MB9-19772

RAD File No. / No de dossier de la SAR : MB9-19772 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, Ontario Appel instruit / entendu à Date of decision September 4, 2020 Date de la décision Panel Me H. Shepherd Tribunal Counsel for the person who is the subject of the appeal Me Serban Mihai Tismanariu 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 the appeal. The appellant, XXXX XXXX XXXX, is a citizen of Romania. Summary of the Basis of Claim Form [2] According to the initial account in the Basis of Claim Form (BOC Form), dated March 17, 2018, the appellant is seeking a better life in Canada. The appellant submitted a second account a year later, according to which she filed a complaint with the police after being forced to prostitute herself for the mafia. Further to this, she was beaten and her life was threatened. She was able to escape and hide until she left for Canada. Minister's intervention [3] The Minister of the Canada Border Services Agency (CBSA) intervened in the claim on June 4, 2019, on the basis of credibility.1 The Montréal police found the appellant in a XXXX XXXX without an employment authorization. According to the police report, she stated through an interpreter that she worked there of her own free will and that she gave XXXX XXXX. Although at the hearing she denied having said that or that an interpreter had been provided, the Refugee Protection Division (RPD) gave more credence to the police report prepared in the normal course of business. [4] Although the appellant testified that she moved from one house to another from the fall of 2017 until she arrived in Canada in XXXX 2018, her Facebook account was active and contains photographs of her taken in London, England, in XXXX 2017. The Minister submits that the appellant is described under subsection 107(2) of the Immigration and Refugee Protection Act (IRPA) because there is no credible or trustworthy evidence in support of her claim. The Federal Court of Appeal decision in Rahaman is cited as authority.2 Findings of the Refugee Protection Division [5] The determinative issue for the RPD was credibility. It rejected the claim for the following reasons: i) The appellant is not credible. The police found her in an XXXX XXXX XXXX in Montréal. She stated that she was working there of her own free will; ii) The RPD gave no probative value to the psychological report; iii) There was a one-year delay before the amended account was submitted; iv) The appellant did not submit any documents corroborating the XXXX-day hospital stay; v) The posts on the Facebook page contradict the appellant's allegations. Grounds of appeal (summary of arguments) [6] The RPD did not consider that, in the Canadian legal system, individuals who work in the XXXX XXXX are considered victims, regardless of whether this work is [translation] "voluntary"3 or not; [7] The RPD did not analyze the risk the appellant would face, as a XXXX XXXX, if she were to return to Romania where the XXXX XXXX of Romanians is a widespread phenomenon in Europe; [8] The psychological report clearly refers to her XXXX XXXX XXXX XXXX and psychological distress; [9] The new evidence describes human trafficking in Romania. Summary of the Refugee Appeal Division decision [10] The determinative issue on appeal is credibility. The RPD erred in giving no weight to the psychological report and in drawing a negative inference from the failure to set out the full risk in the initial account in the BOC Form. However, the RPD's negative credibility findings are sufficient to conclude that the appellant is not credible. DETERMINATION [11] I dismiss the appeal. The RPD was correct in determining that the appellant is not a Convention refugee or a person in need of protection. NEW EVIDENCE The evidence presented by the appellant is rejected [12] In accordance with the law,4 I can only accept evidence that: i. arose after the RPD rendered its decision; ii. was not reasonably available at the time of the decision; iii. the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was rendered. [13] If the evidence meets one or more of these requirements, I must determine whether the evidence is new, credible and relevant before admitting it.5 [14] The appellant asked that seven new pieces of evidence be admitted: i) Article: "Romanian women are most at risk for sex trafficking," August 1, 2018; ii) Article: "Le combat quotidien des victimes de la prostitution en Roumanie" [the daily struggle of victims of prostitution in Romania], 2017; iii) Article: "US Embassy in Romania, 2019 Trafficking in Persons Report"; iv) Article: "Des Roumaines forcées à se prostituer" [Romanians forced into prostitution], May 21, 2019; v) Article: "As much as a third of Western prostitution workers are Romanian," April 28, 2015; vi) Article: "Sex workers 'are deprived of all freedom,'" November 18, 2012; vii) Article: "Prostitution and Slavery in the EU: Romania's Human Trafficking Problem," October 4, 2018. [15] According to the appellant, the new evidence was available but had not been presented prior to the rejection of the claim, considering the evidence already provided. This evidence supports the evidence in the RPD record. [16] These documents are not admissible because they were available prior to the rejection of the claim and could have reasonably been presented at that time. Second, the appellant did not explain what they add to the documents already in the RPD record. Third, the determinative issue is credibility. ANALYSIS [17] My role is to review all the evidence and determine whether the RPD's decision is correct.6 The Refugee Protection Division erred in assessing the delay in amending the account in the BOC Form [18] The RPD erred in not considering the psychological report and the Immigration and Refugee Board of Canada Chairperson's Guideline 4, drawing a negative inference from the fact that the appellant did not mention her history of XXXX XXXX in her initial account in the BOC Form.7 She testified that she had not done so because she distrusted the authorities and she thought she could raise the matter at the hearing. She was not represented by counsel at the time and she told her story to a third person. This risk was shared with a psychologist in XXXX 2019, and she submitted it after retaining the services of a lawyer. In the circumstances, she provided a reasonable explanation. The Refugee Protection Division erred in giving no weight to the psychological report [19] The RPD erred in giving no weight to the psychological report8 because of its opinion that her work at a XXXX XXXX contradicted the report, according to which her memories of past sexual abuse caused serious mental health issues. The member is not a mental health expert qualified to reject a registered psychologist's diagnosis based on speculation that a person who has been traumatized by forced prostitution in Romania would react the same way when voluntarily working as a XXXX in Montréal. Although the RPD is entitled to challenge underlying statements of fact, it could not reject the diagnosis based on its subjective opinion. Consequently, the RPD failed to assess the report on other grounds and did not provide adequate reasons rejecting it completely. The appellant is not at risk as a XXXX XXXX [20] The submission by appellant's counsel that she is a XXXX XXXX is not supported by the evidence. The appellant testified that she had gone to the XXXX XXXX to meet the owner, but that she was not working there at the time. She initially stated that she had not told the police that she was working there and that she had not had the assistance of an interpreter. Then, she testified that she no longer remembered what she had told the police. Although it was acknowledged that she was there two weeks after arriving in Canada, she denied having actually worked at the XXXX. Counsel's submissions are not consistent with her testimony. If counsel agreed with the RPD that the appellant was likely not being truthful and that she was in fact working as a XXXX XXXX counsel should have stated this. Regardless, the determinative issue is persecution in Romania. She testified that she had never been voluntarily involved in the XXXX XXXX in Romania. The evidence does not support the claim that she would do so voluntarily if she were to return. [21] Counsel submits that the RPD erred in failing to assess XXXX XXXX in light of Canadian case law. However, the issue is the risk in Romania, not Canada. The relevant issue for the RPD was the discrepancy between her work as a XXXX and her negative psychological reactions resulting from previous sexual abuse. The Refugee Protection Division did not err in not giving consideration to a vulnerable person [22] Counsel submits that the psychological report indicates that the appellant is a vulnerable person and that the RPD should have made appropriate accommodations for her. Counsel did not provide any details regarding what the RPD should have done differently. At the hearing, the appellant was represented by counsel, who made submissions regarding the importance of the psychological report in assessing the claim. No vulnerable person application was made and no particular accommodations were requested. The psychological report indicates that she may experience difficulties in stressful situations, including confusion, distraction or panic. Patience, gentleness and understanding are recommended. Upon listening to the recording, the relevant issue is whether the RPD correctly considered the report in assessing credibility and not whether it allegedly failed to provide procedural accommodations, considering the lack of submissions from RPD counsel on this point and the failure to identify a significant issue. The RPD did not err in its treatment of the country documentation [23] Counsel made submissions regarding the nature of the XXXX trade problem in Romania and the lack of state protection. Given the finding that the appellant is not credible and was likely not involved in prostitution in Romania, it did not err in failing to assess these documents. The RPD did not make a finding pursuant to subsection 107(2) of the IRPA [24] Although counsel disagrees with the Minister regarding the applicability of subsection 107(2) of the IRPA,9 the RPD did not make such a finding. According to this provision, the RPD may find that there was no credible evidence on which it could have made a favourable decision. Credibility [25] Rule 11 of the RPD Rules10 requires the claimant to provide corroborating documents or a reasonable explanation for not doing so. Although the appellant alleges that she spent XXXX days in hospital, she did not provide a reasonable explanation for not having obtained a medical report. The RPD considered her explanations at paragraphs 27 to 39 and correctly concluded that they were inadequate. Even if she did not receive the medical reports in the mail as promised, she made no attempts to obtain them after arriving in Canada, despite the fact that she had the help of counsel. [26] According to the amended account, the appellant was able to escape from the agents of persecution and move from one house to another. She never had the courage to return to her parents' home. However, her account was active on Facebook from XXXX XXXX XXXX 2017, to XXXX XXXX XXXX 2018, after she arrived in Canada.11 It contains photographs of herself that she posted in London, England, on XXXX XXXX XXXX 2017. The appellant admitted that she went to London in XXXX 2017 to visit a close friend and that she returned to Romania on XXXX XXXX XXXX 2018. The appellant tried to explain this by stating that the agents of persecution had taken her telephone and posted various photographs and messages on her account before she was able to recover the telephone and post messages on her own. Considering that there is no mention of this in the accounts in the BOC Form and given the personal nature of the messages, this is not a reasonable explanation. [27] The appellant testified that she returned to Romania at the request of her father, who would provide her with an airline ticket for Canada, despite her previous allegation that members of the mafia had assaulted her and were actively looking for her. The psychological report does not explain why she would return to Romania at her father's request if she ran the risk of being found and again subjected to similar treatment that would further traumatize her. [28] Although the psychological report establishes that the appellant suffers from XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX the negative credibility findings and the absence of a reasonable explanation for the lack of evidence in support of the claim lead to the conclusion that the report does not restore her credibility. Although she probably suffered trauma in the past, it is unlikely that it happened in the manner she described. [29] Without a credible account, it is not possible to assess her past experiences in light of the definitions found in sections 96 and 97 of the IRPA. [30] Despite the fact that the RPD committed the errors identified in these reasons, my independent assessment leads me to conclude that the determination of the RPD is correct. CONCLUSION [31] I dismiss the appeal and confirm the determination of the RPD that the appellant is not a Convention refugee or a person in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) H. Shepherd H. Shepherd September 4, 2020 Date IRB translation Original language: French 1 Exhibit SPR-1, Refugee Protection Division (RPD) record, at pp. 148-151. 2 Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89 (CanLII), [2002] 3 FC 537. 3 Exhibit P-2, appellant's record, at p. 3. 4 Immigration and Refugee Protection Act (S.C. 2001, c. 27), at subsection 110(4). 5 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII); see also Raza v. Canada (Citizenship and Immigration), 2007 FC 385 (CanLII). 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII); see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 7 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. Update, Guideline issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act. IRB, Ottawa. Effective November 13, 1996. 8 Exhibit SPR-1, RPD record, Exhibit P-4, at pp. 109-112. 9 Immigration and Refugee Protection Act (S.C. 2001, c. 27), at subsection 107(2). 10 Refugee Protection Division Rules (SOR/2012-256), rule 11. 11 Exhibit SPR-1, RPD record, exhibits M-6 and M-7, at pp. 180- 228. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-19772 RAD.25.02 (January 2020) Disponible en français 9 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