TB5-12425

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 : TB5-12425 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 Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 2, 2016 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Alesha Green Barrister and Solicitor 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 is a citizen of Jamaica. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant asks that the appeal be allowed, and that either the Appellant be found to be a person in need of protection or in the alternative, that the matter be referred back to a different panel of the RPD for redetermination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. Memorandum of Appeal (a) Whether an extension of the time to file and perfect this appeal should be granted based on the circumstances of this case? (b) Whether of the RPD's findings were reasonable. Background [3] The Appellant, a citizen of XXXX XXXX, XXXX Parish, Jamaica, has been discriminated against, harassed, deprived, threatened, and assaulted at home and school due to her alleged sexual orientation. The Appellant alleges that she had to quit school because of her pregnancy, and her mother kicked her out of her house because she was tired of hearing about her being involved in lesbian affairs. The Appellant made a report about guys who stole things from her but the police were hostile, they wrote her up, and gave her a slip to take to the Insurance Company. The Appellant worked as a XXXXworker in XXXX, Ontario in XXXX 2013 and returned to XXXX XXXX Jamaica in XXXX 2014. She returned on XXXX XXXX, 2014 and worked there until XXXX 2015. In XXXX 2015 her application to extend her visa was denied, and she filed a claim for refugee protection on about June 22, 2015. The Appellant has had five children with four different men, but the fathers of these children leave her once they learn that she is a lesbian. In 1998, one of the fathers of her children caught her with a girlfriend, cut her and burst her head and took away his children. ROLE OF THE RAD [4] The Appellant, in his Memorandum of Appeal, outlined the changes in the Canadian Refugee System. The Appellant does not make any arguments as to the standard of review, but makes arguments as to the RAD's jurisdiction. These are not applicable given that the RAD has jurisdiction to hear this appeal. 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 [Appellant] 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." [5] Accordingly, the RAD conducts its own independent assessment and determines 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. [6] The RPD hearing was held on August 18, 2015, and in a decision of September 10, 2015 the RPD that the appellant is not a convention refugee pursuant to section 96 of the IRPA, or a person at risk pursuant to section 97 (1) (a) (b) of the IRPA. [7] The Appellant submits that the RPD erred on a number of issues regarding credibility. Merits of the Appeal Extension of time [8] This issue was dealt with and the Appellant was granted additional time to perfect her appeal. Credibility [9] Were the RPD's findings reasonable? Relationships with Men [10] The RPD noted that the Appellant testified that there was no difference between her testimony where she stated that she was, "fed up and tired of men," and hating them as described in a supportive letter2 from XXXX XXXX, dated August 4, 2015. The RPD found that the Appellant was not credible when she alleged to be a lesbian because she had five children with four different men. The Appellant testified that she dated men to hide the fact that she is a lesbian. The RPD acknowledged that a person who was a lesbian could indeed enter into an intimate relationship or marriage, and have children, with a man to hide your true sexuality, or enter into a heterosexual relationship for a number of other reasons. However, in the RPD's view, her act of engaging in successive heterosexual relationships of having five children is inconsistent with her testimony that she is a lesbian and hates men. The RPD made no finding of the Appellant's use of both the words lesbian and bisexual interchangeably. [11] The RPD acknowledged that just because the Appellant has five children and to hide her sexuality is not in itself the determinative factor in finding that she is not a lesbian. However, other credibility concerns addressed in its decision along with the above finding, caused the Immigration and Refugee Board (Board) to find, on a balance of probabilities, that she is not a lesbian and therefore would not be persecuted should she return to Jamaica [12] The Appellant submits that the Board's finding that the Appellant was not a lesbian because she had relations with four separate men in Jamaica that produced five children, was unreasonable. The Appellant submits that the finding was based on mere speculation. [13] The Appellant submits Federal Court decisions to support the submission,3 that the RPD's findings were based on speculation. [14] In reviewing the testimony and documentation the RAD finds, on a balance of probabilities, that the Appellants bearing five children by four different men is a contributing factor to the RAD's finding that she is not a lesbian. This finding is supported by other findings that are dealt with below in this decision, regarding credibility, and inconsistencies between documentation and testimony. Failure to Name her Lesbian Partners [15] The RPD drew an adverse inference from the Appellant's failure to mention in her BOC4 or amended Basis of Claim BOC5 that she had been in a long-term relationship with two different women. The RPD noted that she indicated that she was attracted to women but only made one reference to a situation where XXXX (the father of two of her children) caught her with a woman, burst her head open, and took away the two children. The RPD noted that she did not mention the name of girlfriend in her BOC or amended BOC. In testimony she testified that this girlfriend was XXXX XXXX. [16] When asked for an explanation of this omission in her BOC, the Appellant, she testified that she was frustrated, confused, and working for long hours. The RPD did not accept this explanation as reasonable as to why the Appellant did not mention that she specifically had an eight-year relationship with Ms. XXXX and previously had a sexual relationship with Ms. XXXX. This was based on the fact that these alleged relationships go to the core of the claim, namely that the Appellant fears persecution to her sexual orientation. The RPD stated that having two long relationships, one that is still ongoing are important elements to her claim. [17] In continuing testimony, the Appellant testified that she had told her friend, who had helped her complete her BOC and other forms, about the relationships and believed that they were included in the BOC, as he friend allegedly told her about the refugee process, The RPD could not understand why such information would not have been included. The Appellant's explanation was that perhaps her friend got confused or forgot to mention it. The RPD noted that there was no information or evidence from Ms. XXXX on this point. The RPD stated that her friend would have been acting in her best interests and wanted her application for refugee protection to succeed. The RPD found this omission not reasonable, in that her friend would approach filing such an important document in such a haphazard manner. [18] The RPD found that although the Appellant's failure to mention both of her long-term relationships in her BOC did not in itself mean that she was not a lesbian, or that the allegations in the BOC did not occur. However, the RPD found, on a balance of probabilities, that this omission plus other credibility concerns mentioned in the decision, that the Appellant is not a lesbian, and that the allegations in the BOC and amended BOC did not occur. [19] The Appellant submits, that the RPD's adverse credibility inference made because the Appellant did not, in her documentation, give the names of the women with whom she allegedly had a long-term relationship, was unreasonable. The Appellant maintains that it was perfectly normal for her to give the additional information at the hearing, even though she did not amend her documentation. The Appellant quotes case law to support this submission.6 [20] The RAD finds, on a balance of probabilities, that the failure to mention her two long-term relationships in her BOC documentation, along with other credibility issues, that the Appellant is not a lesbian, and that her allegations regarding this issue are not credible. [21] In testimony, the Appellant admitted that she did not read well,7and according to her BOC has six years of formal education. The RAD finds that Appellant was represented by competent counsel, and that such an omission would have been rectified when the BOC amendment was submitted. This is especially true given that the basis of the Appellant's claim is that she is a lesbian/heterosexual, and has had two long-term relationships. The RAD does not agree with the Appellant's submission regarding the case law submitted. [22] The Appellant in testimony,8 stated that she had known XXXX XXXX since she was 13 years old (1988), and stated that they became intimate in 1998, then revised that date to 1996 and then back to 1998. In the Appellant's BOC, she specifically mentions the name of the father of her two children who allegedly found her with another woman, and allegedly assaulted her, but does not mention the woman's name. To name the alleged assaulter without mentioning the name of the woman she was allegedly with at that time is not credible. The case law quoted does not address the critical issue, that of the people who were involved in the incident. The RAD finding is not on the alleged details of the attack, but rather the fact that the Appellant did not mention a critical issue, the name of the person that she was with during the alleged incident. [23] In reviewing the Appellant's explanation, the RAD does not find her explanation reasonable. She testified that she believed that she had told her friend about these relationships, and given her the names, but they did not appear in the BOC narrative. The RAD has taken into account that the Appellant has stated that she could not read well and had limited education. However, the Appellant was represented by counsel, and the basis of her claim was the fact that she was a lesbian who had been involved in two long relationships. It would be reasonable to expect that this alleged oversight in the original BOC would be corrected when she submitted a revised BOC. Police Visits [24] The Appellant testified that she went to the police many, many, many times, and then revised her testimony to state three or four times. The RPD found the Appellant's testimony regarding her visits to the police station confusing regarding the number of times that she went, why she went, and what happened when she went. [25] In the Appellant's BOC narrative, question 2 c, and in her amended BOC,9 stated that she went to the XXXX XXXX Police station once, made a report about guys that took her things, and they gave her a slip saying that she should take it to the insurance company. When questioned by the RPD why she did not make note of these other visits to the police station, she testified that nothing happened so she did not mention them in her BOC. She also stated that there were so many things to talk about that she did not mention them. [26] The RPD found that the Appellant's explanation was not reasonable given that the number of times a person makes a complaint against his or her assailants is an important element to any protection claim. The RPD stated that the number of times a person seeks assistance is indicative of how serious the situation is and how and where the Appellant perceives a danger that he or she is in. The RPD noted that the Appellant made mention of the incident where guys were taking her stuff because she was a lesbian, that nothing happened on that occasion either. Despite not receiving assistance from the police, she mentioned this in her BOC. The RPD drew an adverse inference on the Appellant's overall credibility and truthfulness of the allegations in the claim because of this inconsistency in testimony and documentation. [27] The Appellant submits that the RPD erred by focusing on minor inconsistencies in peripheral matters, rather than substance of her claim. Referring to the case law quoted above, the Appellant did not mention the three or four other visits in her BOC narrative, only one visit. The Appellant submits that she mentioned that visit because the police gave her a slip informing her to take it to the insurance company. [28] In reviewing the transcript of the hearing, the RAD finds that the Appellant's testimony was indeed inconsistent, and at variance with her BOC narrative. The Appellant, during the RPD's questioning, changed testimony regarding the number of police visits from many times, to 5 or 6, to 3 or 4. In reviewing the transcript, the RAD finds that the Appellant gave no clear testimony regarding the reasons why she went to the police, nor was she consistent in her testimony about any specific action taken when she allegedly went to the police. The Appellant stated that they were rude to her, did not listen to what she said, and took no action. However, the RAD, as stated above, is unsure as to when she went to the police or what she made a complaint about. The RPD gave the Appellant the opportunity to talk to her counsel before being given the opportunity to give the RPD more information. The RAD finds, on a balance of probabilities, that the Appellant did not go to the police to seek protection or assistance as alleged. XXXX Work and Canadian visa [29] The RPD stated that the Appellant believed her work in Canada was temporary after she arrived in XXXX 2013. The Appellant returned to Jamaica on XXXX XXXX XXXX 2014. When she was recalled by her employer on XXXX XXXX, 2014, she was told, by her employer, they would attempt to make her status permanent. The Appellant had a Canadian visa valid for two years until June 30, 2015. The Appellant testified that the company did not provide her with any documentation to indicate that they were attempting to make her status permanent in Canada. The RPD found that there was not enough credible or trustworthy evidence to establish that the company told her that they were trying make her stay in Canada permanent. [30] Because the Appellant testified that if she returned to Jamaica she would be harassed, threatened, discriminated against, seriously injured, or even murdered by other Jamaicans due to her sexual orientation, the RPD found that it would be reasonable that she would have made efforts to research the options available to her to stay in Canada and not return to Jamaica in XXXX, 2014. The Appellant stated that she was not the type of person who would think about going to a lawyer or an immigration consultant for assistance, stating that she was not that sophisticated. She also testified that she was working at all times as a XXXX worker and did not have time to go to a lawyer or look into her options of staying in Canada. The RPD found that if her allegations of personal harm in Jamaica were valid, and she would have made time to discuss her situation with the lawyer or immigration consultant before returning to XXXX XXXX, Jamaica [31] The RPD reasoned that if the Appellant knew that her status in Canada in XXXX 2013 was temporary, it would be reasonable to assume that she would research two options for staying in Canada so that she would not have to return to Jamaica. The Appellant testified that she did not try contact the Canadian government to see what her options were in regard to stay in Canada and not returning to Jamaica. The RPD drew an adverse inference with regards to her overall credibility regarding the truthfulness of her claim because she made no effort to research will options of staying in Canada, stating that this undermines her subjective fear of returning to Jamaica. [32] The Appellant submits that she did not return to her country of origin, voluntarily. She states that it was only two days prior to her departure, on XXXX XXXX, 2014 that her employer advised her that she would be leaving on XXXX XXXX XXXX 2014, due to problems with products and failing equipment. The Appellant submits that as such, the RPD's decision that she lacked subjective fear is unreasonable. She states that it is in error to impute from actions where a person departs to their country of origin forcibly, and not voluntarily, that they lacked subjective fear. [33] The RAD finds, given the Appellant's background, that her willingness to leave Canada and return to Jamaica is somewhat confusing. The RAD does not agree with the Appellant's submission that she was forcibly removed from Canada. Given the circumstances, the RAD assumes that the employer had a responsibility to provide transportation both to and from Jamaica, and had given her a plane ticket for XXXX XXXX, 2014. However, the RAD finds that if the Appellant feared persecution and potential death, as outlined above, that she would have reasonably been seeking a way to remain in Canada permanently, understanding that her first employment by the company was temporary. The RAD finds that the Appellant has not been credible about her allegations of harm in persecution in Jamaica because of her alleged sexual orientation. Delay in Claim [34] Quoting a source, the RPD stated that delay in filing a claim for refugee protection is generally not a determinative factor. The RPD stated however, when the Appellant fails to provide a reasonable explanation for the delay it could become a determinative factor. The RPD further stated that it has been recognized by the Federal Court and the Federal Court of Appeal as an important factor in assessing an Appellant's credibility and their subjective fear. It is reasonable to assume that persons with a well-found fear of persecution in their native country will attempt to apply for refugee protection in Canada without unreasonable delay.10 [35] The RPD noted that it would be reasonable to assume that if the Appellant feared that she would be seriously harmed or even murdered if she returned to Jamaica because she is a lesbian, she would not have waited two years to make a claim for refugee protection (or if one started counting on XXXX XXXX, 2014, when she returned to Canada from Jamaica, the delay would be approximately one year and two months). The RPD referred to previous statements in its decision regarding her lack of knowledge about the refugee process. The RPD referred to the lack of objective documentation to substantiate that her company would try make her stay in Canada permanent. As stated earlier in the RPD decision, there is not enough credible or trustworthy evidence to establish that the company offered to try make the Appellant stay in Canada permanently. In addition, this alleged attempt to have the Appellant stay in Canada was not guaranteed. In the RPD's view, it would be reasonable to assume that the Appellant would research two options in case her employer did not succeed in making her stay permanent. As such, the RPD drew an adverse inference to the Appellant's overall credibility and truthfulness of the allegations in her claim. In addition, the RPD drew an adverse inference to overall credibility and truthfulness of the allegation in the claim because her re-availment undermined her subjective fear to return to Jamaica. [36] Quoting Federal Court11 decisions, the Appellant submits that, "it is trite law that "delay" in and of itself, through a relevant factor, in the overall assessment of the evidence, is not a decisive factor in assessing subjective fear." As a result, the Appellant submits that not filing a claim on her first staying Canada, or immediately upon her return to Canada on XXXX XXXX XXXX 2014, is not a valid reason to reject her claim. [37] The Appellant submits that her valid work visa was good until June 30, 2015. Her claim was filed on June 22, 2015, not July 22, 2015 as stated in the RPD's decision. At the time of her claim, the Appellant held valid status and there was no risk of deportation to her country of origin. [38] Quoting jurisprudence,12 the fact that the Appellant was safe from being forced to return to her country of origin, the Appellant submits that not putting in a claim for refugee protection is not normally held as an action incompatible with subjective fear. [39] The RAD agrees with the Appellant's submission that she made application in June 2014, not July, 2014. As a result, the RPD's finding that the Appellant did not claim until after her visa had expired, is not valid. [40] The RAD finds that if the Appellant feared persecution and potential murder in Jamaica because she was a lesbian, she would have made every effort to remain in Canada on a permanent basis. This attempt to remain in Canada would reasonably have begun after her first arrival in XXXX 2013. The RAD is not accepting the Appellant's explanation that she knew nothing about the refugee system, and that she worked long hours and did not have the time. Having the fears that she alleged, it would be credible that she would make every effort as soon as possible to remain in Canada. [41] As stated earlier, there would naturally be some confusion when she was given a ticket to return to Jamaica on XXXX XXXX, 2014. However, according to the transcript, she knew that her stay in Canada was temporary, and as a result if she had subjective fear of return to Jamaica, would have made efforts to remain in Canada permanently long before she returned because of her employer's circumstances. After she was returned to Canada by her employer on XXXX XXXX, 2014, it would be reasonable that she would make every an effort to gain permanent status as soon as possible. The Appellant testified that her employer was going to have her status become permanent. However, no documentation was submitted for the RPD hearing to substantiate this. On appeal, no documentation has been submitted to substantiate this allegation. The RAD finds, on a balance of probabilities, that the Appellant's testimony regarding her employer's efforts to have her status become permanent, is not credible. The RAD finds, on a balance of probabilities, that the Appellant has not demonstrated the subjective fear that would be expected of a person who feared persecution and potential death in her home country. The RAD finds, that the Appellant's allegations of persecution, because of her alleged sexuality, in Jamaica are not credible, and draws a negative inference. Letters of Support [42] The Appellant submitted two letters of support, dated August 4, 2015, and August 10, 2015. [43] The letter from XXXX XXXX13 acknowledges that she and the Appellant had been in an intimate relationship since 2007 and they had been ridiculed and attacked in Jamaica and the police did not protect them. The RPD rejected this letter stating that it is not an affidavit or statutory declaration. The RPD noted that it does not know what the Justice of the Peace certified, whether he certified identification of Ms. XXXX, or the truthfulness of the content of the letter. The RPD also noted there were no identification documents attached to the letter to support who the author was. As a result, the RPD put no evidentiary weight on the letter. [44] The second letter from a friend, XXXX XXXX,14 indicated that the Appellant was a lesbian and hates men. The RPD noted that the letter was allegedly certified by Justice of the Peace but did not contain a sealer stamp of acknowledgement that the person certifying letter was a Justice of the Peace. As above, the RPD noted that the Board did not know what the alleged Justice of the Peace had certified and whether he certified the identification of Ms. XXXX or the truthfulness of the content of the letter. The RPD put no evidentiary weight this letter. [45] The Appellant submits that it was unreasonable for the RPD to reject letters of support because they were not an affidavit or statutory declaration. She submits that it was in error to reject them because it was unknown what the Justice of the Peace had certified. The Appellant submits, referring to a Federal Court decision,15 (without stating how the specifics of this decision impact on her submission) that the letters in their current form were sufficient to provide support for the Appellant's claim. [46] The RAD, in reviewing the letters, gives them no probative value as support for the Appellant's refugee claim. Neither letter indicates the information that was being allegedly certified, or provides probative documentation to support the identity of the authors of the letters. The RAD finds that the two Justices of the Peace provided no documentation to support or prove their identity and their alleged role as Justices of the Peace. The RAD has no proof of the identities of the authors of these letters, nor the person who allegedly certified them. Decision [47] The RPD found that none of the credibility concerns alone are determinative in finding that the Appellant is not a lesbian or that the allegations of the claimant heard. However, there comes a point but even the most generous trier of fact or reject a Appellant's evidence based on the lack of credibility of her testimony. The RPD found that the Appellant is not a lesbian and there is not enough credible or trustworthy evidence to establish that the allegations in her claim occurred. [48] The Appellant respectfully submits that there is no basis in the evidence to support the conclusion reached by the panel, and the decision should not be allowed to stand. [49] The RAD, in reviewing all of the evidence and documentation, finds, on a balance of probabilities, that the Appellant is not a lesbian, and has not provided enough probative documentation or proof that her allegations of persecution and potential death are valid. The RAD finds that there were too many credibility concerns to support a positive decision in this case. Disposition [50] Pursuant to section 111(1)(a) of the 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. (signed) "Robert S. Garner" Robert S. Garner February 2, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Exhibit RPD-1, RPD's Record, at p. 178. 3 Mahalingman v Canada (Minister of Citizenship and Immigration), IMM-833-97, January 30, 1998, at paras 9-11; Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.). 4 Exhibit RPD-1, RPD's Record, at pp. 26-29. 5 Ibid., at p.123. 6 Schopova v. Canada (M.C.I.), 2003 FC 904, at para 8. 7 Exhibit P-3, Transcript of RPD hearing ,at p. 65. 8 Ibid., at p. 23. 9 Exhibit RPD-1, RPD's Record at p. 27. 10 Espinosa, Roberto Pablo Hernandez v. M.C.I., (F.C., no. IMM-5667-02), Rouleau, November 12, 2003.2003 FC 1324; Mesidor,Josue Peterlee v. M.C.I. (F.C., no. IMM-2233-09), Shore, December 4, 2009, 2009 FC 1245, at para 10; Kostrzewa, Grzegorz v. M.C.I. (F.C.,no. IMM-4563-11), Crampton, December 7, 2012, 2012 FC 1449. 11 Huerta, Martha Laura Sanchez v. Canada (M.E.I) FCA 1993; Saez v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 631,at para 5. 12 Yoganathan, Kandasamy v. M.C.I. (F.C.T.D.), no. IMM-3588-97), Gibson, April 20, 1998; Gyawali, Nirmal v. M.C.I., (F.C., no. IMM-926-03), Tremblay-Lamar, September 24, 2003, 2003 FC 1099). 13 Exhibit, RPD-1, RPD's Record, at p. 177. 14 Ibid., at p. 178. 15 Fontenelle v Canada (Citizenship and Immigration) 2011 FC 1155, para 55. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-12425