TB9-15982

RAD File / Dossier de la SAR : TB9-15982 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 Ottawa, ON Appel instruit / entendu à Date of decision August 26, 2020 Date de la décision Panel Susan Brown Tribunal Counsel for the person who is the subject of the appeal Solomon Orjiwuru 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 OVERVIEW [1] The Appellant XXXX XXXX (Principal Appellant), a citizen of Cameroon, seeks protection from her husband as a victim of domestic abuse. The Refugee Protection Division (RPD) found that the Appellant did not provide credible and trustworthy evidence in support of her claim. The Appellant argues that the RPD erred in its credibility finding and failed to take other evidence into consideration after finding some of the documentary evidence presented by the Appellant was fraudulent. [2] The Appellant submits new evidence to the Refugee Appeal Division (RAD) under section 110(4) of the Immigration and Refugee Protection Act (IRPA) which I have not accepted. As the new evidence was not accepted, I have denied the Appellant's request for a hearing under section 110(6) of the IRPA. [3] Following my independent assessment of the evidence, testimony and arguments of the Appellant, I agree with the RPD that she did not credibly establish her claim. DECISION [4] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL The new evidence presented by the Appellant is rejected [5] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. In Singh1 the Federal Court dictates a narrow interpretation of section 110(4): the conditions set out therein must be met and there is no room for discretion on the part of the RAD. If the section 110(4) threshold is met then the new evidence must also meet jurisprudential requirements of credibility, relevance and newness.2 [6] The Appellant submitted the following documents as new evidence pursuant to subsection 110(4): A. Simplice Magloire Essomba Fouda, Evaluating the Degree of Individual Bilingualism in Yaounde, Research on Humanities and Social Sciences, Vol. 3, 2013. B. Peter Wuteh Vakunta, Linguistic Apartheid and the Quest for Freedom and Identity in Cameroon, Postline News, (December 14, 2014), online: <www.postnewsline.com>. [7] I find that the Appellant's new evidence does not meet the statutory requirements of subsection 110(4). The RPD decision was rendered on May 22, 2019. All the new evidence pre-dates the RPD decision, was reasonably available and the Appellant could reasonably have been expected in the circumstances to have presented the information at the hearing. [8] The Appellant argues that the new evidence meets the test for new evidence irresespective of the fact that it pre-dates the Appellant's hearing and decision because it was not readily available to the Appellant and could not reasonably have been expected to have been presented at her hearing or at the time of the decision. The Appellant argues that while the RPD questioned the Appellant about spelling errors in the government documents she presented, she and her counsel showed by way of testimony and submissions that spelling errors on official government documents are common in Cameroon. [9] I find disingenuous the Appellant's argument that she did not submit the new evidence prior to the rejection of the claim because RPD, RAD and Federal Court decisions demonstrate that spelling errors are a long-standing issue in the assessment of the authenticity of Cameroonian government documents. I also note that counsel for the Appellant has submitted the same new evidence in other, earlier, refugee claims3 so it was clearly readily available to him and, therefore, to the Appellant. [10] The purpose of subsection 110(4) is to allow an appellant to provide the RAD with information that arose after the decision date, or was not reasonably available or that the appellant could not reasonably have been expected in the circumstances to have presented. Subsection 110(4) is not to be used to complete a deficient record submitted before the RPD.4 [11] For the reasons outlined above I do not accept the new evidence as it does not meet the section 110(4) threshold. ORAL HEARING AT THE RAD [12] The Appellant requests that the RAD hold a hearing. Section 110(6) of the IRPA says the RAD may only hold a hearing if there is new evidence that (a) raises a serious issue with respect to the credibility of the Appellant, (b) is central to the RPD's decision, and (c) if accepted, would justify allowing or rejecting the refugee protection claim. Since I do not accept the new evidence, the hearing request is denied. SCOPE OF THE RAD REVIEW [13] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.5 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing the oral testimony heard, which in particular cases attracts a standard of review of reasonableness adapted to the RAD.6 Unless specifically stated below, I have applied the correctness standard. ANALYSIS [14] The determinative issue on this appeal is the credibility of the Appellant. [15] The RPD found that the Appellant did not provide credible and trustworthy evidence in support of her claim. The RPD identified the following credibility issues: the Appellant failed to list all of her family members in her Basis of Claim Form (BOC); Appellant's testimony and BOC were contradictory with respect to what she disclosed to her uncle prior to arriving in Canada; the Appellant did not disclose in her BOC or immigration forms that she made an asylum claim in the United States in 2004 and was deported in 2007; material omissions in the letter from her pastor; and the presentation of fraudulent medical reports. [16] The Appellant argues that the RPD erred in its credibility finding and in failing to take into consideration other evidence after finding that medical reports she presented contained spelling errors and were fraudulent. [17] I have independently assessed the evidence, testimony and considered the arguments of the Appellant. While I find that the RPD did make some errors in its assessment of the Appellant's credibility, I find those errors were not determinative. For the reasons outlined below, I agree with the RPD's overall conclusion that the Appellant did not credibly establish her claim. Failure to list family members [18] The RPD found that the Appellant failed to list her family members in her BOC. The Appellant testified that she has three sisters and a brother but only listed one sister and one brother in her BOC. The Appellant did not list her sister XXXX who lives in Belgium and her sister XXXX was incorrectly listed as her brother. She testified she also has a brother named XXXX who lives in Maryland. When asked for an explanation for the omissions, the Appellant said she thought she only had to list her relatives in Cameroon. When the RPD pointed out that the form asked for all relatives, living or dead, the Appellant did not offer an explanation.7 The RPD found that while this omission did not go to the heart of the Appellant's claim, it was "representative of the [Appellant's] propensity to withhold disclosure of simple facts which she is required to provide, and to reveal only what she chooses to reveal."8 [19] The Appellant argues that she was not deliberately withholding disclosure of her siblings because she testified about them at the hearing and submitted a letter from her sister in Belgium which was not admitted by the RPD. While the Appellant seeks to explain that "it was an innocent omission on her part in not explicitly mentioning [XXXX] in her BOC form," she does not make any submissions about misnaming her sister XXXX as a brother or omitting to mention her brother XXXX. [20] I agree with the RPD that these are omissions and errors that affect the credibility of the Appellant, but they are not determinative as the composition of the Appellant's family is peripheral to her claim. Contradictions about what the Appellant disclosed to her uncle prior to arriving in Canada [21] In her BOC the Appellant said that after her husband's alleged assaults in XXXX 2017, she "contacted [her] uncle here in Canada and told him everything [sic] was going through. He told me he could send an invitation to me."9 [22] The Appellant testified that she did not tell her uncle about the domestic violence she had suffered in Cameroon until after she arrived in Canada, that she asked him for an invitation in 2016 and he agreed in XXXX 2017.10 The RPD found that the Appellant failed to explain the contradictions and that her credibility is undermined by that contradiction and the failure to explain it. [23] The Appellant argues that she testified that her uncle as a family member was in the know all along about the difficulties in her marriage. "[W]hen the abuse and violence intensified was when she had contacted the uncle to extend an invitation to her. At the time, she told him what was going on in her marriage...upon arrival in Canada [she] provided him all the details of abuse and violence she suffered at the hands of the husband and this by extension informed his [sic] uncle's eventual support of her decision to seek for refugee protection in Canada."11 The Appellant submits that there was no inconsistency between her BOC and testimony and that any inconsistency lies in the RPD's misapprehension of the Appellant's testimony. [24] I have reviewed the Appellant's testimony and it is clear that she testified that her uncle was not aware of the domestic violence prior to her arrival in Canada. Minister: Did you tell your uncle about the domestic violence? Appellant : Not really... Minister: Before you came to Canada you told him about the domestic violence? Appellant: Not really. Minister: What means "not really"? How much did you tell... Appellant: I told him the difficulty I am going through but I did not tell how gravity it was.12 .... Minister: Did your uncle invite you knowing that you were trying to flee domestic violence? Appellant: No.13 [25] I find that there are material inconsistencies between the Appellant's BOC and her testimony that go to the heart of her claim and negatively affect her credibility. Failure to disclose asylum claim in the United States [26] Questions 6(d) and (e) in Schedule A of the immigration forms asked the Appellant whether she had been refused refugee status or ordered to leave "Canada or any other country." While the Appellant disclosed that she was denied a Canadian visitor visa in 2008,14 she did not disclose that she made an asylum claim in the United States in 2003 and was deported in 2007, which information was presented by the Minister: According to information from the Global Case Management System (GCMS), the claimant was fingerprinted on or about XXXX XXXX 2003 in relation to an asylum claim in the United States. The claimant was also subject to an apprehension / enforcement action by US OHS (United States Department of Homeland Security) on or about XXXX XXXX 2007.15 [27] At the RPD hearing the Appellant testified that she made an unsuccessful asylum claim in the United States in approximately 200316 and that she was deported from the United States in 2007.17 When asked by the RPD why she had not disclosed this information on her immigration form, the Appellant said that she had not understood the questions when completing the form, thought it only applied to Canada and had disclosed the information on her visa application form.18 Noting that the Appellant did not correct her form in the roughly one year between the date of completion of the document and the date of the hearing, the RPD drew a negative inference as to the credibility of the Appellant. [28] In her appeal submissions the Appellant concedes that she did not disclose that she had lived in the United States, sought asylum protection there or was deported to Cameroon. The Appellant argues that when confronted with the omission, she said that she did not understand the question on the immigration form and thought it was asking about any previous applications to Canada. The Appellant submits that she did not deliberately attempt to withhold disclosure of her previous asylum application and deportation from the United States. [29] I agree with the RPD that the Appellant's failure to mention her claim for asylum in the United States is a serious omission from her immigration forms and I also note that it is not mentioned in her BOC narrative. The BOC narrative states that the Appellant married in 1998 and that she acceded to her husband's request to stop going to school and not to work to "stay home and care for [their] two boys." She goes on to say that they "were very happily married until 2013."19 There is no mention in the Appellant's BOC narrative of her time in the United States from 2003 to 2007. I find that this is a serious omission from the history of the Appellant's relationship with her husband and goes to the heart of her claim. Corroborative evidence [30] The RPD identified credibility issues with a letter from the Appellant's pastor and two medical reports. Pastor letter [31] The RPD found that while the letter from the Appellant's pastor20 confirms in general terms the abuse allegedly suffered by the Appellant, as well as her devotion to Church matters, it fails to specifically detail the pastor's attempts in XXXXand XXXX of 2017 to counsel the Appellant's husband and omits to mention that the Church paid for the Appellant to travel to Canada. The RPD found these to be material omissions which, combined with the generality of the letter and the lack of specifics, led the RPD to give little weight to the letter. [32] The Appellant quotes excerpts from the pastor's letter and argues that it is clear that he met with the Appellant's husband on at least two occasions to provide guidance and counsel. On this basis the Appellant submits that the RPD finding that the Appellant's pastor did not detail his two attempts to counsel the Appellant's husband in XXXXand XXXX 2017 was unreasonable, made in error and without regard to the evidence properly before it. The Appellant also quotes this passage from the pastor letter to show that the Church paid for the Appellant to travel to Canada. [33] Following my own review I find that details in the pastor's letter are not consistent with the Appellant's evidence: BOC narrative Pastor letter Testimony My pastor came to our house on XXXX XXXX XXXX 2017 with an elder to try and counsel my husband again in a last-ditch effort. He was not interested to listen to whatever they had to say.21 Hearing about her predicament and with her concern I with and [sic] an elder in our congregation visited her home to pray for her family for guidance and counsel. However, this did not seat [sic] well with the husband who reacted so aggressively and sent us out of his house.22 My pastor, XXXX XXXX XXXX and an Elder, XXXX XXXX came to counsel both of us on XXXX XXXX 2017, but I was shocked that just about 2 hours later my husband came home with XXXX XXXX.23 As a minister and man of God I made another effort to visit the family again, this time without the elder, and though I wasn't chest out this time around XXXX [sic] husband gave a deaf ear to my plead to safe [sic] their marriage.24 I eventually informed my church who help me financially to come [to Canada].25 Our congregation always stood to support mesambe and her kids financially and otherwise when need arose, especially when she was aggressively abused and ended up in the hospital.26 When asked by the RPD to explain why the pastor did not mention that the congregation helped to pay for the Appellant's departure, she said she did not know.27 [34] I also note some issues on the face of the pastor's letter. Page one and page two of the letter are in a different style and font, page one is in bullet form and page two is a non-bulleted paragraph. The name of the author is presented in three different forms in the two-page letter: XXXX XXXX XXXX (bottom of page one); XXXX XXXX XXXX XXXX (top of page two); and XXXX XXXX XXXX XXXX XXXX XXXX XXXX (stamp on page two). The letterhead on page one lists the name of the ministry as "XXXX XXXX XXXX," the text on page two references "XXXX XXXX XXXX XXXX" and the seal says, "XXXX XXXX XXXX XXXX." Although allegedly signed and stamped by a lawyer on page one of the letter, the lawyer's signature is not dated and there is no indication that the document is commissioned or notarized. [35] For all of these reasons I find that the RPD did not err when it assigned little weight to the pastor's letter. Given the problems I have identified on the face of the letter, I have concerns about its authenticity, but absent submissions from the Appellant on this issue, I cannot find it a fraudulent document. Medical reports [36] The Appellant presented two medical reports to confirm the injuries she allegedly suffered following assault by her husband on XXXX XXXX XXXX 201728 and XXXX XXXX XXXX 2017.29 [37] The RPD noted an error in the boilerplate letterhead of both of the medical reports: the motto of Cameroon "Paix - Travail - Patrie" in French is misspelled as "Paix -Travial - Patrie." When the RPD pointed out to the Appellant the correct spelling of "Travail" is not "Travial," it found that she was unable to explain how the Ministry of Health in an officially bilingual country could misspell its own motto on official government letterhead. [38] The RPD noted that on the same document, the Region is left unspecified in both English and French. In French, it is written "Délégation régionale de la..." and in English "Regional Delegation of...." The RPD found that the Appellant was unable to explain how official letterhead from the Government of Cameroon could fail to identify the region where the hospital is located. [39] The RPD found that although the Appellant testified that she suffered a hip injury and bruises on her arm or hand during the XXXX XXXX XXXX 2017 assault, the medical report only mentions the leg injury and there are no references to injuries on the arm or the hand. [40] The RPD concluded the medical reports were fraudulent and "concocted by the [Appellant], or by someone under her direction, for the sole purpose of documenting injuries that did not occur." [41] The Appellant makes the following submissions: the XXXX XXXX XXXX 2017 report also referenced generalized body and XXXX injuries; the RPD finding that spelling errors would not be found on a genuine document issued by the Cameroonian authorities is speculative absent objective documentary evidence; the Appellant could not be expected to provide a reasonable explanation for the spelling errors as she did not prepare the document; the RPD erred when it found that the "regional delegation" was not identified on the medical reports as it was identified as "public health south west"; the RPD did not consider the totality of the evidence and failed to independently assess the other corroborative evidence. [42] I agree with the Appellant that the RPD made some errors. The Appellant testified about the injuries she sustained on XXXX XXXX, not XXXX XXXX as stated by the RPD. The RPD also erred when it found that the regional delegation was not identified on the medical reports and when it did not consider the totality of the evidence. [43] I have reviewed the totality of the corroborative evidence presented by the Appellant about the injuries sustained as a result of the alleged assaults by her husband: the letter from the pastor, the letter from the aunt and the two medical reports. I note that the pastor letter references that the Appellant "was aggressively abused and ended up in the hospital,"30 and the aunt's letter says that the Appellant's husband "would look for any opportunity to beat her up to the point she will end up in hospital."31 Neither of these letters corroborate the dates of the hospitalizations, the number of hospitalizations or any details of the injuries sustained by the Appellant. [44] The Appellant testified that on XXXX XXXX XXXX 2017 she sustained injuries, specifically that her XXXX was sore and her arm and hand were bruised.32 The medical report says that on XXXX XXXX the Appellant "consulted for chest pain, abdominal pain and body weakness."33 [45] The RPD incorrectly found that the XXXX XXXX XXXX 2017 report did not reference any injuries to the Appellant's arm or hand because the Appellant's testimony was about her XXXX XXXX XXXX 2017 attack. I find, however, as detailed above, that the Appellant's testimony about her injuries on XXXX XXXX XXXX 2017 is not consistent with the XXXX XXXX medical report. [46] I also note that the XXXX XXXX XXXX 2017 medical report presents the Appellant's "past medical history" and lists exactly the same history as that listed in the XXXX XXXX XXXX 2017 report but does not mention the XXXX XXXX injuries or the Appellant's hospitalization for XXXX days despite being signed by the same medical officer approximately XXXX weeks later. [47] I find, on a balance of probabilities, that the medical reports are fraudulent documents and the Appellant did not present credible evidence to corroborate the alleged attacks by her husband. The attacks are the key element of her claim for protection which I do not find, on a balance of probabilities, to be credible. Minister's evidence [48] Although not addressed in the RPD decision, I also find that the evidence of the Facebook history of the Appellant, her alleged abuser and his current wife34 presented by the Minister raises issues about the credibility of her claim: ...open-source social media activity indicates the claimant has a Facebook profile under the name "XXXX XXXX". This profile is friends with "XXXX XXXX", who is listed as the claimant's contact person in Canada in her TRV application, and "XXXX XXXX XXXX", who in turn indicates she in [sic] in a relationship with "XXXX XXXX XXXX" since at least 2010...In turn, "XXXX XXXX XXXX" is also friends with "XXXX XXXX", likely the claimant's uncle.35 [49] This cannot be a determinative finding as the Appellant has not made submissions on this issue, but it supports my negative credibility finding. CONCLUSION [50] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Susan Brown" Susan Brown August 26, 2020 Date 1 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96 (CanLII). 2 Ibid., and Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385 (CanLII). 3 For example, X (Re), 2017 CanLII 145109 (CA IRB), X (Re), 2017 CanLII 145109 (CA IRB), X (Re), 2018 CanLII 142789 (CA IRB) and X (Re), 2019 CanLII 132647 (CA IRB). 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 5 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93 (CanLII). 6 Ibid., and X (Re), 2017 CanLII 33034 (CA IRB). 7 Hearing of April 23, 2019, Audio Recording 0:25:00-0:28:00. 8 RPD-1, RPD Record, page 5, Reasons and Decision, para. 5. 9 RPD-1, RPD Record, page 22, Exhibit 2, lines 124 and 125, BOC narrative. 10 Hearing of April 23, 2019, Audio Recording 0:55:20-1:02:15. 11 P-2, Appellant's Record, page 37, Appellant's Memorandum, para. 16. 12 Hearing of April 23, 2019, Audio Recording 0:55:20-0:55:45. 13 Hearing of April 23, 2019, Audio Recording 0:57:10-0:57:20. 14 RPD-1, RPD Record, page 36, Exhibit 1, Schedule A. 15 RPD-1, RPD Record, page 82, Exhibit 4, para. 2, Minister's Notice of Intervention and page 90, Minister's evidence. 16 Hearing of April 23, 2019, Audio Recording 0:46:30-0:48:00. 17 Hearing of April 23, 2019, Audio Recording 2:15:00-2:15:30. 18 Hearing of April 23, 2019, Audio Recording 2:45:30-2:49:20. 19 RPD-1, RPD Record, page 19, Exhibit 2, lines 10-15, BOC narrative. 20 RPD-1, RPD Record, pages 147-148, Exhibit 6. 21 RPD-1, RPD Record, page 21, Exhibit 2, lines 75-77, BOC narrative. 22 RPD-1, RPD Record, page 147, Exhibit 6. 23 RPD-1, RPD Record, page 21, Exhibit 2, lines 92 - 94, BOC narrative. 24 RPD-1, RPD Record, page 147, Exhibit 6. 25 RPD-1, RPD Record, page 23, Exhibit 2, lines 125-126, BOC narrative. 26 RPD-1, RPD Record, page 147, Exhibit 6. 27 Hearing of April 23, 2019, Audio Recording 1:39:25-1:41:00. 28 RPD-1, RPD Record, pages 156-157, Exhibit 6. 29 RPD-1, RPD Record, pages 154-155, Exhibit 6. 30 RPD-1, RPD Record, page 147, Exhibit 6. 31 RPD-1, RPD Record, page 152, Exhibit 6. 32 RPD Hearing of April 23, 2019, 0:32:15-0:33:10. 33 RPD-1, RPD Record, page 156, Exhibit 6. 34 RPD-1-RPD Record, pages 112-122, Exhibit 4, Minister's evidence. 35 RPD-1, RPD Record, pages 83 and 84, Exhibit 4, para. 11, Minister's Notice of Intervention. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-15982 RAD.25.02 (January, 2020) Disponible en français 2 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 (January, 2020) Disponible en français