TB4-12637

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 : TB4-12637 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 April 13, 2015 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dunstan Munro 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] XXXX XXXX XXXX, a citizen of Jamaica, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant requests the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and substitute a positive determination. In the alternative, the Appellant requests the RAD to refer the matter back to the RPD for re-determination. [3] The Appellant submits1 that she relies on the facts contained in her affidavit dated April 27, 2014 (sic), and other documents included in the Appellant's Record. The RAD reviewed all of the documents submitted by the Appellant at the RAD. The RAD finds, the Appellant's affidavit2 is reiteration of the facts presented at the RPD. The RAD finds the Appellant's other documents3 submitted with the Appeal are copies of the RPD exhibits.4 The Appellant submits,5 in the statement submitted pursuant to 110(4) and 110(6) of the Immigration and Refugee Protection Act (IRPA or the Act), that she is not relying on any evidence referred to in subsection 110(4) of the Act. Based on the above, the RAD finds the Appellant has not submitted any new evidence pursuant to Section 110(4) of the IRPA.6 [4] The Appellant submits,7 in the statement submitted pursuant to 110(4) and 110(6) of the IRPA, that a hearing be held under subsection 110(6) of the Act. [5] The Minister in not intervening in the Appeal. DETERMINATION [6] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND/ALLEGATIONS [7] The Appellant fears XXXX XXXX, the father of her sons XXXX and XXXX,8 upon return to Jamaica. Details regarding the Appellant's allegations are included in her Basis of Claim (BoC) form.9 Further details were provided by the Appellant at the RPD hearing. [8] The Appellant has been visiting Canada XXXX XXXX XXXX XXXX XXXX since XXXX of 2010. The last time she entered Canada was on XXXX XXXX, 2014. On XXXX XXXX, 2014, the Appellant filed her claim for refugee protection at an inland office of the Citizenship and Immigration Canada (CIC). [9] The Appellant's application for refugee protection was heard on November 28, 2014. By a decision of December 10, 2014, the RPD rejected her claim. [10] The RPD found that the Appellant was generally lacking in credibility. [11] The Appellant submits that the RPD erred in finding the Appellant's story not to be credible on a balance of probabilities. APPLICATION FOR AN ORAL HEARING [12] The Appellant requests a hearing pursuant to Subsection 110(6) of the IRPA.10 [13] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's Record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), 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. [14] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellants, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [15] The RAD finds the Appellant has not submitted any new evidence as per requirements of Section 110(4) of the IRPA. In consideration of the totality of the evidence in this case, the Appellant's Appeal Record, and Sections 110(3), (4), and (6) of the IRPA, the RAD must proceed without a hearing. Therefore, the Appellant's request for an oral hearing is denied. THE ROLE OF RAD IN THE APPEAL [16] The Appellant has not provided arguments as to the standard of review/role of the RAD. [17] In assessing the appeal, the RAD is guided by the recent Huruglica11 decision which outlines the approach that the RAD should take as an appellate body in reviewing the first level decisions of the RPD. [18] In Huruglica, Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD determination that, in its opinion, should have been made as per Section 111(b) of the IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusions; however, the RAD has equal or greater expertise to the RPD in the interpretation of country conditions evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [19] The RAD adopts and applies the Huruglica case law in this appeal. [20] The RAD considers the Appellant's submissions,12 and the Case law submitted.13 MERITS OF THE APPEAL [21] The Appellant has submitted arguments relating to the jurisdiction of the RAD.14 As jurisdiction is not an issue in this case; and as the RAD has jurisdiction to determine this appeal, the Appellant's arguments relating to jurisdiction of the RAD are not relevant to this appeal [22] The Appellant submits that the RPD erred in finding that the Appellant does not have a well-founded fear of persecution on a Convention ground in Jamaica. The Appellant submits that she made her claim as a member of a particular social group because of the abuse and threats she experienced in Jamaica. The Appellant adds that "this is a legitimate Convention grounds [sic] and wait [sic] should have been given to it."15 [23] The RAD reviewed the totality of the evidence in this case, including the recording of the RPD proceedings. The RAD finds the RPD's 'Reasons for Decision'16 show that the RPD duly assessed the totality of the evidence submitted/adduced in this case, and determined the claim pursuant to both Sections, 96 and 97(1), of the IRPA. The RAD finds the Appellant's submissions that weight should have been given to the Appellant being a member of a particular social group has no merit. [24] The Appellant submits that the RPD did not take into consideration the Chairperson's Gender Guidelines, and all relevant factors. The Appellant alluded to that the RPD's mannerism at the hearing was hostile 17 [25] The RAD reviewed the totality of the evidence in this case, including the recording of the RPD proceedings, and finds that the RPD proceeded in a conscientious manner at the RPD hearing, and asked the Appellant questions in the areas material to the claim. The Appellant has not provided any examples of where the nature of the RPD's questions did not show consideration of the Chairperson's Gender Guidelines, and/or where the RPD member asked the Appellant questions in a hostile manner. In reviewing the recording of the RPD proceedings, the RAD finds the RPD asked the Appellant questions relating to the inconsistencies in the Appellant's evidence submitted, and adduced at the RPD. The RPD clearly stated in its reasons that it considered the Chairperson's Gender Guidelines in asking questions at the hearing, and in arriving at its findings, including its negative credibility findings.18 The RPD also acknowledged the Appellant's limited education, and accepted that the Appellant is not a sophisticated individual.19 The RPD added that while considering the Appellant's testimony and assessing her credibility, it was mindful of these factors.20 Based on the RAD's assessment of the RPD's Record, the RAD finds the RPD appropriately considered and applied the Chairperson's Gender Guidelines, and accepted and considered the Appellant's limited education and that the Appellant is not a sophisticated individual, in assessing the Appellant's evidence and in making its negative credibility findings. Therefore, the RAD finds the RPD did not err as alleged. [26] The Appellant further submits that the RPD erred in finding "that the Appellant is not a person in need of protection as she would not be subject [sic] personally to a risk to her life or a risk of cruel and unusual treatment or punishment nor to a danger of torture should she return to Jamaica."21 [27] The RAD reviewed the totality of the evidence in this case, including the recording of the RPD proceedings. The RAD finds the RPD assessed and made its findings relating to if the Appellant would face a serious possibility of harm amounting to persecution in Jamaica, as an alleged victim of domestic abuse, pursuant to Section 96 of the IRPA. The RAD finds the RPD also assessed and made its findings relating to if the Appellant would, on a balance of probabilities, be personally subjected to a danger of torture, or to a risk to life or of cruel and unusual treatment or punishment in Jamaica as alleged pursuant to Section 97(1) of the IRPA.22 Based on the totality of the evidence in this case, including the recording of the RPD proceedings, the RAD finds the RPD applied the requisite legal principles to the facts submitted/elicited in the case and then made the determination that the Appellant is not a Convention refugee pursuant to Section 96 of the IRPA, nor a person in need of Canada's protection pursuant to Section 97(1) of the IPRA.23 The RAD finds the RPD did not err in this respect. [28] The Appellant submits that the RPD erred in finding the Appellant's story not to be credible due to numerous serious contradictions and discrepancies between the Appellant's BoC and her testimony, and inconsistencies within the Appellant's testimony. The Appellant submits that any inconsistencies or discrepancies between the Appellant's BoC and her oral testimony stemmed from the fact that the abuse started in early 1990 and as the Appellant stated, this was a very long time ago and she was unable to recall with specificity the exact dates when the abuse took place.24 [29] In reviewing the RPD's Record, including the recording of the RPD proceedings, the RAD finds the Appellant's evidence was riddled with contradictions and discrepancies. The Appellant provided inconsistent evidence relating to when the alleged abuse began, the length of the alleged abusive relationship, and details regarding the alleged incidents of abuse. The contradictions and discrepancies remained unresolved, i.e., the Appellant could not provide a reasonable and satisfactory explanation for the contradictions and discrepancies in her evidence. The RAD finds the Appellant frequently attributed the existence of contradictions and discrepancies in her evidence to that the abuse started in early 1990's and that the incidents took place long time ago. The RAD finds, however, the Appellant's evidence to be contradictory even relating to the most recent incident. Regarding the XXXX 2014 incident, the Appellant's testimony was in contradiction to the statements included in her sons' statements.25 Based on the totality of the evidence submitted/elicited at the RPD, the RAD finds the RPD did not err in finding the Appellant not credible due to unresolved contradictions and discrepancies in her evidence.26 The RAD also notes that the Appellant stated on occasions that she did not understand the question(s). The RPD hearing was in English, and the RAD notes that the Appellant is fluent in the English language. Further, the RPD had instructed the Appellant at the beginning of the RPD proceedings that if the Appellant were not to understand the question, she should inform the RPD. The RAD finds, neither the Appellant nor her counsel raised any issues at the RPD hearing relating to the Appellant not having understood the question(s). After having completed its own independent assessment, the RAD concurs with the RPD in finding the Appellant's story that she was in a longstanding abusive relationship with XXXX XXXX not credible, and in finding the Appellant to be generally lacking in credibility. [30] The Appellant submits that she provided the RPD two letters to corroborate her story.27 The RAD considered the statements from the Appellant's sons XXXX and XXXX.28 In reviewing the totality of the evidence in this case, the RAD finds the Appellant's evidence to be internally inconsistent as the Appellant testified at the RPD that she had not told anyone and that no one had witnessed the 2014 incident where XXXX XXXX had threatened to chop her head off, yet the RAD finds the statements from her sons XXXX and XXXX indicate that XXXX had heard XXXX XXXX threatening his mother in that incident and that XXXX was aware of that incident. The RPD asked the Appellant to provide explanation for this contradiction in her evidence. The Appellant was unable to provide a reasonable and satisfactory explanation for this contradiction in her evidence. Due to the contradictory evidence relating to the Appellant's testimony and the statements by her sons, and due to a lack of a reasonable and satisfactory explanation for the contradiction, the RPD gave the statements from the Appellant's sons, XXXX and XXXX, low weight. In reviewing the totality of the evidence in this case, the RAD concurs with the RPD in giving the statements from the Appellant's sons XXXX and XXXX low weight. [31] Further, in consideration of the Appellant's allegations that the alleged abusive relationship between the Appellant and XXXX XXXX lasted for more than XXXX years, and that XXXX XXXX abused her on numerous occasions, and that she had approached the police numerous times, the RAD finds there is little reliable and satisfactory probative corroborative evidence about the existence of the alleged longstanding abusive relationship between the Appellant and XXXX XXXX. The Appellant provided no police report(s), no medical report(s), and no sworn statements from anyone regarding the alleged abuse and the related problems that the Appellant has allegedly incurred due to the longstanding abusive relationship between her and XXXX XXXX. [32] Based on the totality of the evidence in this case, the above analysis and reasons, the RAD concurs with the RPD in finding the Appellant to be generally lacking in credibility as the RAD would have come to the same conclusion. [33] The Appellant submits that the RPD did not evaluate the risk which was faced by the Appellant and the forward-looking risk she would face upon return to Jamaica in light of information in the National Documentation Package stating that domestic violence is widespread in Jamaica, and that the police treat domestic violence as a family matter.29 The RAD finds the RPD did turn its mind to the documentary evidence; the RPD stated that the documentary evidence "indicates that domestic abuse is a serious issue in Jamaica."30 The RAD reviewed the documentary evidence and finds that domestic violence is widespread in Jamaica, and that although there is legislation in place to protect victims of domestic violence, the police fail to treat domestic violence as a crime.31 Despite the above, the RAD finds the determinative issue in this case is credibility; the RPD found the Appellant to be generally not credible. The RPD wrote "the panel finds, on a balance of probabilities, that the claimant did not face abuse at the hands of XXXX as she alleges and that she would not face continued threats and violence by him if she were to return to Jamaica."32 The RAD finds since the RPD found that the alleged incidents did not occur, there was no reason for the RPD to continue to assess the forward-looking risk that the Appellant would face upon return to Jamaica. Therefore, the RAD finds the RPD did not err in this respect. [34] In reviewing the totality of the evidence in this case, including the recording of the RPD proceedings, the RAD concurs with the conclusion of the RPD that the Appellant is generally lacking in credibility. [35] Based on the foregoing analysis and reasons, the RAD determines the Appellant is not a Convention refugee pursuant to Section 96 of the IRPA, nor a person in need of Canada's protection pursuant to Section 97(1) of the IRPA. DISPOSITION [36] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "S.S. Kular" S.S. Kular April 13, 2015 Date 1 Exhibit P-2, Appellant's Record, Appellant's Memorandum of Argument, p. 74. 2 Exhibit P-2, Appellant's Record, Appellant's Affidavit, dated January 5, 2014, p. 11. 3 Exhibit P-2, Appellant's Record, Documentary Evidence in Support of Appeal, pp. 14-70. 4 Exhibit RPD-1, RPD's Record, RPD Exhibits 2, 3, 4, and 5, pp. 12-21, 166-214. 5 Exhibit P-2, Appellant's Record, Appellant's Written Statement, p. 0. 6 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 7 Exhibit P-2, Appellant's Record, Appellant's Written Statement, p. 0. 8 Exhibit RPD-1, RPD's Record, RPD Exhibit 6, pp. 220-221. 9 Exhibit RPD-1, RPD's Record, RPD Exhibit 2, pp. 12-21. 10 Exhibit P-2, Appellant's Record, Appellant's Written Statement, p. 0. 11 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799. 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum of Argument, pp. 73-80. 13 Exhibit P-2, Appellant's Record, Legal Authorities, p. 72. 14 Exhibit P-2, Appellant's Record, Appellant's Memorandum of Argument, pp. 76-78, paras. 14-27. 15 Exhibit P-2, Appellant's Record, Appellant's Memorandum of Argument, pp. 78-79, paras. 29-30. 16 Exhibit P-2, Appellant's Record, Notice of Decision and Written Reasons, pp. 1-10. 17 Exhibit P-2, Appellant's Record, Appellant's Memorandum of Argument, p. 79, paras. 33-34. 18 Exhibit P-2, Appellant's Record, Notice of Decision and Written Reasons, p. 4, para. 5. 19 Exhibit P-2, Appellant's Record, Notice of Decision and Written Reasons, p. 4, para. 6. 20 Ibid. 21 Exhibit P-2, Appellant's Record, Appellant's Memorandum of Argument, p. 79, para. 31. 22 Exhibit P-2, Appellant's Record, Notice of Decision and Written Reasons, pp. 4-10, paras. 8-22. 23 Exhibit P-2, Appellant's Record, Notice of Decision and Written Reasons, pp. 1-10. 24 Exhibit P-2, Appellant's Record, Appellant's Memorandum of Argument, p. 79, paras. 35-36. 25 Exhibit RPD-1, RPD's Record, RPD Exhibit 5, Letters from XXXX ("XXXX") XXXX and XXXX XXXX, pp. 213-214. XXXX is named 'XXXX' in the Birth Certificate; see Exhibit RPD-1, RPD's Record, Exhibit 6, p. 220. It is noted that XXXX is referred to as XXXX in the Appellant's Memorandum of Argument, p. 79, para. 32. 26 Exhibit P-2, Appellant's Record, Notice of Decision and Written Reasons, pp. 4- 9. 27 Exhibit P-2, Appellant's Record, Appellant's Memorandum of Argument, p. 79, para. 32. 28 Exhibit RPD-1, RPD's Record, RPD Exhibit 5, Letters from XXXX XXXX (name as per the Birth Certificate in RPD Exhibit 6, p. 220) and XXXX XXXX, pp. 213-214. XXXX is referred to as XXXX in the Appellant's Memorandum of Argument, p. 79, para. 32. 29 Exhibit P-2, Appellant's Record, Memorandum of Argument, pp. 79-80, paras. 37-38. 30 Exhibit P-2, Appellant's Record, Notice of Decision and Written Reasons, p. 8, para. 18. 31 Exhibit RPD-1, RPD's Record, RPD Exhibit 3, Section 5, Gender, Domestic Violence and Children, pp. 170-171. 32 Exhibit P-2, Appellant's Record, Notice of Decision and Written Reasons, p. 9, para. 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-12637