TB6-12218

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 : TB6-12218 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 November 9, 2016 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Conor Smith Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] XXXX XXXX(the Appellant), a citizen of Mongolia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either find her to be a Convention refugee or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she is a lesbian who was married to a violently abusive man. After years of abuse, the Appellant left her husband in XXXX of 2015 and fled to another city. When her husband located her in XXXX 2015, she decided to leave the country. She entered Canada in XXXX of 2015 and filed a refugee claim the following month. [4] The Minister of Immigration, Refugees and Citizenship Canada (the Minister) intervened in the Appellant's claim before the RPD submitting that there were "significant credibility issues."1 [5] The Appellant's application for refugee protection was heard on February 15 and February 23, 2016. By a decision of March 4, 2016, the RPD rejected the claim, citing numerous credibility concerns with the Appellant's evidence. [6] The Appellant submits that the RPD denied her procedural fairness, drew inferences that were not open to it, ignored evidence, and made patently unreasonable credibility findings. ANALYSIS The Role of the RAD [7] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [8] The Appellant submits that "credibility determinations by the RPD are owed the highest level of deference," and should only be set aside in the clearest of cases.2 [9] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.3 [10] The RAD is a creature of statute and so is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.4 Such an appeal (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.5 [11] According to the Federal Court of Appeal, the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. It is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.6 [12] With respect to findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness.7 When applying that standard, the RAD will not show deference to the RPD's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to decide whether it agrees with the determination of the RPD; if not, the RAD will substitute its own view and provide the correct answer.8 [13] There are, however, cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because such findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.9 The Federal Court of Appeal, in discussing the standard of review to be applied by the RAD to the RPD's decision, has declined to provide the scope and degree of deference to be shown by the RAD: The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.10 [14] While it is clear that some level of deference is warranted, it is less obvious how much deference is owed, and to what findings. As the Federal Court observed in Akuffo: [T]here also appears to be a consensus that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings. The opinions rather diverge on: i) the level of deference that is owed or its exact definition; and ii) the scope of the questions of fact and questions of mixed fact and law for which deference is owed.11 [15] The RAD will show deference to the RPD's findings where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony. As such, credibility findings arising from that oral testimony are deserving of deference, as are other findings of fact based on oral evidence, as are findings based on the RPD's specialized knowledge of a particular matter where the RAD does not have its own specialized knowledge with respect to the same factual issue. The RPD's advantage may even extend to personal documents in situations where it has questioned the claimant or witness about such documents and where the resulting testimony gives rise to credibility concerns. [16] Not every finding relating to credibility warrants deference. Where the RPD has made a finding of implausibility, for example, it has no advantage where the determination of plausibility is based on the RPD's own reasoning, or on objective documents, and does not arise directly from the oral evidence.12 Similarly, where the RPD draws an inference - a credibility finding based on deduction and reasoning, rather than a contradiction in evidence - the RAD may see no reason to show deference, as the appellate tribunal can be expected to have equal expertise in the inferential process.13 [17] How much deference is owed by the RAD to findings of the RPD? In Huruglica, the Federal Court held that the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error".14 This passage has subsequently been endorsed by other decisions of the Court. [18] Although the Court did not explain what level of deference is established by recognizing and respecting a conclusion of the RPD, it has repeatedly upheld decisions in which the RAD applied a reasonableness standard to decisions of the RPD.15 In the RAD's view, this suggests that "recognize and respect" is indeed somewhat similar to reasonableness. [19] In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome.16 Despite the difference between judicial review and a RAD appeal, the RAD finds this framework helpful in considering its own approach to deference. [20] Even where the RAD is to show deference to findings of the RPD, those findings must still be the result of a comprehensible reasoning process. The RAD must be able to read the RPD's decision and understand how the RPD's conclusions were reached. [21] Further, the outcome of that process must be a result that is based on and supported by the evidence that was before the RPD. For this reason, it is particularly important that the RAD engage in its own review of the evidence in the RPD's record, in order to determine whether the RPD's finding is supported by that evidence. [22] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [23] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from a comprehensible reasoning process whose premises are rooted in such advantages. If either the process or the outcome does not meet these requirements, the RAD will determine the findings to be in error. [24] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. The RPD's Findings [25] The Appellant argues that the RPD made numerous errors in rejecting her claim for protection. Procedural Fairness [26] The Appellant submits that the RPD hearing was procedurally unfair. After two days of testimony, her counsel asked the panel which issues remained live. The Appellant argues that "the Panel concluded its comments by stating, 'credibility in connection with subjective fear is the only issue that's in my mind.'"17 In her view, the RPD erred by rendering a decision which includes numerous negative credibility finding, not all related to subjective fear. [27] The RAD agrees that the Appellant would have suffered an injustice if the RPD removed issues from consideration prior to counsel's submissions, and then proceeded to make findings with respect to those issues. However, this does not appear to be the case here. In fact, the record indicates that the RPD repeatedly indicated that credibility was at issue, and the Appellant's counsel addressed that issue in the refugee hearing. [28] Prior to making submissions, the Appellant's counsel asked the RPD for guidance with respect to live issues. The panel replied, "Credibility. I think that - tied in with subjective fear I guess, but I think that's the only issue, yeah."18 Counsel asked, "Subjective fear in what respect?" and the Member replied, "Subjective fear is always tied in with credibility per se." Counsel responded, "I'll just make submissions on everything." [29] Some further discussion ensued, with counsel again stating, "I'll just make submissions on everything." The Member replied that submissions were not needed on state protection or internal flight alternative, and added, "As far as I'm concerned, unless you want to put something into the record - but I think credibility is the key issue."19 There was then discussion about the panel's credibility concerns with documentary evidence, and finally the Member summarized the discussion by stating: Counsel asked me to identify the outstanding issues and I indicated that credibility in connection with subjective fear is the only issue that's in my mind and that he doesn't need to address state protection or internal flight alternative.20 When asked by the interpreter to repeat this, the panel again referred to its concerns with the authenticity of documents. [30] If the RPD's summary is taken in isolation, it can be understood to suggest that the panel was concerned only with "credibility in connection with subjective fear." However, the broader context indicates otherwise. The RPD clearly explained that credibility was an issue, and that subjective fear was a component of the larger issue. Counsel promised to make submissions on everything; the Member later repeated that "I think credibility is the key issue." [31] Having twice indicated that he intended to make submissions on everything, the Appellant's counsel proceeded to make wide-ranging closing arguments to the RPD.21 He began by speaking to credibility in general, then discussed credibility concerns raised in the Minister's intervention, and proceeded to discuss corroborating evidence which supported the Appellant's testimony. At one point the panel interjected to say, "So if there's a general credibility issue... it reflects on the documents."22 Only near the end of his submissions did the Appellant's counsel turn to the issue of subjective fear.23 [32] Having reviewed the record, the RAD cannot accept the Appellant's argument that she was denied procedural fairness or natural justice by the RPD. Credibility was at issue in her hearing: this is clear not only from the Member's comments, but also from counsel's submissions. Sexual orientation and domestic violence [33] The Appellant submits that the RPD erred by "segmenting" her allegations relating to domestic violence and sexual orientation "as if they were unrelated to one another."24 [34] The RPD noted that most of the credibility issues it identified related to the Appellant's husband, and stated: This is the primary basis for her claim that she faces persecution in her country at the hands of her vindictive husband. I have considered whether there is sufficient residual evidence to support a claim for refugee protection. This question relates in particular to the claimant's allegation that she is a lesbian and whether it is possible that the claimant has embellished her evidence about the alleged risk from her husband while still being credible with respect to her identity as a lesbian woman.25 [35] The RAD finds no error in the RPD's analysis here. The Appellant's own Basis of Claim narrative begins with, "I am a citizen of Mongolia and no other country. I fear that my husband, XXXX XXXX, will seriously harm or kill me if I return to Mongolia."26 At the outset of the refugee hearing, the Appellant was asked about her fear in Mongolia. She replied, "First of all, I have to tell this. I'm a lesbian and second of all, my husband all without - would threaten me to kill." The RPD asked, "So it's your husband who you're afraid of, correct?" The Appellant answered, "Yes, Yes I am. I'm afraid of my husband. I - well, first I'm scared. I am under a lot of pressure and it is very difficult to live in Mongolia."27 [36] The RPD found numerous credibility concerns with the Appellant's allegations about her husband. Despite disbelieving those allegations, it proceeded to consider what it called a "residual basis" to the claim, the Appellant's sexual orientation. While the Appellant appears to take the position that the use of the term "residual" suggests that this basis was less important or secondary, the RAD cannot agree. "Residual" simply refers to that which is "remaining, still left."28 The Appellant alleged that she feared harm at the hands of her violent husband because she is lesbian; the RPD did not believe her allegations about her husband but nevertheless considered her sexual orientation - the portion of her claim that remained or was still left. This was not wrong; in fact, had the RPD failed to go on to consider sexual orientation, this might have been an error. Relationship with XXXX [37] The RPD considered the Appellant's relationship with her lesbian lover, XXXX. The Appellant did not call the woman to testify as a witness, and did not believe the reasons given for not calling her. The RPD concluded that "the claimant has not satisfactorily established that she has been in a long-term same-sex relationship," and further concluded that the Appellant has not established her identity as a lesbian woman.29 [38] The Appellant argues on appeal that the RPD repeatedly mischaracterized her relationship with XXXX as "long-time", "committed", and "for more than four years" , when in fact it was an affair that began in 2011 and ended in XXXX of 2012. She points out that her counsel before the RPD objected to this. In her submission, the RPD ignored the facts and reached a conclusion on the basis of an erroneous inference. [39] The RAD finds that the RPD erred by characterizing the relationship between the Appellant and XXXX as being long-term and as more than four years; this was simply not the evidence. However, that error does not invalidate the RPD's finding here. The Appellant claimed that she had a same-sex affair with XXXX; when her husband discovered this, he assaulted both of them. It was this incident that caused her to ask for a divorce and then to leave her husband.30 XXXX was a key individual in the Appellant's narrative of persecution. The Appellant told a psychologist that she spoke to XXXX via telephone in XXXX 2015,31 when the Appellant was already in Canada and only a few months before her refugee hearing. Despite this, she did not arrange for XXXX to testify, nor did she provide any corroborating evidence from XXXX, even though she had recent contact with her. The Appellant explained that she believed XXXX was at risk from the Appellant's abusive husband; however, the RPD had found, and the RAD agrees, that the Appellant's allegations with respect to her husband were lacking in credibility. [40] In the RAD's view, the Appellant's failure to produce corroborating evidence from XXXX cannot in itself be determinative of the issue of sexual orientation. There is no requirement that a claimant provide such corroborating evidence or call a former lover as a witness. However, it is for the Appellant to establish with credible evidence that she is a lesbian. Her own evidence suffers from numerous credibility problems; as the RPD pointed out, credible evidence from XXXX might have, to some degree, assisted in overcoming those deficiencies. Identity as lesbian [41] The Appellant submits that it was not open to the RPD to find insufficient evidence to establish her identity as a lesbian. She argues that the RPD gave insufficient weight to a letter from her mother, and to another from her cousin, who also testified. She states that she provided "detailed and profound" insights into life as a closeted lesbian woman in Mongolia, which was confirmed by an official of the Rainbow Refugee Coalition. [42] The Appellant's mother provided a brief letter confirming her daughter's homosexuality and the resulting abuse by her husband.32 In the RAD's view, the credibility of this document can be no stronger than that of the Appellant. There were numerous credibility deficiencies in the Appellant's testimony; in this context, it would make little sense to give weight to a letter from her mother, who was not available to be questioned by the RPD. [43] The Appellant's cousin also provided a brief letter,33 and testified to the RPD by telephone. The RPD found that the cousin did not seem aware of the details of her own letter, gave evidence that contradicted that of the Appellant, and engaged in "persistent repetition of two series of events related to topics that she had clearly anticipated in questioning, instead of replying to questions she was actually being asked about...."34 The RPD gave little weight to the cousin's evidence. For reasons set out below, the RAD finds that the RPD did not err in its analysis of this evidence. As such, it was not an error for the RPD to give little weight to the cousin's testimony about the Appellant's sexual orientation. [44] The RAD has also considered a letter from the Rainbow Refugee Coalition. Its author, Chris Morrissey, wrote that: ... makeclear to me that she is comfortable and familiar interacting with other LGBTQ+ people, both one on one and in groups. Such comfort and ease with other sexual minorities tells me that she has been around LGBTQ+ often in the past. This corroborates her identity as a lesbian woman. The author also claims that the Appellant's "insights as to what it feels like to be a lesbian woman in Mongolia, are also indicative to me that [her] assertion that she is a lesbian is genuine."35 The letter goes on to find that the Appellant is at serious risk of persecution in Mongolia and even determines which particular social groups she belongs to. [45] With the greatest respect to the Rainbow Refugee Coalition, the RAD is aware of no evidence establishing that being comfortable around sexual minorities establishes than an individual is such a minority. Similarly, there is no evidence here that "comfort and ease" somehow establishes previous interactions. Further, it is for the refugee tribunals to determine whether the Appellant's insights and other evidence establish her sexual orientation. This letter has little, if any, value in establishing the Appellant's sexual identity. [46] Having reviewed the evidence, the RAD agrees that the Appellant failed to establish her identity as a lesbian. Her own evidence was full of contradictions and inconsistencies; the evidence of her witness was also problematic. Her mother's letter cannot overcome the Appellant's credibility deficiencies, and the Rainbow letter cannot establish her sexual identity. Psychological condition [47] The Appellant submits that, in finding her to be generally lacking in credibility, the RPD ignored psychological evidence about the impact of Post-Traumatic Stress Disorder (PTSD), from which she suffers. She points to comments from the RPD Member during the hearing, in which the panel appeared to recognize signs of psychological stress. In her submission, it was not open for the panel to make such a general credibility finding. [48] The RAD has reviewed the psychological report. It observes that the Appellant has flashbacks, avoids reminders of her traumatic past, and that it is difficult for her to talk about that past. When she does, "the emotional distress surfaces and can become more palpably witnessed."36 There are no specific recommendations with respect to the hearing, nor is there any indication that the Appellant suffers from memory loss. [49] The RAD has also reviewed the transcript of the refugee hearings. The Member was careful to ensure that the Appellant was able to answer questions, despite her anxiety,37 and told her that she could stop or take a break at any time.38 She checked whether the Appellant was cold, and needed a jacket to feel comfortable.39 When the Appellant appeared to be having difficulty giving straightforward answers to relatively simple questions, the Member checked for interpretation problems, and then respectfully asked the Appellant why her answers were not corresponding to the questions asked.40 When the Appellant appeared upset, the Member offered her tissues, a drink of water, and a break.41 [50] The RPD's reasons also address the Appellant's psychological state. The panel acknowledged the psychological report and the PTSD diagnosis.42 The RPD observed that almost all refugee claimants are nervous, and also that the Appellant had an opportunity to meet with a clinical counselor who provided her with advice about how to deal with her nerves and not lose her train of thought.43 The RAD notes that many of the RPD's credibility findings do not rest solely on the Appellant's hearing-room testimony. The forensic medical report appears to be fraudulent, and it is difficult to see how this could be explained by the Appellant's PTSD; neither can her cousin's evidentiary difficulties. Further, while the psychologist's report suggests that the Appellant has difficulty talking about her traumatic past, it does not indicate that she cannot remember key events, dates, or sequences. [51] The RAD sees nothing in the conduct of the hearing or in the RPD's reasons which suggests that the RPD was not alive and alert to the Appellant's psychological state. Further, the fact that the Appellant has provided a report with a PTSD diagnosis does not simply exempt her from a credibility assessment. Application of the Gender Guidelines [52] The Appellant submits on appeal that the RPD did not apply the Gender Guidelines in anything more than a perfunctory manner. The panel considered the "Special Problems" highlighted in the Guidelines and found that these could not account for the Appellant's evidentiary deficiencies, as she was not unduly hesitant in describing details of her allegations, nor do particular cultural concerns seem to apply, as the Appellant is a well-educated and well-travelled woman.44 [53] The Appellant argues that in the previous paragraph, the RPD found that the Appellant's answers were "frequently hesitant," which was at odds with its finding with respect to the Guidelines. Further, she points out that being educated and well-travelled does not mean she would not experience trauma in a manner affecting her ability to testify. [54] The Gender Guidelines exist to ensure that gender-based claims are heard with sensitivity.45 As described above, the RAD has examined the conduct of the hearing and found that the RPD did not err in that respect. [55] The RPD's decision is confusing with respect to whether the Appellant hesitated in answering questions. At paragraph 34, it found that the Appellant's initial responses were "frequently hesitant, inconsistent, or off topic from the questions," and concluded that she was being evasive. The RPD continued at paragraph 35 to consider Section D of the Guidelines and to find that the Appellant was not "unduly hesitant." At first glance, this appears to be inconsistent. However, these comments must be considered in context. After finding that the Appellant's responses were "frequently hesitant," the RPD observed that this applied not only to traumatic past incidents, but also to "apparently neutral" topics such as her employment. In other words, as the RAD understands the reasons, the RPD did not find that the Appellant's hesitation in answering questions was related to specific questions about gender-based violence, as contemplated in Section D of the Guidelines. [56] The RPD's comments about the Appellant being well-educated and well-traveled are also not as clear as they could be. However, as the RAD understands this part of the RPD's "cultural concerns" analysis, the RPD was simply noting that the Appellant is not unsophisticated. In the RAD's view, this is not highly significant to the credibility analysis or the Gender Guidelines; however, the inclusion of this comment was not an error. The RPD conducted the hearing with sensitivity, applied the Guidelines, and specifically considered Section D, dealing with special problems at determination hearings. The RPD observed that the Appellant's credibility deficiencies were not restricted to areas where she had allegedly experienced gender-based persecution, but were also present with respect to far less traumatic subjects. This was not an error; having reviewed the evidence, the RAD reaches the same conclusion. Witness testimony [57] The Appellant's cousin testified by telephone from Mongolia. The RPD found that testimony to be inconsistent with the Appellant's own evidence, and made a negative credibility finding. [58] The Appellant argues on appeal that the RPD confused the witness and then made unfounded negative findings. The RAD has therefore reviewed the RPD's findings against the transcript of the proceeding. [59] The Appellant submits that she gave evidence of two visits to her cousin's home in Darhan City. She was alone for the first visit; the second visit was "more of a move" and she had her children with her.46 The RPD found an inconsistency, because the cousin testified that the Appellant came alone. The Appellant argues that the RPD, in questioning the cousin and reaching its conclusion, confused the two visits. [60] The Appellant's BOC narrative states that she went to visit her cousin in XXXX of 2015. She returned home for a week, then returned with her daughters to live with her cousin. On XXXX XXXX XXXX her husband found and assaulted her.47 The cousin's letter states that the Appellant and her children were in hiding at her house from XXXX XXXX, 2015 to XXXX XXXX XXXX 2015.48 [61] The cousin was asked whether the Appellant came alone when she moved to XXXX City. She responded in the affirmative. She was asked where the children stayed when the Appellant "fled from her husband", and did not know the answer.49 It does not appear from the transcript that the cousin was being asked about a visit by the Appellant; the RPD clearly asked about the Appellant's moving to XXXX City. The RPD went on to ask if the children "ever came to visit" while the Appellant was staying with the cousin; the cousin replied "Yes, they came. Right now they are staying with me," then confirmed that "they with me now," then changed her answer and claimed that the children are with the Appellant's mother.50 [62] The witness was asked about what the Appellant did for four months while hiding in the small home. She replied that the Appellant cleaned the house, cooked dinner, and watched TV. She made no mention of the children.51 She testified that on XXXX XXXX, she and the Appellant were going out of the city when the Appellant was attacked by her husband. [63] The RPD pointed out that the witness' letter indicated that the children were hiding at her house as well, and then the witness said that she was hiding the children, and said that on XXXX XXXX she and the Appellant left the children at home when they went out. She testified that, after the attack, she took the Appellant to XXXX, and confirmed that it was "just the two of you."52 When asked about the location of the children, the witness said that "I gave you wrong answer." She then claimed that the children were hiding with the Appellant, but also maintained that she took only the Appellant to XXXX. When counsel twice asked the witness whether the children stayed at her home, the witness completely evaded the questions, though there is no indication that the witness could not understand the questions or the interpreter.53 [64] Having carefully considered the evidence, the RAD agrees that the witness' testimony with respect to the children's stay was inconsistent with that of the Appellant. The Appellant claimed she went into hiding with the children; the witness seemed to have considerable difficulty in recalling that these children were living in her small house for four months, and in fact the witness seemed to be confused about whether children were at her house at the time she was testifying. The witness was consistent that she took only the Appellant back to XXXX, which contradicts the Appellant's evidence that "my cousin drove my kids and I back to my mother's house in XXXX XXXX."54 This matter is a key element of the Appellant's refugee claim - she alleges that she and the children went into hiding and remained there for months until discovered. Her cousin's inability to recall hiding the children, and later bringing them to another city, severely undermines the credibility of the Appellant's allegations. It is worth noting that these are not events from the distant past, but from less than a year prior to the refugee hearing. [65] The Appellant testified that her cousin knew she was a lesbian for some time because of rumours in her town; later, when the Appellant visited the cousin, the cousin "understood me." The Appellant testified that the cousin told her, "I thought your sexual orientation had changed because you married a guy."55 The witness, however, when asked when she first learned of the Appellant's sexual orientation, replied: The first time I found out when she was telling me about her life, XXXX 2015, and she told me she's a lesbian. And when I first heard it I was a little bit shocked and then I told her, there is no lesbian in our bloodline or generation. But then later on I understood her suffering.56 [66] The Appellant submits on appeal that this testimony was not inconsistent. Having reviewed the evidence, the RAD disagrees. The cousin clearly stated that she first learned of the Appellant's sexual orientation in XXXX of 2015, and was shocked, as there was no family history; the Appellant claimed that the cousin had known for quite some time. Although the Member repeatedly asked the witness about whether she suspected that the Appellant, when young, was lesbian, the cousin seemed to avoid the question. First she replied that the Appellant was "different than other girls." Then she acknowledged that she heard rumours that the Appellant was lesbian. When asked what she said to the Appellant about her perceived sexual orientation as a child, the witness replied, "So my first reaction was, 'Well, how come you are a lesbian....'" The RAD simply cannot reconcile the two different versions: the Appellant's claim that her cousin knew she was a lesbian but believed that she had changed because she married a man; and the cousin's evidence that she had only heard rumours but was shocked when she found out the truth in 2015. [67] The witness also testified that the Appellant had XXXX out of her husband's house prior to XXXX of 2015: "I noticed when we were living in XXXX, she got - she abused by her husband and also she was staying - staying at some place different than her home." This was apparently prior to XXXX of 2015.57 However, the Appellant claimed that she was unable to leave prior to that time because her husband was controlling, and there is nothing in her narrative to indicate that she was staying away from her home prior to XXXX of 2015.58 [68] Having undertaken its own review of the evidence, the RAD finds that the witness' testimony was inconsistent with that of the Appellant, and that this seriously damages the credibility of the Appellant's allegations. Further credibility findings [69] The RAD notes that there were a number of significant credibility findings not challenged on appeal. The Appellant provided conflicting evidence about when her husband had last seen her children, and some key allegations on this issue were omitted from the BOC.59 The Appellant provided an official medical report, signed in 2012, which included information about injuries incurred more than a year later.60 While the Appellant explained that several cases were combined together, this simply does not account for the fact that a document stating "written on XXXX XXXX, 2012" includes information for the following year. She could not explain visa-related notes from Canadian immigration officials indicating that there were large recent deposits in her bank account around the time of her visa application.61 She provided employment information on immigration forms that was not consistent with an employment verification letter she submitted. Further, the RPD found that "the claimant appeared to be trying to repeat memorized facts rather than describing actual circumstances of her life in Mongolia"62 and seemed to be trying to recall and repeat data memorized for the purpose of her refugee claim. The RPD ultimately concluded that the Appellant was generally lacking in credibility.63 [70] The Appellant does not challenge these findings on appeal. In the RAD's view, this is particularly significant with respect to the forensic medical report. How could a report clearly written in 2012 include information about injuries allegedly sustained in 2013? It was not an error for the RPD to find that this document is fraudulent; the RAD reaches the same conclusion. The submission of such a fraudulent document, while maintaining that it is true, severely undermines the credibility of the Appellant, and also calls into question other documents she has submitted. [71] The RAD will show deference to the findings of the RPD with respect to the Appellant's oral testimony being rehearsed, though this cannot be determinative of the refugee claim. However, even if the RAD would show no deference at all to any of the RPD's findings, it would reach the same conclusion as did the RPD: the Appellant is generally lacking in credibility. She has not established with credible or trustworthy evidence that she is lesbian, or that she has a well-founded fear of persecution in Mongolia for any reason. CONCLUSION [72] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld November 9, 2016 Date 1 Exhibit RPD-1, RPD's Record, p. 142, para. 15. 2 Exhibit P-2, Appellant's Record, p. 205, Memorandum, para. 4, and p.212, para. 36. 3 See, for example, Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063, para. 33. 4 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 5 Dhillon, paras. 14-18. 6 Huruglica, 2016 FCA 93, para. 103. 7 Ibid. 8 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, para. 50. 9 Huruglica, 2016 FCA 93, para. 70. 10 Ibid., para. 74. 11 Akuffo, paras. 34-35; see also Meilina, Yani v. M.C.I. (F.C., no. IMM-642-14), Gagné, December 18, 2014, 2014 FC 1233, para. 11. 12 See Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, para. 32; see also M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 72. 13 An inference is "a conclusion reached by considering other facts and deducing a logical consequence from them" (Black's Law Dictionary, 7th ed., page 781); the Federal Court has described an inference as a legal concept with the same meaning as a plausibility finding (para. 58, K.K. v. M.C.I., IMM-11142-12, 2014 FC 78, which decision contains a thorough discussion of the drawing of inferences.). 14 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799, para. 55. 15 See Yin, Sarom v. M.C.I. (F.C., no. IMM-2845-14), Noël, December 12, 2014, 2014 FC 1209, para. 36, citing Njeukam, Gaelle Leonelle Nguedo v. M.C.I. (F.C., no. IMM-7280-13), Locke, September 10, 2014, 2014 FC 859, Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063, Allalou, Abedelkrim v. M.C.I. (F.C., no. IMM-7217-13), Shore, December 17, 2014, 2014 FC 1084, and Sajad, Zeeshan v. M.C.I. (F.C., no. IMM-926-14), Shore, November 21, 2014, 2014 FC 1107; also Bui, Van Son v. M.C.I. (F.C., no. IMM-1654-14), Shore, November 28, 2014, 2014 FC 1145. 16Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, at para. 47: "A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." 17 Exhibit P-2, Appellant's Record, p. 205, Memorandum, para. 2. 18 Ibid., p. 130, Transcript, lines 26-29. 19 Ibid., p. 131, lines 1-13. 20 Ibid., p.132, lines 6-8. 21 Ibid., pp. 132-140. 22 Ibid., p. 136, lines 31-34. 23 Ibid., p. 138, line 18. 24 Ibid., p. 217, Memorandum, para. 50. 25 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 41. 26 Exhibit RPD-1, RPD's Record, p. 37, Basis of Claim Narrative. 27 Exhibit P-2, Appellant's Record, p. 35, Transcript. 28 Oxford Canadian Dictionary. Don Mills: Oxford University Press, 2001, page 1227. 29 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 46. 30 Exhibit RPD-1, RPD's Record, p. 41, Basis of Claim Narrative, para. 54. 31 Exhibit RPD-1, RPD's Record, p. 231, Psychological Report of Dr. XXXX XXXX. 32 Exhibit RPD-1, RPD's Record, p. 211. 33 Ibid., p. 215; the author refers to herself as the Appellant's sister, but this appears to be an interpretation issue-see Appellant's record, p. 83, Transcript, lines 32-34. 34 Exhibit RPD-1, RPD's Record, RPD's Decision, para. 14. 35 Exhibit RPD-1, RPD's Record, p. 262. 36 Exhibit RPD-1, RPD's Record,, p. 233. 37 Exhibit P-2, Appellant's Record, p. 30, Transcript, lines 27-31. 38 Ibid., p. 34, line 7. 39 Ibid., p. 34, lines 30-31. 40 Ibid., p. 94, lines 10-13. 41 Ibid., p. 98, lines 18-20. 42 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 40. 43 Ibid., para. 33. 44Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 35. 45 Munoz, Olga Cadenas v. M.C.I. (F.C., no. IMM-1218-06), Shore, October 26, 2006, 2006 FC 1273, paras. 29-35. 46 Exhibit P-2, Appellant's Record, p. 229, Memorandum. 47 Exhibit RPD-1, RPD's Record, p. 43, paras. 67-71. 48 Ibid., p. 215. 49 Exhibit P-2, Appellant's Record, p. 106. 50 Ibid., pp. 106-107. 51 Ibid., p. 108. 52 Ibid., p. 110. 53 Ibid., p. 112. 54 Exhibit RPD-1, RPD's Record, p. 43, para. 73. 55 Exhibit P-2, Appellant's Record, p. 97, lines 34-35. 56 Ibid, p. 104, lines 30-33. 57 Exhibit P-2, Appellant's Record, p. 104, lines 18-19. 58 Exhibit RPD-1, RPD's Record BOC Narrative, p. 42, para. 64; see also Appellant's Record, Pages 39-40. 59 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 22. 60 Exhibit RPD-1, RPD's Record, pp. 206-208. 61 See Exhibit P-2, Appellant's Record, pp. 68-69, Transcript. 62 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 33. 63 Ibid., para. 48. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-12218