TB8-28853

RAD File / Dossier de la SAR : TB8-28853 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision July 31, 2020 Date de la décision Panel Pamela Arnott Tribunal Counsel for the persons who are the subject of the appeal Teklemichael A. Sahlemariam Conseil des personnes 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 Kenya who fears harm and forced female genital circumcision (FGM) from her grandmother. She alleges that she has been pressured to undergo FGM by her grandmother since 2004 and that that she was physically and sexually assaulted by people sent by her grandmother. In XXXX 2018, she fled to Canada. The RPD rejected her claim due to concerns about her credibility. I agree that determinative issue is credibility. DECISION [2] 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. BACKGROUND [3] Ms. XXXX testified that her grandmother began to pressure her to undergo FGM after she finished secondary school in 2004. She fled to another city to live with her aunt in 2004. In 2008, she moved to XXXX for 10 months and in 2014, to XXXX for 13 months. She returned to Kenya in 2015 where her grandmother resumed her pressure. Ms. XXXX joined feminist and anti-FGM advocacy groups, beginning in 2015, and was appointed to XXXX XXXX XXXX XXXX XXXX XXXX. She testified that she was assaulted by men sent by her grandmother in XXXX 2016 and XXXX 2017. Ms. XXXX obtained a visa to Canada and arrived in XXXX 2018. The RPD rejected her claim for refugee protection due to credibility concerns about her testimony and her supporting documents. [4] The Appellant has submitted no new evidence and does not seek an oral hearing. ANALYSIS [5] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The Appellant argues that the RPD erred in: a. Failing to apply the Gender Guideline; b. Failing to consider the psychological report; c. Failing to consider the totality of the evidence; d. Making erroneous findings about the veracity of her documents for the attacks in 2016 and 2017. [6] I will address each of these in turn. Gender Guideline [7] The Appellant argues that the RPD did not consider the Chairperson's Gender Guideline2 in their analysis. The Guideline clearly sets out that female genital mutilation and sexual violence are gender-based forms of persecution. The Guideline indicates that IRB members must consider whether claimants who have suffered sexual violence exhibit a pattern of symptoms known as Rape Trauma Syndrome3 and how these symptoms affect the gendered aspects of the alleged harm and in reviewing the evidence. There is no question that the Guideline applies: the violence suffered by the Appellant is gender-based violence. I have considered the special problems set out in the Guideline in assessing the evidence from the Appellant, such as a reluctance to relate evidence due to cultural norms or patterns of symptoms related to various forms of post-traumatic stress disorder. Having reviewed the transcripts and the audio recording, I find that the member was sensitive in her questioning of the Appellant, such as rephrasing questions4, asking open-ended questions5, adopting a tone consistent with the Appellant's tone6, handling corrections to the App's narratives throughout the hearing,7 asking for information about the assaults without asking about what happened during the assaults8 and adjourning the hearing when the Appellant was tired9. [8] On the basis of the totality of the evidence, I find that there is insufficient evidence that the trauma suffered by Appellant affected her testimony and explains the inconsistencies in her testimony. While the Gender Guideline aims to dispel misconceptions and cultural misunderstandings, it is not a cure for all testimony that is not credible. Psychological Report [9] The Appellants argue that the RPD erred in not considering the psychological report10 in making its credibility findings. I agree that the RPD does not show adequate consideration of the psychological report particularly given the number of questions about the timing of various events. However, I find that I can remedy that error by conducting my own assessment of the report. I find, on a balance of probabilities, that the mental health conditions of Ms. XXXX are not the reason behind her inability to provide coherent evidence. [10] I have considered whether the lapses and contradictions in the evidence might have been related to XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX11 described in the psychological report of XXXX XXXX XXXX. The report is described as a psychosocial evaluation and was completed on XXXX XXXX, 2018, in Ontario. The report indicates that Ms. XXXX suffers from XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX based on a standardized psychometric assessment. One of the authors is a registered psychotherapist and is able to make a diagnosis. I am also guided by Gender Guideline12 which notes that women who have been victims of sexual assault and are suffering from XXXX may have difficulties with memory or concentration. [11] After conducting an independent analysis of the report, I find, on a balance of probabilities, that the symptoms mentioned in the report are not the explanation for Ms. XXXX's testimony. In reviewing the audio evidence, it was clear to me that the difficulties experienced by Ms. XXXX did not stop her from delivering her evidence. Ms. XXXX is a well-spoken woman who had counsel during the hearing. She did not give the impression that she was reluctant to testify or unable to testify due to her health. She indicated when she was feeling confused and unclear. Her testimony evolved throughout the hearing on the points of her movements after the assaults and the discrepancies in the documents, to give two examples. The RPD gave Ms. XXXX multiple opportunities to try to explain her evidence. I also note that the Appellant did not point to specific areas or examples in her testimony where she was unable to present her best evidence due to her mental conditions. Unfortunately, even if Ms. XXXX's mental health issues affected her testimony, I find and agree with the RPD that these mental health issues do not remedy the gaps in the documentary evidence, such as a. why the hospital reports show different dates and times between reports; b. Why does the hospital report indicate that the Appellant was admitted in the morning; c. Why the police report had its text written around the stamp; d. Why the official stamp of an hospital misspells the name of the hospital. [12] I find, on a balance of probabilities, that Ms. XXXX's mental health conditions are not the reason behind her inability to provide credible evidence. [13] I note that Ms. XXXX is a well-educated woman who has a XXXX XXXX XXXX XXXX XXXX worked in several different industries (including XXXX XXXX XXXX), lived in two countries outside of Kenya and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX It is also clear that a substantial body of evidence and submissions has been provided by the Appellant. I do not find that Ms. XXXX was unable to present her best case for any reasons related to her health. Documentary Evidence [14] The Appellant argues that the RPD erred by focusing on small inconsistencies and omissions in her documents and narrative. The Appellant argues that the RPD erred in its findings about the veracity of supporting documents by making a microscopic analysis of the documents and without undertaking a forensic analysis of these documents. I will address each of these arguments in turn. At the outset, I want to clarify that none of these issues are determinative as a single issue. The inconsistencies and discrepancies noted on the documents are cumulative - when taken as a group, they lead to the conclusion that the documents are not genuine. After considering the totality of the evidence, I find, on a balance of probabilities, that the Appellant has not provided sufficient credible evidence of her claim. a. 2016 Hospital Records [15] The Appellant argues that the RPD erred in basing its decision about the events of XXXX 2016 based on microscopic details such as the misspelling of the hospital name in a stamp on the medical report, on the differences in the stamps on the medical report and the invoice, on inconsistencies in the dates and time of admission between the medical invoice and invoice and the layout of the text in relation to the stamp. The Appellant submits that all of these inconsistencies can be explained by human error and by the country conditions in Kenya. With respect, I disagree. The Appellant indicated that the assault occurred on the night of XXXX XXXX, 2016: the medical report and the invoice each had different dates and times. In my opinion, human error and country conditions do not explain why two different departments in the same hospital would have different dates and times nor why the documents (allegedly from the same institution) bear the name of different hospitals nor why the text is written around the stamp. I also note that these documents were purported to come from one of the large cities in Kenya : this is not a rural or remote area where an argument about country conditions would be more compelling. [16] I also do not agree that an official stamp for the hospital would misspell the hospital's name. English is an official language of Kenya. While the Appellant is correct to note that the decision in Kamiak13 relied on a forensic analysis (which is not available in this case), I find that the RPD was right to conclude that a stamp on the face of a document is a printed imitation of a security feature. The Court wrote in Kamiak "the purpose of a seal is to prove the authenticity of a document".14 The fact that the stamp misspelled the name of the hospital affects the veracity of the document. The additional fact that the text on one hospital report is written around the stamp affects the veracity of the document. b. 2017 Hospital Report, Medical Invoices and Police Report [17] The Appellant makes many of the same arguments about the 2017 medical report, medical invoices and police report: the RPD erred by focusing on microscopic details such as the dates of the follow-up and discharge, the layout of the stamp relative to the text, the quality of the imprint of the seal. I agree with the Appellant that if the RPD was to focus on one of these things, their decision would be microscopic and unfair. However, after reviewing the RPD decision, I find that the RPD considered the totality of the documents and made cumulative findings. [18] I find that the 2017 police report suffers from the same discrepancies as seen in the 2016 documents, for example the text is written around the stamp. In my view, this layout allows me to conclude, on a balance of probabilities, that the text was written after the stamp was affixed. The RPD notes, and I agree, with the conclusions that can reasonably be drawn from the problems with the stamp.15 [19] The Appellant argues that the RPD based its conclusions on the difference between the date of admission and the date of discharge. I will note, first of all, that the Appellant is also providing a new explanation which could have been provided at the hearing. The Federal Court has clarified that the purpose of a RAD hearing is not to relitigate questions16. Having reviewed the RPD decision, I find that the RPD made its finding on the cumulative effect of the differences between the dates of admission and discharge between the medical invoice and the report, as well as on the different names of the hospital between the medical report and the medical invoice. I agree with the RPD conclusions17 that there are too many inconsistencies to be explained by typos, as argued by the Appellant. Even accepting that the Appellant may have difficulty in recalling dates due to her psychological conditions, the different names on the medical invoice and medical report have not been explained. [20] In regards to the quality of the printing of the seal and whether it was stamped or printed, the Appellant acknowledges that there is no obligation to undertake a forensic analysis of the documents.18 In my opinion, sending the document for verification would not have been necessary as there are multiple indicators that the documents were not genuine. These indicators were outlined by the RPD19 and have been noted above. On a balance of probabilities, I am satisfied that the police report and medical documents are not genuine. c. Supporting Documents [21] The Appellants allege that the RPD didn't adequately consider the supporting evidence20 and didn't explain why it assigned low weight to this evidence. The RPD's decision considers the Federal Court's guidance about the probity of untested testimony from family and friends and agrees that these affidavits corroborate several key points of the Appellant's testimony before giving them low weight.21 I have conducted an independent analysis of the two affidavits in question. While I agree with the Appellant that self-serving documentation cannot be disregarded simply on the basis that it is self-serving22, I find that these documents were appropriately given low weight. For example, the mother's and family friend's affidavits make several statements of fact which are at odds with the Appellant's narrative. Specifically, that the Appellant went into hiding in XXXX and XXXX in 201623, that this hiding was related to an attack which occurred in 201724, that the assailants in 2016 were from the XXXX sect25, that the Appellant rented a room in XXXX.26 I find, on a balance of probabilities, that the affidavits have low weight in proving the Appellant's claim. [22] Similarly, the Appellant argues that the RPD erred in discounting the letters from two non-governmental organizations and the XXXX XXXX XXXX XXXX XXXX XXXX27. The Appellant asserts that these letters are at the heart of her claim. I have conducted an independent analysis of the three letters in question. While I agree with the Appellant that documents supporting the foundation of a claim cannot be discounted without explanation28, I find that these documents are not at the foundation of her claim nor that these documents prove her allegations. Specifically, in regards to the letter from XXXX XXXX XXXX XXXX, the letter relates the account provided by the Appellant. There was no analysis, investigation or independent assessment made by the XXXX XXXX XXXX XXXX. The letters from non-governmental organizations provide their missions and indicate that the Appellant was a member or employee. They do not prove any of the allegations of pressure or harm to the Appellant. As the RPD noted, the letter from the XXXX XXXX XXXX is notable for its nonsensical text even though it was written by an English speaker in one of the official languages of Kenya. I find, on a balance of probabilities, that the letters from non-governmental organizations and the XXXX XXXX XXXX XXXX XXXX XXXX have low weight in proving the Appellant's claim. [23] On a balance of probabilities, I find that these supporting documents do not remedy the gaps and inconsistencies in the evidence of the Appellant. Overall Credibility [24] The Appellant argues that the RPD erred by focusing on small inconsistencies and omissions in her documents and narrative. As the Appellant has proved arguments on specific and detailed aspects of her evidence and the RPD's findings, I have addressed those specific and detailed points. However, having reviewed the entirety of the evidence including the transcript, the audio hearing, the RPD record and the Appellant's record, I agree with the RPD that the Appellant has provided insufficient credible evidence of her claim. As my colleague has noted, "Credibility is a component in weighting evidence while issues are the elements for establishing a claim. Evidence is the vehicle, though, which the elements of a claim are proved or not. Evidence is weighed based on probative value and reliability /credibility."29 The cumulative issues in this case amounted to the RPD doubting the major aspects of her allegations: has she been pressured since 2004 to undergo FGM, was she violently assaulted to pressure her to undergo FGM, did she flee to other Kenyan towns and outside of Kenya to escape the pressure? [25] I have made my decision based on the factors above. However, I have noted a number of other inconsistencies in the Appellant's evidence which affect her credibility. These additional inconsistencies support my conclusion that the Appellant is not credible in her evidence. First, I note that the Appellant lived outside of Kenya on two occasions during the period when she was being subjected to pressure and harassment from her grandmother. While not determinative, I find that her failure to claim refugee protection on these two occasions affects her credibility. Similarly, while not determinative, there were multiple inconsistencies in the interviews that Ms. XXXX XXXX had upon her entry to Canada, including that she was travelling in order to purchase goods for resale in Kenya, that she was seeking employment as a XXXX, that she was seeking asylum, that she was heading to Alberta, that she intended to stay in Toronto, etc. The RPD was also correct to note that the submission of non-genuine documents affects the credibility of the Appellant. Finally, while not determinative, it is not credible that the Appellant would leave her daughter, aged 10 years old, in the care of her mother. The Appellant has alleged that her mother was unable to protect Ms. XXXX and that the grandmother has threatened the mother with eviction in the past: in my view, it is not credible, on a balance of probabilities, that the Appellant would leave her daughter in the same dangerous situation which is the basis for her claim for refugee protection. CONCLUSION [26] I thank counsel for their excellent submissions in support of the Appellant. [27] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither Convention refugees nor persons in need of protection. (signed) Pamela Arnott Pamela Arnott July 31 2020 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution. Issued November 13, 1996, pursuant to section 65(3) of the Immigration and Refugee Protection Act. 3 Ibid in section D and footnote 30. 4 RPD-1, Transcript at p. 12, 19. 5 RPD-1, Transcript at p. 22-23 6 See for example RPD-1, Audio recording at 29:15, 31:00, 7 RPD-1, Transcript at p. 18-20. 8 RPD-1, Transcript at p. 51-54. 9 RPD-1, Transcript at p. 62. 10 RPD-1, Exhibit 5 "Report of XXXX" DF Psychological Services (March 7, 2018). 11 Ibid at p. 6-7. 12 Supra, note 2. 13 Kamiak v. Canada (Minister of Citizenship and Immigration) 205 FC 1655. 14 Ibid at para . 15 RPD Reasons for Decision at para 14. 16 Marin v. Canada (Citizenship and Immigration) 2016 FC 847 at para 27-28. See also Singh v. Canada (Citizenship and Immigration) 96. 17 RPD Reasons for Decision at paras 11 and 12. 18 P-2, Appellant's Memoranda at para 13. 19 RPD-1, Reasons for Decision at paras 11-15. 20 RPD-1, Exhibit 5, Affidavit of XXXX (17 June 2018) and Affidavit of XXXX (17 June 2018). 21 RPD-1, Reasons for Decision at para 29. 22 P-1, Appellant's Memoranda at para 38. 23 The Appellant has different reasons and timing in her narrative. 24 The Appellant could not have travelled in 2016 in fear of an event which happened in 2017. 25 This sect is not mentioned by the Appellant. 26 The Appellant indicates that she stayed secretly with a friend in 2016 and that she rented in Ngara not in Nairobi. 27 RPD-1, Exhibit 5, "Letter from XXXX" (9 April 2015), "Letter from XXXX (11 December 2016), Letter from XXXX (3 March 2017) 28 P-1, Appellant's Memoranda at para 40. 29 Re X, 2019 CanLII 120767. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-28853 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