TB6-03564

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 : TB6-03564 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 XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 20, 2016 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Nico G. Breed 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] The Appellant, XXXX XXXX XXXX is a citizen of Cameroon and appeals a decision of the Refugee Protection Division (RPD) dated November 20, 2015, rejecting her claim for refugee protection. The Appellant is submitting new evidence and is requesting an oral hearing. The Appellant is requesting that Refugee Appeal Division (RAD) set aside the decision of the RPD and refers the matter back to the RPD or that the RAD substitute a determination that the Appellant is a Convention refugee or a person in need of protection. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention Refugee nor a person in need of protection. Background [3] The Appellant fears returning to Cameroon because of her alleged sexual orientation. The Appellant alleges that she experienced her first gay relationship while she was a student in high school and that she had a long term relationship with a woman by the name of XXXX which began in 2010. She also alleges that XXXX family discovered them while engaging in sex and as a result, she was arrested by the authorities, imprisoned and assaulted. The Appellant alleges that in 2013 she once again renewed her gay relationship with XXXX and, as in 2010; XXXX family once again discovered the two women having sex. Again the Appellant was imprisoned but her lawyer managed to have her released on bail. ROLE OF THE RAD [4] 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. The Appellant justices stated at paragraphs 103 and 106: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [106] In light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD's findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. [5] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. ANALYSIS OF THE MERITS OF THE APPEAL [6] The RPD found that the determinative issue in this claim is credibility. The RPD found that the Appellant was not a credible witness. NEW EVIDENCE Documentary Evidence [7] The Appellant submitted new evidence in the form of two letters. The first letter is from the Appellant's father and is dated December 15, 2015.2 The second letter is from the alleged gay lover XXXX and is dated December 23, 2015.3 [8] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4) which states: On appeal, 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. The letter from the Appellant's father [9] As with respect to the first test, the letter from the Appellant's father is dated December 15, 2015, which is after the RPD rendered its decision. With respect to the second test, as to whether the Appellant could not reasonably have been expected in the circumstances to have presented this letter at the time of the rejection, the RAD finds that the Appellant could have presented this new evidence prior to the rejection of the claim. [10] In her Affidavit in support of the new evidence, the Appellant states that: "After the hearing, I contacted my family in Cameroon and my father agreed to send me a letter in support of my refugee claim and to confirm me being a lesbian."4 The Appellant does not provide any evidence that the letter could not have been obtained prior to the RPD rendering its decision. There is nothing in the testimony of the Appellant which would indicate that she was not in contact with her father. Furthermore, the contents of the letter do not provide any new evidence to the allegations of the Appellant. For these reasons, the RAD will not accept the letter from the Appellant's father. XXXX Letter [11] As with respect to the first test, the letter from XXXX is dated December 23, 2015, which is after the RPD rendered its decision. The RAD will, therefore, accept the letter into evidence. However, for reasons provided below, the RAD gives this letter little evidentiary weight and finds that it was submitted in order to bolster the Appellant's refugee claim. [12] XXXX letter is in the form of a declaration sworn before a Barrister, XXXX XXXX, in Cameroon. The document contains a seal and a stamp with the name of Mr. XXXX in his capacity as a Notary Public. With respect to the seal, the RAD notes that it does not contain the name of the individual but of the law firm. It is reasonable to expect that a formal seal used by a Notary Public or Barrister would contain the name of the individual and not that of the law firm. [13] Also, there is only one signature at the end of the document and, below the signature there is no indication as to the name of the individual who signed the document. If the signature is that of the Notary Public, then XXXX did not sign the declaration. If the signature is that of XXXX, then the document is missing the signature of the Notary Public declaring that he did witness XXXX sign the document. [14] Given the above issues relating to the document, the RAD finds that the letter from XXXX was submitted in order to embellish the refugee claim of the Appellant and gives little evidentiary weight. Analysis of this Appeal [15] The RPD found that the main issue in this claim is credibility. The RPD concluded that the Appellant had not established her sexual orientation. The Appellant argues only two issues: a) that the RPD did not conduct the hearing and did not assess the evidence according to the Guidelines on women refugee claimants b) that the RPD made certain findings regarding issues central to the claim, without addressing the contradictory evidence.5 Gender Guidelines [16] The Appellant alleges that the RPD did not refer to the Gender Guidelines, and did not demonstrate any sensitivity to the circumstances of the Appellant.6 [17] The Federal Court has held that the failure to mention or fully apply the Guidelines does not, on its own, render the decision unreasonable.7 The RAD has had an opportunity to listen to the recording of both RPD sittings. The testimony of the Appellant was provided in English. The RAD has found that the RPD member was accommodating during her questioning; allowing the Appellant time to answer questions, asking for clarification when needed, and explaining the questions when requested to do so. There was no evidence that the RPD member was aggressive or insensitive in her questioning of the Appellant. The RAD disagrees with the submission of the Appellant that the RPD did not demonstrate sensitivity to the circumstances of the Appellant. Addressing Contradictory Evidence [18] The Appellant also submits that the RPD made findings without addressing contradictory evidence. The RAD finds that this submission is a legal error. The contradictory evidence which the Appellant submits the RPD did not consider is actually the new evidence submitted to the RAD.8 The RPD did not have an opportunity to address this evidence since it was not before it. The RAD has already made a finding with respect to this new evidence. [19] There were no other issues raised by the Appellant. DECISION [20] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention Refugee nor a person in need of protection. [21] The Appeal is dismissed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino April 20, 2016 Date 1 Huruglica: 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, Appellant's Record, at p. 24. 3 Exhibit P-2, Appellant's Record, at p. 27. 4 Exhibit P-2, Appellant's Record, at p. 14, para. 3. 5 Exhibit P-2, Appellant's Record, at p. 100. 6 Exhibit P-2, Appellant's Record, at p. 105 paras. 5-12. 7 Manege vs. M.C.I. 2014 FC 374 ; Henry vs. Canada (Minister of Citizenship and Immigration), 2013 FC 1084 at para. 50, [2013] FCJ No. 1222. 8 Exhibit P-2, Appellant's Record, at p. 106. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :