TB4-06317

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 : TB4-06317 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 1, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael F Loebach Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor 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, a citizen of Jamaica, is appealing his decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has submitted new evidence in support of his appeal. He is requesting that the RAD find him to be a Convention refugee or, in the alternative, that the matter be referred back to the RPD for re-determination by a newly-constituted panel. DETERMINATION [2] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. Background [3] The Appellant began to participate in the XXXX XXXX XXXX in Canada in 2003. As a result, he was perceived to have money, and criminals began to break into his home in Jamaica. [4] One gangster, named XXXX XXXX and his associates targeted and threatened the Appellant and his family in 2006. The Appellant was forced to accede to financial demands and other goods on a regular basis to prevent harm to his family. [5] In 2007, the Appellant reported XXXX to police and they warned XXXX. However, when XXXX learned of this, he threatened to kill the Appellant and harm his family. [6] The Appellant returned to Canada in XXXX 2007 to resume his XXXX XXXX, realizing that he could not return to Jamaica. Over the years, the Appellant alleges that there have been numerous incidents including an attack on the Appellant's brother, XXXX, harassment of his father and an attack on his son. The Appellant alleges that he has also received threats in Canada, from his co-workers with whom he has had disagreements. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL: EXPRESS STATUTORY CONDITIONS [7] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] If the statutory requirements have been met, the panel must then consider the factors in Raza,1 in which the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA, Section 110(4), it is based on the very similar wording of Section 113(a) for the PRRA. (Pre-Removal Risk Assessment) The Court held that new evidence should be considered for its newness, credibility, relevance, and materiality, in addition to any express statutory provisions. NEWNESS [9] Is the evidence new in the sense that it is capable of: * Proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or, * Proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or, * Contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. CREDIBILITY [10] Evidence that passes the test in Section 110(4) must be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. RELEVANCE [11] The RAD must consider whether the evidence is relevant to the appeal. Is it capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. MATERIALITY [12] Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been available to the RPD? If not, the evidence need not be considered. [13] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: * Two letters from the Appellant dated XXXX XXXX, 2014 and XXXX XXXX, 2014 postdating the rejection of the claim. However, the contents of these letters could reasonably have been available at the hearing and are, therefore, not admitted. [14] Accordingly, the "new" evidence does not meet the statutory requirement. [15] Since the RAD finds that the evidence does not constitute "new" evidence pursuant to s. 110(4) of IRPA, pursuant to subsection 110(6) of IRPA, an oral hearing is denied. ROLE OF THE RAD [16] Counsel has made submissions on the standard of review and has recognized the most recent Federal Court decision in Huruglica.2 It has provided the RAD with guidance in relation to the appropriate role of the RAD with respect to the decisions of a first level administrative tribunal by a specialized tribunal, such as the RAD. 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." COUNSEL'S SUBMISSIONS [17] Did the RPD err in its credibility findings based solely on the lack of corroborating evidence and not on any inconsistencies, contradictions, etc. in the testimony? Appellant's Report to the Police: [18] Initially, the Appellant testified that he had reported the behaviour of his perpetrator, XXXX, in 2007 when he had stolen XXXX XXXX and no action was initiated. However, the RPD confronted the Appellant with the contents of his Basis of Claim form (BOC), wherein it indicates that XXXX was warned by the police. The Appellant responded that he had forgotten that he "did not have it written". The RAD concurs with the RPD and finds that the Appellant's lack of explanation for the contradiction was not accepted as this is allegedly the warning that prompted the Appellant to be labeled as an informant, from which flowed alleged threats to kill his entire family. Moreover, the Appellant testified that he did not return to the police, as he had to return to Canada by a certain time on his renewed XXXX XXXX XXXX, but instead his father went to the police. The RPD found that it was unreasonable in spite of serious threats against his family, that the Appellant did not take the time to return to the police. The RAD concludes that the RPD's finding is without error and the RAD would have arrived at the same conclusion. Incident involving Appellant's Son: [19] With respect to the attack on his brother, XXXX, the Appellant testified that it occurred in 2013, whereas the BOC indicates 2006. When confronted with this significant discrepancy, the Appellant testified that sometimes he forgets and that his narrative was correct. The RAD concurs with the RPD that, given the alleged gravity of the incident and the fact that his brother was allegedly attacked by the same persons whom the Appellant fears, this contradiction was not reasonably explained. The RAD finds that this is particularly noteworthy, given the fact that he was represented by Counsel when he completed his initial BOC, and a revised BOC narrative was submitted prior to the hearing. Moreover, the RPD noted that the letter from the Appellant's brother indicates a different date altogether and a different perpetrator. The RAD would have arrived at the same conclusion that was reached by the RPD that it is unlikely that this incident took place. Incident with Appellant's Son: [20] The testimony surrounding the alleged incident with the Appellant's son was also contradictory. Initially, the Appellant testified that his son had been pushed into a rock by XXXX in 2006 or 2007. When Counsel reiterated that this incident occurred in 2006, the Appellant testified that it happened in July 2013. In an attempt to clarify the contradiction, the Appellant indicated that there were two incidents: one in 2006 and one in 2013. However, the RPD noted the date contained in the BOC as 2012 and, when confronted, the Appellant stated that he wrote about one incident only, which the RPD did not accept.Moreover, the perpetrator was identified as being XXXX, whereas the BOC indicates that it was his son. After listening to the audio recording of the proceedings, the RAD concurs with the RPD and finds that the Appellant's changing testimony diminished his credibility further. Delay: [21] The Appellant last entered Canada on XXXX XXXX, 2007 as part of the XXXX XXXX XXXX. This was after he had been threatened by XXXX and XXXX and called a police informant. When asked by the RPD why he had not made a refugee claim, he responded that, although he had heard of such claims, he thought he could hide himself in Canada and remain here. Meanwhile, he met someone and was married after a short time. The sponsorship application, however, was withdrawn as the relationship deteriorated. [22] The Appellant's work status expired in XXXX 2007. His wife began the paperwork for sponsorship in 2009; therefore, the RAD finds that there was a period between XXXX 2007 and sometime in 2009, when the Appellant could have been deported. His ex-wife moved out in 2011, however he did not find out about the withdrawal of the sponsorship application until sometime in XXXX or XXXX 2012. The Appellant was asked why he had not made his refugee claim earlier. He testified that his superior, where he worked, was doing paperwork on his behalf for his work permit. [23] The RPD concluded that the delay in claiming of over one year following the failure of his sponsorship and several months after the expiry of his last work permit, along with the fact that he only made a claim after being told that he would be required to leave the country, does not correspond with the actions of someone who fears for their life. [24] The RAD would have arrived at the finding as the RPD in this regard. This aspect of the claimant's conduct is inconsistent with a person living in fear of persecution in their country. It is to be expected that genuine Convention refugees would seek protection as soon as is practical, once out of reach of their oppressors. The RAD is mindful, then, that one of the significant factors which speaks to credibility is the element of delay. Delay, in and of itself, is not normally a factor in refugee determination.3 However, it can be relevant and a potentially important consideration to the RAD,4 where the claimant has delayed in making a claim upon their arrival to Canada and failed to offer a reasonable explanation for the delay. In certain circumstances, however, delay can be a determinative and decisive factor.5 In the case at hand, given the multiple opportunities the Appellant had to make a refugee claim, the RAD draws an adverse inference and finds, as a result of that delay, that the Appellant's credibility is further undermined. [25] The RPD, based on the foregoing credibility findings, found that the Appellant was not a credible witness and concluded that the events, as alleged, did not, in fact, occur. After listening to the audio recording of the proceedings, the RAD concurs and finds that the Appellant's testimony was contradicted, ever changing, absent of reasonable explanations for the discrepancies, rambling and uncorroborated. Corroborative Evidence: [26] Although a death certificate for the Appellant's brother-in-law was submitted as post-hearing evidence, it was properly assessed as having little probative value in terms of linking it to the problems of the Appellant himself. With respect to the letters from family members, these were outdated, namely 2008, and simply indicated where the Appellant's children are residing and that they are regular attendees at church. Similarly, the letter from the Appellant's sister, although confirming her husband's murder in 2012, provides no information about the perpetrator or any connection with the Appellant. The letter from the Appellant's father also makes no mention of the agents of persecution by name. Moreover, the contents contradict the BOC narrative when the letter states that he has never seen the perpetrators and there is no reference to the Appellant and his problems that he has allegedly experienced over the years. Based on the foregoing, the RAD concurs with the RPD that this corroborative evidence provides little probative value. Fear of former co-workers from Suntastic [27] The Appellant testified that he also fears a number of individuals with whom he worked in the XXXX XXXX XXXX in Canada at various times, due to his unwillingness to go on strike, jealousy and his good relationship with his superior. The Appellant believes that these individuals may be connected to XXXX and his gang in Jamaica. After listening to the audio recording of the proceeding, reviewing the entire record and arriving at an independent assessment, the RAD would have arrived at the same conclusion, that the Appellant's beliefs are just that - speculative. Moreover, the RAD notes, as did the RPD, that, if the Appellant truly feared these individuals, he would have approached the police in Canada. The RPD also found that, if these incidents were serious and his relationship with his employer was as described, it would have been reasonable for the Appellant to have submitted a letter from his employer attesting to these issues. [28] Although the Appellant argues that the RPD relied only on the lack of corroborative evidence, the RAD finds that the RPD relied on evidence relating to the Appellant's report to the police, the discrepancies involving the Appellant's son, the incident with respect to the Appellant's son, and delay in claiming, before reaching its decision. Its findings on the foregoing issues lead to its conclusion, along with the lack of corroborative evidence. CONCLUSION [29] The RAD finds that, after conducting an independent assessment of the entire record, the evidence, and the RPD reasons, it concurs with the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [30] Accordingly, this appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. (signed) 'Roslyn Ahara' Roslyn Ahara October 1, 2014 Date 1Raza, Syed Masood v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R.; Raza, Syed Masood v. M.C.I. (F.C., no. IMM-7269-05), Mosley, November 16, 2006, 2006 FC 1385; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 2Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 3Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 4Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988. 5Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003, 2003 FC 1324; Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003, 2003 FC 1266; Bhandal, Surjit Kaur v. M.C.I. (F.C., no. IMM-4277-05), Teitelbaum, April 3, 2006, 2006 FC 426. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06317