MB5-01565

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. / No de dossier de la SAR : MB5-01565 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered/heard at Montréal, Quebec Appel instruit à Date of decision October 19, 2015 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Claude Whalen Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX, the appellant, who is a Guinean citizen, is appealing against the decision of the Refugee Protection Division (RPD). He submits that the RPD committed errors in the assessment of his credibility. [2] The RPD's first decision1 in this case was set aside by the Refugee Appeal Division (RAD).2 The present appeal concerns the RPD's second decision in this case. II. DETERMINATION OF THE APPEAL [3] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD dismisses the appeal and confirms the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Basis of the claim [4] In the Basis of Claim Form (BOC Form) that he signed on January 29, 2013, the appellant states that he cannot return to his country because he refused to marry his cousin, XXXX XXXX, and his father is going to punish him severely for this. He also states that he has lived in Canada for several years, has become accustomed to living freely and cannot return to Guinea, where his father is threatening to kill him; where he faces a miserable existence in a society where he cannot live a free life, true to his convictions; and where he will always have to submit to his father's will or else be persecuted, rejected by society, humiliated, beaten and even incarcerated.3 [5] The appellant, then referred to as the claimant, presented a few documents4 as evidence before the RPD. B. RPD's decision [6] The de novo hearing before the RPD was held on February 5, 2015, and the decision to reject the claim for refugee protection was rendered on March 16, 2015.5 [7] The RPD found that the claimant's allegations were clearly not credible.6 [8] Although the RPD found that on account of the delay in claiming refugee protection, the claimant's behaviour was not that of someone fearing persecution,7 its main reasons for decision can be found in three paragraphs: [translation] [8] Asked about his cousin's age, the claimant knew nothing. He stated that she seemed a bit younger than he is. Had he found out whether she was still alive? No, he told us. He made no effort to find out. Why? He does not like his cousin and wants to ignore this whole business. He did not think it would be important for the panel. I reject these explanations. Since his cousin's existence is a central factor in his persecution, we are surprised, to say the least, that he does not know whether or not she is alive. If she is dead, well in that case, this fear of marriage no longer exists. This behaviour, this not knowing is contrary to the behaviour of someone claiming to be persecuted by reason of a forced marriage. [9] Does he have evidence of the existence of this young woman who is his cousin? On Facebook? No. But he has not really looked. A birth certificate, photographs or anything that his mother, who is defending him, could have sent him? No, he has nothing. He did not think that this would be necessary. Once again, we are surprised by the lack of diligence by someone who fears persecution in his country by reason of this forced marriage. This girl's existence is central to his claim, and it is up to the claimant to establish his case. This should not come as a surprise to the claimant, especially since this hearing was preceded by an initial one before the RPD in 2013, at which time the member had rejected his claim, finding that it was not credible. What is more, he has an immigration lawyer who has been following his case since the beginning of this refugee protection procedure. [10] In light of all this evidence, I do not think that he is being forced to marry this cousin. And I will go further still: I do not even think that the young woman exists.8 C. Grounds of appeal and remedy sought [9] In his memorandum, the appellant submits that the RPD committed errors in the assessment of his credibility.9 [10] He criticizes the RPD for finding that his father would not have paid for his education in Canada had he hated him and considered him the black sheep of the family. He submits that this finding is erroneous and that, for his part, he never described his relationship with his father that way and never said that his father hated him when he sent him to study in Canada.10 [11] As for his cousin, the appellant submits that it is unreasonable to require that his mother send him her birth certificate or photographs of her, or to cast doubt on his account because of the lack of evidence if these things are impossible to produce. He further submits that the RPD erred in finding that if his cousin is dead, there is no longer a danger for him, since the danger remains in that he disobeyed his father and brought dishonour on him.11 [12] As for the delay in claiming refugee protection in Canada, the appellant submits that the RPD miscalculated this delay, which must be calculated only after he received threats, which happened in XXXX 2012.12 [13] The appellant is asking the RAD to allow the appeal, set aside the RPD's determination and allow his refugee protection claim, or refer the matter to the RPD or hold a hearing before the RAD.13 [14] In his memorandum, the appellant did not state that he was presenting new evidence within the meaning of subsection 110(4) of the IRPA. IV. HEARING BEFORE THE RAD A. The appellant requested a hearing [15] As an alternative measure, the appellant asked that a hearing be held before the RAD. B. Test under subsection 110(6) of the IRPA [16] Under subsection 110(6) of the IRPA, if there is evidence presented on appeal that is found to be admissible, it should be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim, and whether it would justify allowing or rejecting the refugee protection claim. If the answer is yes, the RAD may then hold a hearing. C. There is no cause to hold a hearing before the RAD [17] According to case law, it is incumbent on the RAD to determine whether the test under subsection 110(6) of the IRPA was met or not.14 One of the determinative tests for deciding whether to hold a hearing before the RAD is for one of the pieces of evidence presented on appeal to have been found admissible.15 But in his appeal, the appellant does not raise any new evidence within the meaning of subsection 110(4) of the IRPA. Consequently, I may not exercise any discretion and a hearing cannot be held.16 V. THE APPROACH TO BE ADOPTED IN THIS APPEAL A. The appellant's position [18] In his memorandum, the appellant does not indicate which standard of review or which approach should be used by the RAD in this appeal. He simply indicates that the errors committed by the RPD warrant setting aside its determination.17 B. A brief summary of certain Federal Court decisions [19] In Akuffo, Justice Gagné states that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings, although opinions within the Federal Court diverge on the level of deference that is owed18. [20] In Sajad and Bui, Justice Shore states that the RAD owes a measure of deference to the RPD's findings when they primarily concern the credibility of the person claiming refugee protection.19 That being said, the RAD must conduct an independent assessment of the record on appeal, in other words, conduct its own assessment of the evidence, consider the parties' submissions and then confirm or dismiss the RPD's findings regarding the credibility of the refugee protection claimant(s).20 [21] In XXXX, Justice Mosley states that the different strands in the jurisprudence to date within the Federal Court have all accepted the principle that the RAD must show deference to the RPD's findings of credibility, given that the RAD does not typically hold oral hearings and is therefore at a disadvantage in comparison to the RPD.21 C. An independent assessment with some deference with respect to credibility [22] Relying as much as possible on the Federal Court decisions rendered to date, I find that, in this case, while conducting an independent assessment of the record, I owe deference to the RPD's findings regarding appellants' credibility based on testimony,22 although such deference does not apply to questions of law. VI. ANALYSIS OF THE MERITS OF THE APPEAL [23] Having proceeded with an independent review of the record, I find that the RPD did not err in its assessment of the claimant's credibility. Here is why. [24] In terms of credibility, a measure of deference is owed to the RPD's findings, specifically with respect to the refugee protection claimant's testimony. It should be noted that "in determining an application for refugee status, it was up to the female applicant to establish, on a balance of probabilities, the facts on which she based her application".23 For its part, the RPD is entitled to make findings based on implausibility, common sense and rationality.24 Lack of credibility on an important aspect of the claim can amount to a finding that there is no credible evidence on which the claim can be based.25 A. Failure to present evidence of the existence of the cousin his father wants to force him to marry [25] As for the appellant's argument that it is unreasonable to cast doubt on his account because of the lack of evidence if these things are impossible to produce, I am of the opinion that it must be rejected. [26] The failure to provide supporting documentation that is reasonably expected may have an impact on a refugee protection claimant's credibility.26 Based on a reading rule 11 of the Refugee Protection Division Rules,27 it is clear that the person claiming refugee protection has a duty to provide the documents and other elements of the claim for refugee protection. The English version is more eloquent than the French version, stating, "The claimant must provide...."28 However, it is important to remember that, in French, the use of the present indicative is sufficient to express the imperative nature of a rule. In any event, the bottom line is that a lack of diligence on someone's part to obtain an important document that could have corroborated his or her testimony can undermine his or her credibility.29 [27] In the case at hand, the appellant did not show that he had taken steps to obtain a document that could have corroborated his statements about the cousin his father wanted to force him to marry. I concur with the RPD, which found this to be a key aspect of his refugee protection claim. Furthermore, an initial decision by the RPD had found that he was not credible, as did the second decision by the RPD. If this cousin does in fact exist, why has the appellant not taken steps, following each of these rejections of his refugee protection claim, to obtain a document that could establish her existence? As far as I am concerned, at this stage of the proceedings, this lack of diligence on his part undermines his credibility. [28] I also find that the appellant cannot state that it is impossible to obtain such evidence when he has yet to take any steps to do so. B. Delay in claiming refugee protection [29] Although failure to claim asylum abroad or a delay in claiming refugee protection once arrived in Canada is generally not determinative in itself,30 this does not preclude a finding that the behaviour in question is not that of someone fearing for their life, and it can undermine the credibility of the persons concerned. [30] Indeed, according to the case law, it is clearly established that the failure to seek international protection at the earliest opportunity can undermine the credibility of a person claiming refugee protection in Canada.31 When no convincing or reasonable explanation is provided, the failure to claim refugee protection at the earliest opportunity may undermine the credibility of a refugee protection claimant.32 [31] In its reasons for decision, the RPD clearly indicated that the claimant's behaviour was not that of someone fearing persecution in his country: [translation] [12] What is more, if the danger of a forced marriage was imminent since 2010, if his father is a tyrant, if there was no going back on this decision by his father, if his father cut him off at the same time, if his stay in Canada was precarious and if he truly feared persecution in his country, then why wait three years to claim refugee protection? The claimant states that he hoped to renew his student status, which he managed to do to a certain point. And so, instead of claiming refugee protection, he turned to an advisor with the Canadian Embassy for a tuition exemption. He could have obtained this for the fall of 2011, but since he owed $10,000 in unpaid tuition and had no money to pay this back, his exemption application was denied. It was then that the claimant, finding himself penniless, filed a claim for refugee protection in Canada. I find that this is not the behaviour of someone fearing persecution in his country. Had his fear been genuine, had there been a serious possibility of persecution since 2010, one could expect him to have claimed refugee protection at the first opportunity. Once again, this undermines his credibility.33 [32] As for the argument that it was not until November 2012 that the claimant's fear began, it is my opinion that it must be rejected. According to his own BOC Form, a few weeks after XXXX XXXX, 2009, he refused to go ahead with the marriage that his father wanted for him, and right away his father yelled at him, insulted him, threatened to cut him off and would have destroyed him had he not been in Canada. And then in XXXX 2010, his father refused to pay his tuition, harassed his mother, insulted her and asked her to leave the home.34 Accordingly, I find that there was enough going on for the appellant to have a subjective fear of persecution if he were to return to his country. That being the case, his failure to immediately claim refugee protection undermines his credibility. [33] Consequently, having proceeded with an independent review of the entire record, I find that the appellant has not established a well-founded fear of persecution if he were to return to live in Guinea. He also failed to establish that it is more likely than not that he would be personally subjected to a risk to his life, to a danger of torture or to a risk of cruel and unusual treatment or punishment. VII. CONCLUSION [34] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [35] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette October 19, 2015 Date IRB translation Original language: French 1 Refugee Protection Division's (RPD) reasons and decision, April 11, 2013, pages 106 to 113 of the RPD record. 2 Refugee Appeal Division's reasons and decision, July 17, 2013, pages 88 to 93 of the RPD record. 3 Basis of Claim Form (BOC Form), pages 15 and 21 of the RPD record. 4 The list of documents can be found on pages 119 and 129 of the RPD record. The documents themselves are reproduced on pages 120 to 127 and 130 to 143 of the RPD record. 5 RPD's reasons and decision, pages 3 to 6 of the RPD record. 6 Idem, paragraph 6, page 4 of the RPD record. 7 Idem, paragraph 12, pages 5 and 6 of the RPD record. 8 Idem, paragraphs 8, 9 and 10, page 5 of the RPD record. 9 Appellant's memorandum, April 27, 2015, pages 6 to 10 of the appeal record. 10 Idem, paragraphs 9 to 15, pages 7 and 8 of the appeal record. 11 Idem, paragraphs 16 to 23, pages 8 and 9 of the appeal record. 12 Idem, paragraphs 24 to 27, page 9 of the appeal record. 13 Idem, page 10 of the appeal record. 14 Zhuo v. Canada (Minister of Citizenship and Immigration), No. IMM-2693-14, O'Reilly, July 27, 2015; 2015 FC 911, at paragraph 11: "...Where the conditions for holding an oral hearing are present, the RAD should generally be required to convene one. Obviously, the RAD retains a discretion on this question but that discretion must be exercised reasonably in the circumstances. In particular, the mere fact that a party has not requested a hearing will generally not be sufficient reason to justify a refusal to convene one when the circumstances appear to require it. While the RAD rules allow an appellant to request a hearing, IRPA does not actually impose a burden either to request, or to satisfy the RAD that the circumstances merit, an oral hearing (see Refugee Appeal Division Rules, SOR/2012-257, Rule 5(2)(d)(iii). The onus rests with the RAD to consider and apply the statutory criteria reasonably." 15 Deri v. Canada (Minister of Citizenship and Immigration), No. IMM-7050-14, Strickland, September 2, 2015; 2015 FC 1042, at paragraph 51: "...Section 110(6) permits the RAD to hold a hearing if it is of the opinion that there is new documentary evidence, as referenced in s 110(3), that meets the requirements of s 110(4), in which case the RAD will then consider whether that evidence raises serious credibility issues, is central to the claim and, if accepted, it would justify allowing or rejecting the claim. This suggests that the new evidence must first be found to be admissible." 16 XXXX v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015; 2015 FC 625, at paragraph 32: "Subsection 110(6) uses the permissive word 'may' because the RAD can either hold a hearing or not hold a hearing when those preconditions exist. If they are absent, as they were in this case, the RAD has no choice to make. It cannot hold a hearing." 17 Appellant's memorandum, paragraph 31, page 10 of the appeal record. 18 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 19 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 22. Bui v. Canada (Minister of Citizenship and Immigration), No. IMM-1654-14, Shore, November 28, 2014; 2014 FC 1145, at paragraph 25. See also to that effect: Malambu v. Canada (Minister of Citizenship and Immigration), No. IMM-7972-14, Noël, June 17, 2015; 2015 FC 763, at paragraph 42. 20 Hamidi v. Canada (Minister of Citizenship and Immigration), No. IMM-5049-14, Shore, February 26, 2015; 2015 FC 243, at paragraphs 1, 22, 23, 24 and 30. Brodrick v. Canada (Minister of Citizenship and Immigration), No. IMM-5986-13, Diner, April 17, 2015; 2015 FC 491, at paragraphs 34, 35 and 36. Abdul Fasit Fida v. Canada (Minister of Citizenship and Immigration), No. IMM-5921-14, Zinn, June 24, 2015; 2015 FC 784, at paragraph 10: "The RAD examined the various findings of the RPD upon which it based the finding that the applicant was not credible. It is clear from the decision that it conducted its own independent analysis of that evidence." 21 XXXX v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015; 2015 FC 625, at paragraph 25. See also to that effect: Palden v. Canada (Minister of Citizenship and Immigration), No. IMM-4907-14, Locke, June 25, 2015; 2015 FC 787, at paragraphs 10 and 11. 22 Dowansingh v. Canada (Minister of Citizenship and Immigration), No. IMM-6581-14, Diner, July 30, 2015; 2015 FC 933, at paragraph 21: "This Court has repeatedly held that RPD's conclusions on issues of credibility based on testimony clearly warrant some measure of deference." (Citations omitted). 23 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, at paragraph 45. 24 Laszlo v. Canada (Department of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, at paragraph 10. 25 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, at paragraph 30. 26 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, at paragraph 32, referencing the following decisions: A.M. v. Canada (Minister of Citizenship and Immigration), 2005 FC 579, [2005] F.C.J. no 709 (QL) at paragraph 20 and Nechifor v. Canada (Minister of Citizenship and Immigration), 2003 FC 1004, [2003] F.C.J. no 1278 (QL) at paragraph 6. 27 Refugee Protection Division Rules, SOR/2012-256. 28 Villanueva Pinon v. Canada (Minister of Citizenship and Immigration), No. IMM-4906-09, Boivin, April 20, 2010; 2010 FC 413, at paragraph 16. 29 Idem, at paragraph 15. 30 Milovic v. Canada (Minister of Citizenship and Immigration), No. IMM-7773-14, LeBlanc, August 25, 2015; 2015 FC 1008, at paragraph 17: "Although a delay in claiming refugee protection is not determinative with respect to the outcome of a refugee claim it may constitute sufficient grounds for rejection in itself, in the right circumstances. This would generally be the case when the refugee claimant cannot provide a satisfactory explanation for the delay in claiming." 31 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, at paragraph 11. 32 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27, 2012; 2012 FC 1374 at paragraph 28. 33 RPD's reasons and decision, paragraph 12, pages 5 and 6 of the RPD record. 34 BOC Form, pages 10 and 11 of the RPD record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB5-01565 2