TB5-05208

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 : TB5-05208 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 July 14, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ohene K Andoh 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 is a citizen of Ghana and appeals a decision of the Refugee Protection Division (RPD) dated April 16, 2015, rejecting his claim for refugee protection. The Appellant is requesting that the decision of the RPD be set aside and refer the matter back to the RPD or that the RAD substitutes a determination that the Appellant is a Convention refugee. The Appellant is submitting new evidence and is not requesting an oral hearing. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee or a person in need of protection. Background [3] The Appellant alleges that he is a Christian and refused the nomination of his family to become a fetish priest in his native country of Ghana. He alleges that he was assaulted by militant youths in XXXX XXXX XXXX XXXX XXXX of 2013. He alleges that, as a result of the injuries received after the assaults in XXXX and XXXX, he attended a hospital. [4] He travelled to Canada in November of 2013 using a false Canadian student visa. The Appellant applied for refugee status nearly a year after arriving in Canada in October of 2014. THE ROLE OF THE RAD [5] The RAD finds that the recent Federal Court 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. 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". [6] While there has been some conflict in the case law from the Federal Court regarding the standard to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [7] 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 and will consider only the issues raised by the Appellant. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. NEW EVIDENCE [8] The Appellant submitted new evidence in the form of a medical report from XXXX XXXX Hospital dated XXXX XXXX, 2015. The Appellant is not requesting an oral hearing. [9] 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. [10] As with respect to the first test, the date of the document, it would seem that the document submitted was signed April 8, 2015, before the decision of the RPD was rendered. The Appellant provided no written explanation in his Appeal documentation as to why he did not produce the document at the RPD hearing. However, when questioned by the RPD as to why the document had not been submitted, the Appellant explained that his mother had neglected to include the report in the package along with all of the other documentation which the Appellant had submitted to the RPD. The RAD notes that on April 30, 2015, fifteen days after the RPD hearing, the Appellant did attempt to file this report but the RPD member had already rendered his decision. Although the RAD will allow this new evidence, for reasons discussed below, it gives the document little evidentiary weight. ANALYSIS OF THE MERITS OF THE APPEAL [11] The RPD found that the determinative issues in this claim are credibility and delay in claiming after the Appellant's arrival in Canada. Credibility [12] The RPD found that the Appellant was not credible and that he had not established the central allegations to his claim.3 Central to this credibility finding on the part of the RPD was the fact that the RPD rejected the explanation provided by the Appellant as why the hospital report had not been included with the documentation submitted by the Appellant.4 The RAD has accepted this document as evidence but for the reasons discussed below gives the document little evidentiary weight. [13] The RPD asked the Appellant on several occasions to describe the treatment that he had received at the hospital on the two visits. The first time the Appellant replied that they had to take care of him without providing any details as to the treatment received. The second time the Appellant testified that the hospital gave him medication for the pain again without providing any details as to the treatment received. [14] It is reasonable to expect someone with a diploma in nursing would remember the treatments which he had received at the hospital. The Appellant was not able to do so. Furthermore, the RAD notes that the alleged hospital report also fails to specify any form of treatments provided by the hospital to the Appellant. [15] The Appellant also testified at the RPD hearing that he had received deep cuts as a result of the alleged September assault. The RPD asked the Appellant if he had received stiches at the hospital and the Appellant replied that he had. However, the alleged hospital report fails to mention that he had received stiches as part of the treatment. Finally the hospital report does not mention the cause of the Appellant's alleged injuries. [16] For all of the above reasons, the RAD gives the alleged hospital report little evidentiary weight. [17] The hospital report is central to the allegations of the Appellant for he alleges that he was assaulted and injured as a result of his refusal to accept the nomination as a fetish priest and that he attended at a hospital after each of these two alleged assaults to have his wounds treated. Therefore, according to the testimony of the Appellant there is a direct link between the hospital report and the alleged assaults. The RAD has found that the hospital report has little evidentiary weight and therefore agrees with the RPD that the Appellant has failed to establish the central allegations to his claim. Delay in claiming [18] The RPD also found that the Appellant lacked subjective fear as a result of his delay in filing a refugee claim soon after his arrival to Canada. [19] The Appellant alleges that he arrived in Canada on November 5, 2013 after having obtained a false student visa for Canada. He alleges that the reason why he came to Canada was to escape the assaults and threats in Ghana. [20] The RPD asked the Appellant who had assisted him in obtaining a fraudulent visa and he replied that his father had contacted an agent. The RPD then asked when his father had made this contact and the Appellant quickly replied when he had started to receive threats. The RPD asked the Appellant to be more specific and after a long hesitation, he replied that it had been in October. [21] It is reasonable to expect that an individual who alleges that he has received injuries as a result of two different assaults and wanted to flee his country, would remember when his father had begun to make contact with an agent to determine if a false visa could be obtained for the Appellant. When the Appellant was asked by the RPD to provide this information, the Appellant at first answered in general terms. It was only after the RPD asked the Appellant a second time, and after a long pause, did the Appellant testify that the search for a visa had begun in October. [22] After arriving in Canada the Appellant testified that he lost his passport and had to apply for a new one. The RPD asked the Appellant how and when he had lost his passport and again the Appellant could not remember. Losing a passport is a very important incident especially to someone who is from a foreign country and the passport is the only identity document. Again it is reasonable for the Appellant to remember the circumstances and the approximate date as to the loss of his passport. [23] The RPD asked the Appellant why it had taken him nearly a year to apply for refugee protection. At first he replied that, because he had lost his passport, he had to wait for his birth certificate so that he could apply for a new passport so he could provide an identity document. The RPD then pointed to the Appellant that one does not need identity documents to file a claim for refugee protection and then the Appellant repeated that he did not know that. [24] The RPD pointed out to the Appellant that he obtained his new passport in XXXX of 2014 but still waited nearly six months before he filed his claim in October of 2014. The Appellant replied that he had no family here and was waiting for his church to assist him. [25] The RPD rejected these explanations and the RAD agrees with the RPD's decision. It is reasonable to expect that someone who flees his country because he has allegedly been assaulted on three different occasions, has allegedly received death threats, would make every effort possible to file a claim for refugee protection as soon as he arrives in Canada. This is especially so since the Appellant himself testified that the reason for him fleeing his country was to escape the alleged persecution and threats to his life. And yet it took the Appellant nearly a year to file his refugee claim. Even after he had obtained his new passport, it still took him nearly six months to file his claim. [26] The RAD finds, on a balance of probabilities, that the Appellant made no effort to file a claim for refugee protection upon his arrival in Canada. The RAD concludes on a balance of probabilities, that the Appellant did not file a claim for refugee protection because he feared for his life if he were to return to Ghana. [27] For all of the above reasons the RAD finds, on a balance of probabilities, that the Appellant has failed to provide any satisfactory explanation for his delay in filing a claim for refugee protection. [28] Delay has been recognized by the Federal Court as an important factor in assessing a claimant's credibility and their subjective fear. It is reasonable to assume that persons with a well-founded fear of persecution will attempt to apply for refugee protection without unreasonable delay. The delay in this matter is so substantial, nearly a year, that it undermines the Appellant's credibility and the Appellant's allegation that he faces a serious harm in Ghana if he were to return. [29] In Mesidor, 5 Mr. Justice Shore pointed out that: "... the courts have consistently held that a claimant's delay in filing a refugee claim can justify the rejection of a refugee claim in a case where this delay was not satisfactorily explained." [30] In the case of Williams, also a gender related claim, the claimant took two years to file a claim for refugee protection after her arrival in Canada. The court stated: The court recognized that, according to the case law, while delay in making a claim is an important factor to consider, it is not decisive; nonetheless, delay may, in circumstances such as in this case, suffice to warrant the dismissal of a claim, even though this is unfortunate for the applicant. The explanations of the applicant, viewed in the context of her uncorroborated evidence in its entirety, warranted the dismissal of her claim by the Board. 6 [31] The RAD agrees with the finding of the RPD that the Appellant lacks subjective fear due to his delay in claiming. [32] As the Federal Court has stated, a finding of lack of subjective fear alone is sufficient to deny the claim.7 Appellant's Submissions [33] The Appellant also submits that the RPD erred in law in not assessing the claimant's evidence on a balance of probabilities. However the decision of the RPD indicates that the findings were made on a balance of probabilities.8 [34] With respect to the other documentation provided by the Appellant, given the issues of credibility with respect to the Appellant, the RAD agrees with the conclusion of the RPD on these documents. CONCLUSION [35] On the basis of the findings noted above and after its own assessment of all the evidence in the record and the audio of the hearing, the RAD agrees with the RPD's finding that the Appellant has not established that he is a Convention refugee or a person in need of protection. [36] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the decision of the RPD. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino July 14, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Exhibit P-2, Appellant's Record, P-2 pg. 7, para. #21. 4 Exhibit P-2, Appellant's Record P-2 pg. 5, para. #16. 5 Josue Peterlee Mesidor v. M.C.I. 2009 FC-1245 #10. par. 12. 6 Williams, Jacitha Jasette v. MCI (F.C., no. IMM-18-09), Lagace', July 31, 2009; 2009 Fc-793, par. 26. 7 Garzon, Omar Yovani Ortiz v. M.C.I. (F.C., no. IMM-925-10), O'Keefe, March 11, 2011, 2011 FC 299 at paragraph #30; see also Goltsberg v. M.C.I. , 2010 FC 886; Gamassi v. M.C.I. (2000), 194 F.T.R. 178. 8 Exhibit P-2, Appellant's Record, pg. 7 para. 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05208