TB5-05577

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 : TB5-05577 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 21, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane 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 ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of Georgia, is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act1 (IRPA or the Act). [2] The Appellant did not submit new evidence on appeal pursuant to ss. 110(4) of the Act. [3] The Minister intervened and was represented at the RPD hearing. [4] The Appellant did not ask for a specific remedy. I would consider that he wants that the Refugee Appeal Division (RAD) allow his appeal and find that the Appellant is a Convention refugee or a person in need of protection. DETERMINATION OF THE APPEAL [5] The RAD finds that the Appellant is neither a Convention refugee nor a person in need of Canada's protection, and pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the RPD's determination. This appeal is dismissed. BACKGROUND [6] The Appellant alleged before the RPD that he is an ethnic Armenian in Georgia and therefore he was subjected to various forms of mistreatment over the years. He stated that when he was in Grade 5, he "was bullied by the Georgian students and ignored by the teachers"; he was told to leave an Orthodox Church; it took more time for him to obtain government services, and he had difficulty finding employment and accommodation. He was assaulted by a neighbour requiring hospitalization, and after that incident, he decided to leave Georgia. [7] The Appellant arrived in Canada on XXXX XXXX, 2014, and he claimed protection on January 12, 2015. His claim was heard on March 6, 2015, and the RPD rendered an oral decision at the end of hearing rejecting his claim. [8] The RPD found that the Appellant was not credible and the discrimination suffered by him did not amount to persecution. ROLE OF THE RAD [9] The Appellant made submissions that the "Huruglica2 approach to the RAD' s 'standard of review' vis-a-vis the RPD is the proper approach." [10] The jurisprudence on the role of the RAD is evolving however, at present, guidance provided by Justice Phelan in Huruglica seems to be generally accepted. I am guided by this case where the court stated the following3: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it 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." [11] Guided by Huruglica, I will consider the evidence in totality and arrive at my own determination. Also guided by Huruglica, I will recognize and respect the RPD's credibility findings where it had particular advantage. THE ISSUES: [12] The Appellant did not specifically list his issues, and it would appear that the Appellant has confused the RAD for the Immigration Appeal Division, the IAD4 . [13] The Appellant submitted that the RPD finding "regarding s. 97 (of the IRPA) that the assessment was on a balance of probabilities the Applicant did not face serious harm" is an error. The Appellant cited jurisprudence at paragraph 13 of the Memorandum5 in support that states that "the omission of the words 'risk of' in stating the test under section 97 is a substantive error." I agree. I do not however, agree with his statement that "under the test properly applied, the Appellant meets the burden of showing a risk under s. 97(l)(b)". [14] I find that the omission of words "the risk of" in the RPD's oral decision is not fatal to the RPD' s overall determination that the Appellant is neither a Convention refugee nor a person in need of protection for the reason that will follow. Having considered the totality of the evidence and recognizing and respecting the RPD's credibility findings where it enjoyed a particular advantage, I come to the same determination that the Appellant is neither a Convention refugee nor a person in need of protection. [15] The RPD recognized that the Appellant suffered discrimination and found that the discrimination did not amount to denial of any fundamental human rights. The UNHCR Handbook6 states on the issue of discrimination: 54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. [16] In this case, the RPD found that the Appellant's rights to such rights were not affected by the incidents of discrimination the Appellant testified that he suffered. He not only attended church but also was a part of the Choir; he worked in the field of his choice and obtained higher education, a degree in Georgia. The RPD accepted that sometimes it might have taken longer for him to obtain documents, but cited corruption and bribes by public servants as the reason for such delays. [17] The RPD found that the Appellant's alleged assault could not have happened as per his testimony which is contradicted by his own supposedly corroborative documentary evidence, the medical certificate. This document predates the Appellant becoming a XXXX and yet the document states his occupation as a XXXX. The RPD expressed two concerns about the document to the Appellant, considered his explanation, and found his explanations to be unreasonable. The RPD also noted omission in his alleged job on a XXXX XXXX, and the amendments made to the BOC prior to the hearing to include the wording from the medical report in his narrative. The Appellant's narrative is very brief (only 7 paragraphs). The Appellant blamed the interpreter for shortcomings in his narrative even though he affirmed that the information in the narrative and the BOC was interpreted to him and that the information was complete, true, and correct. [18] Regarding the medical report, the Appellant submits that the RPD "erred in finding that the medical report was fraudulent based on nothing more that the Appellant did not want to tell the hospital medical staff the cause of his problems."7 I am not persuaded. The RPD noted material error, omission, and provided cogent reasons for its finding. The key issue for the RPD was that the medical report lists 'XXXX under his "Work Place and Position heading". First, the RPD noted that the report predates the time when he became a XXXX and second, that the Appellant amended his narrative to make it consistent with the medical report. The RPD noted "the narrative originally said that you suffered a XXXX, the medical report which was submitted here included a XXXX XXXX and XXXX and your narrative was then amended to include those". I note that the report was issued on January 30, 2015 and the Appellant amended his narrative on February 28, 2015. [19] Even if the Appellant was indeed assaulted in 2005, and the Appellant by his own declaration in his narrative decided to leave Georgia. He voluntarily returned several times to Georgia during his trips to numerous foreign countries. He XXXX through 8 countries over the 9 year period before claiming protection in Canada. [20] I find that the RPD made adverse credibility findings based on discrepancies and omissions in the Appellant's evidence, provided him with opportunities to explain, and considered the explanation prior to arriving at the findings. [21] As per Huruglica above, the RAD recognizes and respects the RPD's credibility finding. In Ali8, a recent decision by the Federal Court, Justice Locke at paragraph 8 stated the following: It is true that the RAD deferred to several of the RPD's conclusions concerning the credibility of the applicant and various statements and documents he relied upon. However, that was appropriate in most instances because those conclusions were based largely on testimony from the applicant. Despite certain inconsistencies in the jurisprudence concerning the standard of review to be applied by the RAD, there does seem to be a consensus that the RAD should defer to the RPD on credibility issues where no hearing is held before the RAD. [22] Based on the foregoing, I find that the RPD's determination is supportable and therefore, I confirm their finding. After careful consideration of the evidence, I find that the Appellant is neither a Convention refugee nor a person in need of Canada's protection. CONCLUSION [23] Pursuant to ss. 111(1)(a) of the Act, the RAD finds that the Appellant is neither a Convention refugee nor a person in need of Canada's protection and confirms the determination of the Refugee Protection Division. [24] This appeal is therefore dismissed. (signed) "Atam Uppal" Atam Uppal July 21, 2015 Date 1 As enacted by S.C. 2001, c. 27 [The Act or IRPA]. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Ibid., at paras 54 and 55. 4 RAD's Record, Appellant's Record, Appellant's Memorandum, p.10, para. 9. 5 Ibid., at p. 11. 6 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. 7 Supra, footnote 4, p.12 para 16. 8 Ali v. Canada (Citizenship and Immigration (F.C. no. IMM-6277-14), Locke, April 20, 2015; 2015 FC 500. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05577