TB7-18990

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 / Dossier de la SAR : TB7-18990 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, ON Appel instruit / entendu à Date of decision July 19, 2018 Date de la décision Panel James Sloan Tribunal Counsel for the person(s) who is(are) the subject of the appeal Robert Gertler Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX (the Appellant) claims that if returned to Georgia, her country of nationality, she will be persecuted based on her membership in a particular social group, namely, women who have suffered domestic abuse. Her claim for refugee protection was refused by the Refugee Protection Division (RPD) on August 29, 2017. She now appeals to the Refugee Appeal Division (RAD). DETERMINATION [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), I refer the matter to the RPD for redetermination. The appeal is allowed. FACTUAL BACKGROUND [3] The Appellant's second husband, XXXX XXXX, began to abuse the Appellant and her son from her first marriage in January 2015. On March 15, 2015, Mr. XXXX attacked the Appellant so severely that she was hospitalized. She was interviewed at the hospital by two police officers. After the Appellant left hospital, she returned to Mr. XXXX because she was afraid that if she did not, he would harm her parents. [4] After an assault by Mr. XXXX in April 2015, both the Appellant and her son were hospitalized for three days. Again, she was interviewed by a police officer. She signed a statement and the officer told her that he would investigate the matter. Upon discharge from the hospital, the Appellant moved with her son to a relative's home. [5] In June 2015, Mr. XXXX found the Appellant. He beat and stabbed her. She lost consciousness and was hospitalized. The police took a statement from her and told her that they would investigate. [6] The Appellant stayed at the homes of different friends to avoid Mr. XXXX; however, he continued to attempt to find her. [7] The Appellant decided to flee to Canada where she had a cousin. Using a US tourist visa that she had obtained in 2013, she left for New York on XXXX XXXX XXXX XXXX. On XXXX XXXX XXXX XXXX, she entered Canada by land border. DETERMINATIVE ISSUE [8] The determinative issues in this case are credibility and the existence of an internal flight alternative (IFA). STANDARD OF REVIEW [9] The standard of review is correctness,1 except where the RPD enjoys a meaningful advantage in the assessment of the oral testimony. If such an advantage exists, I will apply a standard of reasonableness.2 Where I do so, I will so indicate. ANALYSIS [10] The RPD found the Appellant to lack credibility, noting: a) irregularities in her US visa application; b) that she was vague and inconsistent in her testimony regarding her abuse and that that testimony appeared rehearsed; and c) that she had taken no steps to divorce her abusive husband. The RPD rejected the Appellant's supporting evidence. In the alternative, the RPD found that adequate state protection would reasonably be forthcoming in Georgia but that the Appellant had not made sufficient efforts to seek it. [11] The Appellant argues that the RPD erred: 1) in its credibility findings; 2) by ignoring her documentary evidence; 3) by ignoring the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (Gender Guidelines);3 4) in its findings regarding state protection; and 5) in finding that the Appellant has an IFA. This last argument is puzzling as the RPD made no finding that the Appellant had an IFA and the Appellant-despite labelling this an issue-did not offer any argument in relation to it. 1. Credibility a) US Visa [12] The Appellant's evidence-both in her Basis of Claim (BOC) form and her testimony-was that she worked for a bank. However, the Board received information from the US authorities indicating that in her 2013 US visa application she stated that she worked as a "PATROL POLICE, BORDER GUARD". When she was confronted on this point, the Appellant said that she did not fill out the US visa application; rather, it was done by a "tourist office" that her ex-husband had retained to obtain the visa. She had merely signed it. She conceded that she was interviewed by the US authorities in relation to the visa, but said that the interview had only lasted "two minutes." The RPD noted that the visa application indicated that the Appellant had had no assistance in filling out the form; the Appellant had no explanation for this. She denied that she had worked as a border guard and testified that the tourist office might have said that she had so that she would be more likely to obtain a visa. It was, she testified, common for tourist offices to provide false information. The RPD noted that there was no evidence indicating that this type of fraud was commonplace in Georgia and found, on a balance of probabilities, that she was a border guard and had not been truthful in testifying that she worked at a bank. [13] In addition, the US visa application lists the Appellant's ex-husband's cousin as her spouse. When this was pointed out to her, the Appellant indicated that she had not known this at the time. She testified that her ex-husband's cousin had wanted to travel with them to the US and since her ex-husband had a good travel history, such a misrepresentation might have been made to assist her ex-husband's cousin to obtain a US visa. The RPD found, on a balance of probabilities, that the Appellant knew that her ex-husband's cousin had been listed as her spouse. It found that her "deception cast doubt on her entire claim"4 and concluded, on a balance of probabilities, that she was "never the victim of domestic violence as alleged."5 [14] The Appellant argues that the irregularities in the US visa application and the inconsistency as regards her profession do not relate to central elements of her claim. She argues that the RPD did not understand her explanation that the person who filled in the visa application for her likely lied. [15] I agree with the RPD that there is an inconsistency between the information provided in the Appellant's visa application to the US and her evidence to the Board in relation to her profession. Further, the US visa application was fraudulent in that it named her ex-husband's cousin as her spouse. In each case, she explained that the irregularity was due to some sort of fraud of which she had no knowledge. I do not accept her explanations for the serious irregularities. Given that she was interviewed by the US authorities based upon the content of the application, I find that it would have been too great a risk for the tour agency (which she blames for wrongly stating that she was a border officer) or her husband (whom she blames for the misrepresentation regarding who her spouse was) to attempt such fraud without her involvement. Moreover, she signed the application. I find, on a balance of probabilities, that the Appellant engaged in fraud in applying for her US visa. I draw a negative inference as regards her credibility from her behaviour. I do not, however, agree with the RPD that her dishonesty in this regard is sufficiently central to her claim that it may be concluded that she was never a victim of domestic abuse. b) Testimony as regards her abuse [16] The RPD found that the Appellant's testimony regarding the domestic abuse she suffered was vague, disjointed and sounded rehearsed. It noted that while she testified that her husband had only hit her in the face during the March 2015 attack, she later said that he had also hit her in the head. In her BOC narrative she claimed that her husband had knocked her down and dragged her across the floor. The RPD drew an adverse inference from her "inability to keep her story straight."6 The RPD found, on a balance of probabilities, that the Appellant was never a victim of domestic violence. [17] I have reviewed the recording of her testimony and do not share the view of the RPD that her testimony regarding her abuse results in a finding that she was not a victim of domestic abuse. c) Divorce [18] The RPD asked the Appellant-who has begun a new relationship here in Canada-why she had taken no steps to divorce her husband. She replied that he is very aggressive "right now" and she did not want to bring up the topic. It noted, however, that she testified that she had not spoken to him since she had left Georgia. The RPD drew a negative inference from the fact that the Appellant had taken no steps to seek a divorce and had not provided a reasonable explanation for not doing so. [19] I do not agree that the fact that the Appellant did not seek to obtain a divorce in the period between when she came to Canada (October 2015) and the date of her hearing before the RPD (August 2017) can be relied upon as the basis for a negative inference. Whether or not she has begun a new relationship, there is no expectation that someone who has been abused would necessarily commence divorce proceedings. CONCLUSION [20] As discussed above, I have found, on a balance of probabilities, that the Appellant engaged in serious fraud in her application for a US visa in 2013. However, as this is not directly connected with her claimed persecution, it is not a sufficient basis to find that she has not suffered from domestic abuse; nor is it a sufficient basis to find, cumulatively, that she lacks credibility. [21] In the circumstances, I find that referring the matter back to the RPD is the appropriate remedy as I find myself unable to determine whether or not the Appellant is a Convention refugee or person in need of protection. [22] Because the persecution that the Appellant claims to have suffered was at the hands of her husband, Mr. XXXX XXXX and not the Georgian state, this may well be a case where the Appellant has an obligation to seek protection in a part of Georgia where she is not near her husband. The possibility of an IFA was not examined by the RPD. [23] As part of the process of analysing whether or not there is a suitable IFA, regard must be had to a two-pronged test: first, whether or not the Appellant would, on a balance of probabilities, be subject to a serious possibly of persecution even in her new location and, second, whether it would be reasonable, in all the circumstances, for the Appellant to live in the new location. To arrive at a determination on the second prong, more facts are required than are before me in the record. [24] The existence of state protection will be considered as part of the RPD's redetermination when it considers the first prong of the IFA test. As such, I will not address it here. Nor, given my decision, is it necessary for me to consider the other issues raised by the Appellant, i.e. the RPD's treatment of the supporting documents or whether it ignored the Gender Guidelines. [25] Pursuant to paragraph 111(1)(c) of the IRPA, I refer the matter to the RPD for redetermination with directions that the issue of the existence of a suitable IFA be addressed. The appeal is allowed. (signed) "James Sloan" James Sloan July 19, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Ibid., at paras 69-74, and X (Re), 2017 CanLII 33034 (CA IRB). 3 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to subsection 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act ("Gender Guidelines"). 4 Exhibit P-2, Appellant's Record, at p. 10, Reasons and Decision, at para 29. 5 Ibid., at para 30. 6 Exhibit P-2, Appellant's Record, at p. 11, Reasons and Decision, at para 32. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-18990 8 RAD.25.02 (April 24, 2018) Disponible en français