TB3-08065

RAD File No. / N° de dossier de la SAR : TB3-08065 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 11, 2014 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Barrister and Solicitor 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 (de la) ministre Reasons and Decision [1] XXXX XXXX, a citizen of St. Lucia, has appealed a negative determination of the Refugee Protection Division (RPD) dated October 4, 2013. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the RPD's determination that the Appellant is not a Convention refugee nor is she a person in need of protection. BACKGROUND [3] Ms. XXXX (the Appellant) alleges that she is a bisexual. She fears abuse or death in St. Lucia at the hands of her father, his friends and the community in general because of her sexual orientation. The Appellant came to Canada to visit her aunt on XXXX XXXX, 2005 and remained. [4] The Appellant has had relationships with women and men in Canada. The Appellant made an unsuccessful Humanitarian and Compassionate (H & C) Application. The Appellant was given a letter to report to Citizenship and Immigration Canada (CIC) for removal on XXXX XXXX XXXX 2013, and she informed the office about her situation. The Appellant informed the office that she did not know how to file a refugee claim. The Appellant made her claim for protection on March 15, 2013. [5] The Appellant had a refugee determination hearing which spanned two sittings (June 25, 2013 and August 8, 2013). The RPD rendered a written decision on October 4, 2013 where it found that the Appellant has not been credible regarding her sexual orientation as a bisexual based on inconsistencies between the Appellant's testimony, Basis of Claim (BoC) narrative, and the psychological report including: 1. The Appellant provided inconsistent evidence regarding when and with whom she had her first female relationship. 2. The Appellant omitted in her BoC narrative any reference to her father being abusive and violent toward her when he discovered her sexual orientation which undermined her fear of her father. 3. The RPD did not assign probative value to the psychological report in support of the allegations as the allegations were found not to be credible. 4. The Appellant's delay in claiming (eight years) indicated a lack of subjective fear. 5. The RPD drew a negative inference to the Appellant's failure to provide a copy of her H & C application. 6. The RPD found the Appellant's reavailment to St. Lucia in 2004 indicated a lack of subjective fear. 7. The RPD drew a negative inference to the Appellant's failure to provide evidence of her relationships with women, despite an approximate six-week break in the proceedings, during which she could have obtained such evidence. 8. The RPD noted that the Appellant was not involved in the LGBT community or did not attend any event which could be used as an indicator to corroborate her sexual orientation. 9. The RPD did not assign much evidentiary weight to the affidavit from the Appellant's grandmother and a note confirming that the Appellant had received counselling in XXXX and XXXX 2011 for depression based on the negative credibility findings regarding the Appellant's allegations. The RPD found that these documents were produced to bolster the refugee claim. 10. Based on the totality of the evidence, the Appellant was found not to be bisexual and that her motivation for putting forward this allegation was because she was threatened with deportation. [6] The Appellant's counsel submitted pleadings on November 29, 2013. In the pleadings, the Appellant's counsel alleged that the RPD made several errors including: 1. The RPD erred in finding of fact that the Appellant was not credible and then using this finding to discount the supporting documents provided by the Appellant. The RPD failed to consider the evidence in its entirety and to have an open mind before making an adverse credibility finding against the Appellant. 2. The RPD erred in mixed law and fact by rejecting the psychological report and the supporting letters but using them to impugn the credibility of the Appellant. 3. The RPD erred by using the Appellant's statement that her father had abused her to discredit her but then using the same testimony to find that she had reavailed herself. 4. The RPD erred in it finding of fact that there was a contradiction regarding whether the Appellant first had a relationship with XXXX or XXXX, as it failed to consider the Appellant's explanation that her sexual experience in Canada was full sex. 5. The RPD erred in finding of fact that the Appellant's credibility was impugned based on the omission of any fear of persecution or harm by her father in the BoC. One credibility finding does not necessarily mean that a claimant is not being truthful. 6. The RPD erred in its finding of fact that the Appellant' lacked a subjective fear based on delay in claiming and her reavailment. 7. The RPD erred in mixed law and fact by not assessing the credibility of the Appellant through the lens of the Gender Guideline.1 The RPD's decision paid lip service to the Guideline, and the assessment of the claim was not consistent with the provisions of the Guideline; in particular, the RPD ignored the impact that Battered Woman Syndrome may have on the credibility of the Appellant, especially as it relates to the Appellant's trauma and memory problems. 8. The RPD erred in its finding of fact that the reavailment undermined the credibility of her fear based on her sexual orientation, as her sexual orientation was not known at the time she reavailed. 9. The RPD erred in fact by ignoring the Appellant's explanation for her failure to claim in the United States. 10. The RPD erred in it finding of fact by not placing weight on the Appellant's explanation for her delay in claiming in Canada and by ignoring the relevant portions of the FOSS notes. [7] The Appellant did not provide new evidence other than an affidavit which restates evidence presented in the hearing and arguments included in the appeal. In the pleadings, the Appellant did not request a hearing, and she requested that the determination be set aside or that the matter be referred back for redetermination. STANDARD OF REVIEW [8] The RAD focused on six issues in assessing this appeal: a) Did the RPD err in it finding of fact regarding the Appellant's core allegations? b) Did the RPD err in mixed fact and law its treatment of the psychological evidence? c) Did the RPD err in mixed fact and law in its application of the Gender Guidelines? d) Did the RPD err in its findings of fact related to the delay in claiming, reavailment, and failure to claim in the US? e) Did the RPD err in mixed fact and law regarding its treatment of the remaining evidence? f) Did the RPD err in its finding of fact that the Appellant was not a bisexual? [9] In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,2 which take into account the list of factors in Dunsmuir.3 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. These factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [10] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. [11] Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,4 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [12] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: the Immigration and Refugee Protection Act. Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." While the Divisions have many of the same powers, their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [13] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;5 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA highlighted below. [14] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.6 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing7 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [15] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD's ability to consider evidence. The RAD is not a tribunal of first instance but reviews decisions made by the RPD or considers the decision in light of new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.8 The RAD's authority to consider new evidence and hold hearings in the case of appeals brought by a refugee protection claimant, unless responding to evidence presented by the Minister, is limited to evidence that arose after the rejection of the 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.9 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.10 [16] Given that the RPD has held a hearing on the totality of the evidence, given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".11 [17] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".12 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.13 [18] In the case at hand, the Appellant alleges that the RPD made errors of fact based on its treatment of the evidence before it, errors of mixed law and fact in its application of the Gender Guideline, and errors of law finding evidence not to be credible and then using this finding to discount the supporting documents provided by the Appellant. The RAD affords the RPD with deference and considered the reasonableness of the determination for the alleged errors of fact and errors of mixed fact and law. ANALYSIS OF THE MERITS OF THE APPEAL [19] As identified above, based on a review of all of the evidence and pleadings in the Appeal, the RAD focused on six issues in assessing this appeal: a) Did the RPD err in it finding of fact regarding the Appellant's core allegations? b) Did the RPD err in mixed fact and law in its treatment of the psychological evidence? c) Did the RPD err in mixed fact and law in its application of the Gender Guideline? d) Did the RPD err in its findings of fact related to the delay in claiming, reavailment, and failure to claim in the US? e) Did the RPD err in mixed fact and law regarding its treatment of the remaining evidence? f) Did the RPD err in its finding of fact that the Appellant was not a bisexual? Typographical Error [20] The RAD noted that, in paragraph 35 of the RPD's decision, the RPD concluded that the Appellant did "not face a serious possibility of persecution should she return to St. Vincent." [my emphasis] The Appellant is a citizen of St. Lucia. This issue was not raised as part of the appeal; however, the RAD finds that it is significant enough to merit the RAD's consideration. The RAD noted that the RPD correctly identified the Appellant's citizenship throughout the hearing, in paragraph 1 of the decision, in the summary of the allegations, and throughout the analysis of the evidence with the exception of paragraph 35. In addition, the RAD noted that the RPD did not make reference to or depend upon any country documentation (St. Lucia or St. Vincent) to ground its findings. It made its decision on the evidence before it which it correctly identified as well as the Appellant's oral testimony. Given the evidence, the RAD finds that the misstatement of the country in paragraph 35 was a clerical error. The RAD is aware that the Federal Court has held in Petrova: "When a mistake is typographical in nature, the Court should not interfere with the decision, especially if the error does not appear to have been a misunderstanding of the evidence."14 Based on the evidence before the RAD, the RAD finds that the misstatement of the country in paragraph 35 was a clerical error which does not constitute a misunderstanding of the evidence. Treatment of the Evidence [21] The RPD found that the Appellant's allegations were not credible based on a contradiction related to her first sexual relationship with a woman between her oral testimony and her psychological report15 and based on the omission of any reference to abuse or threats by her father in her BoC narrative. Counsel argued that the RPD erred in finding that the Appellant was not credible and then using this finding to discount the supporting documents (psychological report, letter from grandmother, social worker letter) provided by the Appellant. Counsel argued that the RPD failed to consider the evidence in its entirety and to have an open mind before making an adverse credibility finding against the Appellant. [22] The RAD considered the RPD's reasonableness of the two core findings of fact upon which the RPD found that the Appellant's allegations were not credible. Allegations of Threats and Abuse by the Appellant's Father [23] The RPD found that the Appellant's allegations were not credible based on her omission from her BoC of any reference to her father's abuse and violence towards her after he discovered her sexual orientation. The Appellant explained that she did not understand the process of filling out her BoC and she thinks that she must have submitted the wrong draft. Counsel argued in the pleadings that credibility concerns with one issue do not necessarily mean that the claimant is not being truthful. [24] The RAD also noted that omissions are an acceptable basis for a finding of a lack of credibility if the omission is sufficiently serious and concerns matters that are relevant to the issues being adjudicated. Omissions in PIFs (BoCs) can also form the basis of a negative credibility inference.16 It is reasonable for the RPD to expect that all relevant and important facts should be included in one's PIF, as per Basseghi.17 [25] The RAD reviewed the evidence and noted that the RPD found that the Appellant did not have a reasonable explanation for the omission of any reference to a fear of persecution or harm by her father in her BoC. The Appellant explained that she did not understand the process of filling the forms herself. The RAD noted that the Appellant had the assistance of experienced counsel at the time that her BoC was submitted. The RPD noted in the decision that no BoC amendment or previous draft of the BoC narrative was presented before the first or second sitting of the hearing. The Appellant affirmed that her BoC was complete, true and correct at the beginning of the hearing. She was literate in English (she testified she produced the narrative) and therefore was able to recognize if the BoC that was entered into evidence was the draft she intended or not before it was sworn into evidence. In addition, the RAD reviewed the recording which demonstrated that the Appellant was an eloquent woman who had no difficulty expressing herself, who had an intact memory of allegations, and who did not experience any difficulty recounting disturbing or difficult allegations and was not a person whose recollection of events was not strong. [26] Given that the past history of abuse and threats at the hands of her father were central to all aspects of her claim (both in terms of a fear of harm, as well as support for her claims of being a lesbian or bisexual), given that the Appellant's explanations for the omission of any reference to threats or harm at the hands of her father, or a future fear of harm by her father were found not to be reasonable, given that the Appellant did not submit a BoC amendment or evidence of another version of the BoC to the RPD, given the Appellant's lack of evidence of memory problems, and given the Appellant's level of sophistication and education, the RAD finds that the RPD's finding that the allegations related to her father were not credible were reasonable as they were based on an analysis of the totality of the evidence presented and fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. First Sexual Encounter [27] The RPD found the inconsistent testimony as to her first sexual relationship undermined the credibility of the allegation. The Appellant indicated in her BoC that her first sexual relationship was with XXXX when she came to Canada; however, this did not conform to the psychological report which indicated that the Appellant was involved in a relationship with XXXX. The psychological report indicated: "during the third year she described meeting XXXX, who she later became romantically involved with. Ms. XXXX recalled that they concealed their relationship due to social perception of same sex relationships and fear of abuse from their family and community." [28] Counsel argued in its pleadings that there was no contradiction. The Appellant explained that her first sexual experience was with XXXX in Canada as it was full sex. The Appellant explained that she did not have full sex with XXXX, as the Appellant did not know that touching and kissing were considered sexual until she was informed by the psychologist. The RAD considered the reasonableness of this explanation. The record demonstrates that the Appellant is a 30-year-old woman who had sexual relations with several women and men. The Appellant had completed high school and was able to answer all questions put to her at the hearing with a high level of sophistication. It is not plausible that the Appellant would not equate heavy petting and kissing (as per her testimony) with XXXX as sexual relations given the Appellant's sexual experience and sophistication. It is also not plausible for someone who was able to produce the detailed and well worded BoC narrative (as per her testimony) which made specific reference to sexual relationships not to have understood that sexual touching and kissing amounted to sexual relations. [29] The RPD rejected the Appellant's explanation for the inconsistency based on the fact that it was not credible that the Appellant would state in her BoC that her first sexual relationship was with XXXX in Canada but tell the psychologist it was with XXXX in St. Lucia. The RAD noted that this finding was strengthened by the fact that the psychologist's report does not mention that the Appellant discovered through the psychological interview that she had engaged in sexual relations with XXXX in St. Lucia. [30] For the reasons highlighted above, the RAD finds that the RPD did not err in finding that the Appellant was not credible in regard to her sexual relations as the finding was based on the evidence before the panel, was transparent, and fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Psychological Evidence [31] The RAD considered the RPD's treatment of the psychological report18 by XXXX XXXX XXXX. The RAD noted that, in paragraph 22 of its decision, the RPD assigned the psychological report little weight in support of the allegations as presented by the Appellant given that the Appellant's allegations, which were referenced in the psychological report, were found not to be credible. The RPD made this finding after an analysis of two areas (first relationship with women, and abuse and threats by the father), which the RPD found went to the heart of the claim. Counsel argued that one credibility finding does not necessarily mean that a claimant is not being truthful. Counsel quotes the Guney19 decision in support of this argument. The RAD considered counsel's argument as well as the Guney decision and finds that the allegations of an error by the RPD are not supportable. The RAD noted that the Guney decision does not apply to the present case given that the lie dealt with a lie by a witness, and that the remainder of the evidence presented in the case was found to be plausible and consistent. This is not the case with this appeal. The RPD found that the Appellant was not credible based on several concerns which went to the heart of the claim: her first relationship with a woman; her allegations of past harm and threats by her father because of her sexuality; her lack of evidence of her relationships with women in Canada; and her significant delay in claiming. [32] The RAD noted that the RPD considered the psychological report;20 however, the RAD finds that it cannot find the psychologist an expert witness based on concerns with the credentials and authority of the author of the report. As a general rule, an expert is characterized as a person possessed of the special skill and knowledge acquired through study or practical observation that entitles him [or her] to give opinion evidence or speak authoritatively concerning his or her area of expertise.21 [33] The RAD considered the credentials of XXXX XXXX XXXX XXXX who labelled herself as a "therapist" and who signed the report. The report does not provide any details related to Ms. XXXX XXXX XXXX credentials and expertise to administer psychological tests and to make clinical findings based on the DSMV. The writer uses the title "therapist" and indicates that she has a MPsy and ICCDPD with no clarification of what these credentials mean. The assessment does not indicate that the author was a member of any college of regulated health professionals in Ontario or any other province such as the College of Psychologists of Ontario, which has been given the jurisdiction to make medical or psychiatric diagnoses. [34] The Regulated Health Professions Act of Ontario22 (Act) sets out the requirements for controlled acts that a person is legally able to perform. The Act also specifies acts that are controlled which include: Controlled acts (2) A "controlled act" is any one of the following done with respect to an individual: 1. Communicating to the individual or his or her personal representative a diagnosis identifying a disease or disorder as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the diagnosis. [35] Given that the evidence presented was not prepared by a member of a regulated health profession in Ontario, and given that the writer's assessment contained a diagnosis for which the writer did not have legal authority in Ontario to put forward, the RAD finds that the conclusions in the letter (Ms. XXXX presents a clear and consistent pattern of psychological problems. Diagnostically, Ms. XXXX presents with Dysthymic Disorder (300.4), resulting from the trauma associated with the abuse and threats on her life) are to be provided no weight. [36] Given these concerns with the credentials and authority of the psychological report, and given the credibility concerns with the Appellant as a witness, the RAD finds that it was reasonable for the RPD to assign little probative value to the psychological report in support of the allegations put forward by the Appellant. Gender Guideline [37] The RPD cited in its reasons that it took into account the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution23 (Gender Guideline). Counsel argued that the RPD erred by not assessing the credibility of the Appellant through the lens of the Gender Guideline. Counsel indicated that the RPD's decision paid lip service to the Guideline and the assessment of the claim was not consistent with the provisions of the Guideline; in particular the RPD ignored the impact that Battered Woman Syndrome may have on the credibility of the Appellant, especially as it relates to the Appellant's trauma and memory problems. [38] The Gender Guideline seek to address four critical issues brought forward by women who claim fear gender-related persecution or harm: 1. To what extent can women making a gender-related claim of fear of persecution successfully rely on any one, or a combination, of the five enumerated grounds of the Convention refugee definition? 2. Under what circumstances does sexual violence, or a threat thereof, or any other prejudicial treatment of women constitute persecution as that term is jurisprudentially understood? 3. What are the key evidentiary elements which decision-makers have to look at when considering a gender-related claim? 4. What special problems do women face when called upon to state their claim at refugee determination hearings, particularly when they have had experiences that are difficult and often humiliating to speak about? 24 [39] Counsel's submissions deal with the RPD's failure to appreciate and to factor into her credibility analysis the impact of Battered Women's Syndrome may have on the Appellant's memory and ability to testify. Counsel's concerns fall within the Special Problems at Determination Hearings of the Guideline, item 3 which indicates: Women refugee claimants who have suffered sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma Syndrome,30 and may require extremely sensitive handling. Similarly, women who have been subjected to domestic violence may exhibit a pattern of symptoms referred to as Battered Woman Syndrome and may also be reluctant to testify.31 In some cases it will be appropriate to consider whether claimants should be allowed to have the option of providing their testimony outside the hearing room by affidavit or by videotape, or in front of members and refugee claims officers specifically trained in dealing with violence against women. Members should be familiar with the UNHCR Executive Committee Guidelines on the Protection of Refugee Women.32 [40] A review of the transcript of the hearing25 does not reveal that the Appellant had any difficulty testifying or providing evidence concerning her sexual orientation or the alleged abuse. In fact, counsel at the hearing did not identify any accommodations required (reverse order of questioning) and did not make an application for vulnerable person status. The psychologist's report was provided no weight; however, the RAD noted that the Appellant did not display any cognitive, memory, or emotional difficulties at the hearing that would underpin the claim that the Appellant was suffering from Battered Woman Syndrome. In fact, the Appellant was able to provide detailed testimony regarding her alleged abuse with limited or no need for breaks to accommodate the emotional aspect of the abuse. [41] The RAD finds that counsel failed to indicate where and how the RPD ignored the impact that Battered Woman Syndrome had on the assessment of the Appellant's credibility. It is incumbent on counsel in the Appeal to identify specific incidents of where the RPD ignored the Guideline in its assessment. [42] The RPD made clear and reasonable findings regarding the Appellant's credibility based on the evidence on the record and the Appellant's explanations. Given the lack of specific examples of alleged insensitivity to the Gender Guideline, the RAD cannot find that the RPD in its assessment of the Appellant's credibility by misapplying the Gender Guideline. Delay in Claiming and Reavailment [43] The RPD found that the Appellant's delay in claiming (eight years) undermined her subjective fear. The Appellant's counsel argued that the RPD erred by not placing weight on the Appellant's explanation for her delay in claiming in Canada and by ignoring the relevant portions of the FOSS notes. [44] The RAD considered the evidence. The Appellant explained the delay by the fact that she attempted to regularize her status through an H & C application. The Appellant also testified that she had extended her visitor's permit, and then applied for a work permit. The Appellant also explained that she did not know anything about refugee status and that she thought that such status was for people from war-torn areas. Given the level of education and sophistication of the Appellant, and her ability to make applications to regularize her status and to monitor her status online, the Appellant's explanation that she did not know about refugee status was not reasonable. [45] The Appellant then explained that she had no idea that her H & C application had been denied in XXXX 2010. The RPD found the explanation not to be reasonable given that the Appellant had been living in Toronto since 2008; she was studying computer programming, and she testified that she continuously checked her H & C application on the CIC website. The RPD found that there was no persuasive information before it to confirm that the Appellant was not advised by CIC that her H & C application was denied. The RAD found that the RPD considered the evidence before it concerning the delay in claiming (Appellant's time in Canada; her education; her testimony regarding checking her application) and made an assessment that was reasonably open to it that the Appellant did not provide evidence to support her explanation for the delay. [46] Furthermore, the RPD correctly applied the jurisprudence regarding delay which indicates that delay points to a lack of subjective fear of persecution.26 The Federal Court has also held that delay could be a consideration in finding a claimant not to be credible.27 The RAD is cognizant that a delay in claiming may not in and of itself be sufficient to reject a refugee claim; however, based on a review of the jurisprudence and the particular circumstances of the case before the RPD, the RAD finds that it was reasonably open to the RPD to find that the eight-year delay in claiming was sufficient to undermine the subjective fear and the credibility of the claim, as per Espinoza,28 where Justice Rouleau found that the more inexplicable the delay, the greater the probability that subjective fear is absent. [47] Even if the Appellant had attempted to regularize her status, there were times before she submitted the original H & C application, and at least two years after her H & C application was denied where she was out of status and where she could have risked return to St. Lucia. This delay was not reasonable given the Appellant's education; her expressed ability to monitor the status of her application; her extended family in Canada; and the availability of information on refugee protection available to the Appellant through the CIC website and other sources. Given the analysis performed by the RPD, including the weighing of his explanations for the delay in claiming, and given the jurisprudence, the RAD finds that the RPD did not err in finding that the delay in claiming undermined the subjective fear of the Appellant. [48] Counsel argued that the RPD erred by ignoring the relevant portions of the FOSS notes. The RPD assigned a negative inference to the Appellant based on her failure to provide the RPD a copy of the H & C application. The RPD found that this document could have assisted in corroborating the Appellant's allegations. The RAD considered the FOSS notes and found that the notes confirm when the Appellant applied for the H & C and was denied; however, the notes do not provide any detail regarding the content of the H & C application. The RPD was clear in its reasons that it was the content of the H & C application which could have corroborated the allegations, not the existence of an H & C application. The RAD finds, therefore, that the RPD did not err in ignoring the FOSS notes, as the content of these notes would not have addressed the RPD's concerns regarding corroborative evidence. As such, the RAD finds that the RPD made a finding that was reasonable given that it was transparent and was based on the evidence presented and not presented to it. As such, the RAD finds that the RPD did not err in its treatment of the FOSS notes. [49] The RAD concurs with counsel for the Appellant that the RPD erred in assigning a negative inference to the subjective fear of the Appellant regarding her failure to claim in the US, and her reavailment to St. Lucia. Nevertheless, the RAD finds that these errors do not nullify the finding of a lack of subjective fear illustrated by the Appellant's egregious delay in claiming in Canada. [50] The RAD finds that the claim turns on the Appellant's sexual orientation. As outlined below, the Appellant was found not to be a bisexual. Therefore, any errors or concerns regarding its treatment of delay, failure to claim in the US, and reavailment were not determinative and do not affect the determinative finding that the Appellant is not bisexual. Remaining Evidence [51] Counsel argued that the RPD used the negative credibility findings to disregard the remaining supporting documents provided by the Appellant. Counsel indicated that the RPD did not approach the evidence in its entirety with an open mind. The RAD noted that the RPD made its finding not to place much evidentiary weight on the documents, "based on the credibility findings". The RPD made several reasonable credibility findings which went to the heart of the claim before it disregarded the two documents. The RPD found that the Appellant's allegations were not credible; the delay in claiming undermined the Appellant's subjective fear; and the Appellant failed to provide sufficient credible or trustworthy evidence from Canada to attest to her sexual orientation. The RAD finds that it is presumed that the RPD has assessed the evidence in its entirety without it having to specifically identify so in its reasons, as per Florea.29 In the case at hand, the RPD considered the evidence in light of the totality of the evidence regarding the credibility of the Appellant's allegations and found that it could not place significant weight on the two pieces of evidence. The RAD finds that this decision was reasonably open to it based on the jurisprudence. [52] In addition, the RAD considered the two pieces of evidence. The RAD noted that letter from the social worker at the Scarborough Centre for Healthy Communities30 does not relate to the allegations presented by the Appellant in this appeal. The letter states that the Appellant came for counselling on two occasions for depression related to social isolation and immigration status. The letter does not provide a concrete diagnosis other than the Appellant's self-reported depression. Given that the depression was not independently verified by the social worker, and given that the causality of the depression does not relate to the Appellant's allegations, the RAD finds that the letter is of no probative value. As such, the RAD finds that the RPD did not err in not providing probative value to the letter. [53] The RAD considered the letter from the Appellant's grandmother.31 The RPD did not provide the letter with evidentiary weight as it was found to have been presented to bolster the Appellant's claim. The RPD's finding was based on its previous credibility findings. The bulk of the letter deals with the Appellant's sexual orientation as well as threats by the Appellant's father and his associates. The letter makes reference to specific incidents of harm by the Appellant's father (being dragged, yelling obscenities, death threats). As outlined above, the RPD reasonably found that the Appellant's allegations of persecution or harm at the hands of her father were not credible as the Appellant made no reference to these threats in the BoC. [54] The RAD found that the RPD did consider the evidence in its entirety, given it placed the letter in the context of the negative credibility findings related to the Appellant's father's threats. The RPD made a finding that the document was not to be given weight as it was presented for the purpose of bolstering the refugee claim. The RAD finds that it was reasonably open to the RPD to assess and place the appropriate probative weight to the documents, especially in conjunction with serious credibility findings related to the omission of threats and harm at the hands of her father in the BoC. Findings Regarding Sexual Orientation [55] The RAD noted that the Appellant's counsel did not challenge the RPD's overall determination that the Appellant was not a bisexual as she alleged. The Appellant's counsel did not contest the RPD's negative inference assigned to the Appellant's failure to provide documentary evidence of her relationships and activities in Canada, despite having time between the two sittings to try to obtain such evidence. The Appellant testified that she used social media, including a profile on the Plenty of Fish dating site in order to communicate with potential partners. The Appellant did not provide such evidence to the RPD which was reasonably available to her. The Appellant also indicated that her past partners refused to provide an affidavit or a letter. Again, the Appellant could have provided the RPD copies of her communication with the past partners (e-mails, social media conversations) requesting such evidence which would have been reasonably available to her. The Appellant indicated that there could be photos with her grandmother; however, the Appellant did not provide evidence of attempts to ask her grandmother for such evidence. The Appellant's counsel did not challenge the RPD's finding that the Appellant's failure to provide examples of her participation in the LGBT community was an indicator which could corroborate the Appellant's alleged sexual orientation. [56] Finally, the RAD noted that the Appellant's description of her sexual orientation changed. At times in her evidence (BoC and oral testimony), she referred to herself as bisexual, and at other times, she indicated that she was homosexual. The RAD finds that the Appellant claims to have been bisexual since she was in her late teens, and given her level of education and sophistication, the RAD finds it would be reasonable for her to describe her sexual orientation in a consistent fashion in her evidence before the RAD. The inconsistency further undermined the credibility of her sexual orientation claims. [57] Given the lack of evidence attesting to the Appellant's sexual orientation which was reasonably accessible to the Appellant, given the Appellant's lack of efforts in providing such evidence in light of her computer and social media skills, and given the concerns with the credibility of the Appellant's oral testimony and allegations, the RAD finds that the RPD did not err in finding that the Appellant did not provide credible or trustworthy evidence in support of her allegations and that she is not bisexual, as alleged. [58] Given that the Appellant's allegations were found not to be credible, and given that the Appellant's counsel did not challenge the RPD's general finding that the Appellant was not bisexual, the RAD finds that the RPD did not err in finding that the Appellant alleged her bisexuality as a result of her being threatened with deportation. SUMMARY AND DETERMINATION [59] Based on the totality of the evidence before it, the RAD finds that the RPD's findings that the Appellant was not a bisexual and that her fear of persecution or harm in St. Lucia were reasonable. As such, based on section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection. [60] The RAD dismisses the appeal. (signed) "Daniel McSweeney" Daniel McSweeney January 11, 2014 Date 1 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 5 IRPA, s. 110 (1). 6 IRPA, s. 107. 7 IRPA, s. 170. 8 IRPA, s. 110(3). 9 IRPA, s. 110(4). 10 RAD Rule 57. 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 13 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 14 Petrova v. Canada (Minister of Citizenship and Immigration), 2004 FC 506 at para 51, [2004] FCJ No. 613. 15 RPD's Record, Psychological Report by Millan and Associates, pp. 186 - 189. 16 Bakare, Abeni v. M.E.I. (F.C.T.D., no. IMM-1603-93), Reed, January 19, 1994; and He, Feng Kui v. M.E.I. (F.C.A., no. A-1194-91), Heald, Desjardins, Linden, July 20, 1994. 17 Basseghi, Kourosh v. M.C.I. (F.C.T.D., no. IMM-2227-94), Teitelbaum, December 6, 1994. 18 RPD's Record, Psychological Report by XXXX XXXX XXXX, pp. 186 - 189. 19 Guney, Seyit Ozan v. M.C.I. (F.C., no. IMM-1424-08), Zinn, October 8, 2008; 2008 FC 1134, at para 17. 20 RPD's Record, Exhibit 5, Report from XXXX XXXX, pp. 90 - 91. 21 Stobo, G., Expert Evidence, I.R.B. Legal Services, July 11, 1989, p. 3. 22 Regulated Health Professions Act, 1991, S.O. 1991, c. 18. 23 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 24 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 25 Appeal Pleadings, Transcript of Hearing, pp. 208 - 256. 26 Castillejos, Joaquin Torres v. M.C.I. (F.C.T.D., no. IMM-1950-94), Cullen, December 20, 1994. 27 Bello, Salihou v. M.C.I. (F.C.T.D., no. IMM-1771-96), Pinard, April 11, 1997. 28 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003; 2003 FC 1324. 29 Florea, Constantin v. M.E.I. (F.C.A., no. A-1307-91), Hugessen, Desjardins, Décary, June 11, 1993. 30 RPD's Record, Letter from Amu Au, Social Worker, May 10, 2013, p 190. 31 RPD's Record, Letter from XXXX XXXX XXXX, pp. 192 - 193. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08065