TB9-12868

RAD File / Dossier de la SAR : TB9-12868 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 July 31, 2020 Date de la décision Panel Madeleine Schwarz Tribunal Counsel for the person who is the subject of the appeal Ronald Ramkissoon 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 (Appellant), citizen of Jamaica, appeals a decision of the Refugee Protection Division (RPD) dated April 25, 2019, dismissing her claim for protection. [2] The Appellant came to Canada on November 23, 2012, and was authorized to remain in Canada as temporary foreign worker until spring 2016. On November 10, 2017, the Appellant and her sister were detained by Canadian Border Service Agency (CBSA) officials at Niagara Falls for suspicious conduct after exiting a car heading to the United States (U.S.) on Rainbow Bridge. The Appellant and her sister claimed refugee protection on that day. They both allege a history of domestic violence perpetrated by their ex-common-law partners in Jamaica. Both claims were rejected by the RPD. The sister filed a separate appeal on May 23, 2019. [3] The Appellant fears persecution on the basis of gender from her former common-law partner, who is also the father of her son. [4] The RPD dismissed the Appellant's claim after finding that: (i) the Appellant had not established, on a balance of probabilities, that she was involved in an abusive common-law relationship with XXXX; and (ii) her delay in claiming refugee protection was indicative of a lack of subjective fear. [5] The Refugee Appeal Division (RAD) dismisses the appeal and confirms the decision of the RPD. NEW EVIDENCE [6] The Appellant seeks to admit the Birth Registration Form of her son. [7] Under subsection 110(4) of Immigration and Refugee Protection Act (IRPA)1, I can only accept evidence that: (i) arose after the RPD decision; or (ii) was not reasonably available at the time of the rejection of the claim; or (iii) could not reasonably have been expected in the circumstances to be brought to the RPD before the rejection of the claim. I find the proposed new evidence does not meet the parameters of subsection 110(4). [8] The Birth Registration Form indicates that the Appellant's son was born on XXXX XXXX, 20092 to the Appellant and her ex-common-law partner in XXXX XXXX XXXX, Jamaica. In her testimony before the RPD, the Appellant explained that the birth certificate was available, but she did not produce it before or during the hearing. In her affidavit to support her appeal and the admission of new evidence, the Appellant notes that she explained about the problems obtaining a birth certificate from her son.3 During the hearing, the Appellant explained that she had requested an amended birth certificate because her son's name was spelt incorrectly. She indicated that she had a copy of the amended birth certificate on her phone and was invited by the RPD member to submit it post hearing. She testified that the amended birth certificate included her son's name and indicated that her ex-common-law partner was the father. [9] I reject the admission of the Birth Registration Form. It is evidence that existed prior to the RPD decision and was readily available to the Appellant, as a copy of it was on her phone. The Appellant has offered no reason for why she did not comply with the RPD invitation to submit the birth certificate, or a copy of it, post hearing and before the decision was made. [10] While I reject the admission of the birth certificate, I accept the Appellant's testimony that her ex-common-law partner is the father of her son. [11] As there is no new evidence to consider, I have no discretion to hold an oral hearing. ANALYSIS [12] The Appellant submits that the RPD findings were not reasonable. More specifically, she argues that the RPD erred in its assessment of the well-foundedness of the persecution, and erred in finding delay indicating a lack of subjective fear. [13] The role of the RAD is to carry out an independent assessment of the RPD record to determine if the RPD erred in law or fact, or mixed law and fact. The standard of review for the RAD is one of correctness.4 In coming to my decision, I have reviewed the RPD and the Appellant's Record, including all arguments advanced by the Appellants. [14] As the allegation is one of domestic violence, I have paid particular attention to the Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution5 in assessing the Appellant's credibility and when making my conclusions. (i) Well-founded fear of persecution [15] I find the RPD did not err in finding the Appellant failed to establish, on a balance of probabilities, that she was involved in a common-law relationship with XXXX in Jamaica during which she was subjected to domestic violence. [16] There are a number of issues that raise concern regarding the credibility of the Appellant and her allegation that she was in an abusive, common-law relationship with XXXX between 2009 to 2012. [17] First, the Appellant provided contradictory information concerning her relationship status to Canadian authorities on two occasions. In her application to extend her temporary work permit, the Appellant answered "no" to the question "have you ever been married or in a common-law relationship" on the application form.6 [18] On November 10, 2017, the Appellant made a refugee claim after she was detained by CBSA officers at Niagara Falls. During her interview, the CBSA officer asked: "Have you ever previously been married or lived in a common-law partnership." The Appellant again replied "no".7 [19] At the end of her interview with the CBSA officer, the Appellant confirmed that she understood the questions that were asked and that all her answers were true and accurate.8 [20] During the hearing, the RPD Member asked the Appellant why she did not answer yes to a question asking if she had been in a common-law relationship. The Appellant was unable to explain why she indicated that she had not been in a common-law relationship during her interview. I find her failure to explain why she did not mention that she had been in a common-law relationship to Canadian authorities casts significant doubt on her overall credibility. These were yes or no questions that did not require her to provide detail on the relationship. [21] Second, when asked why she was seeking Canada's protection, the Appellant stated: "I just really don't want to go back to Jamaica, because of the crime rate and I am really scared."9 [22] The RPD asked the Appellant to explain why she had not mentioned that it was her ex-common-law partner whom she feared during her CBSA interview. The Appellant replied that this was because she was so scared and because she did not know what to say. [23] I am mindful that victims of domestic and gender-based violence may be reluctant to speak about the circumstances of their abusive relationship and the violence they endured.10 They may be afraid of the consequences if the abuser finds out they reported the abuse, or they may find it difficult to share details.11 This can, at times, explain why certain information about the abuser and the abuse may be omitted or contradicted in early statements, or as argued by the Appellant, peripheral details may be left out because of post-traumatic stress and a clouded memory.12 [24] However, a victim's fear or reluctance to speak about the trauma she experienced is quite different to the Appellant's failure to tell Canadian authorities that she had been in a common-law relationship in the past on two occasions that did not require at the time the disclosure of any difficult details about any alleged abuse. [25] When asked what or who she feared by the CBSA, the Appellant indicated that she did not want to go back to Jamaica as the crime rate is bad and she was really scared. I note that the Appellant has a high school education and was informed by the CBSA that she could make a refugee claim. She had been away from her ex-common-law partner and in Canada for three years already. While the Appellant may have been reluctant to share intimate details of abuse, it is reasonable to expect that at the time she was interviewed by the CBSA at Niagara Falls, the Appellant would have been able to explain, at a minimum, that she was scared of her ex-partner in particular, and not Jamaica's crime rate in general. [26] Her common-law status and her fear of her ex-partner are critical elements of her claim. I find the Appellant has failed to reasonably explain her contradictions and omissions on these two key issues. I find that the Gender Guidelines do not assist in explaining the Appellant's contradictory answers concerning her common-law relationship and her failure to indicate that it was her ex-partner she feared during her initial interview with the CBSA, which occurred three years after she had been in Canada. I find the Appellant's failure to sufficiently explain these contradictions and omissions brings her credibility about her fear into doubt. [27] I find the documents the Appellant has submitted fail to provide support for her claim. [28] The Appellant testified that her ex-common-law partner is the father of her son. I accept her testimony. However, this fact does not provide independent corroboration that her ex-common-law partner abused her for years. [29] The Appellant testified that she reported her ex-partner's abuse to two police stations in Jamaica. In her Basis of Claim (BOC), she indicates that she went to the XXXX Police Station following violence by her ex-partner in August 2012.13 However, the Appellant submitted letters to the RPD that she and her counsel wrote to the XXXX Police Station requesting a copy of the police report she made in late October 2011.14 [30] In her BOC, she indicates that she reported violence by her ex-partner to the XXXX XXXX Police Station in late 2011.15 However, she submitted letters to the XXXX Police Station, XXXX XXXX, requesting records on the reports she made in August or September 2012.16 [31] The Appellant testified that she did not receive a reply from either police station. Given that she provided inconsistent and vague dates on when and where she reported the violence, I find the fact that she has written to the police stations requesting reports is, on its own, insufficient to corroborate her allegation that she reported her ex-partner's violence to the police. (ii) Delay [32] Delay in making a refugee claim is a factor to consider when assessing the merits of a refugee claim. Delay can indicate a lack of subjective fear, but is not determinative.17 I find the delay of approximately five years between the Appellant's arrival in Canada in 2012, and the filing of a refugee claim in 2017, indicates a lack of subjective fear. [33] The Appellant had no intention of making a refugee claim until she was detained by the CBSA on November 10, 2017, after she exited a friend's car making a wrong turn on Rainbow Bridge. Prior to that date, she had not made any inquiries into the refugee process, even though she would have had contact with Citizenship and Immigration Canada regarding her work permit and her application to extend it. When asked why she did not make a refugee claim after her work permit expired, the Appellant said she did not know that she could. [34] Even once detained, the Appellant did not claim refugee protection because she feared further violence from her ex-partner. She claimed refugee protection because she did not want to go back to Jamaica as the crime rate is bad and she was scared. [35] I find the RPD did not err in finding the Appellant's delay in making a refugee claim was indicative of a lack of subjective fear. The Appellant was in Canada on a temporary work permit, and living legally in Canada for approximately four years. It is reasonable to expect that she was in contact with, or exposed to Canadians, other individuals in Canada on temporary work permits or individuals seeking refugee protection, or at least would have heard about refugee claims. I find her explanation that she did not know what action to take is not credible, particularly given that she was able to take action to extend her work permit. CONCLUSION [36] As set out in Maldonado, when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true, unless there is a reason to doubt their truthfulness.18 Given the various credibility concerns I have with the Appellant's allegations, I find there is reason to doubt the veracity of the Appellant's allegations and therefore this presumption is rebutted. [37] I find the Appellant has failed to establish a serious possibility of persecution or, on a balance of probabilities, a risk to life, or of cruel or unusual punishment, or a danger of torture, if she is returned to Jamaica. [38] 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, pursuant to paragraph 111(1)(a) of the IRPA. (signed) Madeleine Schwarz Madeleine Schwarz July 31, 2020 Date 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended, at subsection 110(4). 2 Exhibit RPD-1, RPD Record, Exhibit 2, p. 18. I note that in her Basis of Claim, the Appellant indicated that the child was born on August 8, 2009. 3 Exhibit P-2, Appellant's Record, p. 38. 4 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). 5 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, Effective date: November 13, 1996 [Gender Guidelines]. 6 Exhibit RPD-1, RPD Record, RPD Reasons, p. 5, para. 17; see also Exhibit RPD-1, RPD Record, Exhibit 6, p. 142. 7 Exhibit RPD-1, RPD Record, Exhibit 1, p. 60. 8 Ibid., p. 63. 9 Exhibit RPD-1, RPD Record, Exhibit 1, p. 63. 10 Exhibit P-2, Appellant's Record, p. 42, para. 8. 11 Gender Guidelines, supra, endnote 6. 12 Exhibit P-2, Appellant's Record, p. 42, para. 8. 13 Exhibit RPD-1, RPD Record, Exhibit 2, p. 23. 14 Ibid., Exhibit 9, pp. 201-206. 15 Ibid., Exhibit 2, p. 23. 16 Ibid., Exhibit 9, pp. 207-213. 17 Huerta v. Canada (Minister of Employment and Immigration), (1993), 157 N.R. 225 (F.C.A.) 18 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-12868 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