MB5-01643

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: MB5-01643 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 September 3, 2015 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the person who is the subject of the appeal Ronald R. Ramkissoon 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] The Appellant is Ms. XXXX XXXX XXXX, who is a 43-year-old citizen of Saint Lucia, who is appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant has not presented new evidence and has not requested an oral hearing. DETERMINATION OF THE APPEAL [2] After asking questions across a range of issues and with respect to all aspects of the Appellant's allegations, the RPD reached a conclusion that, on a balance of probability, the Appellant's allegations lacked credibility. In reviewing the evidence, I am in agreement with this conclusion. Pursuant to section 111(1)(a) of Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that Ms. XXXX XXXX XXXX is not a "Convention refugee" pursuant to section 96 of the IRPA and/or a "person in need of protection" pursuant to section 97 of the IRPA. BACKGROUND [3] The Appellant sets out that she was born and lived in XXXX XXXX XXXX, Saint Lucia until she left to travel to Canada in XXXX 2005. The Appellant alleges that she is at risk of being killed by her common-law boyfriend identified as Mr. XXXX XXXX. This relationship is alleged to have begun in 1998 and the Appellant alleges that she lived with Mr. XXXX and eventually shared a mortgage on a home (2000-2005) that was built on the Appellant's family land. The Appellant alleges that while living with him, Mr. XXXX became a policeman and would threaten the Appellant and her family with his firearm. [4] The Appellant alleges that Mr. XXXX was involved with other woman and alleges that when confronted Mr. XXXX would become violent. The Appellant alleges that Mr. XXXX would also sexually assault her and was regularly severely abusive. The Appellant alleges she lived in "total fear" of Mr. XXXX. [5] The Appellant alleges that problems escalated in XXXX 2004 when she discovered Mr. XXXX with another woman in a bar and Mr. XXXX allegedly beat her to "show off" to this other woman. The Appellant alleges another incident in XXXX 2005, XXXX days before she left Saint Lucia, in which Mr. XXXX allegedly beat her at her work place because she had investigated a phone number of a woman she had found on his phone. In both cases the Appellant alleges she approached the police but they would not assist her either because Mr. XXXX was a friend or because he was a police man. [6] The Appellant alleges that she feared for her life and left Saint Lucia in XXXX 2005. The Appellant attempted to regularize her status in Canada by claiming a residence status on 'Humanitarian and Compassionate' grounds. These efforts were not successful. In September 2014 the Appellant claimed Canada's protection. This claim has heard by the RPD and in a decision dated February 17, 2015, the claim was denied. The Appellant appealed this decision by submitting a Notice of Appeal, which was received by the RAD on April 15, 2015. SUBMISSIONS [7] The Appellant submits that the RPD erred in its overall adverse credibility conclusion, which involved the RPD making individual errors on important elements of the Appellant's claim. The Appellant begins by arguing that it was "unreasonable" for the RPD to reach adverse conclusions on 'inconsistent behaviour', implausibility and omission given that the Appellant was a woman fleeing gender-related persecution. This is to say that her testimony and evidence was not effectively reviewed taking into consideration the Chairperson's Guideline 4 on Gender-Related Persecution (RPD Record, pp 119-122). [8] The Appellant also argues that she received negligent legal advice in her efforts to secure a resident status in Canada and that this took a psychological toll on the Appellant in addition to lengthening the process and misdirecting the Appellant. [9] The Appellant also argues that the RPD decision does not incorporate a review of state protection which would show the real risk faced by the Appellant at the hands of Mr. XXXX if she were to return to Saint Lucia. [10] With respect to an outcome to this appeal, the Appellant seeks to have the appeal 'allowed' and the Appellant recognized as a Convention refugee or a person in need of protection. Alternatively, the Appellant seeks to have the file rreturned to the RPD for reconsideration by a different panel. ROLE AND FUNCTION OF THE RAD [11] I note that the RAD has now received Federal Court guidance on the role of the RAD vis-à-vis RPD decisions. Justice Phellan in Huruglica1 states 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". He also 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. [12] In Njeukam,2 Justice Locke references Huruglica and suggests that "Except in cases where the credibility of a witness is critical or determinative or when the RPD has a particular benefit from the RAD to draw a specific conclusion, the RAD must not give any deference to the analysis of the evidence made by the RPD". [13] Following Huruglica and Njeukam, I conclude that in this appeal, which turns on questions of fact, although I may show a degree of deference to the RPD with respect to its credibility assessment, I must provide my own assessment of the evidence to reach my own conclusion on this appeal. ANALYSIS OF THE MERITS OF THE APPEAL Core Issue: Did the Board err in its credibility findings? [14] The basic argument of the Appellant is that the RPD erred in its evaluation of the Appellant's testimony and corroborative evidence. [15] On the first question related to the RPD's application of Guideline 4 on Gender-Related Persecution, I note the RPD gave his analysis of why this claim still fails regardless of Guideline 4. According to the RPD, there are too many credibility issues in the claim and the time line was so long (the Appellant was in Canada 9 years before applying for Canada's protection) that reference to the Guideline cannot "justify or explain" the Appellant's behaviour. Put simply, Guideline 4 provides perspective on issues but it does not negate the Appellant's responsibility to meet her burden to establish the truth of her allegations, on a balance of probability. In this case, given the many credibility issues and the extended time line, which was addressed by the RPD in its decision, I must conclude that the RPD was in its area of advantage to reach an adverse credibility conclusion. [16] On the issue of problematical legal advice the Appellant received. I note the RPD states that: "During that entire period, she was in Canada illegally and risked being removed to Saint Lucia at any time. Although the claimant claims that she was given bad advice, the panel is of the opinion that it is implausible that so many specialized individuals could have intervened in the claimant's case without advising her to file a refugee protection claim, when she claims that she told them about the is treatment and threats from her ex-spouse. Lastly, even if the panel believed that the claimant had taken all these steps, it is of the opinion that they are insufficient to justify such a long delay (RPD Decision, paragraph 24)." [17] I must conclude again that the Appellant was in Canada 9 years before making a refugee claim and had extensive interaction with immigration experts over this period. I must conclude that having listened to the Appellant's testimony on this issue, the RPD had an advantage to reach this adverse credibility conclusion. I decide that this conclusion must stand. [18] With respect to the Appellant's concern that the RPD did not undertake a study of state protection applicable to the Appellant, especially considering "the stature of her ex-spouse's position" (Appellant's Memorandum, paragraph 12), I conclude this is a function of the RPD's conclusion that the Appellant's testimony and evidence was not credible. This is to say the RPD has concluded that the Appellant is not at risk of return to Saint Lucia because of the actions of Mr. Soudatt. [19] The RPD reaches this conclusion based on a review of the evidence including inconsistencies and omissions. For example, the RPD notes that the Appellant alleges in testimony, in order to establish that Mr. XXXX would still want to kill her after so many years, that she had taken money from him when she left Saint Lucia (Oral hearing at minutes 59-1:01). The RPD notes that this allegation is nowhere to be found in the BOC narrative or elsewhere in the forms. It was also not mentioned at the beginning of the hearing when the RPD member inquired as to amendments and the completeness of the record. The RPD concludes this is a major omission (RPD Decision, paragraph 29) and a contradiction with the record which connects the Appellant's risk of return to Saint Lucia to the possessiveness of Mr. XXXX. I note that the RPD reviewed the reasons given by the Appellant for this omission - that she had forgotten. I note that the RPD dismissed this explanation because, as noted above, the Appellant had explicit previous opportunities to introduce this logic but did not (RPD Decision 27). In reviewing the evidence, I agree with this conclusion. [20] I note that the RPD examined the corroborative evidence which includes two 'reference letters' from three individuals (RPD Record, pp. 90-91 and pp. 102-103). The RPD found that these letters, because they were from family members, were not sufficiently probative to set aside the identified credibility concerns and a concern for a lack of more concrete evidence which might show, for example, that Mr. XXXX existed, that he and the Appellant had lived together or that Mr. XXXX was a policeman in XXXX XXXX XXXX (RPD Decision, paragraph 32). In reviewing this evidence I reach the same conclusion. [21] After reviewing all of the evidence, I would agree with the RPD that the Appellant has failed to meet her burden of establishing the truth of her allegations on a balance of probability, which is the determinative issue in this case. CONCLUSION [22] 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". [23] Therefore, her appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher September 3, 2015 Date /ag 1 Huruglica v. M.C.I. 2014 FC 799. 2 Njeukam v. M.C.I. 2014 FC 859, paragraph 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR: MB5-01643 7