TB6-07915

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB6-07915 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 August 4, 2016 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jayson W. Thomas 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 XXXX (the Appellant), a citizen of Bangladesh, appeals the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has made application to tender new evidence in her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find that she is a Convention refugee or, in the alternative, refer her claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses her appeal. Background [3] The Appellant is a 70-year-old Buddhist. She alleged before the RPD that in 2013, three Muslim fanatics entered her home by force and stole valuables from her. She alleges that she reported the matter to police, but no action was taken by the police. She alleges that, XXXX months later, the same three individuals returned to her home and asked her to sell her home to them. She alleges that, when she refused, she was assaulted and knocked unconscious by her attackers. The Appellant traveled to Canada XXXX months later on a visitor's visa to visit her two adult children. One year after arriving in Canada, the Appellant filed a refugee claim. [4] The Appellant's claim for refugee protection was heard on February 22, 2016. In a decision of May 19, 2016, the RPD rejected her claim finding that the Appellant was not credible about the central elements of her claim and that she lacked subjective fear. [5] The Appellant submits that the RPD was unduly microscopic in its relentless search for trivial inconsistencies with her evidence. The Appellant further submits that the RPD erred when it failed to conduct any analysis of whether the Appellant faced an objective risk of persecution as a Buddhist in Bangladesh. ROLE OF THE RAD [6] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. [7] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [8] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their 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] The Appellant has indicated in her statement that she intends to tender new evidence; however, she has not identified the nature of the new evidence. The RAD notes that she has tendered two dated online articles,2 which did not form part of the RPD record but have not provided any argument or explanation of how these documents satisfy the statutory requirements to be considered as new evidence in this appeal. [10] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). The RAD agrees with the Appellant that further analysis of the evidence is required before the RAD can accept the proposed new evidence. In this regard, the RAD is guided by the Federal Court of Appeal decision in Singh.3 [11] In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: (a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.4 (b) The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.5 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. (c) It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. (d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.6 (e) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,7 or that it proves a fact that was unknown to her at the time of the hearing?8 If so, the RAD will proceed to assess the newness, credibility and relevance of the evidence. (f) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of her refugee claim? If so, the evidence need not be considered.9 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility, and relevance of the evidence. (g) If the proposed new evidence meets the tests set out in the statutory requirements and in Raza, the evidence will be admitted as evidence in the appeal. The materiality of the evidence will be considered in the context of the assessment made under section 110(6) of the IRPA. [12] In the case at hand, the RAD notes that the documents are dated in 2012. The RAD finds, after its own review and assessment of the evidence, that these documents all pre-date the rejection of the Appellant's claim by over three years. Under a Pre-Removal Risk Assessment (PRRA), the Federal Court has held that it is the applicant's obligation to provide an explanation as to why the evidence could not have been presented to the RPD. Evidence can be rejected for this reason, and this is in conformity with the requirements set out in the IRPA and found in Raza.10 [13] Similarly, the Refugee Appeal Division Rules11 (RAD Rules) provide that the Appellant's Record must contain: (i) a written statement indicating whether the Appellant is relying on any evidence referred to in subsection 110(4) of the IRPA, and (ii) a memorandum that includes full and detailed submissions regarding how any documentary evidence that the Appellant wants to rely on in the appeal meets the requirements of subsection 110(4) of the IRPA and how that evidence relates to the Appellant. The RAD has considered the recent Federal Court decision in Singh12 and finds that there is nothing in the decision which takes away the burden of the Appellant to provide an explanation of how the proposed new evidence meets the test set out in s. 110(4) of the IRPA. [14] The Appellant has not provided any explanation why she could not have tendered these documents prior to the rejection of the claim. The RAD finds that the Appellant has not established why this evidence was not reasonably available to her prior to the rejection of her claim and, as such, does satisfy the statutory requirements. Accordingly, it is not admitted as evidence in this appeal. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD Subject the Appellant's Evidence to an Unduly Microscopic Assessment? [15] The Appellant submits that the RPD erred by subjecting her evidence to an unduly microscopic level of scrutiny. The Appellant identified two instances where the RPD drew adverse inferences from what it perceived were inconsistencies. The Appellant submits that these perceived inconsistencies were trivial at their highest or erroneous at their worst. Inconsistent Evidence with Regard to Access to Assistance from Relatives in Bangladesh [16] The RPD drew an adverse credibility finding from the Appellant's inconsistent testimony regarding access to assistance from her relatives in Bangladesh. The RPD noted that the Appellant testified a few times during the hearing that she had "no one" in Bangladesh to support her and that she was all alone there. However, she later testified that she had distant relatives who tried to negotiate the sale of her home on her behalf. [17] She testified that she did not try to get supporting documents from Bangladesh because she had no one there, and it was difficult for her to get them; she testified that she was "all alone" back home, that she has "no one", and there is no one to support her there. The RPD found that the presence of relatives who willingly tried to negotiate a settlement with individuals whom the Appellant referred to as "Muslim fanatics" directly contradicts her assertions that she has no one in Bangladesh to support her and that she is all alone. [18] The Appellant submits that this was a trivial inconsistency at best. She argues there is a distinction between a distant relative and close family members with whom she could seek refuge and that it was improper for the RPD to impugn her credibility on this inconsistency. [19] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the Appellant's testimony that she had no one to support her or assist her was offered as an explanation for why she could not tender documents to support her allegations including documents that established that she owned a home in Bangladesh. Given the willingness of her relatives to face persons whom she has described as fanatics, it is reasonable to expect that they would be willing to assist her in obtaining documents to support her claim. The RAD further finds that the issue of whether the Appellant has any support network in Bangladesh is relevant to her risk of harm. As such, contradiction of her assertions that she had no one to assist her or support her in Bangladesh is highly material and cannot be viewed as trivial. The RAD finds that this contradiction undermines the credibility of her testimony in this regard. Police Reports [20] The Appellant argues that the RPD drew an adverse inference from its view that her testimony that her son filed her police complaints for her in Bangladesh was inconsistent with her evidence that she informed the police after the incidents. The Appellant submits that the RPD engaged in a microscopic analysis of her evidence and that it could not reasonably lead to an adverse credibility finding. [21] The RAD is not persuaded by the Appellant's arguments in this regard. The RAD notes that the Appellant's testimony was inconsistent with her earlier testimony that, following both incidents, she informed the police. The RPD also noted that the First Information Report (FIR) provided by the Appellant was written in the first person, narrated and signed by the Appellant. The RAD agrees with the RPD and finds that both her testimony and the FIR itself are inconsistent with the Appellant's testimony that her son filed the complaints, and she just went with him. The RAD agrees that it is reasonable to expect that, if her son had filed the complaints, the FIR would have reflected this by showing him as the narrator and bearing his signature. The RAD agrees with the RPD that this inconsistency not only undermines the credibility of the Appellant, but it also undermines the credibility of the FIR itself. Uncontested Credibility Findings [22] The Appellant submits that, if not for these erroneous adverse inferences, her claim for refugee protection may have been decided differently. [23] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the RPD has made numerous adverse credibility findings which were not contested by the Appellant. The RAD finds that, even if the two contested inconsistencies were not sustained, they could not overcome the totality of the adverse credibility findings of the RPD. Inconsistencies and Omissions with Regard to the Agents of Persecution's Efforts to Take her Property [24] The RAD notes that the RPD found that the central allegations that men attempted to take her land in the past and to harm her because she did not comply with their demands was not credible. The RPD noted inconsistencies and omissions in the Appellant's testimony with regard to the agents of persecution's efforts to take her land away from her. The RPD further found her testimony in this regard to be lacking in spontaneity. Delay in Leaving [25] The RPD drew an adverse credibility finding from the Appellant's delay in leaving Bangladesh. The RAD notes that the Appellant remained in the same home for a year following the alleged attack before taking a vacation to Canada with the intention of returning to Bangladesh to be inconsistent with a person with a genuine fear of persecution and demonstrative of her lack of subjective fear. Delay in Claiming [26] The RPD drew a further adverse credibility finding from the Appellant's delay in claiming in Canada. The Appellant explained that she did not claim earlier because she intended to return to Bangladesh and only realized later that she would be in trouble if she returned. She further explained that her efforts to negotiate the sale of her home also delayed her claim. The RPD found the Appellant's explanation for the delay to be unreasonable. The RPD notes that the agents of persecution have not shown interest in the Appellant's property since 2013. Furthermore, the Appellant has not tendered any documentation to establish she owned a home in Bangladesh or that her relatives attempted to negotiate its sale. The RPD notes that the Appellant's adult children live in Canada and that she had the means and support necessary to consult with a professional on claiming protection in Canada. The RPD found that this delay not only undermined the Appellant's credibility but also undermined her subjective fear. Failure to Tender Medical Documents [27] The RPD drew a further adverse credibility finding based on the Appellant's failure to tender medical evidence to support her allegations. Noting the fact that the Appellant had relatives in Bangladesh who were willing to assist her negotiate the sale of her home, the RPD rejected the Appellant's explanation that she had no one to assist her in Bangladesh to obtain medical records. The RPD found that lack of documentation undermines the credibility of the Appellant's allegations that she was attacked by the agents of persecution as she has alleged. [28] The RAD finds, on the basis of the totality of these uncontested adverse findings, that the Appellant's allegation that she was attacked by Muslim fanatics who wanted her home is not credible. Residual Risk [29] The RAD acknowledges that there are reports of discrimination and violence, including incidents of ethnic and religious minorities having their homes seized by members of the majority. There has been police response to this, although it has been described as limited. The RAD notes, however, that the RPD has found that the Appellant was not targeted due to her religion and that she does not have a nexus to the Convention on these grounds. The RAD further notes that the Appellant has not contested this finding. While the Appellant may face discrimination, the RAD finds that it would not rise to the level of persecution. [30] The RAD further notes that the Appellant has testified that no one is looking for her in Bangladesh and that the alleged agents of persecution from 2013 have not had any direct contact with her and have not threatened her directly or indirectly since 2013. She testified that she still owns her home in Bangladesh and that the agents of persecution have not undertaken any other efforts to take it from her. While it is true that there is a chance that she could be victimized by criminal elements or fanatics, the RAD finds that she has not established that there is a serious possibility. [31] The RAD notes that the Appellant has not alleged that she cannot practice her faith and has not established that she would be at risk solely because of her faith. The RAD notes thte Appellant testified that it was her intention to return to Bangladesh after visiting her children in Canada. The RAD finds that this undermines the alleged risk she faces there due to her religion. [32] The RAD further finds that the National Documentation Package (NDP) for Bangladesh does not support a finding that Buddhists are systematically subject to persecution. The RAD further finds that the Appellant has not established that she would be more vulnerable to persecution due to her age and personal profile. The RAD acknowledges that some Buddhists may face discrimination, which rises to the level of persecution in particular circumstances; however, given the facts, as outlined above, the RAD finds that the Appellant is not at risk of persecution. SUMMARY [33] Having reviewed all of the evidence in this appeal, the RAD agrees with the RPD, on a balance of probabilities, that the Appellant has not satisfied her burden of establishing that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, she would be personally subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture. CONCLUSION [34] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses her appeal. (signed) "L. Favreau" L. Favreau August 4, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Online articles, "Energy East Pipeline" and "Khaleda for Neutral Probe, Tough Action", pp. 14-21. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 13.3(a). 5 Raza, para. 16. 6 Raza, para. 13.5(b). 7 Raza, para. 13.5(a). 8 Raza, para. 13.3(b). 9 Raza, para. 13.5(a). 10 Tran, Hoa Van v. M.P.S.E.P. and M.C.I. (F.C., no. IMM-3222-09), Beaudry, February 19, 2010, 2010 FC 175. See also Founding, Allen Robin v. M.P.S.E.P. and M.C.I. (F.C., no. IMM-2182-09), Shore, May 14, 2009, 2009 FC 500. (This is a motion for a stay of removal. Leave to be heard was denied on July 7, 2009 by Justice Harrington.) 11 Refugee Appeal Division Rules, SOR/2012-257 http://laws-lois.justice.gc.ca/eng/regulations/SOR-2012-257/index. html. See RAD Rules 3(3)(d)(i) and (g)(iii), 5(2)(d)(ii), and 29(3). 12 Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014, 2014 FC 1022. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07915