TB5-08625

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 : TB5-08625 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 October 07, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A 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), who is a citizen of Ukraine, is appealing the decision of the Refugee Protection Division (RPD), denying her claim for refugee protection. She has not submitted any new evidence in support of her appeal, nor is she requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is, however, requesting the RAD substitute a positive determination, or in the alternative, to remit the matter to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. This appeal is dismissed. Background [3] The Appellant alleges that she is Roma, by virtue of her father. In July 2012, she took in a tenant named XXXX XXXX, who sexually assaulted her in XXXX 2012. This physical and sexual abuse continued and the Appellant alleges that in spite of seeking help from the police, she was denied state protection. [4] The Appellant travelled to Canada on a Canadian visa on July 30, 2013 and was issued a work permit upon entry that was valid until July 29, 2015. She then made an inland refugee claim which was referred to the RPD on June 2, 2015. ROLE OF THE RAD [5] Counsel for the Appellant argues that the in order for the RAD to grant leave in this matter, the Appellant must raise an arguable issue of law upon which the proposed application may succeed, and show that the Appellant has a fairly arguable case or that there is a serious question to be determined. The RAD has taken guidance from the Federal Court in Huruglica1 wherein Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: 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 an "overriding and palpable error." SUBMISSIONS BY THE APPELLANT i. Did the RPD err in law by ignoring relevant portions of the Appellant's testimony and documentary evidence? ii. Did the RPD err in law by taking into account erroneous and irrelevant considerations in reaching its decision? iii. Did the RPD further err in law by basing its decision on an erroneous finding of fact made in perverse or capricious manner or without regard to the material before it? iv. Did the RPD fail to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe? v. Did the RPD act on the basis of bias towards the Appellant in exercising its discretion? vi. In the alternative, does rendering a decision that is based on these matters combined, amount to an error in law? vii. Did the RPD err in law with respect to its determination that there is not an objective possibility that the Appellant is at risk if forced to return to Ukraine? viii. Did the RPD err in law in stating that the Appellant did not discharge the onus of showing clear and convincing evidence of the state's inability to protect? ix. Did the RPD further err in law by stating that the Appellant failed to present sufficient credible or trustworthy evidence to establish that she was persecuted as a person of Roma ethnicity? [6] Counsel has not pointed out any specific errors as per the IRPA rules. (3.(3)(g): 3. (1) To perfect an appeal, the person who is the subject of the appeal must provide to the Division two copies of the appellant's record. (2) The Division must provide a copy of the appellant's record to the Minister without delay. (3) The appellant's record must contain the following documents, on consecutively numbered pages, in the following order: (a) the notice of decision and written reasons for the Refugee Protection Division's decision that the appellant is appealing; (b) all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript in the appeal, together with a declaration, signed by the transcriber, that includes the transcriber's name and a statement that the transcript is accurate; (c) any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal; (d) a written statement indicating * (i) whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act, * (ii) whether the appellant is requesting that a hearing be held under subsection 110(6) of the Act, and if they are requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing, and * (iii) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and the appellant needs an interpreter; o (e) any documentary evidence that the appellant wants to rely on in the appeal; o (f) any law, case law or other legal authority that the appellant wants to rely on in the appeal; and o (g) a memorandum that includes full and detailed submissions regarding * (i) the errors that are the grounds of the appeal, * (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, * (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant, * (iv) the decision the appellant wants the Division to make, and * (v) why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held. [7] The RAD finds that while counsel for the Appellant has made submissions with respect to errors, these alleged errors have not been identified. [8] Nevertheless, the RAD has conducted an independent assessment of the entire record and specifically the reasons, and concludes that had it been conducting the hearing, and analyzing the evidence, its conclusion would have mirrored that of the RPD and, therefore, finds that the RPD conclusion is without error and supportable. [9] For example, the RAD concurs with the RPD that the Appellant's willingness to remain in the house where she had allegedly been raped by a tenant, exposing the risk to her daughters, was lacking in credibility. The RAD concurs with the RPD that given the college education of the Appellant, her full-time employment in a quality control position at a factory, this finding by the RPD was absent of any error. The RAD further concurs with the RPD that the fact that the Appellant's mother and daughters moved into the very home where the abuse occurred and where the perpetrator had already committed the potentially lethal act of setting home on fire, simply does not make any sense, and therefore, further detracts from the Appellant's credibility. [10] The RPD dealt with the issue of delay in claiming and the RAD concurs with its analysis and conclusion. The RPD found that the Appellant's excuse for not claiming three months after her arrival in Canada, namely because her lawyer advised her not to do so, because she had not claimed at the airport, to be an attempt on the part of the Appellant to embellish her claim. Moreover, the RPD noted that although she had a work permit, the Appellant waited until two months prior to its expiry to make a refugee claim, twenty-two months after her arrival in Canada. Furthermore, the RPD noted that the Appellant was risking deportation working as a live-in caregiver, as this was contrary to the conditions of her work permit and she was aware of the illegality of this. [11] The Federal Court has held that delay in making a refugee claim "is not a decisive factor in itself" but it is a "relevant element which the tribunal may take into account in assessing both the statements and actions and deeds of a claimant".2 The Federal Court has also held that "it is reasonable to expect that the applicants would make a claim at the first possible opportunity".3 In certain cases, however, where the delay or failure to claim is egregious (e.g., long delay, long stay in third country or sojourns in many countries), and is inadequately explained, it may be determinative of the claim.4 In the case at hand, the Appellant has failed to provide a reasonable explanation for the delay and therefore the RAD concurs with the RPD that this undermines her credibility. [12] Furthermore, the RAD concurs with the RPD's analysis of the two police reports filed by the Appellant. The RPD found that the initial police report surrounding the attack on the Appellant's mother was lacking in credibility given the contradictory evidence contained therein as opposed to the Appellant's testimony with respect to the nature of the injuries. Moreover, the RPD noted that this was not a domestic dispute, and although acknowledging a lack of professionalism on the part of the police, it found that the police would not have gone to the trouble of producing a detailed official written account essentially admitting to this abdication of their duties, if the Appellant's testimony had merit. With respect to the second police report, it is more germane as it relates to attacks against the Appellant which occurred between September 2012 and January 2013. The RPD found that the Appellant's testimony that the police laughed at her, was at odds with a professional report issued to confirm a report of her complaints. [13] The RAD concurs with the RPD after reviewing the transcript, and taking into consideration the aforementioned credibility findings, as well as the prevalence of fraudulent medical documents in Ukraine5 and the absence of security features, that it was open to the RPD to accord little weight to these documents. [14] Lastly, the RAD concurs with the RPD that it considered the fact that the Appellant's father is a Roma and found that the level of discrimination she sustained, particularly after college, was not tantamount to persecution. The RAD finds that there was insufficient persuasive evidence that the Appellant had suffered persecution, and underscores the fact that she was able to complete teacher's college, she held a full-time job, and she owned a four-bedroom home providing sufficient income for her and her children. CONCLUSION [15] The RAD finds that the conclusion of the RPD is absent of any error and it is supported by its analysis. Although counsel has provided no examples of errors in his memorandum, as per the RAD's rules, the RAD has conducted its own independent assessment of the entire record and finds that the Appellant is not a Convention refugee or a person in need of protection. [16] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara October 07, 2015 Date 1 Huruglica Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799. 2 Huerta v. Canada (Minister of Employment and Immigration)(1993), 157 NR 225, (1993) FCJ no. 271 (CA). 3 Jeune v. Canada (Minister of Citizenship and Immigration), 2009 FC 835, (2009) FCJ no. 965 at para 15. 4 Ghasemian, 2003 FC 1266 and Velez v. Canada (Minister of Citizenship and Immigration), 2010 FC 923 (2011) FCJ no. 1138 at para 28. 5 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Ukraine (12 February 2015), items 3.5 and 3.7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08625