TB4-03428

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 : TB4-03428 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 22, 2014 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal Alesha A. Green 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 (de la) ministre Reasons and Decision [1] XXXX XXXX XXXX (the Appellant), a citizen of Jamaica, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant does not submit new evidence. The Appellant asks the Refugee Appeal Division (RAD) to allow the appeal, and that either the Appellant be found to be a Convention refugee, or, in the alternative, that the matter be referred back to a different panel of the Refugee Protection Division for redetermination. DETERMINATION OF THE APPEAL [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD, namely, that XXXX XXXX XXXX is neither a Convention refugee, pursuant to s. 96 of IRPA, nor a person in need of protection, pursuant to s. 97 of IRPA. The appeal is dismissed. BACKGROUND [3] The Appellant was a XXXX XXXX in Jamaica. Gangs in Jamaica were known to threaten and extort money from "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX." The Appellant would pay the money, but when he was unable to do so, he was threatened with death with a gun and slapped by gang members. They warned him that, if he went to the police to report them, he would be killed. The final incident that precipitated him leaving Jamaica was on XXXX XXXX, 2006 when gang members demanded money from him. They slapped him and threatened him with a gun if he did not pay them their money. He stopped working, contacted his friend in the United States (US) who helped him get a work permit. He did not report any of the mistreatment to the police in Jamaica because of police corruption and police ties to organized crime. He believes that, by reporting his victimization to the police, he will be branded an informant and be killed. He left Jamaica in XXXX 2006, and he spent two years in the US where he met a Canadian woman whom he later married. He travelled to Canada to be with her, entering at a land border crossing. He states that he was not asked for any identity documents by the Canadian border official. He was able to enter Canada undetected and was married on XXXX XXXX XXXX 2009. His spouse applied to sponsor him on XXXX XXXX, 2010. The Appellant was found to be inadmissible to Canada as a result of a criminal conviction. The application for sponsorship was refused on XXXX XXXX, 2012.1 He fears gang members, the general public and the police in Jamaica. He alleges he cannot return to Jamaica because he will be killed. [4] The Appellant challenges and denies all of the RPD's credibility findings. The Appellant submits: 1) The RPD engaged in a microscopic examination of peripheral or irrelevant issues, and, as such, the decision is unreasonable. 2) The RPD did not give proper regard to the totality of the evidence. 3) The RPD's finding that the failure to claim in the United States undermines the Appellant's credibility was unreasonable. 4) The RPD's finding on his delay in claiming was unreasonable. 5) The RPD did not address the objective basis of the claim; in particular the documents on country conditions, which corroborate the fact that the Appellant would face serious risk if removed to Jamaica. STANDARD OF REVIEW [5] The Appellant alleges that the RPD made errors in its decision. The alleged errors concern credibility. The Appellant also alleges the RPD ignored the totality of the evidence. [6] The Appellant does not make any submissions on the Standard of Review. [7] The Federal Court, in Iyamuremye,2 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as per Dunsmuir.3 [8] In the case at hand, the Appellant submits: 1) The RPD's findings were unreasonable. 2) The RPD did not consider the totality of the evidence that was before it. [9] The Appellant's application for refugee protection was heard on February 27, 2014. In a decision of March 13, 2014, the RPD rejected the claim, finding that: 1) The Appellant was not a Convention refugee, as he does not have a well-founded fear of persecution on a Convention ground in Jamaica. The Appellant's allegations of threats and violence, even if they were believed, would not give rise to persecution because of his race, religion, ethnicity, political opinion, or membership in a particular social group. 2) The Appellant is not a person in need of protection. The Appellant had not established, on a balance of probabilities, that he would be personally subjected to a danger of torture or face a risk to life, or a risk of cruel and unusual treatment or punishment upon his return to Jamaica. [10] The Appellant submits that the RPD erred in its credibility findings and erred in the assessment of the Appellant's credibility. The Appellant also submits that the RPD did not give proper regard to the totality of the evidence. The RAD finds these errors deal with issues of fact and the RPD's treatment of the evidence before it. The appropriate standard of review on this issue is one of reasonableness. [11] For these reasons, the RAD concludes that, in considering this issue, it must show deference to the factual and credibility findings of the RPD. The appropriate standard of review is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility with the RPD's decision making process, but with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.4 [12] The Appellant has submitted no new evidence in support of his appeal nor has he requested an oral hearing. [13] The Minister intervened in the hearing of the claim. The Minister did not intervene in this appeal. ANALYSIS OF THE MERITS OF THE APPEAL [14] The determinative issues in this appeal are: 1) Did the RPD make erroneous credibility findings? 2) Did the RPD consider the totality of the evidence? The RPD's Credibility Findings [15] The determinative issue in the Appellant's hearing was the credibility of his evidence regarding his fear of returning to Jamaica because his life is at risk. The RPD found, on a balance of probabilities, that the Appellant was not a credible witness. The Appellant's Education [16] The RPD drew a negative credibility inference given the Appellant's untruthful testimony and misrepresentation on his refugee application about his education. [17] The Appellant submits that this is a microscopic examination of a peripheral or irrelevant issue and, as such, is unreasonable. The RAD reviewed the reasons. The RPD drew a negative credibility inference from the Appellant's untruthful testimony and misrepresentation on his refugee application about his education. It is unclear to the RAD whether this negative credibility finding is in relation to the Appellant's overall credibility or a particular issue. Therefore, because of this omission from the reasons, the RAD finds that the RPD's finding on the issue of his level of education does not lead to the conclusion that he was not credible with respect to his allegation of being threatened in Jamaica. Therefore, the RAD finds the credibility finding of the RPD in this regard to be unreasonable, as it is a microscopic analysis of a peripheral issue. Failure to claim in the United States [18] The RPD noted that the Appellant left Jamaica and arrived in the US on XXXX XXXX XXXX 2006. He remained in the US for nearly two years until coming to Canada in XXXX 2008. The Appellant was asked whether he sought protection in the US given that he feared for his life in Jamaica and that, according to his testimony, he had come to the US for the singular purpose of finding safety. The Appellant replied that he did not because he was working at the time. He also stated that he was going to do so but that he eventually met his future Canadian wife, who invited him to come to Canada. The RPD asked what steps he took to seek protection in the US in the nine months he resided there, before he was introduced to his future wife. He responded that he spoke to a friend, but he did not have money to retain a lawyer. The RPD went on to ask if he had tried approaching a non-profit agency for help in seeking protection from the US. He responded once again that he spoke to a friend but that money was an issue at the time. The RPD rejected his explanation for failing to take any meaningful steps to seek protection while in the US to be reasonable. [19] The Appellant submits that the RPD made unreasonable findings with respect to his failure to claim refugee protection in the US, given that he gave reasonable explanations for the lack of an application. [20] The Appellant argues there was nothing inherently implausible about the fact that he could not retain a lawyer to put forth his claim in the United States, and, as such, the RPD's negative credibility finding was unreasonable. The Appellant, to support his argument, points to jurisprudence that states that there is no obligation for a claimant to claim protection in the first destination.5 [21] The RAD does not accept this argument. The RPD supported its negative credibility finding in this regard, by factoring that the Appellant had the wherewithal and sophistication to obtain a US visa, which he admitted was obtained under false pretences, and leave Jamaica. The RPD believed that it was reasonable to expect that, if the Appellant genuinely feared for his life, he would have sought help in the months following his arrival in the US. He was in breach of the terms of his US visa and therefore at risk of removal to Jamaica. Further, the US cannot be said to have been an "in transit" country to Canada, under the circumstances. The RPD drew a negative credibility inference and found the Appellant's failure to seek protection in the US reveals a lack of subjective fear. [22] The RAD finds that, while the Appellant may have faced financial hardship in the US, he provided no reasonable explanation for not approaching a non-profit agency for help. His own evidence was that "I will get killed if I go back to Jamaica." Based on his own evidence, it would be reasonable for the RPD to expect him to exhaust every avenue to help him to remain in the US considering his fear of returning to his own country. The RAD finds the RPD's negative credibility finding in this regard is reasonable. Delay in Claiming and Sponsorship Application [23] The Appellant argues, however, that he had filed an application for permanent residence, having been sponsored by his wife at the time. The Appellant notes that it is trite law that while the panel may consider delay in assessing a refugee claimant's presence or lack of subjective fear, the delay per se is not usually determinative of a refugee claim.6 Whereas, in this case, the Appellant sought to regularize his status by other means; the fact that he did not file a refugee claim earlier does not justify an adverse credibility finding. As such, the panel's finding on this particular issue was unreasonable.7 [24] The RAD notes that the RPD asked the Appellant why he waited until XXXX 2013 to claim refugee protection in Canada. He explained that the reason for the delay in claiming was because he had submitted a sponsorship application through his wife, which was eventually turned down. The RPD found the Appellant's explanation was deficient, as the Minister's evidence reveals that the sponsorship application was made on XXXX XXXX, 2010, more than two years after the Appellant first entered Canada without authorization. The RPD found the Appellant's actions demonstrated a lack of subjective fear, and it, therefore, drew a negative credibility inference in this regard. [25] The RPD, to support its finding, relied on case law submitted by the Minister's representative, that states: There is a well-established principle to the effect that any person having a well-founded fear of persecution should claim refugee protection in Canada as soon as he or she arrived in the country, if that is his or her intent. On this point, the Federal Court of Appeal has already concluded that any delay in claiming refugee protection is an important factor which the Board may take into consideration in its analysis. Such a delay indicates a lack of subjective fear of persecution, since there is a presumption to the effect that a person having a well-founded fear of persecution will claim refugee protection at the first opportunity. Accordingly, in conducting its assessment, the Board is entitled to take into consideration the applicant's delay in claiming refugee protection.8 [26] The RPD found the Appellant's actions demonstrated a lack of subjective fear and, therefore, it drew a negative credibility inference in this regard. [27] The RAD considered the jurisprudence in Huerta9 regarding the assessment of the Appellant's delay in claiming in Canada: The delay in making a claim to refugee status is not a decisive factor in and of itself. It is, however, a relevant element which the Tribunal may take into account in assessing both the statements and the actions and deeds of the Claimant. The delay is significant in my view as is the timing of the refugee claim. [28] The RAD finds the RPD supported its negative inference, by noting that the Appellant had the wherewithal and sophistication to obtain a US visa. The RAD notes, based on a review of the audio recording, that the Appellant also had the ability to secure employment in Canada. The RAD finds the RPD reasonably found the Appellant's failure to seek protection reveals a lack of subjective fear. The RAD finds that the Appellant's actions were not consistent with his alleged fear of persecution. The Appellant was given an opportunity to explain the reasons for the delay in claiming for refugee protection. Through his responses to questions posed to him by the RPD, his counsel and counsel's submissions regarding his actions, the RPD considered his explanation. The RPD was not satisfied with this explanation; in the RAD's view, this was reasonable, given that the Appellant was living in Canada without status since 2008, in fear of deportation. There was ample evidence upon which the RPD based its findings, and therefore the RPD's findings are transparent and justifiable and ought to be accorded deference. [29] The Appellant submits that the fact that the written submissions of a former counsel10 did not mention the Appellant's fear of returning to Jamaica, it was unreasonable for the RPD to fault the Appellant for the former counsel's statements. [30] The Appellant points to jurisprudence where there is a presumption in law that sworn testimony should be considered truthful, unless there are good reasons to doubt its veracity.11 In this instance, the unsworn statement of the former counsel could not be said to be good reasons for rejecting the sworn testimony of the Appellant. [31] The RPD found the evidence regarding his sponsorship application revealed a lack of subjective fear on the part of the Appellant. The RPD considered the letter from the Appellant's previous counsel, dated XXXX XXXX, 2010, which was submitted on behalf of the Appellant's sponsorship application.12 The RPD noted that the letter makes no mention of the Appellant's fear of returning to Jamaica. The Appellant explained the omission by stating that his previous counsel never asked him about that. The RPD rejected his explanation as patently unreasonable. The Appellant was asked why the letter indicates that the Appellant had secured a job working on a XXXX XXXX, given his testimony that no such job existed. His response was that his previous lawyer did not ask him whether he had a visa to work XXXX XXXX XXXX. The RPD found his explanation to be evasive and non-responsive. The Appellant was further asked by the RPD why the letter indicates that he and his wife had contemplated various living options such as living in the US or returning to live in Jamaica. The Appellant denied ever having a conversation with his wife about returning to Jamaica and speculated that his wife may have provided this information to his previous counsel. The RPD noted that a plain reading of the letter leads to the conclusion that both the Appellant and his wife were consulted in the preparation of the letter. The panel explored the Appellant's ability to read and write. The Appellant advised that he had average literacy skills. When asked if he was given an opportunity to review the XXXX XXXX XXXX 2012 letter, as it was being prepared by his previous counsel, he responded with conflicting testimony; he stated that he had been given the opportunity to review the document and that the information contained in the letter was based on information that he had provided. Later in testimony, he stated that he had been given the opportunity but that his lawyer had only given him parts of the letter. Finally, when asked by his counsel whether his previous counsel had gone over the pertinent information in the sponsorship application with the claimant, he answered in the negative and said that his previous lawyer had gone through this information with his wife. The RPD found the Appellant's testimony to be evolving in response to questions put to him by it and by his counsel. The RPD found his testimony was unreliable and found that the Appellant was afforded an opportunity to review the XXXX XXXX, 2012 letter by his previous counsel. The RPD drew a negative credibility inference in this regard and agreed with the submission from Minister's counsel that the letter suggests that the claimant left Jamaica for economic reasons. The RPD concluded that, given the cumulative credibility concerns, the RPD "disbelieves" the Appellant's "allegations surrounding his reasons for leaving Jamaica in 2006." [32] A review of the audio recording shows the Appellant testified that he signed the sponsorship application in the presence of both his wife and the Immigration consultant who had prepared the application. The RAD notes that the RPD asked the Appellant if he was given an opportunity to review the XXXX XXXX, 2012 letter as it was being prepared by his previous counsel. He responded with conflicting testimony. The RPD found because his testimony was unreliable, that the Appellant was afforded an opportunity to review the XXXX XXXX, 2012 letter by his previous counsel. The RPD did not rely on the statements of the former counsel but drew a negative inference from his shifting and "unreliable testimony" on whether or not he was aware of the content which did not include a statement of his fears for returning to Jamaica. Further, the RPD's finding that they disbelieved the Appellant's allegations surrounding his reasons for leaving Jamaica in 2006 was not because of unsworn statements made by his former counsel, but based its negative credibility finding on the Appellant's unreliable testimony surrounding the content of the statements, or the lack thereof, in the sponsorship application. Therefore, the RAD finds the RPD's negative credibility finding in this regard is reasonable. [33] The Appellant submits in his affidavit, at paragraph 19, that "when he came here, my wife and I planned to get married and her intention was to file a sponsorship application on my behalf. Even though the sponsorship application was filed about two years after I first arrived due to our limited financial circumstances, it was eventually submitted so I felt relatively safe being here." [34] The RAD does not accept this argument. The RAD has reviewed the entirety of the audio recording. The Appellant commented on financial problems with regards to marital difficulties, but he did not provide testimony that limited financial circumstances was a factor in why he and his wife did not file a sponsorship application on his behalf within the two years after his arrival in Canada. The RAD finds the Appellant submits a further explanation for his delay in claiming refugee status. This issue was canvassed at the hearing, and the Appellant was given an opportunity to respond to questions put to him by the RPD and his counsel. The Appellant cannot use the pleadings to fill in the gaps in an effort to explain away his testimonial failings. Microscopic examination [35] The RAD considered the submission by the Appellant that the RPD engaged in a microscopic examination of peripheral or irrelevant issues, and, as such, the decision is unreasonable. [36] The RAD is not persuaded by the Appellant's argument in this regard. Although the RAD found the issue of the Appellant's education was unreasonable, the RAD finds the RPD did not apply an overly vigilant and microscopic examination of the Appellant's evidence nor was it fixed on peripheral or irrelevant issues for the remainder of the credibility findings in this case. The RPD questions posed by the RPD were intended to assess the credibility of the Appellant's testimony and the credibility of the documents he submitted to support his claim. It was open to the RPD to test the credibility of the Appellant's evidence. The RPD relied on the totality of evidence before it in determining the Appellant was not credible. SUMMARY AND DETERMINATION [37] The Appellant contested other credibility findings of the RPD, such as drawing a negative inference regarding his "state of mind" when he illegally entered Canada, which the Appellant argues was a peripheral or irrelevant issue. The Appellant further states that the RPD did not address the objective basis of the claim, in particular the documents on country conditions, which corroborate the fact that the Appellant would face serious risks if removed to Jamaica. In summary, the RPD made one finding that was not reasonable; by making a credibility finding regarding the Appellant's education, which the RAD found to be unreasonable, as it is a microscopic analysis of a peripheral issue. However, the RAD finds this error does not make the overall determination by the RPD unreasonable. The RPD made its overall determination that the allegations were not credible based on cumulative credibility concerns. As well, the RPD found the Appellant lacked subjective fear. [38] The RAD finds the RPD did not fail to properly consider the totality of the evidence before it in assigning a negative inference. The RPD's finding that, on the basis of the totality of all the evidence made available, there is not a serious possibility that the claimant would be persecuted in Jamaica, or that, on a balance of probabilities, he would be subjected personally to a danger of torture, or face a risk to life, or a risk of cruel and unusual treatment or punishment, in Jamaica, was reasonable. The RPD clearly considered the credibility concerns in regard to the Appellant's alleged fear of gangs, corrupt police and organized criminals as the basis for its decision. [39] The RAD finds that the RPD's decision was justifiable, intelligible, and transparent, and it falls within the range of possible, acceptable outcomes defensible with respect to the facts and the law. [40] For these reasons outlined above, the Refugee Appeal Division confirms the determination of the Refugee Protection Division that the Appellant is not a Convention refugee, nor is he a person in need of protection, as per Section 111(1)(a) of IRPA. The appeal is dismissed. (signed) "C. Forbes" C. Forbes July 22, 2014 Date 1 RPD's record, Exhibit 4, Minister's disclosure. 2 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 3 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at para. 47. 4 Dunsmuir, para. 47; in Khosa, para. 4, the "range of reasonableness outcomes". 5 Menjivar, Carlos Othmar Navarrete v. M.C.I. (F.C., no. IMM-9660-04), Dawson, January 6, 2006; 2006 FC 11, paragraph 33. 6 Nelson, Daniele Donette v. M.C.I. (F.C., no. IMM-6689-09), Pinard, November 25, 2010; 2010 FC 1167, at para. 15. 7 M.C.I. v. Sivalingam-Yogarajah, Subajiny (F.C.T.D., no. IMM-2649-00), Pelletier, September 13, 2001; 2001 FCT 1018; Papsouev, Vitali v. M.C.I. (F.C.T.D., no. IMM-4619-97), Rouleau, May 19, 1999, 49 Imm. L.R. (2d) 48 (F.C.T.D.). 8 Singh, Pritam v. M.C.I. (F.C., No. IMM-2513-06), Shore, 25 January 2007; 2007 FC 62, at paragraph 24. 9 Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993; (1993), 157 N.R. 225 (F.C.A). 10 RPD's record, p. 62, Exhibit 4, p. 3. 11 Maldonado v. M.E.I., [1980] 2 F.C. 302 (C.A.); Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001; FCT 776, paragraphs 6-7; Mahmud, Sultan v. M.C.I. (F.C.T.D., no. IMM-5070-98), Campbell, May 12, 1999; F.C.J. No. 729. 12 RPD's record, Exhibit 4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03428