MB8-08281

RAD File / Dossier de la SAR : MB8-08281 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 September 25, 2020 Date de la décision Panel Susan Brown Tribunal Counsel for the person who is the subject of the appeal Raj Sharma 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] The Appellant XXXX XXXX XXXX (Principal Appellant), citizen of Cameroon, fears her village chief. The Refugee Protection Division (RPD) found that there were several material inconsistencies and contradictions in the evidence that undermined the central elements of the Appellant's claim and she was unable to provide reasonable explanations for these discrepancies thereby undermining her credibility. The Appellant submits that the RPD erred in its assessment of her credibility. [2] The Appellant submits new evidence under section 110(4) the Immigration and Refugee Protection Act (IRPA) and seeks a hearing pursuant to section 110(6). I have not accepted the new evidence and deny the request for a hearing. [3] Following my own review, I agree with the RPD that the Appellant is not credible. DECISION [4] 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 [5] Section 110(4) of the IRPA provides that an appellant may 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. In Singh1 the Federal Court of Appeal dictates a narrow interpretation of section 110(4): the conditions set out therein must be met, and there is no room for discretion on the part of the Refugee Appeal Division (RAD). If the section 110(4) threshold is met, then the new evidence must also meet jurisprudential requirements of credibility, relevance and newness.2 [6] The Appellant submits the affidavit of her maternal uncle, XXXX XXXX, sworn XXXX XXXX, 20183 as new evidence with her appeal. [7] The Appellant's claim was first heard on September 17, 2015 and denied on October 13, 2015 by the RPD citing several credibility issues. The RAD allowed the appeal on May 5, 2016, finding a breach of procedural fairness and referred the claim back for redetermination by a differently constituted panel. The claim was then heard on February 6, 2018, and the RPD gave its decision on February 8, 2018. [8] The Appellant baldly states she could not reasonably have been expected in the circumstances to have presented the new evidence at the time of the hearing "on the basis that it only became available after the hearing date."4 [9] It is not clear to me why the new evidence could not reasonably have been expected to have been presented by the Appellant at the time of the rejection of her claim for several reasons. [10] First, all the events referenced in the new evidence all predate the Appellant's first RPD hearing. Second, the absence of corroborative evidence of the uncle who completed all the Appellant's fraudulent "paperwork and has intimate knowledge of [her] experiences" was referenced in the first RPD decision.5 Third, a declaration under oath dated XXXX XXXX XXXX 2015 from the same affiant, XXXX XXXX, was presented to the RPD on October 30, 2017.6 [11] For these reasons I find that the new evidence does not pass the temporal threshold set out in section 110(4). [12] Even if the new evidence had passed the temporal threshold, I find that it does not meet the jurisprudential requirement of credibility as the affiant's evidence is not consistent. In his XXXX XXXX XXXX 2015 declaration under oath, the affiant XXXX XXXX says that the Appellant "with the help of a friend" obtained a visa to travel out of the country,7 while in the new evidence the affiant says that all the documents relating to the visa "are all fake and were done by [him] and an agent that [he] hired to help get [the Appellant] a visa."8 [13] For all these reasons the new evidence is not admissible. ORAL HEARING AT THE RAD [14] The Appellant requests that the RAD hold a hearing. Section 110(6) of the IRPA says the RAD may only hold a hearing if there is new evidence that (a) raises a serious issue with respect to the credibility of the Appellant, (b) is central to the RPD's decision, and (c) if accepted, would justify allowing or rejecting the refugee protection claim. Since I do not accept the new evidence, the hearing request is denied. SCOPE OF THE RAD REVIEW [15] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.9 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing the oral testimony heard, which in particular cases attracts a standard of review of reasonableness adapted to the RAD.10 Unless specifically stated below, I have applied the correctness standard. ANALYSIS [16] Overall, the RPD found too much conflicting evidence which could not be reconciled to be fatal to the Appellant's credibility, resulting in insufficient reliable and trustworthy evidence to support her claim. [17] Specifically, the RPD identified credibility issues relating to: the information provided with the Appellant's 2014 Canadian visitor visa application indicating that she is a resident of the Netherlands and married to a Dutch citizen with whom she had a child in 2010; Cameroonian exit and entry stamps dated 2013 and 2014 in the Appellant's passport issued in 2013; after arriving in Canada in XXXX 2014, submitting a Canadian study permit application containing the same Dutch identity in XXXX 2015; making a refugee clam in July 2015 with new information about her marital status and residence after the rejection of the study permit application; Dutch documentation with strong security features versus weaker evidence from Cameroon; and evidence from American immigration authorities. [18] The Appellant identifies the issue on the appeal as whether the RPD erred in finding that she was not credible and makes two arguments. First, the Appellant argues the RPD was unreasonable when it did not accept that the Appellant deferred to the advice of her uncle to make a study permit application using the Dutch identity due to gender norms after she had been living abroad for so many months. Second, the Appellant argues that the Dutch documents to support the Appellant's 2014 visa application were forged. [19] Following my independent assessment of the record, including the transcripts of the RPD hearings on September 17, 2015, and February 6, 2018, the findings of the RPD and the submissions of the Appellant, I agree with the RPD that the accumulation of conflicting evidence supports a negative conclusion about the Appellant's credibility. I find that the Appellant did not credibly establish her claim. Inconsistent evidence [20] The Appellant's evidence in her Basis of Claim form (BOC),11 her 2014 visa application,12 her 2015 study permit application13 and her passport14 was not consistent nor was it consistent with consular information from the United States.15 [21] According to her BOC narrative16 in 2007 at age 20, the Appellant was forced by her paternal uncle to marry the village chief who was 60, already had three wives and who physically and sexually abused her. In 2011 she met a man through her maternal uncle who asked her to marry him. As her marriage to the chief was traditional, it was not legally recognized. With her mother's assistance she got the chief to agree to let her visit her sister and married the other man on XXXX XXXX XXXX 2011. Her new husband had applied to immigrate to the United States, but their visa was refused in 2012. In XXXX 2012 the Appellant went to live with her husband's parents who then sent her back to her husband in XXXX 2013. Under pressure from his parents to divorce, the Appellant's new husband sent her away in XXXX 2013 and she was picked up and returned to the village chief. In XXXX 2014 the Appellant's maternal uncle came to visit and said he would help her escape the chief. The Appellant went to Nigeria on XXXX XXXX XXXX 2014 and on to Canada on XXXX XXXX XXXX 2014. [22] In her 2014 visa application the Appellant said that she studied at the XXXX XXXX XXXX from 2007 to 2011 after which she continued to live in XXXX and was employed as an XXXX XXXX.17 The application said that the Appellant gave birth to a son in XXXX2010 and married a Dutch national a year later. [23] The Appellant maintained her Dutch identity in her 2015 study permit application, but some of the details were different from her 2014 visa application. The Appellant reported that during the period 2005-2012 she was a student at the XXXX XXXX XXXX in XXXX and that she worked as an XXXX XXXX in XXXX from 2012 to 2014.18 [24] The Appellant's 2013 Cameroonian passport includes the following stamps: Douala XXXX XXXX XXXX 2013;19 Douala XXXX XXXX XXXX 2013;20 exit Douala XXXX XXXX XXXX 2013;21 entry Doula XXXX 2014.22 [25] United States consular authorities report that the Appellant was refused an F1 (student) visa on XXXX XXXX XXXX 2008, and she and her second Cameroonian husband were interviewed on XXXX XXXX XXXX 2013 in Yaoundé and came back XXXX XXXX XXXX 2013 at which time the adjudication decision was made not to issue the visa.23 [26] As summarized chronologically below, the evidence is inconsistent and conflicting: BOC 2014 TRV 2015 study permit Other Corroborative evidence 2005-2012 Student XXXX XXXX XXXX XXXX 2007 Finished school Cameroon school certificate24 Married chief XXXX XXXX 2008 US refused F1(student) visa Email with US consular authorities25 2007-2011 Lived with chief Studying at XXXX XXXX XXXX XXXX XXXX XXXX Child born in XXXX Child born XXXX2010 Dutch birth certificate26 XXXX XXXX 2011 Married Dutch husband Married Dutch husband Dutch marriage certificate;27 Dutch husband's passport28 XXXX XXXX 2011 Married next husband in Cameroon Cameroon Divorce Judgment29 2012 US visa refused XXXX XXXX 2012 Went to live with Cameroonian husband's parents XXXX XXXX 2012 Dutch residency permit issued Dutch residency permit issued Dutch residency permit30 XXXX XXXX 2013 Travel to/from Cameroon Passport stamp XXXX XXXX XXXX 201331 XXXX 2013 Returned to Cameroonian husband US Immigrant visa interview Email with US consular authorities32 XXXX XXXX 2013 Sent away by husband and taken by chief XXXX XXXX 2013 US Immigrant visa interview Email with US consular authorities33 XXXX XXXX 2013 Travel to/from Cameroon Passport stamp entry XXXX XXXX XXXX exit XXXX XXXX34 XXXX XXXX 2014 TRV submitted XXXX XXXX XXXX 201435 Entry Doula Passport stamp entry XXXX 201436 XXXX XXXX 2013-XXXX XXXX 2014 Lived with chief 2011-2014 XXXX XXXXAmsterdam XXXX XXXX XXXXXXXX 2012-2014 Dutch employment contract;37 2014 Pay slips: XXXX,38XXXX XXXX39 and XXXX40 XXXX bank statements41 [27] I agree with the RPD that there is too much conflicting evidence which cannot be reconciled, resulting in insufficient reliable and trustworthy evidence to support the Appellant's claim. Appellant's explanation [28] The Appellant submits that she provided false information about her Dutch identity "in order to ensure that the TRV application would be accepted allowing [her] to flee Cameroon and enter Canada."42 [29] The Appellant testified that her maternal uncle got the Canadian visa for her and that she did not sign any forms or give him any photographs and that "he is the one who made the passport."43 She then testified that she knew her Cameroonian passport was genuine because she was present at the passport office.44 She denied any knowledge of the entry and exit stamps in her passport, saying that the stamps were in her passport when she got it from her uncle.45 [30] When asked by the RPD why the Appellant did not make a refugee claim when she arrived in Canada, she testified that she did not because she was following her uncle's instructions and he told her she had to go to school and repeated, "I didn't know anything."46 She also testified that she was following instructions from her uncle when she used her Dutch identity in the study permit application: "I was just following instructions to save my life...I was following instructions from my uncle."47 [31] The Appellant argues that the RPD erred when it did not accept her explanation that she was deferring to gender norms by following the instructions of her uncle. The Appellant submits that she grew up in a paternalistic society where she is expected to follow the instructions of her elder male relatives and that the RPD's dismissal of her explanation is unreasonable and fails to consider the Appellant's cultural background. [32] I do not agree. Noting that it was well established that refugees may reasonably obtain false travel documents in order to flee persecution, the RPD identified as significant issue that the Appellant continued to perpetuate these fabrications to Canadian authorities after she had been living safely in Canada for over six months. The RPD found that the Appellant knowingly gave false information to Canadian authorities in her study permit application, which negatively impacted her credibility. [33] I agree with the RPD that the Appellant had no reason to continue to lie about her background in her study permit application. She had been living in Canada for six months and was not in danger. She was represented by an immigration consultant to assist her with her application and with whom she could discuss her legal options to remain in Canada. The RPD concluded that pursuing temporary stay options over the security of permanent refugee status when one's life is in danger is not behaviour consistent with a fear of persecution. As noted by the RPD, "it is not clear why the [Appellant] hired an immigration consultant if her uncle took control or was using the same connections to get a study permit as for the visitor visa."48 [34] The Appellant presented as evidence a declaration49 from the uncle who was allegedly providing instructions to her. The declaration does not mention his involvement in procuring her passport and the entry and exit stamps, the Canadian visa or that he directed her to apply for the study permit with her Dutch identity although the declaration is signed on XXXX XXXX XXXX 2015, which is months after the Appellant applied for the study permit on XXXX XXXX XXXX 2015. In fact, the declaration is not consistent with the Appellant's testimony and says that "in XXXX 2014, with the help of a friend she obtained a visa to travel out of the country...." 50 Furthermore, the changes in the details about the Dutch identity in the 2015 study permit application, as noted above in paragraph 23, are not consistent with the Appellant's explanation that she was following her uncle's instructions. [35] For all these reasons I find that the Appellant's explanation is not reasonable and the RPD correctly made a negative credibility inference. Documentary evidence [36] The RPD found that the Dutch documents which include government certificates with security features from a European democratic government with strong document controls carry more weight than the corroborative documentary evidence from Cameroon: a handwritten note, a court decision, a declaration and a newspaper article. [37] The Appellant argues that this finding is "highly problematic" because it is clear that the Dutch documents were forged. [38] I do not agree. The credibility issues raised by the Dutch documentation, which, as detailed above, is considerable and authentic on its face, are not addressed by the Cameroonian corroborative evidence. [39] I have reviewed the Cameroonian evidence. The handwritten note is from "[her] mother" who is not named and is unsigned.51 The court decision52 which grants the Appellant's second husband's divorce has some issues on its face including: spelling errors ("Repulblic" instead of "Republic," "haven" instead of "having"); grammatical errors ("whereby petitioners prayed this Honourable court to dissolve his marriage"); terminology errors ("did not bother to showcase this court"); and signed by a different registrar than named in the header. There are issues with the content of the uncle's declaration53 as detailed above in paragraph 34, and documentary corroboration of the uncle's identity was not provided. [40] I also have concerns about the authenticity of the newspaper article54 as its tone and content are very different from the other articles in the news section which are reporting on current events, and the photograph of the Appellant is very different from all the other photographs. The article is very critical of tradition and customs, and the objective evidence is clear that the media environment in Cameroon is constrained by a restrictive legal regime: "Journalists reporting on sensitive subjects risk police questioning, lawsuits, and extrajudicial detention."55 [41] The objective evidence indicates that in Cameroon identity documents are commonly forged.56 In this case, the RPD found that the Cameroonian evidence presented by the Appellant contains very weak guards against fraud as compared with Cameroonian identity documents, and therefore, are even more easily forged. [42] I agree with the RPD that the corroborative documentary evidence from Cameroon does not outweigh the Dutch documents and they cannot be reconciled with one another. This conclusion is further supported by the entry and exit stamps in the Appellant's 2013 Cameroonian passport.57 I find that the conflicting and inconsistent evidence prevents the Appellant from credibly establishing her claim. CONCLUSION [43] 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) "Susan Brown" Susan Brown September 25, 2020 Date 1 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 2 Ibid., and Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 3 P-2, Appellant's Record, page 63. 4 P-2. Appellant's Record, page 108, Appellant's Memorandum, para. 22. 5 RAD-1, VB5-02061, Reasons and Decision, October 13, 2015, para. 17. 6 RPD-1, RPD Record, pages 224 and 225, Exhibit 12. 7 RPD-1, RPD Record, page 225, Exhibit 12. 8 P-2, Appellant's Record, page 63. 9 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93 (CanLII). 10 Ibid., and X (Re), 2017 CanLII 33034 (CA IRB). 11 RPD-1, RPD Record, pages 12-24, Exhibit 2, BOC. 12 RPD-1, RPD Record, pages 160-185, Exhibit 7. 13 RPD-1, RPD Record, pages 109-136, Exhibit 4. 14 RPD-1, RPD Record, pages 45-52, Exhibit 1. 15 RPD-1, RPD Record, pages 199-200, Exhibit 9. 16 RPD-1, RPD Record, pages 22-24, Exhibit 2, BOC narrative. 17 RPD-1, RPD Record, page 164, Exhibit 7. 18 RPD-1, RPD Record, page 111, Exhibit 4. 19 RPD-1, RPD Record, page 47, Exhibit 1. 20 RPD-1, RPD Record, page 48, Exhibit 1. 21 RPD-1, RPD Record, page 48, Exhibit 1. 22 RPD-1, RPD Record, page 48, Exhibit 1. 23 RPD-1, RPD Record, page 200, Exhibit 9. 24 RPD-1, RPD Record, page 142, Exhibit 5. 25 RPD-1, RPD Record, pages 199-200, Exhibit 9. 26 RPD-1, RPD Record, page 171, Exhibit 7. 27 RPD-1, RPD Record, page 170, Exhibit 7. 28 RPD-1, RPD Record, page 180, Exhibit 7. 29 RPD-1, RPD Record, pages 144 and 145, Exhibit 5. 30 RPD-1, RPD Record, page 155, Exhibit 6. 31 RPD-1, RPD Record, page 47, Exhibit 1. 32 RPD-1, RPD Record, pages 199-200, Exhibit 9. 33 RPD-1, RPD Record, pages 199-200, Exhibit 9. 34 RPD-1, RPD Record, page 48, Exhibit 1. 35 RPD-1, RPD Record, page 161, Exhibit 7. 36 RPD-1, RPD Record, page 48, Exhibit 1. 37 RPD-1, RPD Record, pages 173-174, Exhibit 7. 38 RPD-1, RPD Record, page 176, Exhibit 7. 39 RPD-1, RPD Record, page 174, Exhibit 7. 40 RPD-1, RPD Record, page 177, Exhibit 7. 41 RPD-1, RPD Record, page 178, Exhibit 7. 42 P-2, Appellant's Record, page 110, Appellant's Memorandum, para. 26. 43 Transcript of hearing of February 6, 2018, pages 30-33. 44 Ibid., page 34. 45 Ibid., page 35. 46 Ibid., pages 38-43. 47 Ibid., page 43. 48 RPD-1, RPD Record, Reasons and Decision, para. 15. 49 RPD-1, RPD Record, pages 224 and 225, Exhibit 12. 50 RPD-1, RPD Record, page 225, Exhibit 12, para 15. 51 RPD-1, RPD Record, page 221, Exhibit 12. 52 RPD-1, RPD Record, pages 144 and 145, Exhibit 5. 53 RPD-1, RPD Record, pages 224 and 225, Exhibit 12. 54 RPD-1, RPD Record, page 218, Exhibit 12. 55 RPD-1, RPD Record, Exhibit 11, National Documentation Package for Cameroon, 28 April 2017, tab 11.1: Cameroon: Freedom of the Press 2016, Freedom House, 2016. 56 Ibid., tab 3.1: Cameroon: information on fraudulent identity documents, including national identity cards (2007-March 2014), CMR104811.E, IRB, 11 April 2014. 57 RPD-1, RPD Record, pages 47 and 48, Exhibit 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-08281 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