TB5-04485

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 File No. / N° de dossier de la SAR : TB5-04485 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause (a.k.a. XXXX XXXX XXXX XXXX XXXX) Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 8, 2015 Date de la décision Panel Leonard Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard Odeleye Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of St. Vincent, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal and requests an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she has been the victim of repeated sexual assaults by her XXXX in St. Vincent. When the sexual assaults were reported to the police, her XXXX falsely accused her of being a lesbian. She alleges the police refused to act on the allegations of sexual abuse. The Appellant traveled to Canada in April 2012 and overstayed her visitor's visa. In January 2015 she was apprehended by immigration authorities. She told immigration authorities that she feared returning to St. Vincent because a drug gang was after her. She also alleges that she cannot return to St. Vincent because she fears her XXXX and other community members in St. Vincent who perceive her to be lesbian. [4] The Appellant's application for refugee protection was heard on March 24, 2015. In a decision of April 15, 2015 the RPD rejected the claim, finding that the Appellant was not credible. [5] The Appellant submits that the RPD's decision is flawed because it is based on misstatements, misapprehension of the evidence, suspicion and conjectures. The Appellant further argues that the RPD ignored relevant evidence. Role of the RAD [6] The Appellant has not made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [7] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [8] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ORAL HEARING [9] The Appellant requests an oral hearing pursuant to Section 110(6) of the IRPA. [10] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection". [11] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [12] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] The RAD has not submitted new evidence in this appeal. As such, the RAD must proceed without a hearing, and her application for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL Travel to Canada in 2011 [14] The Appellant attempted to enter Canada in May 2011 however, she was denied entry to Canada by immigrations officials and the Appellant returned to St. Vincent. The RPD noted that when questioned by immigration officials about the purpose of her visit to Canada the Appellant stated she was visiting her cousin. When asked if there was any reason she would not return to St. Vincent she stated that there was no reason she could not return. The RPD rejected the Appellant's explanation that she was following the instructions other friends who told her that she would be allowed in if she told immigration authorities that she was visiting her cousin and was a teacher and had a job to return to in St. Vincent. The RPD also rejected the Appellant's second explanation that she was ashamed to disclose the fact that she had been raped by her XXXX. The RPD drew an adverse credibility finding based on the Appellant's failure to disclose that she feared returning to St Vincent. [15] The Appellant submits that the RPD failed to take into consideration the cultural context of women in St. Vincent being treated as devalued women. She argues that she testified that her ex-fiancé put an end to their engagement because he could not live with the fact that his intended wife had been sexually abused and was unwilling to live with the reactions of friends and relations when they learned that she had been sexually abused. The Appellant further argues that the RPD failed to consider the psychologist's report and the gender guidelines. [16] The RAD is not persuaded by the Appellant's argument. The RAD finds that finding in this regard must be considered in the context of the totality of the findings made by the RPD. As noted by the RPD, the Appellant alleged that she had been sexually and physically abused by her XXXX for five years prior to traveling to Canada and that she traveled to Canada to escape her XXXX constant abuse. [17] While it is reasonable to accept that in the first instance that the Appellant would fabricate a false story in an effort to enter Canada because she was embarrassed to disclose repeated sexual abuse by her XXXX, the RAD finds that is equally reasonable to expect that when confronted with the prospect of retuning to St. Vincent that the Appellant would disclose her fear of returning to St. Vincent, particularly in light of her evidence that she returned to the home of her XXXX, whom she alleges is the agent of persecution. Her failure to disclose her alleged persecution under this circumstance undermines the credibility of her allegations in this regard and her subjective fear. [18] Although the Appellant submits that that it is the culture in St. Vincent that women who have suffered sexual abuse are treated as de-valued women, she has not provided any corroborative evidence of that cultural belief being widely held. While it is true that she alleges her fiancé broke off their engagement for this reason, it does not mean that others would react the same way. The RAD has conducted its own review and assessment of the evidence and has not found persuasive evidence that women who have been sexually abused are perceived to have less value in St. Vincent [19] The Appellant submits that the RPD failed to consider the Gender Guidelines and the psychologist's [sic] report. However, the Appellant has not provided any evidence or argument about why she believes that to be the case or how it impacts the RPD's finding in this regard. The RAD notes that the Gender Guidelines3 do not shield the Appellant from having her evidence tested, nor does it entitle her to have her evidence accepted without inquiry. Nonetheless, the RAD finds that the RPD's reasons and the hearing recording indicate that the RPD gave sufficient consideration to both the Gender Guidelines and the report of the psychotherapist [incorrectly referred to as psychologist in the Appellant's Record]. [20] The RAD notes that a review of the record confirms that the RPD Reasons acknowledge the expertise of Ms. XXXX and it does not dispute the clinical impression provided. The RAD finds however that it can give little weight to the psychotherapist report. The assessment consisted of a clinical impression based upon a single 60 -90 minute interview. The RAD further notes that the psychotherapist in her report sets out that her training consisted of three years of education leading to a diploma from a community college. While she may be well-meaning, Ms. XXXX does not have the training or expertise to make medical diagnoses. However Ms. XXXX states her clinical impression is that the Appellant suffers from post-traumatic stress disorder, generalized anxiety and a major depressive disorder. [21] The conclusion reached by psychotherapist XXXX is that treatment and guaranteed freedom from the threat of removal to St. Vincent will result in recovery but offers no explanation of how she has come to this opinion. Without an explanation of the clinical basis on which her opinions were formed, the RAD finds that Ms. XXXX opinions amount to speculation based on what the Appellant has related to her. Furthermore the clinician bases her findings on self-reporting by the Appellant and it does not detail the application of any additional clinical testing.On this basis the RAD finds that it can afford little weight to this report. [22] The Appellant further submits that the RPD erred on this finding because it misconstrued the evidence when it found that in the absence of disclosing her fear of her XXXX she should have at least disclosed her fear of the gang. The Appellant argues that the evidence is clear that at the time of her attempt to enter Canada in 2011 she did not fear the gang because the events which lead her to fear the gang had not yet occurred. The Appellant argues that this error undermined the RPD credibility finding and "poisoned the mind" of the panel member. [23] The RAD is not persuaded by the Appellant's argument in this regard. While it is unfortunate the RPD misconstrued the evidence in this regard, the RAD finds that it does not undermine the RPD's finding with regard to the her failure to claim the protection of Canada at a time when she alleges she feared for her personal safety and security. The Appellant can't have it both ways. It is clear from the evidence in the record that she misled immigration officials when she attempted to come into Canada in 2011. She lied about her education and the fact that she was employed. She also lied about the nature of her relationship with the person she claimed to be visiting in Canada. As previously mentioned, if she truly was escaping persecution in St. Vincent as she has alleged, then those lies should not be held against her. However, failing to seek Canada's protection and reavailing to the country of persecution to continue to live with her alleged abuser significantly undermines her allegation that she was being sexually and physically abused as she has alleged. [24] The RAD finds after its own review and assessment of the evidence that it agrees with the RPD's finding in this regard. Accordingly, the Appellant's argument fails. Did the RPD Fixate on Peripheral and Irrelevant Issues? [25] The Appellant submits that the RPD fixated on peripheral, irrelevant or tangential issues to impugn her credibility. In addition, the Appellant submits that the RPD "exaggerated discrepancies and was overly microscopic in the examination of [her] evidence and also based its decision on implausibilities that were not in the clearest of cases."4 In particular, the Appellant submits that the RPD was "overly vigilant in speculating as to who the Appellant was referring to when she stated that a friend of her mother whom she usually calls XXXX XXXX purchased the ticket for her to come to Canada"5 The Appellant also argues that this finding is extremely tangential to the issue the RPD had to decide. [26] The RAD is not persuaded by the Appellant's argument in this regard. In light of the RPD's finding with regard to the credibility of the Appellant's allegation arising from her 2011 effort to enter Canada, the RAD finds that the Appellant's statement to immigration officials that her XXXX purchased her ticket is highly relevant to the RPD findings with regard to the Appellant's allegation that she was sexually abused by her XXXX. The RPD noted that it was not until after the Minister intervened in the RPD hearing with the evidence that the Appellant had attempted to enter Canada in 2011 under false pretences that the Appellant offered the explanation that it was another person who she referred to as XXXX XXXX XXXX and not the agent of persecution who purchased the ticket for her. The RAD notes that the Appellant was not forthcoming about her attempt to enter Canada in 2011 until the Minister intervened. In context of the totality of the RPD's credibility findings and on the basis of its own review and assessment of the evidence the RAD agrees with the RPD's finding in this regard. Accordingly the Appellant's argument fails. [27] The Appellant further submits that the RPD speculated about the manner in which she was questioned by the Immigration officer when it found that there was insufficient evidence to establish that the manner in which the appellant was question amounted to an interrogation which resulted in the Appellant being intimidated. She argues that as the RPD was not present when the questioning took place the RPD could only speculate about the manner of questioning and the impact it had on her. [28] The RAD is not persuaded by the Appellant's argument in this regard. While it is true that the RPD was not present during the hearing, the RPD did have the benefit of a transcript of the questioning. As noted by the RPD, the questions were short and simple and were to the point. Based on its assessment of the duration of the interview and the nature of the questions, the RPD found that it did not amount to an interrogation. The RAD notes that it is likely that the interview made the Appellant feel uncomfortable given that she was attempting to enter Canada under false pretences. However, the RAD agrees with the RPD there is not enough credible or trustworthy evidence to establish that the immigration officer's questions amounted to an interrogation or resulted in intimidation. [29] The Minister of Citizenship and Immigration Canada ("the Intervenor") intervenes in this appeal with submissions and asks that the RAD dismiss the appeal and uphold the determination of the RPD. Failure to consider the Psychotherapist's Report [30] The Appellant submits that the RPD failed to consider the report of the Psychologist (sic) and to view her testimony and other evidence through the lens of her trauma as documented by the psychologist and that this failure amounts to a reviewable error. [31] The RAD is not persuaded by the Appellant's argument in this regard. As previously dealt with in these reasons, the RAD notes that although the Appellant referred to MsXXXX XXXX as a psychologist, she is in reality a psychotherapist and does not hold any medical degree or certification nor does she have a doctorate in psychology. The RAD has previously found it can give little weight to her assessment of the Appellant. Accordingly, the appellant's argument must fail. Treatment of the Affidavits [32] The Appellant submits that the RPD erred when it did not afford weight to the affidavits she tendered in support of her claim because the affiants were not present and could not be questioned about the contents of their affidavits. The Appellant argues that there is no requirement for her to produce witnesses in person. [33] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the Appellant seems to imply the sole reason the RPD placed little weight on the affidavits was that the affiants were not present to give testimony. However, the RAD notes that the RPD also recognized that the affiants' knowledge of the facts was only based on what the Appellant told them and that the affidavits offered little specific information about what happened to the Appellant in St. Vincent. The RPD further found that the evidence offered by the affidavits could not overcome the totality of its adverse credibility findings. After its own assessment of the evidence in the record, the RAD agrees with the decision of the RPD to place little weight on these affidavits for the same reasons. Delay [34] The appellant submits that the RPD erred in its finding that delay was a determinative issue in this claim. The Appellant argues that it is clear that the RPD rejected her explanation for delay because he had already found her not credible. In doing so, the Appellant argues that the RPD closed its mind to any explanation. The appellant also argues that the RPD ought to have heard all of the evidence before making a global credibility finding. [35] The RAD is not persuaded by the Appellant's argument in this regard. After its own review and assessment of the evidence in the record, in including the recording of the hearing, the RAD agrees with the RPD's findings on delay. Given the extensive delay and the Appellant's failure to provide a reasonable explanation for that delay, the RAD agrees with the RPD that the delay could be considered a determinative issue. In addition, contrary to the Appellant's argument the RPD conducted a thorough and thoughtful assessment of the evidence and carefully considered the Appellant's explanation. The RPD provided numerous reasons to reject the Appellant's explanation and for finding that the Appellant subjective fear and credibility were undermined. [36] The RAD also finds that the appellant's global credibility finding was not only based on the RPD's findings on delay but also on its uncontested findings that the Appellant was not sexually assaulted by her XXXX as she has alleged; her XXXX did not spread rumours about her being a lesbian; that she is not perceived to be lesbian in St. Vincent; and, that she was not threatened by and is not being pursued by gang members in St. Vincent. The Appellant has not established that the RPD failed to consider the evidence in its entirety when making its findings in this regard. [37] The RAD finds that the Appellant's argument in this regard fails. [38] The RPD made many negative credibility findings in respect to the Appellant's refugee claim. The Appellant does not challenge every finding on appeal. The RAD finds that the Appellant has not demonstrated how the alleged errors affect each finding. The RAD finds, after its own review and assessment of the evidence, that the Appellant's argument has not established why the RAD should not recognize and respect the findings of the RPD in this regard. CONCLUSION [39] On the basis of the findings noted above, and after its own assessment of all the evidence in the record, including the recording of the hearing, the RAD agrees with the RPD's finding that the Appellant has not satisfied her burden of establishing a serious possibility that she would be persecuted or that she would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture in St Vincent. [40] The RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection. Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "L. Favreau" Leonard Favreau July 8, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 4 Appellant's Record, Memorandum of Argument, p. 206. 5 Appellant's Record, Memorandum of Argument, p. 206. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-04485