MB6-00041

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 : MB6-00041 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Québec Appel instruit à Date of decision October 13, 2016 Date de la décision Panel Me Veena Verma Tribunal Counsel for the person who is the subject of the appeal Me Styliani (Stacey) Markaki Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Iraq, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant has requested to submit new evidence and has not requested an oral hearing. He requests that the Refugee Appeal Division (RAD) set aside the RPD's decision and substitute it for its own determination that he is a Convention refugee or a person in need of protection. I. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(a) of the Immigration Refugee Protection Act (the Act), the RAD confirms the determination of the RPD, namely, that the Appellant is neither a Convention refugee under s. 96 of the Act nor a person in need of protection under s. 97 of the Act. The appeal is dismissed. II. BACKGROUND A. Basis of Claim [3] The Appellant is a 22-year-old Kurdish man. He claims that if he returns to Iraq, he will be killed by his girlfriend's father because he engaged in sexual relations with her outside of marriage. He also claims that he fears for his life at the hands of the Islamist group, Daesh, because of his profile as a young, non-religious man. [4] In his Basis of Claim (BOC) form, the Appellant states he had a relationship with a young woman, XXXX XXXX XXX XXXX, for two years. He twice asked for her hand in marriage but her family refused because her father did not believe he was religious enough, and Ms. XXXX was destined to be married to her cousin. The Appellant describes the father as very traditional, religious, and XXXX XXXXmember of the Kurdistan Democratic Party. On XXXX XXXX XXXX 2015, the Appellant and Ms. XXXX had sexual relations, which was discovered by the mother a week later. Ms. XXXX informed the Appellant that her father was threatening to kill both of them. The father went to the Appellant's house with a gun, but the Appellant had already fled his home town of XXXX. The Appellant went to XXXX for safety, where he stayed for approximately three to four months. The Appellant's father attempted to resolve the matter with Ms. XXXX family, however, when this failed, the Appellant, with the assistance of his father, secured a visa on XXXX XXXX, 2015 to travel to the United States. The Appellant arrived in New York on XXXX XXXX XXXX 2015. The Appellant claims that Ms. XXXX father discovered he was in the U.S., and therefore, he fled to Canada, arriving on XXXX XXXX, 2015. B. Decision of the RPD [5] The RPD issued its rejection of the claim on December 17, 2015, after hearings were held on November 2, 2015 and December 4, 2015. With respect to the Appellant's life being threatened by his girlfriend's father, the RPD found that the Appellant's evidence lacked credibility and his failure to claim asylum in the U.S. showed a lack of subjective fear. Accordingly, on this aspect of his claim, the Appellant failed to demonstrate that he was a Convention refugee or a person in need of protection. [6] The RPD also reviewed the Appellant's testimony and documentary evidence of the country conditions in Iraq relating to the Appellant's fear of Daesh. The RPD found that the Appellant did not demonstrate that there was a serious possibility that he would be persecuted by Daesh or, on a balance or probabilities, face a risk under section 97(1) of the Act at the hands of Daesh, should he return to Iraq. C. Appellant's Grounds of Appeal [7] The Appellant acknowledges that he had problems answering the RPD's questions at the hearing, but argues that he is not good at remembering dates; he failed to detect that the date on which he had sex with Ms. XXXX was an error in the BOC because it was written in French; and he was extremely nervous when he appeared before the RPD, resulting in his mind to go blank. Furthermore, the Appellant filed a document from his social worker that was not before the RPD, and that, in his view, explains the credibility problems identified by the RPD. Finally, the Appellant submits that the RPD erred in impugning the Appellant's credibility on the basis of his failure to claim refugee status while in the U.S. The Appellant made no submissions on appeal regarding the alleged risk he faced at the hands of Daesh. III. ADMISSIBILITY OF NEW EVIDENCE ON APPEAL A. Test for Admissibility [8] Subsection 110(4) of the Act provides that an appellant may present only evidence that arose after the rejection of their claim, or was not reasonably available, or the appellant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. The RAD has no discretion to admit evidence unless it falls under one of these three statutory categories.1 The legislative intent of the provision is to narrowly define the introduction of any new evidence.2 The role of the RAD is not to provide an opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.3 [9] If the new evidence meets the statutory requirements of ss. 110(4), the next step is to consider the jurisprudential criteria as set out by the Federal Court of Appeal in Singh.4 The Federal Court of Appeal held that, in addition to the clear language of the statute, the implicit conditions identified in Raza5 are also applicable in the context of ss. 110(4), subject to the necessary adaptations.6 The Raza factors include: credibility, relevance, newness, and materiality.7 However, the Federal Court of Appeal in Singh held that materiality of the new evidence must be assessed in the context of ss. 110(6), as opposed to ss. 110(4), for the sole purpose of determining whether the RAD may hold a hearing.8 Therefore, if the new evidence meets the explicit requirements of ss. 110(4) of the Act, the second step only requires examining the modified Raza factors of credibility, relevance, and newness. [10] The Refugee Appeal Division Rules9 state that the Appellant's memorandum must include full and detailed submissions regarding how any documentary evidence the appellant wishes to rely on not only meets the requirements of ss. 110(4) of the Act, but also how that evidence relates to the appellant.10 [11] The Appellant submits the following new evidence on appeal which can only be admissible if it meets the above-noted test: - Letter of support from the Appellant's social worker, dated January 12, 2016. [12] The Appellant also submitted an affidavit to bring in the new evidence of the social worker's letter, which is attached to it as an exhibit. I find that paragraphs 1-6 of the affidavit reiterate evidence that was before the RPD, or consist of submissions that are repeated in the Appellant's Memorandum of Arguments. The remaining paragraphs of the affidavit relate to the origins and contents of the social worker's letter of support and will be addressed in the next section as the Appellant's submissions on the new evidence. B. Decision on Admissibility of New Evidence [13] I find that the social worker's letter of support is not admissible under ss. 110(4) of the Act because it contains evidence that arose before the rejection of the claim, it was reasonably available, and it was reasonably expected to have been presented at the time of the RPD rejection. My reasons follow. Letter of support from the Appellant's social worker [14] The Appellant requests the admission of a letter of support from his social worker at "Programme régional d'accueil et d'intégration des demandeurs d'asile (PRAIDA)," dated January 12, 2016. The document recounts services that PRAIDA provided to the Appellant upon arrival in Canada and summarizes a meeting that the social worker had with the Appellant on December 4, 2015, after his last day of hearing. The Appellant submits that the document was not presented before the RPD because he did not think of it at the time and he was not aware of the possibility of submitting it after the hearings were completed. [15] The meeting with the social worker was on December 4, 2015, and the RPD decision was issued on December 17, 2015. Therefore, under ss. 110(4) of the Act, this evidence did not arise after rejection of the claim, despite the date of the letter, and it was reasonably available to the Appellant. The letter simply repeats what the Appellant told the social worker about his difficulties testifying at both days of hearing, with no expert assessment or opinion. Several of the difficulties expressed in the letter relate to his testimony at his first day of hearing. There was a month before he testified at his next hearing date, and therefore, this evidence was reasonably available to him to present at the second day of hearing. I do not find the Appellant's explanations of not presenting the evidence before the rejection of the claim as reasonable, especially when the Appellant was represented by counsel at the time he met with the social worker. Refugee claimants bear the burden of proving their claim, which means they must put their "best foot forward" in applications before the RPD.11 It was incumbent on the Appellant or his counsel to raise concerns about the Appellant's ability to testify before the decision-maker in the first instance.12 [16] As the evidence does not meet the statutory requirements of ss. 110(4), it is unnecessary to review the modified Raza factors. Accordingly, I find that the social worker's letter is not admissible as new evidence. IV. SCOPE OF THE RAD APPEAL [17] The Appellant made no submission on the RAD's standard of review. [18] The Appellant has a statutory right to appeal to the RAD from a decision of the RPD on questions of law, fact or mixed law and fact.13 The standard of review on such questions is correctness, where there is no issue of credibility of oral evidence.14 In defining this standard of review, the Federal Court of Appeal in Huruglica held that the legislative purpose of the RAD is to serve as a "safety net" that would catch all mistakes made by the RPD.15 This requires the RAD to carry out its own independent analysis of the RPD record to determine whether, as submitted by the Appellant, the RPD erred.16 The RAD as a true specialized appeal tribunal must come to its own conclusions based on a fresh review of the evidence.17 [19] In discussing the remedial powers of the RAD after an error has been identified, the Federal Court of Appeal provided the following guidance on the application of paragraph 111(2)(b) of the Act to either refer a matter back to the RPD for redetermination or to substitute a determination: [70] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.18 [20] Following the ruling in Huruglica FCA, and using the standard of correctness, I will carefully consider the RPD decision by carrying out my own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. I will indicate where I give deference to the RPD's findings of credibility of oral testimony if I find that the RPD had a meaningful advantage with respect to any of these findings.19 Having done this, I will provide a final determination, either by confirming the RPD decision or setting it aside and substituting my own determination of the merits of the refugee claim. It is only if I am of the opinion that I cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter will be referred back to the RPD for redetermination.20 V. ANALYSIS [21] Based on the Appellant's submissions, the appeal raises the following issues: 1. Did the RPD err in its credibility assessment of the Appellant? 2. Did the RPD err in impugning the Appellant's credibility because he failed to claim refugee status in the United States? [22] As noted earlier, the Appellant made no submissions on appeal regarding the RPD's findings on the alleged risk he faced at the hands of Daesh. Therefore, this aspect of the RPD decision will not be addressed in my analysis. [23] I have conducted an independent review of the RPD record, which included carefully listening to the audio recording of the Appellant's testimony at both days of hearings. Having carried out my own analysis of the record, I agree with the RPD's decision to reject the Appellant's claim. My reasons follow. A. Did the RPD err in its credibility assessment of the Appellant? [24] The RPD made several negative credibility findings summarized as follows: * There were several instances where the Appellant failed to remember specific dates - including the day, month, and sometimes the year - of different events leading to his departure from Iraq.21 * The Appellant had difficulties responding to what happened on XXXX XXXX, 2015. This was the only date mentioned in his BOC, other than the date of issue of his U.S. visa, therefore, according to the RPD, it was surprising that he could not answer simple questions about this date. This was a pivotal date in the Appellant's BOC about when he had sex with his girlfriend. He testified that in fact this was the date when he found out from his girlfriend that his father found out about their relationship and was threatening to kill them - they had sex a week before.22 * The Appellant provided three different versions of his date of departure for XXXX.23 * The RPD found that the Appellant adjusted his testimony about the first time his girlfriend's father learned of his existence. He first testified that it was after he and his girlfriend had sex. He later changed his answer when the RPD confronted him with earlier testimony that his girlfriend's family received two requests from his family for marriage.24 * When questioned about threats made to him and his family, he failed to reference the occasion when the father came to his house with a gun. When confronted with this statement in his BOC, he minimized the occurrence. While he testified that his girlfriend's brothers also threatened him, there was no reference to these threats in the BOC. He said he did not think he had to put it down.25 [25] The Appellant recognizes that during his hearing before the RPD, he experienced problems answering the RPD's questions. He provides three explanations. First, he is not good at remembering dates and he has always had difficulties when it comes to this matter. Second, there were contradictions between his testimony and the BOC because he was unable to review his BOC and catch an error on a key date since it was written in French. Third, he was extremely nervous when he appeared before the RPD, to such an extent his mind went blank. [26] Based on my own independent review of the evidence, I agree with the RPD's decision that the Appellant lacked general credibility. The Appellant's explanations fail to remedy the number of inconsistencies and omissions in his testimony relating to central elements of his claim. 1. Recalling dates [27] A refugee claim should not be determined on the basis of a memory test.26 However, failure to provide a coherent time line for many of the key events that are central to the claim, may be the basis for a negative credibility finding.27 In the present case, there was not just one instance or precise date that the Appellant could not recall. Upon reviewing the audio recording of the RPD hearing, I find that the Appellant was unable to provide coherent or consistent evidence about the timing of any of the key events in his claim, such as when his girlfriend's mother became aware of their relationship, when he proposed to his girlfriend, when his girlfriend's father learned of his existence, the date he had sex with his girlfriend, when her father first found out of their sexual relationship, when he fled for XXXX, the length of time he stayed in XXXX, when he received threats from his girlfriend's brother, and the date he left Iraq. Several of these dates were relatively recent events that had occurred in the five to eleven months prior to his testimony before the RPD, central to his claim, and directly precipitated his flight from Iraq. While I would not necessarily expect the Appellant to provide precise dates for every one of these events, he was unable to even give estimates or approximations. I agree with the RPD that the Appellant was unable to provide clear or consistent responses, even in the most general sense, about many of the key events that he alleges in his claim. [28] The Appellant does not dispute that he had difficulties giving dates or provided contradictory dates, and therefore, it is unnecessary to detail the evidence in any greater detail. Rather, he simply says that he is not good with dates. Absent any medical evidence, I do not find that this explanation is sufficient in overturning the negative credibility findings. It is telling that during his testimony the Appellant stated that he did not think that he needed to be precise and detailed in his claim, and that he thought it was enough to say that his life was in danger because someone was after him. He stated that he was not prepared to go into such details. The Appellant was represented by counsel, and it was incumbent on him to come to the hearing prepared to answer basic questions about the central elements of his claim in order to meet his burden of proof that there was a serious possibility of persecution, or that his life was in danger on a balance of probabilities. He failed to do this. 2. Events of XXXX XXXX, 2015 [29] The Appellant states that since his BOC was written in French, he was unable to review it after it was submitted. Therefore, he did not catch a mistake in the BOC which states XXXX XXXX, 2015 as being the date he had sex with his girlfriend. He now submits it was XXXX XXXX, 2015. [30] Based on my review of the audio recording, the Appellant's counsel confirmed with him at the beginning of the hearing that his BOC was translated to him by an interpreter from French to Kurde Sorani, that he understood everything in the document, and that everything in the document was complete, true, and exact.28 During the first day of hearing, the contradictions between the Appellant's testimony and the BOC respecting the date he had sex with his girlfriend was put to the Appellant.29 Therefore, he had ample opportunity to testify about the error in the BOC, as well as any issue he had about reviewing his BOC in French. The Appellant, who was represented by legal counsel, testified over two days, and there was a month between the two hearing dates. At no time did the Appellant raise any issue of being unable to review his BOC because it was written in French. Based on the above reasons, I do not accept the Appellant's reasons for providing contradictory evidence on a critical date of his claim, and I find that the RPD did not err in making a negative credibility finding based on this contradiction. 3. Nervousness at the hearing [31] Based on my own analysis of the evidence, it was not just the failure to remember exact dates that was fatal to the Appellant's claim. More significantly, the Appellant omitted central facts about the alleged risk to his life. For example, asked about direct threats from his girlfriend's father against him or his family, the Appellant failed to mention the father coming to his house with a gun. When this was brought to his attention, he minimized the occurrence as something that only happened once. [32] Furthermore, the Appellant failed to include in his BOC that his girlfriend's brother had also threatened him twice. This was central to the claim as it addressed whether the Appellant would be at risk in Iraq. The Federal Court has confirmed on a number of occasions that all of the important facts of a claim must appear in the BOC and that failing to mention them could affect the credibility of part or all of the testimony.30 It was open to the RPD to draw negative credibility inferences about omissions of facts that directly concern the very basis of the claim for protection, as was the case here, and for which the Appellant provided no satisfactory, plausible or credible explanation in the circumstances.31 The Appellant's explanation that he did not think to include these facts is insufficient. I do not find this explanation satisfactory, and the RPD did not err in making a negative credibility finding. [33] The Appellant submits that he was extremely nervous during the hearing, to the extent that his mind went blank. It is normal for claimants to be nervous or anxious while testifying, however, this in itself cannot be grounds to rehabilitate the evidence before the RPD. After listening to the audio recording of the hearing, I note that the Appellant stated in the course of his testimony that his mind was "messed up" and that he was stressed, confused, and frustrated. I also note that after the break, at his first day of hearing, when the Appellant was asked why he was adjusting his testimony about the date he left for XXXX, he answered that he was more stressed at the beginning of the hearing, but he was now feeling more relaxed. This suggests that the Appellant was able to overcome his nervousness in order to clarify the record when needed. Furthermore, the Appellant was represented by counsel at the hearings, and at no time was there any request to accommodate the Appellant or to stop the hearing as a result of any difficulties that the Appellant may have been experiencing. [34] While I have no doubt that the Appellant was nervous at his hearing, I do not find that this sufficiently explains the number of inconsistencies and omissions in his testimony. B. Did the RPD err in impugning the Appellant's credibility because he failed to claim refugee status in the United States? [35] After finding several contradictions and omissions in the Appellant's evidence, the RPD went on to find that the Appellant's failure to claim asylum while in the U.S. was contrary to his alleged subjective fear of persecution. This also contributed to another negative credibility finding. The RPD implied in its reasoning that the Appellant's failure to claim in the U.S. suggested that he preferred asylum in one country over another, which is contrary to the intent of the Geneva Convention and the Act.32 [36] The Appellant submits that the RPD erred in impugning his credibility because he failed to claim refugee status when he was in the U.S. He states that while it is true that he did not seek information about remaining in the U.S., he also testified that he was afraid of staying in the U.S. because his girlfriend's father could easily obtain an American visa and come looking for him there. The Appellant claims he wanted to go as far away as possible in order to seek safety. The Appellant submits that his failure to claim in the U.S. cannot reasonably be equated to forum shopping, because was not trying to find the best country to live in, rather, he was simply trying to go to a country where he would not be discovered. [37] I find that the RPD did not err in impugning the Appellant's credibility because of his failure to claim asylum in the U.S. The Appellant's evidence was that he arrived in the U.S. on XXXX XXXX, 2015, and he left for Canada on XXXX XXXX, 2015. The Appellant's BOC states that he left the U.S. for Canada because his girlfriend's father found out he was in America. When he testified, the Appellant stated that he decided to come to Canada because his visa was about to expire and he was worried that his girlfriend's father could easily obtain a visa to the U.S. and find him. When asked how the father could find him in the U.S., he stated that it was his "feeling" because the father was very oppressive and aggressive, he threatened him, and he was afraid of him. [38] Failure to claim asylum when in a country that provides refugee protection may be a relevant factor to impugn the credibility of a claimant. However, the RPD or the RAD must consider the explanation provided by the claimant and give reasons for rejecting it.33 When asked why he did not claim asylum in the U.S., he stated that he did not know that he could, and he was worried about his visa expiring. The RPD asked the Appellant if he tried to find out how to stay in the U.S. permanently. He responded that he was trying to get information about where it would be best for him to protect his life, and realized that Canada was the best place to go. [39] I find that the Appellant's explanation for not claiming asylum in the U.S. is unbelievable because if he was able to find information about claiming asylum in Canada, it is common sense that he could have also sought out this option in the U.S. The Appellant submits that he was trying to go to a country where he would not be discovered. However, the Appellant provided no evidence about how the father could find the Appellant in a country as large as the U.S. [40] It is important to highlight that I do not find this issue alone was determinative of the claim. Rather, it was a finding after an accumulation of adverse credibility findings relating to the central facts in the Appellant's claim. Those other findings on their face are not disputed by the Appellant. Rather, as noted in the previous section, the Appellant attempts to explain away the inconsistencies and omissions for reasons that I have not accepted. [41] Finally, I further find that the Appellant's delay in leaving Iraq, three months after receiving an American visa, as another factor undermining his credibility. The Appellant received his visa on XXXX XXXX, 2015, but did not depart for the U.S. until XXXX XXXX, 2015. When asked why it took three months to leave Iraq, the Appellant's responses were labored and incoherent. The RPD attempted several times to get responses. His responses included that he was trying to find a solution to his problems, he had to study, he was thinking of the best way to get out, he was hoping he could go back to his family, and he was hoping for an avenue for resolution. He finally accepted that there was no solution. I find that these responses do not adequately explain the delay to flee Iraq, if in fact the Appellant believed that his life was in danger, and further undermines his credibility. VI. CONCLUSION [42] For all of these reasons, I confirm the determination of the RPD in accordance with subsection 111(1)(a) of the Act, namely, that XXXX XXXX XXXX is neither a Convention refugee pursuant to section 96 of the Act nor a person in need of protection under section 97 of the Act. [43] The appeal is dismissed. Veena Verma Me Veena Verma 13 October 2016 Date /cos 1 Singh v. M.C.I., 2016 FCA 96, paras 34-35, 63, 74. 2 Ibid., para 51. 3 Ibid., para 54; Abdullahi v. M.C.I., 2016 FC 260, paras 13-14. 4 Singh v. M.C.I., 2016 FCA 96. 5 Raza v. M.C.I., 2007 FCA 385, paras 13-15. 6 Singh, supra note 1, paras 38-49, 74. 7 Raza, supra note 5. 8 Singh, supra note 1, paras 47-49, 74. 9 SOR/2012-257. 10 Rule 3(3)(g)(iii), Refugee Appeal Division Rules, SOR./2012-257. 11 Marin v. M.C.I., 2016 FC 847, para 27; Abdullahi v. M.C.I., supra note 3, para 14. 12 Abdullahi, ibid., para 19. 13 Sections 110 and 111 of the Immigration and Refugee Protection Act. 14 M.C.I. v. Huruglica, 2016 FCA 93, para 103. 15 Ibid., para 98. 16 Ibid., para 103; Marin, supra note 11, para 32; Bersie v. M.C.I., 2016 F.C. 900, para 17. 17 Marin, ibid.; Bersie, ibid. The Federal Court of Appeal in Huruglica held that the functions of the RAD must not be confused with the role of courts on judicial review of decisions made by administrative decision-makers or appellate courts: paras 46-49. 18 Huruglica, supra note 14, para 70. 19 Ghauri v. M.C.I., 2016 FC 548, para 23; Bersie, supra note 16, para 16; Marin, supra note 11, para 31. 20 Huruglica, supra note 14, para 103. 21 RPD Decision, paras 11-12. 22 RPD Decision, paras 13-17. 23 RPD Decision, para 16. 24 RPD Decision, para 18. 25 RPD Decision, para 19. 26 Sheikh v. M.C.I., 2000 CanLII 15200 (FC), para 28. 27 Lopez v. M.C.I., 2014 FC 102 paras 27-28; Anel v. M.C.I., 2016 FC 759, para 27. 28 RPD Hearing, November 2, 2015, 00:07:55 - 00:09:11. 29 RPD Hearing, November 2, 2015, 01:52:53 - 01:58:00. 30 Zeferino v. M.C.I., 2011 FC 456, paras 31-32; Hernandez v. M.C.I., 2012 FC 1097, paras. 32-38; Gulabzada v. M.C.I., 2014 FC 547, para 10. 31 Ibid. 32 RPD Decision, para 24 citing Mohamed v. M.C.I., 1997 CanLII 16302 (FC), para 9. 33 Owusu-Ansah v. M.E.I., [1989] F.C.J. No. 442 (F.C.A.); Gavryushenko v. M.C.I., [2000] CanLII 15798 (FC), paras 9-11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-00041 14 RAD.25.02 (2014.09.11) Disponible en français