TB9-07194

RAD File / Dossier de la SAR: TB9-07194 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 Ottawa, ON Appel instruit / entendu à Date of decision December 21, 2020 Date de la décision Panel Charles A. McDermott Tribunal Counsel for the person who is the subject of the appeal Adela Crossley Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. [2] XXXX XXXX XXXX (the Appellant) is citizen of Kenya. She married in 2006 and had a daughter the next year. The Appellant alleges that several years later, the Appellant's husband began to be verbally and physically abusive. Following an assault in XXXX 2012, the Appellant fled and attempted to report the assault to the police, but they said it was a domestic matter that should be settled with the elders. A few days later, a man threatened the Appellant, saying that her husband was well-connected. She moved to another part of Kenya and then to China. When she learned that her visa would not be renewed, the Appellant returned to Kenya. XXXX weeks later, she was attacked and raped. The Appellant then travelled to Canada in XXXX 2017 and claimed for protection in March 2018. [3] The Refugee Protection Division (RPD) found that the Appellant was not credible. The Appellant argues that the RPD's credibility analysis was flawed and the decision disregards Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution. The Appellant also argues that the RPD failed to conduct a risk assessment under section 97 of the Immigration and Refugee Protection Act (IRPA). [4] Credibility continues to be the determinative issue in the appeal. [5] The Appellant has submitted new evidence, and has requested an oral hearing. DECISION [6] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE The evidence presented by the Appellant is rejected [7] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 [9] As new evidence, the Appellant has submitted clearer copies of documents that were before the RPD and therefore already in evidence. At the time of the RPD hearing, the Appellant was not in possession of the original documents and could not present them for review by the RPD or obtain better copies. The documents did not arise after the RPD decision, they were reasonably available at the time of the decision and the Appellant could have reasonably been expected to bring the documents to the RPD prior to its decision. Although I cannot accept the documents as new evidence, I can use them in my analysis since the information they contain was already before the RPD. ORAL HEARING [10] The Appellant has requested an oral hearing. Subsection 110(6) of the IRPA gives me the discretion to hold an oral hearing if new evidence has been accepted. In this case, no new evidence has been accepted. The request for an oral hearing is denied. ANALYSIS [11] My role is to look at all the evidence and decide if the RPD made the correct decision.3 The RPD did not err in its credibility analysis of the Appellant [12] The RPD found that the Appellant was generally not credible. The Appellant argues that the RPD erred in its credibility assessment. [13] For the case at bar, I find that I am able to independently assess the evidence and make my own determination on the credibility of the Appellant. Although the RPD made some errors in its credibility assessment, I find that these errors are not determinative. For the reasons below, I find that the Appellant is generally not credible. Passport stamps [14] The RPD found that the stamps in the Appellant's passport contradicted her testimony and that it was more likely than not that the Appellant was in Kenya from XXXX 2016 to XXXX 2017. The RPD made a significant negative credibility finding against the Appellant. The Appellant has not challenged this finding. [15] The RPD did not err. The Appellant alleges that she was in China from XXXX XXXX, 2015 to XXXX XXXX XXXX 2018. Her passport4 has five Chinese visas, of which three are single-entry visas and two are multiple entry visas. All of these visas were valid for a XXXX day stay. This is consistent with the Appellant's testimony that she had to travel to Hong Kong every month and then re-enter China. The Appellant also testified that she had to travel to Hong Kong to renew her visa and she understood that the passport was sent to the Chinese embassy in Kenya for this renewal. [16] The passport includes three Kenya exit stamps, dated XXXX XXXX, 2015, XXXX XXXX, 2017, and XXXX XXXX XXXX 2018, and two Kenya entry stamps, dated XXXX XXXX, 2016, and XXXX XXXX XXXX 2018. All of these stamps include JKIA, which stands for Nairobi's "Jomo Kenyatta International Airport".5 The Appellant could not explain why or how the entry stamp dated XXXX XXXX XXXX 2016, and the exit stamp dated XXXX XXXX XXXX 2017 ended up in her passport. None of the Chinese visas was issued during this period. I also note that the RPD did not, at any time, suggest that the Appellant's passport was not genuine. I find that, on a balance of probabilities, the Appellant did return to Kenya on XXXX XXXX XXXX 2016, and returned to China on XXXX XXXX XXXX 2017. I further find that this demonstrates a lack of subjective fear by the Appellant and I make a significant negative credibility finding against the Appellant for her attempt to cover up her return to Kenya. Inconsistencies in the affidavit from XXXX XXXX XXXX6 [17] The RPD placed no weight on this affidavit as evidence that the Appellant was allegedly abused by her husband who was part of the Mungiki. The Appellant argues that the RPD did not make an explicit finding that the affidavit was non-genuine, but that if the RPD did consider the affidavit to be non-genuine, it would be contradictory for the RPD to rely on it to impugn the Appellant's credibility. [18] The RPD did not err and the Appellant's arguments must fail. At paragraph 22 of its decision, the RPD stated that it had considered the Appellant's remaining documentary evidence and found that it was insufficient to establish the truth of the central allegations. It went on to state that the finding was made in light of the numerous non-genuine documents that the Appellant had provided and relied on. The RPD did not explicitly state which documents it considered to be non-genuine. It would have been preferable for the RPD to do so. [19] However, paragraphs 16 to 20 of the RPD decision address the affidavit. Nowhere in these paragraphs does the RPD express any concern regarding the genuineness of the affidavit. Rather, the RPD seemed to accept the affidavit at face value and concentrated on the inconsistencies between the affidavit and the Appellant's testimony. [20] The RPD specifically asked7 the Appellant if the affiant had any further contact with her husband or with any of his associates, to which the Appellant replied that there were two instances where people came to her and asked where she (the Appellant) was and that the affiant did not know who the people were. The Appellant goes on to say that that the men just wanted to know the Appellant's whereabouts, but does not mention that the affiant was threatened or told of her husband's connections with the Mungiki. When the RPD put the statements in the affidavit to the Appellant8 and asked why the threats to the affiant were not included in her Basic of Claim (BOC) narrative, the Appellant stated that she did not realize what had happened until after her BOC was completed. The threats go to the heart of the Appellant's claim that her husband is a well-connected member of the Mungiki. I find the Appellant's failure to include these threats in her BOC narrative to be a significant omission and I draw a negative credibility inference from this omission. I give the affidavit no weight in establishing the Appellant's claim. 2012 Medical Report9 Discrepancies [21] The RPD found that the Appellant did not adequately explain inconsistencies between this medical report and her testimony, found that this negatively affected her credibility and gave the report no weight in establishing the Appellant's claim. The Appellant argues that the RPD disregarded Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution10 in its analysis of her testimony. [22] The RPD did not err and the Appellant's argument must fail. The Appellant wrote in her (BOC) narrative that her husband had cut her hand and foot during the attack and that she received stitches at the hospital. At the RPD hearing, the Appellant testified that she was cut on her hand and her leg and she got stitches on her leg. The medical report, however, makes no mention of cuts or of the Appellant receiving stitches. When shown the report, the Appellant acknowledged that she had hurt her shoulder, which was mentioned in the report, but it was her leg that was really bad and that she thought they would have written about that. Chairperson Guidelines 4 is mainly directed at preventing unfair negative inferences of claimants whose truthful testimony may lack the common signs of credibility and reliability because of the effects of gendered violence they experienced. If the Appellant had been vague or uncertain or hesitant or reluctant to testify regarding her injuries, Chairperson Guidelines 4 would come into play. However, the Appellant was certain that she had been cut and received stitches at the hospital. In listening to the recording of the RPD hearing, I note that the RPD used a neutral tone in its questioning. I find that the RPD applied Chairperson Guidelines 4 appropriately. [23] In the appeal, the Appellant argues that the RPD did not consider that the workload and working conditions in a busy district hospital could result in an error in a report. However, this was not put to the RPD either by the Appellant or by her counsel in submissions, so the RPD cannot be faulted. I find, on a balance of probabilities, that the medical report is correct and that the Appellant embellished her injuries. I draw a negative inference from this embellishment, and I give the report no weight in establishing that the Appellant continues to be threatened by her husband. Coast Hospital Visit [24] The RPD gave no weight to the reports associated with this visit and found that the Appellant's credibility was negatively impacted. The Appellant argues that the RPD disregarded Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution in its analysis of her testimony. [25] The Appellant's argument has some merit. When asked about the treatment that she had received at the hospital, the Appellant testified that she went to the hospital late evening and left while it was still night. She testified that she was tested for infections, given a pregnancy test and then given antibiotics. This is consistent with her BOC narrative. The RPD asked the Appellant why the hospital form would state that she had undergone an exploratory laparotomy, to which the Appellant replied that she had not had any surgery at that time. The RPD did not accept the Appellant's explanation. [26] Upon closer examination, the term "exploratory laparotomy" is written in the history portion of the "Post Rape Care Form (PRC)11, not in the treatment portion. The treatment portion states that the Appellant was given XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The section "Any other treatment / Medication given /management?" is blank. The Coast General Hospital discharge summary12 does have XXXX XXXX (sp) written in the "OPERATON (S)" section. Except for those two words, both forms are consistent with the Appellant's testimony regarding her time at the hospital. I accept the Appellant's explanation that the person completing the discharge summary form made a simple mistake. The RPD erred by not accepting that the reports were genuine and for drawing a negative inference from the inconsistency between the Appellant's testimony and the reports. However, I find that this error is not determinative and is not sufficient to overcome the Appellant's significant credibility concerns. [27] Although the reports corroborate the Appellant's claim of being raped, there is nothing in the reports that implicates the Appellant's husband or the Mungiki sect in the rape. I give the PRC form and the discharge summary no weight in establishing the Appellant's claim. Conclusion on credibility [28] When a person gives sworn evidence, there is a presumption that the person is telling the truth13 unless there is a valid reason to doubt its truthfulness. In the case at bar, I find that contradiction between the Appellant's passport and her testimony, the inconsistencies between the Appellant's testimony and the affidavit from XXXX, and the inconsistency between the 2012 medical report and the Appellant's testimony create a valid reason to doubt the Appellant's testimony. I find that the Appellant is not a credible witness. The RPD did not err in its analysis of other documentary evidence submitted by the Appellant [29] Having found the Appellant not to be a credible witness, the RPD turned its mind to whether there was any other evidence that could establish her claim. I have already discussed the XXXX XXXX Report and found that it did not establish that the Appellant's husband or the Mungiki were responsible for the rape. Friend's letters [30] The RPD placed little weight on the letters from friends who allegedly assisted her in Kenya. The Appellant argues that the RPD erred by overlooking and discounting all of the Appellant's letters of support and affidavits of support because the evidence was self-serving and the authors were not available for questioning. [31] The RPD did not err and the Appellant's argument must fail. The letter from Naomi14 does support the Appellant's allegation of being assaulted by her husband in 2012. I accept that the assault happened. However, I also found that the Appellant embellished her injuries, and this was reason to draw a negative inference. I find that the letter from XXXX does not corroborate the Appellant's allegations that her husband and the Mungiki continue to have any interest in the Appellant. I give the letter no weight in establishing the Appellant's claim. [32] I have already discussed the affidavit of XXXX XXXX XXXX as it relates to the Appellant's credibility. The affidavit does confirm the assault in 2012, and that the Appellant's husband did tell the affiant that he belonged to the Mungiki sect. However, there is nothing in the affidavit that establishes the husband or the Mungiki have any continuing interest in the Appellant. I give the affidavit no weight in establishing the Appellant's claim. [33] The letter from XXXX XXXX XXXX15 is not sworn and simply states that the author twice encouraged and helped the Appellant to flee the country to save her life from her abusive and violent husband. I am not able to verify that the signature on the letter matches the signature on the identification card due to the poor copy of the identification card. The Appellant does mention in her BOC narrative that the author advised her to get a visa to China, but makes no mention of any other assistance provided by the author. There is nothing in the letter to suggest that the author had ever met the Appellant's husband or witnessed the Appellant being assaulted. I give the letter no weight in establishing the Appellant's claim. Letter from XXXX XXXX XXXX XXXX XXXX (XXXX) and Photos16 [34] The letter and photos establish that the Appellant is active in the organization, but there is nothing that regarding the core elements of her claim. I give the letter and photos no weight in establishing the Appellant's claim. CCVT Assessment17 [35] The assessment confirms that the Appellant is suffering from XXXX XXXX with XXXX XXXX XXXX XXXX XXXX. However, the report relies on the Appellant's self-reporting for the cause. I do not doubt that the Appellant is suffering, however as I have already found her not to be a credible witness, I give the report no weight in establishing the Appellant's claim that her husband and the Mungiki continue to have any interest in her. Father's letter18 and associated medical reports19and photos20 [36] The RPD gave the letter and reports no weight as the originals were not available for examination. The RPD gave some weight to the photos supporting that the parents had been assaulted, but stated it was insufficient to overcome the Appellant's credibility concerns. The Appellant argues that the RPD erred when it determined that the letter was self-serving and not reliable. [37] The RPD did not err and the Appellant's argument must fail. Without the original letter and medical reports, the RPD only had the Appellant's testimony that her parents had been assaulted by her husband and his associates. The RPD had already determined that the Appellant was not a credible witness and it was open to the RPD not to accept the Appellant's testimony regarding the alleged assaults. In the appeal, the Appellant has provided clearer copies of her father's letter and the medical reports21. The letter is not dated, it is not signed, and it is not sworn. For these reasons, I find that the letter is not credible and I give it no weight in establishing the Appellant's claim. The medical reports confirm that the Appellant's parents were treated for injuries, but rely on the parents themselves for the cause of these injuries. I find that, on a balance of probabilities, the Appellant has not demonstrated that her parents were assaulted and threatened by her husband or his associates. The medical reports are not sufficient to overcome the significant credibility concerns of the Appellant. Conclusion on other evidence [38] I find that the Appellant failed to provide sufficient credible and trustworthy evidence to establish her claim that her husband and the Mungiki have any continuing interest in her. The RPD did not err in failing to conduct a section 97 analysis [39] The Appellant also argues that the RPD failed to conduct a risk assessment under section 97 of the IRPA. [40] The RPD did not err and the Appellant's argument must fail. The credibility analysis applies equally to both section 96 and section 97 of the IRPA. Since the RPD had found that the Appellant was not a credible witness and had not provided sufficient credible and trustworthy evidence to establish her claim, it was not necessary for the RPD to conduct a separate section 97 analysis. CONCLUSION [41] I find that the Appellant failed to provide sufficient credible and trustworthy evidence to establish her claim. [42] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Charles A. McDermott" Charles A. McDermott December 21, 2020 Date 1 Subsection 110(4) of the IRPA. 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 3Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Exhibit RPD-1, RPD Record, pp 49-66. 5 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Kenya, January 31, 2019 version, item 14.2, Exit controls at airports, including whether border officials check for police or criminal records (2013-December 2014), RIR KEN105013.E, Immigration and Refugee Board of Canada, December 15, 2014. 6 Exhibit RPD-1, RPD Record, pp 228-229. 7 Transcript of February 20, 2019 RPD hearing, page 14. 8 Transcript of February 20, 2019 RPD hearing, page 22. 9 Exhibit RPD-1, RPD Record, page 231. 10 https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx 11 Exhibit P-2, Appellant Record, page 12. 12 Exhibit P-2, Appellant Record, page 14. 13 Maldonado v. Canada (MEI), [1980] 2 FC 302. 14 Exhibit RPD-1, RPD Record, pp 226-227. 15 Exhibit RPD-1, RPD Record, pp 243-244. 16 Exhibit RPD-1, RPD Record, pp 232-239. 17 Exhibit RPD-1, RPD Record, pp 204-209. 18 Exhibit RPD-1, RPD Record, pp 274-281. 19 Exhibit RPD-1, RPD Record, pp 272-273. 20 Exhibit RPD-1, RPD Record, pp 283-285. 21 Exhibit P-2, Appellant Record, page 13, pp 15-18, page 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR: TB9-07194 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français