TC0-09707

RAD File / Dossier de la SAR : TC0-09707 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 April 16, 2021 Date de la décision Panel Kimberley Foreman Tribunal Counsel for the person who is the subject of the appeal Pablo A Irribarra Valdes 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] XXXX XXXX XXXX (the Appellant) is a citizen of Saint Vincent and the Grenadines. She appeals a decision of the Refugee Protection Division (RPD), dated June 23, 2020, rejecting her claim for refugee protection. [2] The Appellant requests that the Refugee Appeal Division (RAD) overturn the RPD's decision and allow the appeal, or in the alternative, send the matter back to the RPD for re-determination by a differently constituted panel. DETERMINATION OF THE APPEAL [3] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), I find that the Appellant is a convention refugee. Background of the Claim [4] The Appellant's allegations are outlined in her Basis of Claim form (BOC)1 and narrative.2 In short, the Appellant is a citizen of St. Vincent and the Grenadines. The Appellant's mother died when she was eight and she and her sister were adopted by their grandmother who lived in the US, but she continued to reside in St. Vincent with her great-grandmother. In grade school, she recognized she was attracted to members of the same sex. [5] When the Appellant was 14 years old, she began to date GP, a member of a local gang. She came to Canada on XXXX XXXX, 2012 as a visitor. At the age of 16 or 17, the Appellant was introduced to XXXX XXXX and the two became friends. GP suspected there was more than just a friendship between the two women and became jealous. He accused the Appellant of having a romantic relationship with her. At a club in 2010, GP became enraged that she was speaking to XXXX. He grabbed her and was verbally and physically abusive. The relationship with GP ended soon thereafter. GP then began spreading rumors that the Appellant was a lesbian. She would be called names when out in public. [6] After a move in XXXX of 2011, the Appellant was hit over the head while walking; she was rendered unconscious. She awoke in XXXX XXXX XXXX XXXX with injuries; she had a XXXX XXXX XXXX XXXX XXXX. The next day, the Appellant reported the incident to XXXX Police Station. XXXX moved into the Appellant's home and the two began an intimate relationship in XXXX of 2011. The Appellant's friend XXXX suggested that the Appellant go to Canada and clear her head for a few months. [7] On XXXX XXXX XXXX 2012, the Appellant travelled to Canada, landing in Toronto. She entered Canada as a visitor and remained with no status, until she made a claim for refugee protection in May of 2017. [8] The Appellant believes that if he were to return to St. Vincent, her life would be at risk. Role of the RAD [9] In this case, I have applied the standard of correctness.3 Appellant's Argument on Appeal [10] The Appellant submits that the RPD's findings relating to credibility and delay in claim were unreasonable and that the panel erred. The Appellant makes a further submission that the RPD erred by ignoring or misconstruing the relevant psychological evidence that impacted the Appellant's decision-making abilities. The Appellant is not submitting any new evidence for the purpose of her appeal and is not asking for a hearing. RAD Analysis of the Merits of the Appeal [11] In reaching my decision, I have taken into consideration the Chairperson's Guideline 9: Proceeding before the IRB involving Sexual Orientation and Gender Identity and Expression (SOGIE).4 This Guideline underscores specific challenges that may be faced by a claimant before the Board with respect to issues of sexual orientation, gender identity and expression. [12] The RPD panel noted in his decision that he was alert and sensitive to the SOGIE Guidelines, and after a review of the audio recording of the hearing and the decision, I agree. The panel was sensitive and respectful to the Appellant's needs in the hearing room, and in his questioning. In the panel's decision, they noted why the findings were made taking the Guidelines into consideration. [13] For the following reasons, I find that the RPD erred in its determination and that the decision cannot be upheld. The Appellant has alleged a number of errors with the decision; I do not agree with her position on all of these. The Appellant submits that the RPD made unreasonable credibility findings and failed to take into account reasonable explanations that she supplied when confronted by the panel with its credibility concerns. After an independent review of the Record, I agree with the RPD that the delay in claim was significant, but not significant enough to be determinative in this case. I do not agree with all the credibility findings of the panel and find that what remains cannot support the negative determination of the Appellant's refugee claim. Delay in Claim [14] The Appellant argues that the panel's finding regarding delay was unreasonable. After a review of the Record, I disagree. The RPD found that the Appellant's delay in making a refugee claim in Canada was unexplained and the panel took a negative credibility inference from the nearly five-year delay. As indicated by the RPD, delay in filing a claim for refugee protection is generally not a determinative factor. However, the delay itself "may become a determinative factor" when a claimant fails to provide a reasonable explanation for the delay itself. The courts have recognized this type of delay as important factor in assessing a claimant's credibility and their subjective fear. The courts have found that it is reasonable to assume that a claimant with a well-founded fear of persecution in his or her native country will attempt to apply for refugee protection in Canada without unreasonable delay. [15] The Appellant testified that she left St. Vincent in XXXX of 2012. Her plan was to come to Canada and "cool off" for a couple months. She planned to stay with her friend XXXX. During her time in Canada, the Appellant found out the government had instituted visa requirements for visitors from St. Vincent. The Appellant worried if she left and returned to the hostile environment, she would not be able to return to Canada. She also lost her passport and return ticket. [16] The Appellant testified that she left St. Vincent because of a hostile environment where rumors of her sexuality had been started. She also alleged that she was assaulted by her boyfriend GP and was hospitalized after a vicious assault. The Appellant testified that if she believed if she returned to her home country, these acts would continue. [17] The Appellant has provided a psychological assessment from XXXX XXXX, a registered psychotherapist. Ms. XXXX notes that the Appellant "presents with symptoms consistent with XXXX XXXX that could intensify under increased strain."5 The author notes that the Appellant's "coping skills are undermined by several factors including that loss (of her mother); her own relative youth; a dearth of practical or emotional support; and the ongoing instability resulting from her lack of permanent status in Canada."6 [18] I accept that Ms. XXXX has met with the Appellant and has assessed her psychological state based on the information provided to her in that interview. I also accept that the Appellant has XXXX XXXX, and she may have faced challenges in testifying at her hearing; I have taken that into account when assessing her evidence. [19] After an independent review of the record and an audio recording of the hearing, I agree with the RPD that the Appellant's delay in claim in this case is significant and indicates a lack of subjective fear. The Appellant has argued that her adjustment disorder can cause a conscious/unconscious or involuntary avoidance of revealing to others details of her life that make her vulnerable. The Appellant also argues that she was young when she arrived in Canada at 19 and did not know about the ability to make a refugee claim based on sexual orientation. She lost her passport and return ticket, ultimately reporting the passport missing to the Consulate where it was replaced. The Appellant outlined a series of difficult events here in Canada, including an assault by her friend Kenisha's mother's boyfriend, insecure housing, and employment. [20] While I agree that the experiences of the Appellant since coming to Canada have been difficult and that she has some psychological challenges, I do not find that these adequately explain her refusal to investigate how to normalize her status in Canada. The Appellant not only waited almost five years to make a claim for protection, but she also failed to make any attempt to try and normalize her status. Even if the Appellant did not want to disclose her sexuality to anyone, which could be part of her XXXX XXXX, she did not ask about how to secure a work permit or how to apply for status after the birth of her son. [21] The Appellant provided testimony that friends and family in St. Vincent had told her that she would be denied entry to Canada if officials at the airport did not believe she was a genuine visitor. She also noted that during her stay in Canada she became aware that the Canadian government had made visitor visa requirements for citizens of St. Vincent, so she became hesitant to leave Canada, worried she would return to the hostile environment in St. Vincent and not be permitted to return to Canada again. [22] The Courts have found that a delay in seeking protection is not always fatal. However, in this case, the Appellant has failed to advance a satisfactory explanation as to why she failed to claim refugee protection for almost five years. While the Appellant argues that she did not want to engage the assistance of others, I find she has rendered herself vulnerable during her time in Canada. I do note that Ms. XXXX has noted that the Appellant has relied on others for items such as diapers, on her landlord for alternative housing until she could secure funds for rent,7 and she engaged the St.Vincent Consulate when she lost her passport. [23] This delay in making a claim is not reasonably explained. The Appellant testified she was fearful to return to St. Vincent, believing she would not be able to return to Canada. She indicated that this fear continued, but she never spoke to anyone about normalizing her status. The Appellant knew she was not in status, risking removal for almost five years before she was put in touch with the XXXX XXXX XXXX and secured counsel. [24] I find that the panel was not unreasonable for drawing a negative credibility inference regarding the Appellant's subjective fear in St. Vincent, and her failure to apply for protection after a reasonable period of time in Canada. The delay in this case was almost five years and its significant considering the circumstances under which the Appellant alleges to have left St. Vincent. The delay itself in this case is significant enough that it could be determinative in and of itself. If the Appellant's fear was genuine, it would have been reasonable for her to have made a claim for protection when he arrived in Canada, or reasonably soon thereafter, and not wait for five years. I draw a negative credibility inference from the Appellant's delay in claiming in Canada and it undermines the central allegation of her claim. However, this finding alone cannot support a negative determination in this case. Evidence about XXXX [25] The Appellant argues that the RPD's credibility findings were unreasonable. After an independent review of the evidence, I agree. The Appellant alleged in her narrative and testified at her hearing that she engaged in a romantic relationship with a XXXX XXXX. The Appellant filed a corroborating letter of support from XXXX as evidence of their relationship. However, in the document XXXX identifies herself as "XXXX XXXX."8 [26] The Appellant was asked by the panel why she referred to her ex-partner as XXXX XXXX, if her name is XXXX XXXX. The Appellant said that she may have used the name XXXX because her mother was probably married, and she was using her stepfather's last name. She testified that she did not know XXXX to use the last name XXXX. [27] The RPD made a negative credibility inference relating to the Appellant's inability to explain why her alleged ex-girlfriend was using a different last name. After a review of the record, I agree with the Appellant that the RPD failed to take into consideration of other pieces of documentary evidence that supported the Appellant's testimony that XXXX used both surnames in her social media accounts. [28] The Appellant has provided testimony and documentary evidence that establishes that she was aware that XXXX used two surnames on her social media, although she was unaware as to the reason why. I find that it was an error to make a negative credibility inference on this issue without assessing the documentary evidence supporting the use of the two surnames. I also find that the RPD incorrectly focused on what the supporting letter failed to state, instead of what it did corroborate: that the women were once in a romantic relationship. I find that the negative credibility finding of the panel cannot be supported and that this corroborating document, along with the Appellant's testimony about the couple's relationship, establishes on a balance of probabilities that she and XXXX were in a romantic relationship. Failure to Provide Corroborative Documents [29] The Appellant alleged that she was assaulted and hospitalized in XXXX of 2011 in St. Vincent. She testified that the XXXX XXXX XXXX XXXX XXXX XXXX and that she reported the matter to police. When asked if she had provided a police report, the Appellant answered in the affirmative. [30] After a review of the Record, I agree that the Appellant has not provided a police report, but instead a "Report of Injury form Replaces Medical Examination" from the XXXX XXXX XXXX XXXX and XXXX XXXX XXXX.9 This document outlines that the Appellant was 'XXXX XXXX XXXX XXXX on XXXX XXXX, 2011, but does not indicate any other details of the attack. I agree with the RPD that this document is not a police occurrence report. When asked why she did not have a police report, the Appellant testified that she believed that what she had was the report, so she did not contact the police service. [31] After an independent review of the record, I find that the Appellant provided a reasonable explanation for why she did not provide further police documents. The Appellant testified that she believed the document she had obtained from the police was an occurrence report. I note that the document appears to be issued by the XXXX XXXX XXXX XXXX XXXX XXXX XXXX and it details an assault on the date the Appellant states was the day she was attacked. [32] The Appellant provided a number of supporting statements that support her evidence about her allegations, and I find it was an error to not properly weigh them in relation to the analysis relating to the Appellant's allegations of assault and relationship history. After a review of the Appellant's testimony, which is presumed to be true, and the documentary evidence provided, I find that the Appellant has provided sufficient evidence to establish on a balance of probabilities that she was involved in a relationship with a woman in St. Vincent and did approach the authorities to make a report of her assault. Other Supporting Documents [33] I note that the Appellant did provide documents and photos to establish that she attended the XXXX XXXX XXXX for XXXX months from XXXX to XXXX of 2017,10 and volunteered at Pride in that same Summer.11 The Appellant has also provided letters of support from a few friends.12 Summary [34] The RPD made negative credibility findings, which I have overturned, and which go to the core of the decision. Accordingly, I cannot confirm the decision of the RPD. After an independent review of the record and the Appellant's testimony, I find that she has established her profile as a bisexual woman who is at risk if she were to return to St. Vincent. Homosexuality is illegal in St. Vincent,13 and considering the size of the home country, I find that the Appellant does not have a viable Internal Flight Alternative (IFA) as she is at risk throughout St. Vincent. CONCLUSION [35] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention Refugee. (signed) Kimberley Foreman Kimberley Foreman April 16, 2021 Date 1 Exhibit RPD-1, RPD Record, Exhibit 2, pp. 23-27. 2 Ibid., pp. 28-37. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective Date: 1 May 2017. 5 Exhibit RPD-1, RPD Record, Exhibit 4, p. 148. 6 Ibid., p. 150. 7 Ibid., p. 149. 8 Ibid., p. 160. 9 Ibid., Exhibit 6, p. 70. 10 Ibid., Exhibit 8, p. 62. 11 Ibid., Exhibit 6, pp. 72-76. 12 Ibid., Exhibit 4, pp. 156-161. 13 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for St. Vincent and the Grenadines, March 29, 2019, item 6.1. Immigration and Refugee Board of Canada, Response to Information Request, VCT105354.E. December 1, 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-09707 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