VB9-09573

RAD File / Dossier de la SAR : VB9-09573 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 Toronto, ON Appel instruit / entendu à Date of decision March 31, 2021 Date de la décision Panel Cheryl Braden Tribunal Counsel for the person who is the subject of the appeal Sania Chaudhry 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 (Appellant) is a citizen of Jamaica. She came to Canada in XXXX 2013 on a work permit, and subsequently obtained a study permit which maintained her legal status in Canada until XXXX 2017. She applied for an extension to her study permit and was refused in XXXX 2016. After her status expired, she applied for a temporary resident permit and work permit in XXXX 2018 and was refused in XXXX 2018. She then made a claim for refugee protection on November 20, 2018, alleging that she fears returning to Jamaica due to her sexual orientation as a lesbian, due to her fear of abuse and harm from her violent husband in Jamaica, and due to fear of her former neighbour, a gang member who is alleged to have sexually assaulted both the Appellant and one of her daughters. [3] The Appellant's claim was heard before the Refugee Protection Division (RPD) on October 25, 2019, and rejected on November 25, 2019, on credibility grounds. 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 [5] 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. [6] 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 [7] The Appellant argues that the above factors should be balanced with the issues of fairness and the need for a full fact-based evaluation of her refugee claim, citing the Federal Court in Singh3, which noted the need for flexibility and leeway in the consideration of the admissibility of new evidence before the Refugee Appeal Division (RAD) in view of the short timeframes for the production of evidence in advance of the RPD hearing. [8] I reject the Appellant's argument. First, I note that the case relied upon by the Appellant was successfully appealed to the Federal Court of Appeal, where it was confirmed that the requirements of subsection 110(4) are "inescapable and would leave no room for discretion on the part of the RAD"4. Moreover, while there is some flexibility in the application of s.110(4), I do not find that the short timeframes at the RPD were a meaningful factor in the Appellant's case or in her ability to obtain evidence. Although the legislative scheme for refugee determinations does generally provide for shorter timeframes in RPD proceedings, in the Appellant's case, her claim was not heard for nearly a year after she initially submitted her claim. The evidence presented by the Appellant is rejected [9] The Appellant has submitted the following items as new evidence before the RAD: a. The Appellant's marriage certificate issued on XXXX XXXX XXXX 20095; b. Letters from the Appellant's daughters in Jamaica dated XXXX XXXX, 20206 and XXXX XXXX, 20207 respectively; and c. Photographs of the Appellant's deceased uncle8. [10] Having reviewed the proposed new evidence in consideration of the legislative and jurisprudential admissibility requirements, I find that it is inadmissible for the following reasons. The marriage certificate [11] The Appellant has failed to provide any explanation or submissions related to her marriage certificate, which predates the RPD decision. The onus is on the Appellant to explain why the certificate was unavailable for production to the RPD, or why she could have not been reasonably expected to produce it. In the absence of any explanation, I find that the certificate is inadmissible as new evidence under s.110(4). The letters from the Appellant's daughters [12] The letters from the Appellant's daughters are dated after the RPD decision, however, the jurisprudence is clear that it is not the date of creation of a document that determines its newness, but rather the event or facts that the document attempts to establish9. These letters both seek to corroborate the Appellant's allegations of events that occurred prior to the RPD decision. The Appellant submits that she could not have been reasonably expected to present this evidence at the RPD hearing as she was not aware that they were needed and did not have access to them for reasons outside of her control. She does not elaborate as to the reasons why they were unavailable, nor do the authors of the letters address this issue. [13] It is established in jurisprudence that the purpose of new evidence at the RAD is not to provide an opportunity for claimants to supplement a deficient record before the RPD. As stated by the Federal Court: ...the Applicant must put her best foot forward before the RPD, and present all the evidence that is available at the time, whether aware of it or not, unless there is an aspect of injustice arising from unexpected new facts, or old facts that no reasonable amount of due diligence could have turned up. It is not intended to be a tune-up procedure for the RAD that upon learning [of] deficiencies in the Applicant's case, additional evidence that could have been presented to the RPD may be presented as new evidence before the RAD.10 [14] The Appellant was represented by counsel before the RPD and had a full opportunity to present her evidence to the RPD. She described in testimony that she had the assistance of her daughters in Jamaica in her efforts to obtain evidence in advance of her hearing. The issue of lack of corroborative evidence, including the absence of any corroborative evidence from her daughters, was raised to her at the RPD hearing11. The RPD decision was not rendered for a month after the hearing, and it was open to the Appellant to obtain and submit additional evidence after the hearing, but she did not do so. [15] For all of those reasons, I find that the Appellant has failed to establish that the letters from her daughters were not reasonably available to her or that she could not have reasonably been expected to provide them before the RPD decision. The letters are therefore rejected as new evidence. The photos of the Appellant's uncle [16] The Appellant also seeks to admit three photographs of her uncle as new evidence. I note that the same photos are included in the RPD Record12. As such, they are not new evidence before the RAD. The request for oral hearing is denied [17] The Appellant has requested an oral hearing. Subsection 110(6) of the Immigration and Refugee Protection Act (IRPA) provides that the RAD may hold an oral hearing if new evidence is accepted that raises a serious credibility issue with respect to the Appellant, is central to the decision with respect to the refugee claim, and if accepted, would justify allowing or rejecting the claim. As no new evidence was admitted, the RAD will proceed without an oral hearing. The request to delay the appeal in order to obtain additional evidence is denied [18] Finally, I note that the Appellant indicated in her memorandum that as of the time of filing, she was waiting on additional evidence in the form of police records and hospital records. She requested that the RAD make no decision in her appeal until these documents are received, citing delays in obtaining the documents due to factors related to COVID-19. [19] The Appellant's Record was submitted to the RAD on August 18, 2020. There is no indication as to what efforts have been made to obtain these documents, nor any indication of what efforts were made prior to March 2020, before the COVID-19 pandemic became an impediment to obtaining them. Again, I note that both the absence and relevance of this corroborative evidence was raised to the Appellant at the RPD hearing in October 2019. [20] There has been no update, nor any additional evidence provided since the Appellant filed her record over six months ago. Pursuant to RAD Rule 7, unless a hearing is held pursuant to s.110(6) of IRPA, the RAD may decide an appeal without further notice to the Appellant after 15 days has passed since the perfection of the appeal13. [21] Under the circumstances, I find that it is just and appropriate to proceed with the appeal on the basis of the evidence in the record. ROLE OF THE RAD [22] My role is to look at all the evidence and decide if the RPD made the correct decision.14 [23] I note here that while the Appellant has argued at the outset of her memorandum that the RAD should review the RPD's decision on a correctness standard, she later argues that the RPD's decision is unintelligible and that "the Court" cannot buttress the RPD's analysis, therefore, the decision is flawed and needs to be redetermined, citing Vavilov15. [24] This argument improperly refers to the role of a court on judicial review, which is not the role of the RAD in conducting a hybrid appeal on the standard of correctness. It is open to the RAD to come to its own conclusions based on the record and arguments, which does not preclude the RAD from coming to the same overall conclusions as the RPD, but for different reasons. ANALYSIS [25] The RPD found that the Appellant's delay in seeking refugee protection until after she was out of status and had exhausted other avenues indicated a lack of subjective fear which undermined her credibility. The panel found that delay was a significant factor that served to rebut the presumption of the truthfulness of the Appellant's sworn testimony. The RPD further noted that the Appellant did not provide corroborative evidence in support of her claim and found that the absence of such evidence was not reasonably explained. The panel also found that some of the Appellant's testimony about her alleged same-sex relationships and activities lacked credibility. [26] The RPD concluded that the Appellant's allegations of forward-facing risk in Jamaica were not established on a balance of probabilities. The Appellant argues on appeal that the RPD erred in its credibility determination by failing to properly consider and apply Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression16 (the SOGIE Guidelines). [27] Following my independent analysis of the record and the arguments before me, and in consideration of the SOGIE Guidelines, I find that the RPD correctly found that the Appellant is not credible and that she has failed to establish her allegations on a balance of probabilities. I find that the determinative issues are delay in seeking refugee protection and the failure to provide corroborative evidence. The RPD correctly found that the delay in claiming significantly undermines the Appellant's credibility [28] The RPD's central finding on credibility is based on the Appellant's delay in claiming refugee status. The Appellant arrived in Canada in XXXX 2013 and did not make her refugee claim until November 2018. The RPD accepted that the Appellant had reasonably explained her failure to claim refugee protection while she still had legal status in Canada up until XXXX 2017, however, it did not find that the delay from XXXX 2017 forward was reasonably explained. [29] The RPD noted that following the expiry of the Appellant's legal status, she remained out of status for approximately a year before applying for a temporary residence permit (TRP) and work permit in XXXX 2018. These applications were denied in XXXX 2018, at which time the Appellant finally made her refugee claim in November 2018. [30] The panel further noted that the Appellant was assisted by counsel in XXXX 2018 to apply for her TRP and that the TRP application provides an opportunity for her to explain any unique or compelling circumstance in order to overcome her admissibility, as an applicant who had overstayed her status and was inadmissible on that basis. However, she did not provide any information in her TRP application about the fears and problems she later alleged in her refugee claim. [31] The RPD did not accept the Appellant's explanation that she did not know about applying for refugee status prior to making her refugee claim and did not want to share her past experiences with anyone. The panel found it reasonable that she would become aware of the possibility of making a refugee claim, in consideration of her personal circumstances, noting that she had been in Canada for a number of years, she has a post-secondary education and is fluent in English, and she had been assisted by an immigration consultant and later, immigration counsel. [32] The RPD concluded that the Appellant's significant delay in claiming was not reasonably explained, and that it undermined her credibility and rebutted the presumption of truthfulness of her sworn testimony. [33] The Appellant argues that the RPD erred in finding that her delay in claiming undermined her credibility, as the panel ignored the SOGIE Guidelines which indicate that decision-makers should examine whether there are cultural, psychological or other barriers to the disclosure of claimants' sexual identity or orientation17. The Appellant submits that she testified that she faces mental barriers to disclosing her sexual orientation and being open about it. [34] I do not find that the RPD erred in its analysis of the factor of delay. The Appellant's testimony about her reluctance to be open was in the context of explaining why she did not share information about her pending refugee claim with her lesbian friends in Canada. I note that the Appellant testified that these friends are aware of her sexual orientation as a lesbian18. [35] Moreover, the portion of the SOGIE guidelines relied upon by the Appellant refers to inconsistencies between statements made at the port-of-entry and those made in the course of a refugee claim, as SOGIE claimants who are fleeing harm may be reluctant to disclose information about their sexual orientation to government authorities immediately on arrival. In the present case, the Appellant was in Canada for several years before her refugee claim was made. I agree with the RPD that while it may be uncomfortable for her to discuss her past experiences, given that she was out of status and facing removal to Jamaica, it is reasonable to expect her to discuss any fears of returning to Jamaica with counsel who is assisting her with her immigration applications. [36] I find that the RPD's analysis and findings in relation to the Appellant's delay in claiming19 are comprehensive and correct, and I adopt them as my own. I find that the Appellant's delay in making a refugee claim is inconsistent with her alleged subjective fears of harm in Jamaica, and I find that this greatly undermines her overall credibility and is a valid reason to depart from the presumption of truthfulness of her sworn testimony. The RPD correctly found that the lack of corroborative evidence was unreasonable and undermined the Appellant's credibility [37] The RPD went on to consider the evidence regarding the Appellant's sexual orientation and history of same-sex relationships. The panel found that her testimony regarding her past relationships lacked detail and spontaneity, and also drew an adverse inference based on the lack of corroborative documentation provided. [38] The Appellant argues that the RPD erred by failing to properly consider and apply the SOGIE Guidelines in a number of ways. First, she argues that the panel erred by not accepting that she is a lesbian based on her testimony, despite that the Guidelines indicate that a claimant's testimony may be the only reasonably available evidence that they can provide. [39] I do not find that the RPD erred as alleged. The Guidelines note that a claimant's testimony may be the only evidence that can be provided in cases where the person's sexuality has been concealed to avoid stigma or harm based on their sexual orientation or activities. This is not the case for the Appellant, who has been in Canada for several years and who testified to having friends in the gay community who are aware of her sexual orientation and with whom she has socialized on a number of occasions. [40] The RPD noted that there was evidence related to the Appellant's sexual orientation which should have been reasonably available but was not produced. The Appellant does not address these findings on appeal. I have reviewed them and I find that they are correct. [41] First, the Appellant testified that she did not seek evidence or support from her lesbian friends in Canada for her refugee claim because she did not want to disclose to them that she had a pending refugee claim. The RPD found that this was not a reasonable explanation, as it expected that she would deal with the discomfort of telling someone about her refugee claim in order to obtain support for her claim if she truly feared returning to Jamaica. I agree with the RPD. [42] Second, the Appellant testified to having been in a long-term relationship with a same-sex partner from Jamaica until 2016, and to communicating with that partner and sending her support money from Canada. However, no documentary evidence was submitted to support this testimony. I agree with the RPD that this evidence should have been reasonably available to the Appellant and that its absence is not reasonably explained. The Appellant is not a credible witness and there is insufficient evidence to establish her allegations on a balance of probabilities [43] The RPD also considered the Appellant's allegations of risk at the hands of her abusive husband in Jamaica, as well as risk of harm from her neighbour, who was alleged to be a gang member who had previously assaulted the Appellant and her daughter and is now seeking revenge against the Appellant and her family. The panel found that the Appellant failed to produce corroborative evidence that should have been available to support these allegations and found that her explanations for failing to do so were unreasonable. [44] The Appellant has not disputed these findings. I have reviewed the RPD's analysis and reasons with respect to these allegations, and I find that they are correct, and I adopt them as my own20. I find that the Appellant's failure to provide corroborative evidence in respect of any of her three main allegations of risk was not reasonably explained, and I find that this is a significant factor that further undermines her credibility. [45] I find that together, the unexplained and unreasonable delay in claiming and the failure to present corroborative evidence are determinative with respect to my assessment of the Appellant's overall credibility. I find that the Appellant is not a credible witness, and in the absence of any independent corroborative evidence in support of her allegations, I find that she has failed to establish the allegations at the core of her claim on a balance of probabilities. [46] While the RPD made additional credibility findings which are also disputed by the Appellant, I do not find it necessary to address these findings, as even if I find that these findings are wrong, it would not restore the Appellant's credibility. CONCLUSION [47] The Appellant is not a credible witness and has failed to provide sufficient credible evidence to establish that she will face a serious possibility of persecution, or a risk of harm as described in s.97 of IRPA on a balance of probabilities. [48] 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) Cheryl Braden Cheryl Braden March 31, 2021 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, at s. 110(4). 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FC 385 (CanLII). 3 Singh v. Canada (Citizenship and Immigration), 2014 FC 1022 (CanLII), [2015] 3 FCR 587. 4 Singh, supra, endnote 2, at paras. 34-35. 5 Exhibit P-2, Appellant's Record, at p. 51. 6 Ibid., at pp. 52-53. 7 Ibid., at pp. 54-55. 8 Ibid., at pp. 56-58. 9 Raza, supra, endnote 2, at para.16 10 Abdullahi v. Canada (Citizenship and Immigration), 2016 FC 260 (CanLII), at para. 14. 11 Transcript of October 25, 2019 RPD Hearing, at pp. 42-44. 12 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 90-92. 13 Refugee Appeal Division Rules, SOR/2012-257, at rule 7. 14 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 15 Exhibit P-2, Appellant's Record, at pp. 68-69, at paras. 19-20; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), at para. 96. 16 Chairperson Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guideline Issued by the Chairperson pursuant to paragraph 159(1)(h) of the IRPA, IRB, Ottawa, Effective date: May 1, 2017. 17 Ibid., at para. 7.4.1 18 Transcript of October 25, 2019 RPD Hearing, at pp. 25-26. 19 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 6-8, paras. 14-21. 20 Ibid., at pp. 9-11, paras. 30-34. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-09573 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