MB4-02540

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 : MB4-02540 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 at Montréal, Quebec Appel instruit à Date of decision December 17th, 2014 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the person who is the subject of the appeal Halifax Refugee Clinic Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] Ms. XXXX XXXX XXXX, who is a 42 year old citizen of the Republic of the Philippines, is appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant has not presented new evidence but has requested an oral hearing. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that Ms. XXXX XXXX XXXX is neither a "Convention Refugee" pursuant to s. 96 of IRPA nor a "person in need of protection" pursuant to s. 97 of the IRPA. BACKGROUND [3] The Appellant alleges in her testimony and BOC Narrative that she fears returning to Philippines because she believes her husband, identified as XXXX XXXX XXXX XXXX XXXX XXXX, will kill her. [4] The Appellant alleges that she married Mr. XXXX in 1999 and initially the marriage was peaceable. The Appellant alleges however that in time Mr. XXXX began to drink and abuse her. The Appellant notes a first major incident in 2004 when Mr. XXXX is alleged to have hit her in her shoulder and threaten to kill her. [5] The second major incidence allegedly occurred in 2006 when Mr. XXXX is alleged to have started a fight with the Appellant which began in the morning and lasted all day. The Appellant alleges that he hit her again. The Appellant alleges in the BOC narrative (RPD Record, pp. 19-20) that the next day she went to make a complaint to the police who sent someone to speak to Mr. XXXX XXXX The Appellant alleges that for a variety of reasons this changed nothing and the Appellant alleges that she became the victim of sexual assaults. [6] The Appellant sought a means to escape and through the efforts of her sister-in-law in Canada, identified as 'XXXX'1, the Appellant secured a work visa to come to Canada in XXXX 2008 under the XXXX XXXX. [7] In late 2009 the Appellant lost her job/sponsorship and was not working or sending money home. The Appellant's visa expired in early 2010 and an application to renew the visa was turned down later in 2010. The Appellant eventually moved to Halifax in 2013 where she allegedly became aware of the possibility of making a refugee claim to stave off return to Philippines. [8] The Appellant made a protection claim in March 2014 and the RPD denied this claim in a decision dated June 12, 2014 whereupon this decision was appealed on July 3, 2014. REQUEST FOR A HEARING [9] Given that the Appellants have not provided new evidence, there is nothing in the IRPA, more particularly in IRPA s.110(3) and s. 110(6), which provides for a hearing in this appeal. This request for a hearing is denied. SUBMISSIONS [10] The Appellant argues that the RPD's analysis includes errors related to its credibility determination. The core argument is that various problems in the Appellant's answers to RPD questions can be explained by the fact that the Appellant is an abused woman who fears gender-related persecution. This being the case the RPD should have taken into account the stress and psychological difficulties that is associated with this reality, but did not. The Appellant notes that the IRB has institutionalized the process of considering these factors when it published the Chairperson Guidelines (4): Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (Chairperson's Guidelines)2. [11] The Appellant makes the case that when this stress, psychological difficulty and the inherent vulnerability that arises from her immigration status is taken into consideration, the various problems with her evidence and testimony related to an inability to give details related to specific events and the fact that at various points testimony was inconsistent with the BOC narrative, becomes understandable. In addition, the delay in claiming Canada's protection also becomes understandable. [12] The Appellant argues that when these factors are taken into consideration the RPD decision "falls outside of the range of acceptable intelligible outcomes" which might be accepted by the RAD. The Appellant argues that the RAD should "overturn" the RPD decision and recognize the Appellant as a convention refugee. Alternatively, the RAD should return the decision to the RPD for reconsideration by a different panel. ROLE AND FUNCTION OF THE RAD [13] I note that the RPD undertook a developed review of the Appellant's testimony and evidence and identified a series of credibility issues which are addressed by the Appellant in her appeal. These issues relate to inconsistencies between evidence provided in the Appellant's BOC narrative and her testimony during the hearing. There is also the issue that the Appellant delayed claiming Canada's protection. [14] With respect to an assessment of the RPD's adverse credibility determination, I note that the RAD has now received some Federal Court guidance on the role of the RAD vis-à-vis RPD decision-making. One Justice suggests that my assessment of the RPD's determination with respect to questions of fact and with respect to questions of mixed fact and law, should involve an evaluation of the evidence to determine if the RPD made 'palpable and overriding errors'. This jurisprudence sets out that the RPD is owed a "measure" of deference in its conclusions of fact, and of mixed fact and law and establishes that the RAD is responsible to perform its "own assessment" of all of the evidence (Alvarez v. M.C.I. 2014 FC 702 and Eng v. M.C.I. 2014 FC 711). [15] I note that in another recent decision, Spasoja c. M.C.I.3, Justice Roy agrees with Justice Shore on the conclusion that 'palpable and overriding errors' should be the standard of intervention with respect to questions of fact. [16] In Huruglica4 the Federal Court has stated that the RAD "must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection". Justice Phelan in Huruglica indicates that there is no need for the RAD to enunciate a 'standard of review' and suggests that while the RAD might show some deference on a credibility assessment and/or where the RPD enjoys a particular advantage in reaching such a conclusion, in other areas, such as an assessment of country conditions evidence, the RAD need not be deferential. [17] In Jerto5, Justice St-Louis references Huruglica and suggests that "the RAD must accord deference to the RPD's findings on credibility issues". [18] Following Huruglica and Jerto, I conclude that in this appeal, which involves a determinative conclusion on questions of fact, the RPD's credibility conclusions must be granted a degree of deference and I must provide my own assessment of the evidence to reach a conclusion. ANALYSIS OF THE MERITS OF THE APPEAL Core Issue: Did the RPD err in its credibility findings? [19] This is an RPD decision which draws attention to a range of inconsistencies in the Appellant's testimony both internally and between the testimony and BOC narrative. There is also the question of a delay in claiming. [20] The Appellant argues that the problems with the Appellant's testimony is understandable given her state of mind. With respect to the fact that the Appellant could not provide specific details, the Appellant basically argues that the Chairperson's Guidelines provide latitude to dismiss such concerns. [21] In reviewing the transcript of the hearing and listening to the hearing I cannot accept this argument. The testimony of the Appellant was such that the credibility issue is simply manifest because the Appellant could not answer basic questions with any degree of specificity. [22] In addition, when the Appellant did provide specific answers they were more likely than not inconsistent with the provided BOC narrative. Some of the inconsistency issues related to 'when did Mr. XXXX began drinking' (Appellant's Record, Hearing Transcript 102-111; Oral Hearing at minutes 44-46) or 'when did arguments became verbal abuse' might be set aside as matters of interpretation. This is to say that the Appellant herself might reinterpret when real abuse began depending on which specific memory she were dealing with. Although this is possibly that grey area that is addressed in the Chairperson's Guidelines, the problem becomes that the RPD is finding that there is little if any consistency on these smaller issues in a lead up to finding that there are problems with the big issue of consistency in her story related to seeking police protection from her husband. [23] The problem here is that while the Appellant states that she approached police in 2004 in testimony, this is inconsistent with the BOC Narrative where it states that she approached police in 2006. The RPD is therefore left with a problem; the claimant has not got much or perhaps anything right or consistent. [24] In response the Appellant concludes her arguments related to problems with the consistency of her testimony by stating that these problems were "peripheral and tangential". The Appellant argues that "The core of her testimony is consistent and viable, and problems remembering dates are not related to what her central allegations are: of two incidents of abuse, in 2004 and 2006, and threats by telephone once she was in Canada" (Memorandum of Argument, Paragraph 32). [25] I must conclude this is pure assertion in the face of the fact there was little of anything that was consistent in the Appellant's testimony and evidence. Specifically, as noted by the RPD at length, the Appellant introduced a new allegation, with respect to being hit in the back (RPD Decision, Paragraph 11) and, as noted above, the Appellant was also inconsistent with respect to when she went to the police (Appellant's Record, Hearing Transcript 186-188; Oral Hearing at minutes 1:17-1:18). [26] I note with respect to this latter problem identified by the RPD, the Appellant argues that this is a problem with 'dates and times' and as such might be viewed as "microscopic" by the Federal Court (Memorandum of Argument, Paragraphs 29-31). I cannot accept this argument. The Appellant has but two attacks to remember but she is changing when she went to the police from the second attack to the first attack and testifying that she did not think it useful to even approach the police after the second attack (Appellant's Record, Hearing Transcript 185). This strongly implies that the events are not set in her memory which implies that these events did not happen. [27] In considering these problems the RPD makes explicit reference to the boundary question of whether the Chairperson's Guidelines might be seen to set aside or in some way mitigate these problems. According to the RPD: [15] In evaluating the claimant's testimony, the tribunal took into consideration the Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution which mentions, among other things, that women who have been subjected to domestic violence may exhibit a pattern of symptoms referred to as Battered Woman Syndrome and may also be reluctant to testify. The tribunal is fully aware of this Syndrome and is sensitive to the situation of abused women. [16] That being said, and although the claimant might be reluctant to speak about very private events and although she might be nervous to testify before the Board as all refugee claimants might be, the claimant's answers are such that the tribunal does not find her to be credible. The tribunal asked simple questions which did not touch upon intimate matter (contrary to some of her counsel's questions). And even if the tribunal understands that the claimant is in a difficult situation since 1999 and that she might not be able to recount many details, the fact that she had so many contradictions about the only two events at the core of her allegations and the fact that she adjusted her testimony, in particular the fact that she testified having gone to the police in 2004 but not in 2006 because they had not helped her in 2004, when in fact she had not gone in 2004, all this brings the tribunal to only one conclusion of non-credibility (RPD Decision, Paragraphs 15-16). [28] I must conclude that the RPD has not erred in its conclusion related to 'non-credibility' because of a lack of detail in testimony and because of the many inconsistencies which exist between the testimony and the BOC narrative. [29] I also note that the Appellant is educated having completed two post high school 'certificates' and a Bachelor of Education (RPD Record, p. 464). I would note that the Appellant has lived in Canada for many years and has had extensive dealings with immigration lawyers and the process of securing a status. I must conclude, therefore, consistent with the conclusion of the RPD, that the Appellant's delay in claiming Canada's protection - the Appellant having arrived in Canada in 2008 and having sought protection only in 2014 - is beyond that which would be expected from someone who fears return to Philippines. [30] Overall, I must agree with the RPD when it concludes that the Appellant has not met her burden of establishing the truth of her allegations on a balance of probability. CONCLUSION [31] For all these reasons, I confirm the determination of the RPD, namely, that Ms. XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection". [32] Therefore, the appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher December 17, 2014 Date /kp 1 It is not clear from the record what the exact relationship is between the Appellant and Ms. XXXX XXXX because the Appellant describes her only brother as 'disabled' and living with her sister in XXXX. This leaves the possibility that Ms. XXXX is Mr. XXXX sister. 2 Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993, Update: November 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act 3 Spasoja c. M.C.I. 2014 CF 913. 4 Huruglica v. M.C.I. 2014 FC 799. 5 Jerto v. M.C.I. (IMM-491-14) 2014-10-06, p. 4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-02540 7 RAD File No. / N° de dossier de la SAR : MB4-02198 2