VB6-04834

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 : VB6-04834 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision September 28, 2017 Date de la décision Panel Richard Jackson Tribunal Counsel for the person(s) who is(are) Michael Dorey Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] These are my reasons for denying the appeal of XXXX XXXX XXXX (the "appellant") of Zimbabwe from a decision of the Refugee Protection Division (the "RPD") to reject her claim for refugee protection. The appellant claims to face persecution, a danger of torture, a risk to life or a risk of cruel and unusual treatment or punishment if she returns to Zimbabwe. [2] The record indicates that the refugee claim of the husband of the appellant, XXXX XXXX XXXX XXXX was joined to the claim of the appellant by the RPD and they were heard together. However, the RPD decision in regard to the husband was presumably barred from appeal to the Refugee Appeal Division (the "RAD") because of the safe third country provision in the Immigration and Refugee Protection Act (the "IRPA").1 [3] Under subsection 111(1) of the IRPA, the RAD dismisses the appeal and confirms the determination of the RPD, namely, that the appellant is not a "refugee" under section 96 or a "person in need of protection" within the meaning of section 97 of the IRPA. [4] The determinative issue in this case is whether the RPD erred in its credibility findings and whether the RPD failed to provide adequate reasons for some of its findings. BACKGROUND [5] Following a training course, the appellant completed a three month work term at the KG6 army hospital near Harare and was then offered a position as a health care worker at the Kutama military camp. When she refused the appointment in March 2016 the Warden of KG6, Mr. XXXX XXXX became unhappy with her. On May 2, 2016 Mr. XXXX, together with a military official, came to the appellant's home, forced her into a vehicle and transported her to the KG6 facility where she was assaulted and where an attempt was made to rape her. She was beaten unconscious and left in a maize field. Others took her to a local hospital where her parents and her husband found her. The appellant's husband made an inquiry with police when she went missing and followed this up by trying to file a complaint with police after she had been located in the local hospital. [6] The week following the May 2nd incident and the complaint to police, ZANU PF activists came to the appellant's home and did a "toi toi" dance as an act of intimidation. When the appellant, her husband, and a cousin confronted the activists, they were beaten. Police arrived on the scene. The appellant fled to her mother's home; her husband was arrested and detained for a day and the cousin was taken to hospital. Following this incident the appellant took measures to apply for a visa to Canada. Two days before the departure of the appellant three uniformed army officials and a police officer attended at the appellant's home and questioned her husband in regard to her whereabouts. When he refused to divulge this information he was arrested and at the police station he was assaulted after he again tried to lay charges against Mr. XXXX for the earlier assault against the appellant. [7] The appellant left Zimbabwe for Canada on XXXX XXXX XXXX XXXX. On August 26, 2016 unidentified people came to a display set up by the appellant's husband as part of his job as a marketer. When they were unable to find him they beat one of his co-workers and destroyed the kiosk. The appellant's husband left Zimbabwe for the U.S.A. the following day. THE RPD DECISION [8] The RPD did not believe the appellant. In its reasons, the RPD found that because of its adverse credibility findings there remained insufficient reliable and trustworthy evidence to establish that the appellant faces a credible threat in Zimbabwe. In particular the RPD sets out in its reasons that: * the RPD found that because the appellant failed to accurately identify the profile of the agent of persecution in her Basis of Claim form (BOC) her credibility was eroded and the RPD did not accept that the agent of persecution is an army Major as she stated in her testimony at the hearing; * the RPD found that the failure of the appellant to identify in her BOC that the agent of persecution was present during the incident at her home when her husband was arrested and his cousin was assaulted to be unreasonable given the importance this person has played in the alleged past and feared future harm against the appellant and that such an omission further undermined her credibility; * the RPD found that the omission from the appellant's BOC of the death or murder of the appellant's husband's cousin in an incident that targeted the appellant to damage the appellant's credibility; * the RPD also found the inconsistencies between the appellant's account and her husband's account of who attended at her home two days prior to her departure from Zimbabwe and the failure to mention in their BOC's that the agent of persecution was present in this incident also undermined the credibility of their evidence and the RPD did not accept that to have included this information would have been onerous; * the RPD rejected the explanation of the appellant that she did not think to mention in her BOC an attack on her husband by unknown persons after she had left the country even though the incident was linked to her case and took place before she had completed her BOC and would have supported her allegation that those she feared in Zimbabwe were still searching for her after she left the country. THE APPELLANT'S ARGUMENTS [9] The appellant argues that the RPD erred in its credibility assessments against the appellant and asks the RAD to reverse the RPD decision and to declare the appellant to be a convention refugee. I will deal with the appellant's arguments in my analysis of the credibility issues raised by the appellant. ROLE OF THE RAD [10] With respect to assessing questions of fact, mixed fact and law and law, I have applied the standard of correctness as per Huruglica.2 In assessing issues involving credibility of oral testimony, I have applied the RAD's modified standard of reasonableness.3 THE RAD FINDINGS [11] Based on my independent assessment of the evidence before me, I concur with the RPD finding in regard to the overall credibility of the appellant's evidence. I will assess below individually each of the RPD credibility findings that have been challenged by the appellant. [12] The Immigration and Refugee Board's Chairperson's Gender Guidelines4 were taken into account in regard to my findings and conclusion on this appeal. While I find there is a potential gender-based element of the alleged persecution or harm in this case because of the allegation of attempted rape, I do not find the gender aspect of the claim to have been determinative of the case made before the RPD. NEW EVIDENCE AND ORAL HEARING [13] The appellant tenders no new evidence and does not seek an oral hearing. ANALYSIS The profile of the agent of persecution [14] In her memorandum of argument5 the appellant argues that contrary to the conclusion of the RPD in regard to the failure of the appellant to identify the profile of the agent of persecution in her BOC, she had stated in her BOC narrative6 that Mr. XXXX came to her residence "with another military man" and later stated that after being taken to the military camp that "Mr. XXXX and another military man came into the room and assaulted me." The appellant also argues that references in her husband's BOC narrative also noted that the agent of persecution was "an army member whom I believe is affiliated to ZANU PF." [15] I find that the appellant's argument that she had set out in her BOC that the alleged agent of persecution has the rank of Major in the Zimbabwean military is not established by the evidence before me. Nor do I accept her explanation that she only knew him in his capacity as a head nurse. Naming the individual who abducted and assaulted her and stating that he acted with "another military man," is not the same as stating the senior military rank of the agent of persecution in her BOC. I agree with the RPD's observation that in this case the profile of the alleged agent of persecution is central to the refugee claim given it is what enables a viable assessment of state protection and I do not find it reasonable that if it were true, she would leave this significant fact out of her BOC. [16] Similarly I find that it was open to the RPD to reject the appellant's evidence that she did not mention the name or rank of the agent of persecution when he came to her home with members of the ZANU PF because she "placed him in that group."7 If the agent of persecution was there and part of the "toi toi" intimidation activity there the appellant provided no satisfactory reason for failing to mention it. I find it likely that in this regard the appellant included the information that Mr. XXXX was also a Major in the army in her oral testimony to embellish her story. [17] Throughout the appellant's BOC the agent of persecution is consistently referred to as "Mr. XXXX" by the appellant or he is referred to as a "warden" or "head nurse" at a military hospital or clinic but not as a senior military officer with the rank of Major. In listening to the hearing tape I note that the appellant was provided an opportunity to explain the omission.8 After undertaking my own assessment of this evidence I find that the appellant did not provide a satisfactory reason for omitting vital information about the agent of persecution in her BOC when she was specifically offered an opportunity to do so at the hearing. I agree with the RPD finding in this regard.9 I also find that if the agent of persecution is indeed a senior military officer it is reasonable to assume that information about his identity would be publically available yet the appellant did not provide corroborating documentation prior to the hearing nor did she make a request to submit it post-hearing once she was alerted to the RPD's concern at the hearing. [18] There is no evidence that the appellant was unaware of the power and influence of the agent of persecution when filling out her BOC if this were the case. The appellant was represented by counsel in completing her BOC. In his BOC narrative the appellant's husband refers to his attempts to seek "justice against an army member." I do not find this allegation assists the appellant in her argument given he also fails to mention the rank or position of the person who he alleges harmed his wife. As I have already noted, the issue of the power and influence of the agent of persecution goes to the heart of this claim in regard to state protection and also to the level of threat to the appellant and I draw the same conclusion as RPD that the appellant's failure to set this out in her BOC narrative undermines her credibility. I find there is insufficient reliable evidence on the record to support the appellant's allegation that the agent of persecution has a high military status as a Major in the army of Zimbabwe with the means to act against her with impunity. The documentary evidence [19] The appellant takes issue with the conclusion in the RPD reasons for decision that "the medical letters and photos provided by the appellant and her husband do not corroborate that the claimants were harmed by agents of the state for refusal of a job offer, as opposed to them being victims of random crime, for example."10 [20] In her argument the appellant refers to Federal Court decisions in regard to the treatment of documentary evidence.11 In this case I find the documentary evidence in question is peripheral at best and therefore the Federal Court decisions are not relevant to the case at bar. The letter from the appellant's mother, the medical documents and the photos do not corroborate the appellant's allegation that she was harmed or would be harmed by a senior military official in Zimbabwe if she returned to the country and consequently had little probative value. The RPD did refer to the documentation provided to the RPD by the appellant prior to her hearing but found they did not corroborate her story and gave reasons for this conclusion. I agree. [21] The appellant argues that if the RPD had difficulties with the documentary evidence provided by the appellant it had a duty to raise these at the hearing. I find no statutory or other provision requiring the RPD to raise or discuss the probative value of all documents at the hearing. That a document is accepted as part of the RPD record is not the same as accepting its authenticity or probative value. [22] I examined the probative or corroborative value of these documents in regard to the appellant's allegations and find they had little or none. [23] In this case I note that the RPD reviewed the relevant documentary evidence. In its reasons the RPD did not question whether the appellant and her husband were assaulted or whether the documents submitted were authentic. While the RPD could have assigned weight to the documents, I agree with the RPD's overall treatment of this documentary evidence and I make the same or similar findings. [24] The medical letter sets out that the appellant was treated for injuries that were "consistent with physical assault."12 While this evidence corroborates that the appellant may have experienced an assault, it does not corroborate the appellant's allegation about either the identity of the perpetrators or the circumstances of the assault and therefore offers no corroboration of the appellant's allegations in this regard. The medical letter in regard to the appellant's husband also does not corroborate his allegations about the identity of the perpetrators or the circumstances of the injuries. I give both of these documents little weight. [25] I find little probative value in regard to the photos provided by the appellant in her record and in the RPD record, I do not have the original photos before me and the photocopies provided on the record are very unclear. However, in this case I find no need to seek the originals given my finding that these photographs simply corroborate that the appellant and her husband may have been injured but do not shed any light on the circumstances of the alleged assaults. I also give this evidence little weight and I agree with the RPD assessment of the evidence. [26] The letter from the appellant's mother was not raised either by the RPD or by the appellant on appeal and I do not find its contents to be determinative of this appeal. Consequently, there is no need for me to undertake an analysis of this document. The attack against the appellant's husband [27] The appellant argues that the RPD erred by concluding that the appellant should have included the incident involving her husband that occurred after she left Zimbabwe. I agree with the appellant that the RPD had the date of the completion and signing of the appellant's BOC wrong in its reasons and this is an error. However, I find this to be minor in nature and not determinative of the appeal. [28] The evidence of what occurred in regard to the appellant's husband after the appellant left the country directly relates to the issue of future risk. I find no evidence on the record to indicate that the appellant would not have been made aware of this incident which included an assault against her husband. I find that the failure of the appellant to note the post-departure incident involving her husband in her BOC further undermines her credibility. [29] I find the appellant's failure to note the death of her husband's cousin in her BOC narrative to be a significant omission. On appeal the appellant did not challenge the RPD finding that the appellant should have set out in her BOC that her husband's cousin was killed in one of the alleged incidents. I concur with the RPD finding in this regard. The allegation, albeit without corroborating evidence, of a murder of a family member in an incident directly related to the appellant's allegation of persecution is highly significant and of major importance. I do not find that the omission was satisfactorily explained at the hearing. Taken together, this omission and the other findings of the failure of the appellant to identify the military rank and profile of the agent of persecution in her BOC, or in one incident his attendance at her home except as an anonymous part of a ZANU PF group, seriously undermines the credibility of the appellant's evidence before the RPD. CONCLUSION [30] I have reviewed the whole of the record. There is insufficient reliable or trustworthy evidence that there is a serious possibility that the appellant would be persecuted, or would be personally subjected, on a balance of probabilities, to a danger of torture or to a risk to life or a risk of cruel and unusual treatment of punishment in Zimbabwe. [31] The decision of the RPD is confirmed and the appeal is dismissed. (signed) "Richard Jackson" Richard Jackson September 28, 2017 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 As per X (Re), 2017 CanLII 33034 (CA IRB). 4 Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, Effective date: 13 November 1996. 5 Appellant's Record (AR), p. 13. 6 AR, p. 38. 7 Refugee Protection Division (RPD) Member's Decision, para. 19. 8 RPDR, Oral Hearing Compact Disc, at 2:50:00) 9 RPD Member's Decision, para. 18. 10 RPD Member's Decision, para 27. 11 Vargas Montoya v. Canada (Citizenship and Immigration), 2012 FC 188; and, Kouassi, Agbodoh-Falschau v. M.C.I. (F.C.T.D., no. IMM-3871-97), Tremblay-Lamer, August 24, 1998. 12 AR, p. 22. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB6-04834 RAD File No. / N° de dossier de la SAR : VB6-04834