish his Roma origins. However, in this case I find the document to meet the requirements of subsection 110(4). I accept the Appellant's testimony that, because his birth certificate had no bearing on his ethnicity and because he had already submitted two documents establishing his nationality, he could not reasonably have been expected, in the circumstances, to have provided the birth certificate. I also find that the birth certificate meets the requirements of the Singh case: it is new, it is credible and it is relevant to the extent that it shows part of the RPD's reasoning to be in error. (I will consider its relevance in the context of the determinative issue in this case, i.e. the Appellant's ethnicity, below). The birth certificate is admissible. HEARING [21] The Appellant has also requested that the RAD hold a hearing in relation to the new evidence. The principle under subsection 110(3) of the IRPA that the RAD must proceed without a hearing, is subject to an exception, elaborated in subsection 110(6). The latter subsection provides a hearing may be held where three conditions in relation to the new evidence are met. The new evidence must: a) raise a serious issue with respect to an Appellant's credibility; b) be central to the decision with respect to his refugee protection claim and c) if accepted, justify allowing or rejecting his claim. [22] In this case, while I have admitted the Appellant's birth certificate, as discussed below, I have found that it has no bearing on the determinative issue of whether or not he is Roma. Instead, it merely confirms his nationality, something that is not at issue. As such, the birth certificate does not raise a serious issue with respect to the Appellant's credibility that justifies allowing his claim and his request for a hearing must be denied. DETERMINATIVE ISSUE [23] The determinative issue in this case is whether the Appellant has shown that he is of Roma ethnicity. STANDARD OF REVIEW [24] In my review of the RPD's decision, I will apply a standard of correctness.16 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.17 ANALYSIS [25] The RPD found that the Appellant was neither Roma nor perceived as such and, consequently, that the incidents of violence and discrimination he alleges did not occur. It based these findings on the following credibility concerns: a) his testimony on whether he came by his Roma ethnicity from his mother's side, his father's side or both sides was problematic; b) he did not provide acceptable documents proving his ethnicity and was unable to satisfactorily explain why; and c) his testimony about Roma culture, his ability to count to ten, and his supporting photographs were not sufficiently persuasive to establish his ethnicity. It also found that he lacked subjective fear and credibility because he delayed in making his refugee claim. [26] The Appellant argues that the RPD erred in all of its credibility findings and in its finding that he lacked subjective fear. He also argues that, because the RPD erred in finding that he was not Roma, regard must be had to the situation of Roma in Ukraine and, in particular, whether they would obtain state protection. 1. Credibility (a) Was the Appellant's testimony about Roma ethnicity contradictory? [27] The RPD found, first, that the Appellant's testimony on the subject was inconsistent (first he said his ethnicity came from his mother's side and then he said it came from both sides); second, that his initial testimony was inconsistent with his Basis of Claim (BOC) narrative (where he states that he was Roma on both sides); and, third, that his explanation that he was fully Roma on his mother's side and only partially Roma on his father's side was omitted from his BOC narrative and likely an embellishment. [28] First, the Appellant argues that his testimony was not inconsistent; "at most" it could have been more specific. "As such the Board's reasoning is perverse, not supported and a microscopic examination of minutiae."18 Second, he argues that his testimony about whether he was Roma on his mother's side only or on his mother's and father's side was not inconsistent with the BOC narrative. "It is minutiae as to whether he was half-Roma or full Roma which is why the Applicant [sic] stated during his hearing that he didn't see the discrepancy to be of 'such big significance'."19 Also, while the BOC says both parents were Roma, it is silent to the degree; it does not say his mother is fully Roma. Third, he argues that he did not embellish his testimony. He notes that because he corrected the alleged inconsistency in his testimony before he was challenged, it was "perverse" of the RPD to find that he said his father was only half-Roma in an attempt to mitigate his inconsistency. "One cannot mitigate an inconsistency until they know an inconsistency exists."20 Finally, he argues that to reach a finding that the Appellant was not Roma based on a single alleged inconsistency was "perverse and procedurally unfair as a final determination was reached without consideration of the totality of the evidence."21 [29] Before considering whether the RPD erred in making its findings, the following exchange needs to be considered:22 RPD: ...is [your Roma ethnicity] from your maternal or paternal or both sides? Appellant: It's by my mother's side. RPD: Are both of your ah...so only your mother is Roma? Appellant: Yes. My father is not pure Roma. RPD: On your BOC you say that you are Roma from both sides and that your father has problems because of his Roma nationality. Why is that different? Appellant: Well the point is that the mother of my father was Roma and his father was not Roma. RPD: Why don't you make that distinction in your story? Appellant Well, I did not know it would have such big significance, such importance. [30] I do not agree with the Appellant that he was not inconsistent, merely unclear: first, in reply to a clear question, he said his Roma ethnicity came from his mother's side. After the RPD member hesitated and repeated his answer, he changed it to include his father's side, and explained why he had originally answered differently. It is possible that the Appellant somehow understood the RPD member's question-"is that from your maternal or paternal or both sides?"-as meaning, in effect, "did your Roma ethnicity come from a fully Roma mother, a fully Roma father, or from the fully Roma ethnicity of both parents", but this is not likely. Given that the Appellant's alleged Roma origin is an essential element of his claim, I do not find that the RPD was being microscopic in its expectation that he would answer the question consistently. [31] I agree with the Appellant that the question of whether his mother was fully Roma and his father was half Roma or they were both fully Roma was "of no big significance" overall, given that his claim could succeed either way. Nevertheless, I find that there was a contradiction between his testimony-both his original testimony (that it was just his mother's side) and his revised testimony (to the effect that he was fully Roma on his mother's side and only part Roma on his father's side)-and his BOC narrative (in which he stated he was "Roma on both sides"23). It is true that he did not state in his BOC narrative whether his parents were half Roma or fully Roma; however, I think it is reasonable to infer that when he stated that they were Roma he meant that they were fully Roma-after all, this was the definition of Roma ethnicity he relied upon in his initial testimony about where his Roma ethnicity came from. [32] The fact that the Appellant failed to elaborate on the issue of whether his parents were part Roma or fully Roma in his BOC narrative, but yet stressed it (without being asked by the RPD member about it) in his testimony, when combined with the contradiction in his testimony, described above, leads me to find, on a balance of probabilities, that he raised the issue of the "purity" of his parents' Roma ethnicities as a way to cover up the inconsistency between his initial testimony and his BOC narrative. [33] Finally, the Appellant argues that it was perverse and procedurally unfair of the RPD to find that he was not Roma without regard to the other evidence. At paragraph 10 of the Decision, the RPD stated that it drew a negative inference regarding the Appellant's credibility (based, presumably, on paragraphs 6-9, where it makes its findings in relation to the Appellant's testimony about whether he is ethnic Roma on one side or both sides) and found that "his testimony surrounding his Roma ethnicity concerning his parental lineage is not credible." It did not, as the Appellant asserts, find that he was not Roma at this point in the Decision. It was only later in the Decision, after considering all of the evidence, that the RPD found that the Appellant was not Roma or perceived to be Roma.24 (b) Failure to establish his ethnicity [34] The RPD noted that he had not met his obligation under Rule 11 of the RPD Rules to establish his identity as someone of Roma ethnicity.25 First, it noted that Ukrainian birth certificates issued prior to 1991 often list the bearer's ethnicity and the Appellant had failed to submit his. Second, the RPD noted that it had asked him if he had associated with any official Roma groups in Ukraine and he stated he had not. He also stated that he intended to go with a friend to a Roma organization in Toronto but they had yet to attend. The RPD noted that the Appellant had no letter from a Roma organization, as claimants frequently do. Third, the RPD found inconsistencies between the Appellant's testimony and the document dated November 8, 2016: first, the Appellant was unable to identify who had written the November 8, 2016 document; second, he incorrectly identified the authors as his neighbours (when two were identified as neighbours and one as a social worker); and third, the RPD noted that the document said he was Roma on his mother's side, which was at variance with his revised testimony (see above) and his BOC narrative. It gave the letter little probative weight. [35] The Appellant puts forward a number of arguments in this regard. First, the Appellant argues that the RPD misstated his evidence. He testified that he did not think he needed his birth certificate as he already had two passports (internal and external) and that his birth certificate did not establish his Roma ethnicity. In addition, he has provided his birth certificate as new evidence in this appeal and it does not list his Roma ethnicity. [36] Second, he argues that the RPD again mischaracterized his testimony. He did not say he had not attended a Roma group in Toronto; instead, he stated that he and his friend went twice but failed to meet anyone. He then met Romani at his church and he associates with them. Moreover, the Appellant argues that he did not say that that he was not trying to look for a support letter from a Roma organization. Instead, he testified that he has not sought a support letter from the particular Roma organization mentioned by the RPD, i.e. an organization in Lviv, Ukraine. He was not from that part of Ukraine and was not part of the organization so it would not have been possible for that organization to confirm his Roma ethnicity. [37] Third, the Appellant argues that it was not surprising that he could not remember who signed the document, given that it was signed on November 8, 2016-some 17 months before the RPD hearing. He argues that the fact that he thought one of the signatories was a neighbour (instead of social worker) was not surprising: given how small his village (Lashkivka) is, the signatory in question was a social worker and a neighbour. In addition, he could not be expected to know why the document's authors indicated that he was Roma on his mother's side only: he was not a mind-reader. Instead, he logically suggested that the authors of the document may have been thinking of his step-father, who had raised him since 1993 (after his father died and his mother abandoned him). In making the foregoing arguments, the Appellant relies on the new evidence he requested the admission of (items 1. and 2. in the discussion of new evidence above); however, because I have found that evidence to be inadmissible, I am unable to consider it. [38] First, as discussed above, I have admitted the Appellant's birth certificate as new evidence. The RPD was incorrect to rely on its absence as a factor undermining the Appellant's credibility. However, because it does not indicate the Appellant's ethnicity, it has of no bearing on the issue in this matter, i.e. whether or not the Appellant is Roma. [39] Second, I disagree that that the RPD mischaracterized the Appellant's testimony. As the Decision states, the Appellant was asked if he had sought any Roma groups or associations in Toronto and he stated that he intended to go with a friend but they had failed. It is true that he also said he had met Roma people in church and had Roma friends. Whether the Appellant's testimony that he was not trying to look for a supporting letter meant a supporting letter from a Roma organization generally or specifically a letter from the Lviv organization is not relevant.26 What is relevant is that it is clear from the Record that the Appellant did not provide any supporting letter from any Roma organization or offer any reasonable explanation as to why he was unable to obtain such a letter. In fact, he specifically testified that the only document he had stating that he was of Roma descent was the November 8, 2016 document.27 [40] Third, I accept the Appellant's argument that one of the authors of the November 8, 2016 document was both a neighbour and a social worker. Indeed, the document itself, while describing XXXX XXXX XXXX XXXX XXXX as a social worker in the first paragraph, refers to the signatories as being neighbours in its the last sentence. However, the fact that the document was drafted by the Appellant's neighbours makes it more unlikely that he would be unable to accurately recall the drafters' names. While the Appellant is correct that some 17 months had elapsed between the document's date and the date of the hearing, I do not accept that he would forget the names of his neighbours, especially neighbours who knew him well enough to speak to his Roma ethnicity and to specify that it was from his mother's side. [41] It is also clear that the authors of the November 8, 2016 document stated that he was "of Roma origin, by maternal descent". As to his argument that he could not know why they said that because he did not know what went on in the minds of the authors, this misses the point. The letter was not devalued by the RPD because the Appellant was not a mind-reader; it was devalued because the evidence in it was inconsistent with the Appellant's (modified) testimony and his BOC narrative, i.e. that his Roma ethnicity came from both sides of his family. Because of this inconsistency, I agree that the letter is of diminished probative value. [42] Finally, I offer my own analysis of the November 8, 2016 document. While the document is signed and sealed,28 it is not clear whether or not the document was commissioned. The Appellant's counsel describes the document as looking like a commissioned document from the head of the village administration;29 however, there is no evidence to this effect. Nor is it clear from the evidence on what basis the three signatories are said to be "Commission members" or what the purpose of the "Commission" is-other than to prepare and sign the document in this particular case. The Appellant described the document in his testimony as "a document which was made by my neighbours who knew me and they testified that I was of Roma descent."30 In view of this, and in view of irregularities found by the RPD and discussed above (i.e. the Appellant's lack of familiarity with the names of all of his neighbours who signed the document and the discrepancy between the document, on the one hand, and his revised testimony and BOC narrative, on the other, regarding whether his Roma ethnicity came from his mother, his father, or both), I find that the document is of limited value in proving the Appellant's ethnicity. I will, nevertheless, consider it below in making my overall assessment on the issue. (c) The Appellant's knowledge of Roma culture, the Roma language and his supporting photographs [43] The RPD considered the Appellant's evidence about the Lovari clan and its emigration from Hungary, his ostensible ability to count from one to ten in the Roma language and his supporting photographs, which were said to show that the Appellant was Roma based on his traditional clothing, the décor of his house, the wearing of corsages at a wedding and a wedding march. The RPD found that these factors did not overcome its previous negative findings. As to the photographs in particular, it noted that there was no evidence that the traditions depicted were limited to the Roma culture. Moreover, it noted that the clothing and the décor of the home were not, of themselves, persuasive in establishing the Appellant's Roma ethnicity [44] The Appellant argues that because a refugee claimant's sworn evidence is presumed to be true, the RPD had no basis to find that he was not speaking Romani when he counted to ten. His ability to speak some Romani had to be considered in assessing his Roma ethnicity. Also, his testimony of the Romani events in the pictures must be taken to be true. [45] First, while it is true that a claimant's sworn testimony is presumed to be true, this presumption is lost when there is reason to doubt the claimant's truthfulness; as outlined above, such reason exists in relation to the Appellant. Moreover, I note that the RPD did not, in fact, find that the Appellant's counting was not in the Roma language; instead, it found was that the Appellant's ability to count to ten did not overcome its previous negative findings. I agree. An ability to count to ten in the Roma language provides very little in the way of evidence that the individual doing the counting can speak that language or is of Roma ethnicity. Nevertheless, I will assess it in my overall conclusion about the Appellant's ethnicity below. [46] As to the argument that the Appellant's testimony regarding the photographs must be taken to be true, once again, the RPD did not find that this testimony was false. Instead, it noted that there was no objective evidence indicating that the events depicted were limited to the Roma culture and that the style of dress of the Appellant's family and the décor of his home were not persuasive in establishing his Roma ethnicity. I agree. [47] The photographs depict people attending a wedding and feature Christian iconography. Flowers are worn on the lapels of some of the men; however, I can see no objective basis to find that this is an indication of Roma ethnicity. There is photograph of a woman and a young boy31 dressed in what, to my limited knowledge, would appear to be traditional ethnic clothing; however, I am unable to ascertain if it is traditional Roma clothing or traditional Ukrainian clothing. Finally, the photographs show bold patterns on carpets and upholstery;32 however, again, I have no objective evidence that the use of bold patterns is evidence of one's Roma ethnicity. [48] To make a finding that the photographs depict Romani or Roma activities merely because the Appellant said that they did, would mean that the photographs do not have the quality of supporting evidence-i.e., evidence that serves to support the Appellant's claim; instead they would merely provide a basis for the Appellant to restate his claim regarding his ethnicity. Because the photographs are not persuasive, I will afford them little weight in making my overall assessment as regards the Appellant's ethnicity below. Failure to consider other documents showing the Appellant is Roma [49] The Appellant also states that the RPD failed to address two other supporting documents, "[b]oth of which confirm that the Applicant [sic] is a Roma."33 The documents he refers to are, first, an undated letter from the Appellant's wife,34 and, second, a letter from a friend of the Appellant.35 [50] I note that, contrary to the Appellant's assertion, the RPD did consider the two letters of support, and found them to be of "little probative weight."36 Without more by way of argument from the Appellant in relation to how he feels the RPD erred in its assessment of the two letters, I am not in a position to engage with the Appellant's statement. As the Federal Court made clear: "The RAD cannot be faulted for failing to consider arguments that were never raised."37 Conclusion on whether the Appellant has shown he is of Roma ethnicity [51] The Appellant's evidence that he is of Roma ethnicity is limited. It includes his testimony; however, because I have found there to be reason to doubt his credibility, this testimony is not presumed to be true. He has not submitted any evidence from any Roma organizations or groups from either Canada or Ukraine attesting to his status as Roma. The only objective evidence of his ethnicity-other than letters from his wife and his friend and various photographs-is the November 8, 2016 document. As has been outlined above, I have found the document to be problematic, in view of the lack of evidence regarding the nature of the "Commission", the Appellant's lack of familiarity with its authors (despite their being his neighbours and knowing him well enough to know of his ethnic origins), and the contradiction between the document and the Appellant's modified testimony and his BOC narrative as to whether he is Roma on his mother's side, his father's side or both sides. Taking all of the foregoing into account, I find, on a balance of probabilities, that the Appellant is not of Roma ethnicity. As such, I find that his claims to have been discriminated against and attacked on that basis are not true. [52] Because of this finding, I need not have regard to the question of whether his alleged delay in claiming asylum undermined his subjective fear or his credibility. Nor do I need to consider the forward-looking treatment of Roma men in Ukraine or the ability of Roma men to obtain state protection there. CONCLUSION [53] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "James Sloan" James Sloan October 3, 2019 Date 1 Immigration and Refugee Board, Refugee Appeal Division Rules (SOR/2012-257). 2 Canada (Minister of Citizenship and Immigration) v. Singh, Parminder, (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para 64 (Singh). 3 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 93 (translation). 4 Ibid. 5 Exhibit P-2, Appellant's Record, at p. 253 (translation). 6 Ibid., at p. 256 (translation). 7 Ibid., at p. 269, Written Statement. 8 See De Costa, where the Federal Court held that "it is trite law that the onus is on a claimant to present sufficient credible and trustworthy elements to establish the material elements of a claim." (Da Costa Soares v. Canada (Citizenship and Immigration), 2007 FC 190, at para 22.); see also Radics, where the Federal Court held: "It is also well-established that the burden of producing evidence in support of their claims lies with the Applicants (El Jarjouhi v Canada (Minister of Employment and Immigration), [1994] FCJ No 466 at para 7, 48 ACWS (3d) 790)." (Radics v. Canada (Citizenship and Immigration), 2014 FC 110 (CanLII), at para 33). 9 Singh, supra endnote 2, at para 54. 10 Denis, Regina v. M.C.I. (F.C., no. IMM-1463-18), Martineau, November 26, 2018; 2018 FC 1182. 11 Exhibit P-2, Appellant's Record, at p. 259. 12 Ibid., at p. 261. 13 Ibid., at p. 269, Written Statement. 14 Ibid., at p. 265. 15 Ibid., at p. 269, Written Statement. 16 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 17 Ibid., at paras 69-74. See also Rosas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 18 Exhibit P-2, Appellant's Record, at p. 341, Legal Memorandum, at para 19. 19 Ibid., at p. 340, Legal Memorandum, at para 18. 20 Ibid., at p. 341, Legal Memorandum, at para 20. 21 Ibid., at p. 341, Legal Memorandum, at para 21. 22 Ibid., at p. 15, Transcript, at lines 26-32. 23 Exhibit RPD-1, RPD Record, at p. 22, Basis of Claim (BOC) narrative, at para 2. 24 Exhibit RPD-1, RPD Record, at p. 8, Reasons and Decision, at para 20. 25 Rule 11 states: "The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them." (Immigration and Refugee Board, Refugee Protection Division Rules, SOR/2012-256). 26 His testimony on this point is somewhat ambiguous. He states: "I didn't have this kind of a letter. Well I was not trying to look for this letter." (Exhibit P-2, Appellant's Record, at p. 19, Transcript, line 99.) 27 "I have only one document that certifies the fact that I am of Roma descent and is a document which was ah made by my neighbors who knew me and they testified that I was of Roma descent; this is the only document I have." (Ibid., line 103.) 28 The signature of "XXXX" appears beside the stamp. (Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 93-94.) 29 Exhibit P-2, Appellant's Record, at p. 34, Transcript, statement of Appellant's counsel beginning at line 344. 30 Ibid., at p. 19, Transcript, at line 103. 31 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 187. 32 Ibid., at p. 188. 33 Exhibit P-2, Appellant's Record, at p. 346, Legal Memorandum, at para 37. 34 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 155-156, Undated letter from the Appellant's wife (translation). 35 Ibid., at p. 171, Undated letter from Ivan Tupychko (translation). 36 Ibid., at pp. 10-11, Reasons and Decision, at paras 32 and 33. 37 Hoch v. Canada (Citizenship and Immigration), 2018 FC 580 (CanLII), at para 8. Elsewhere, the Federal Court held: "appellants before the RAD that fail to specify where and how the RPD erred do so at their own peril". (Ghauri v Canada (Citizenship and Immigration), 2016 FC 548 at para 34). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-10868 RAD.25.02 (April 04, 2019) Disponible en français 17 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français