MB4-03335

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 : MB4-03335 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision February 6, 2015 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the person who is the subject of the appeal Me Chantal Ianniciello Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] The Appellant is Ms. XXXX XXXX XXXX who is a citizen of St. Vincent and the Grenadines and is appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant has not presented new evidence and has not requested an oral hearing. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that Ms. 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. BACKGROUND [3] The Appellant, who is a 45 year-old citizen of St. Vincent and the Grenadines (St. Vincent), alleges that she is at risk of being attacked and potentially killed by her brother, identified as Mr. XXXX XXXX (XXXX), if she were to return to St. Vincent. The Appellant further alleges there is no State protection in St. Vincent adequate to serve her protection needs. [4] The Appellant alleges that since she was young, she was always in danger from XXXX. The Appellant most recent problem with XXXXdeveloped because she was left a gift of property by an aunt. The Appellant alleges that XXXXalso seeks this property and when the Appellant showed him the legal document that pronounced her owner, XXXXripped up the document and has since threatened her and attacked her with a machete (cutlass). [5] The Appellant alleges that after a first incident when she was threatened by her brother, the police detained the brother for a day. The next day, XXXX allegedly entered the Appellant's house and destroyed furniture with a machete. The Appellant fled to a neighbour's house and called the police once more. Although the police came and found the machete, they did not find the brother. The Appellant alleges that she then moved to another brother's home where she was found by her brother a few days later. [6] The Appellant alleges that 'a few weeks later', she was confronted and attacked by XXXXwhile shopping. The Appellant alleges that she was cut on her foot and lost toes and that she required hospital treatment. The Appellant alleges that she did not approach the police following this incident. The Appellant alleges that in XXXX1997, she traveled to Canada to escape danger. [7] The Appellant attempted to secure a status in Canada by submitting an application for permanent residence status based on 'Humanitarian and Compassionate Considerations' (H&C). The Appellant states that this application was denied and a later appeal was also denied. In response, because she fears return to St. Vincent, she lodged a refugee claim. This claim was denied by the RPD in a decision dated July 31, 2014. The Appellant appealed this decision by filing a notice of appeal that was received by the IRB on August 25, 2014. SUBMISSIONS [8] The Appellant argues that the RPD committed errors in its decision. The Appellant argues that the RPD reached findings of fact that are unreasonable because they are based on omissions and although these exist they should not be viewed as significant (Appellant's Memorandum of Argument, paragraph 31). [9] The Appellant also argues that the RPD reaches a conclusion of implausibility in that the Appellant was expected to seek out police protection after being attacked with a machete. The Appellant argues that the jurisprudence is such that, in this specific case, it is 'common knowledge' (Appellant's Memorandum of Argument, paragraph 39) that not approaching the police in like situations is not unexpected or not unusual and therefore the Appellant's actions were not 'implausible'. [10] The Appellant also argues that the delay in claiming Canada's protection might be explained by the fact that the Appellant was in a process to secure an H&C status and therefore the lengthy period before claiming should not be viewed negatively. [11] The Appellant argues that the Appellant's appeal of the RPD's decision should be 'allowed' and that I should either grant the Appellant Canada's protection ("render a favourable decision") or that the file should be returned to the RPD for a redetermination by a 'differently constituted' panel (Appellant's Memorandum of Argument, Conclusion). ROLE AND FUNCTION OF THE RAD [12] With respect to the RPD's credibility assessment, which is the determinative issue in this claim, for a number of reasons the RPD did not believe that the Appellant is at risk of persecution or at risk for an IRPA s. 97 reasons. This is because it concluded that the Appellant did not meet her burden of establishing that her story was true on a balance of probability. [13] I note that the Appellant argues that RAD owes the RPD no deference even in the area of a credibility assessment (Appellant's Memorandum, Paragraph 14). I cannot accept this argument because the RAD has now received Federal Court guidance on the role of the RAD vis-à-vis RPD decisions, which, in its basic thrust, contradicts this approach. [14] One Justice suggests that my assessment of the RPD's determination with respect to questions of fact and with respect to questions of mixed fact and law, should involve an evaluation of the evidence to determine if the RPD made 'palpable and overriding errors'. This jurisprudence sets out that the RPD is owed a "measure" of deference in its conclusions of fact, and of mixed fact and law and establishes that the RAD is responsible to perform its "own assessment" of all of the evidence (Alvarez1 and Eng2). [15] I note that in another recent decision (Spasoja3) Justice Roy agrees with Justice Shore on the conclusion that 'palpable and overriding errors' should be the standard of intervention with respect to questions of fact. [16] In Huruglica,4 the Federal Court has stated that the RAD "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". Justice Phelan in Huruglica indicates that there is no need for the RAD to enunciate a 'standard of review' and suggests, with a manner inconsistent with the Appellant's understanding of this case (Appellant's Memorandum, paragraph 23), that while the RAD need not show deference in its assessment of country conditions evidence, the RAD might show some deference on a credibility assessment and/or where the RPD enjoys a 'particular advantage' in reaching a conclusion. [17] In Njeukam,5 Justice Locke references Huruglica and suggests that "Except in cases where the credibility of a witness is critical or determinative or when the RPD has a particular benefit from the RAD to draw a specific conclusion, the RAD must not give any deference to the analysis of the evidence made by the RPD". [18] Following Huruglica and Njeukam, I conclude that in this appeal, which turns on questions of fact, the RPD's determinative credibility assessment must be granted deference and I must provide my own assessment of the evidence. ANALYSIS OF THE MERITS OF THE APPEAL Core Issue: Did the Board err in its credibility findings? [19] The RPD does not find that the Appellant has met her burden because the RPD finds major omissions in the Appellant's BOC Narrative compared to testimony and that some allegations are implausible. There is also the question of the Appellant waiting 17 years in Canada before making a refugee claim. [20] The first omission noted by the RPD is that in testimony the Appellant is stating that she called the police after XXXXdestroyed her place with a machete. According to testimony, this call comes after XXXXwas previously arrested by police. This previous arrest is set out in the BOC Narrative/Annex, but there is no mention in the BOC Narrative of this call to police following the machete attack on the house. In testimony, the Appellant states that the police came but they did not find XXXXand made no effort to find him after that. After cleaning up her brother's damage in her own house, the Appellant states that she moved to another brother's home where she remained until she left St. Vincent. [21] In this case, the RPD did not find the Appellant's explanation for the omission credible because the Appellant had effectively described a previous effort to secure state protection (which led to XXXXarrest). Essentially, the Appellant is setting out only parts of the story in the BOC Narrative and the RPD concludes that there is a credibility issue with this. [22] The Appellant argues that jurisprudence finds that omissions in general are not serious and the omission in this case is not serious. The Appellant states: "the credibility finding is in large part based on a single point, that is, the failure to describe in detail all of the steps taken with the STVG police authorities" (Appellant's Memorandum, paragraph 25). [23] My understanding of the RPD's decision is that there is a credibility problem in the sense that the Appellant is telling important parts of her story for the first time during the hearing. Clearly efforts to secure state protection are important and the documents which must be filled out (BOC Question 2) are clear that important details must be included when setting out one's claim. In this case, where the Appellant had a knowledgeable and experienced counsel and the BOC includes 6 separate questions where the reader is instructed to "see annex" (RPD Record, p. 19), the RPD has a right to expect details in that 'annex'. In this case, the RPD concludes that the annex includes important omissions related to, for example, a sexual assault examined below, and efforts to seek state protection. [24] The Appellant argues that "The omissions are not serious enough for the panel not to understand them" and the "the first-level tribunal greatly exaggerates the significance of these omissions simply to justify its finding of lack of credibility" (Appellant's Memorandum, paragraph 30-31). I must conclude that if there is not much detail or major omissions in the annex, the RPD must be expected to question whether important details, which are newly raised during the hearing, were first thought of during the hearing. I must also conclude that although this cannot likely be the full bases of an adverse credibility conclusion, important omissions as have been identified by the RPD in this case, for example, when and how many times the Appellant approached the police, can be viewed as a legitimate credibility concerns. [25] The next important concern of the RPD is the fact that the Appellant approached the police prior to being physically attacked, but not after. This is to say, after the Appellant initially suffered threats, the police were called and came and arrested XXXXand detained him for a day. The following day, XXXXcommitted a property crime and the police came again but could not find him. Weeks later, XXXXattacks the Appellant with a machete, chops off some of her toes in public with witnesses, yet the Appellant nor anyone else calls the police after this incident. Setting aside the question of why this attack was not on the front page of local newspapers, such as The Searchlight, The News or the Vincentian newspapers, which simply make it their business to seek out such stories, the RPD finds that it is implausible for the Appellant not to have gone to the police on this occasion. [26] The Appellant argues that it is understandable that the Appellant did not go to the police after this attacked. This is because those attack fear further reprisals and in this case, the police have shown little interest in helping the Appellant (Oral Hearing at minute 45). [27] On this issue, I must agree with the RPD. The Appellant is describing a case where the attack occurred, someone ran after XXXXand someone stated they wanted to call the cops. I must conclude that a machete attack in public at a bus stop in St. Vincent where a woman is sent to hospital and losses toes is going to involve the police. Put simply, I conclude that the story as told by the Appellant meets the criteria for implausible. [28] On the question of the alleged sexual assault of the police officer on the Appellant (Oral Hearing at minute 1:49), the Appellant states that it was the last time she sought help from the police. This was one of the reasons alleged that she did not approach the police after she was attacked with a machete and had her toe severed. [29] The RPD dismissed this allegation as lacking credibility because the sexual assault is a major omission and there was not even a previous "...mention (of) a visit by the authorities to follow up on her own complaint" (RPD Decision, paragraph 25). [30] In listening to the hearing, I must agree with the RPD's conclusion. In fact, it is not even clear that the Appellant even provides for a situation where the police could have come over to 'her' place. The time when the police came to look for XXXX, following the chopping up of the coffee table and the Appellant fleeing to a neighbours' place, the Appellant clearly testifies that she was with her neighbour when the policeman was looking for XXXX. The Appellant also states that the policeman found a machete on the porch, which he kept, and the policeman told the Appellant that he would "check back the next day". Regardless, the Appellant states that the police officer "never came back" (Oral Hearing at minute 27). [31] From this point on, the Appellant is living at her brother's place. To a later specific question of "After you left the house and you went to your brother's house, please tell me how did you ask or when did you ask the authorities to intervene" (Oral Hearing at minute 41). The Appellant's only response was that she "called" and that she suspects that "they never really checked" on her brother (Oral Hearing at minute 42). If the Appellant were assaulted by a policeman after the initial incident with her brother but before the Appellant was attacked and injured by a machete attack, setting aside the sexual assault, the Appellant might be expected to mention a visit by police but I must agree with the RPD that she did not. Taken together I do not find that the RPD erred in the area of viewing this allegation as lacking credibility. [32] The final area of concern is that the Appellant was 17 years in Canada before making a refugee claim even taking into consideration the possibility of securing an H&C. The RPD concludes that this period is simply too long. [31] Waiting that long is inconsistent with the behaviour of a person alleging that her life was at; risk in her country of origin. The panel expects that a person who truly believes that he or she is in danger would seek protection at the first opportunity, especially given that, according to the claimant's testimony, that was her reason for coming to Canada (RPD Decision, Paragraph 31). [33] On this issue, I must agree with the RPD. It seems clear that making a refugee claim in Canada has the appearance of being a last resort for the Appellant, which would not be consistent with the actions of someone who really fears return to persecution. I note that there is a mention of perhaps a further appeal on the H&C. With respect to any argument that the Appellant only recently became aware of Canada's refugee policy, it is simply hard to believe that the Appellant as a Vincentian would not be aware of Canada's refugee policy from soon after arrival if not before arrival. The level of asylum migration from St. Vincent over the past 15 years has been significant especially when the population of St. Vincent is taken into consideration. This is of course the reason why Canada imposed a visa restriction on St. Vincent, in September 2012. [34] With respect to a general assertion that St. Vincent is unsafe for woman, which was a basic theme of the Appellant's counsel's submissions, I would note that St. Vincent is a relatively modern English speaking Parliamentary Democracy in the Western hemisphere and a member of the Commonwealth with a per capita income of US $12,000.6 [35] I would also note that this is not a case of domestic violence. The Appellant did not live with the assailant (XXXX), was not a wife or girlfriend, was not dependent on the assailant and the reason for the alleged assaults is essentially criminal. While there are reports that police may be reluctant to become involved in domestic violence, this is not an issue here. In this case, the question relates to, can the police be trusted to provide adequate protection? According to one source: "Saint Vincent and the Grenadines as 31st of 180 countries (in order from least corrupt to most corrupt); only two other Caribbean countries, Barbados and Saint Lucia, were ranked as less corrupt (TI 2009a)."7 According to the US DOS report, St. Vincent's Judiciary is independent and "Civilian authorities maintained effective control over the police, and the government has effective mechanisms to investigate and punish abuse and corruption".8 The one potentially relevant section reads "Violence against women remained a serious and pervasive problem. The law does not criminalize domestic violence specifically but provides protection for survivors. Authorities could bring charges in cases involving domestic violence under assault, battery, or other similar laws, but police were often reluctant to follow up on domestic violence cases".9 Again, in this case, I do not see that State protection can be interpreted as inadequate with respect to the general enforcement of the law or that the Appellant's relation to XXXX would create a reluctance, on the part of the police, to fulfill their duty to protect a citizen who is outside of a domestic situation. [36] I must conclude that by establishing that the allegations of the Appellant have no credibility, on a balance of probability, this effectively completes the RPD's work. In a review of the documentation, I must conclude that simply being a woman returning to St. Vincent is not sufficient, on its own, to be considered for Canada's protection. REMEDIES [37] For all these reasons, I confirm the determination of the RPD, namely, that Ms. XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection". [38] Therefore, this appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher February 6, 2015 Date /kp/cl 1 Alvarez v. M.C.I. (2014) FC 702. 2 Eng v. M.C.I. (2014) FC 711. 3 Spasoja v. M.C.I. (2014) FC 913. 4 Huruglica v. M.C.I. (2014) FC 799. 5 Njeukam v. M.C.I. (2014) FC 859, paragraph 14. 6 St. Vincent National Documentation Package , 14 March 2014, Tab 1.2 : Central Intelligence Agency, Saint Vincent and the Grenadines. 7 Ibidem, Tab 10.1: VCT103589.E. 3 November 2010. Police corruption and misconduct, including involvement of police officers in drug-related criminal activity; procedures for filing complaints against police officers for corruption, inaction or misconduct (2007-October 2010). 8 Ibidem, Tab 2.:, US DOS, Saint Vincent and the Grenadines. Country Reports on Human Rights Practices for 2013, p. 4. 9 Idem, p. 9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-03335 11