TB5-09977

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 : TB5-09977 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 XXXX) (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 21, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), who is a citizen of Pakistan, is appealing the decision of the Refugee Protection Division (RPD), denying his claim for refugee protection. He has submitted new evidence and is requesting that the Refugee Appeal Division (RAD) overturn the RPD decision and conduct an oral hearing if it deems it necessary. In the alternative, the Appellant is requesting that the matter be remitted to a newly-constituted panel of the RPD for re-determination. [2] A designative representative, XXXX XXXX XXXX, has accepted to act on behalf of the Appellant for the purpose of this appeal. DETERMINATION [3] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. This appeal is dismissed. Background [4] The Appellant alleges that he witnessed the murder of the former XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, in XXXX and the murderers are threatening him if he appears as a witness in any further court proceedings. He also fears the widow of the former XXXX XXXX XXXX XXXX, who is threatening him that if he does not appear as a witness, she will have him jailed and falsely charged. Procedural events a) September 23, 2015 - Notice of appeal filed. b) October 28, 2015 - Medical evidence filed. c) November 23, 2015 - Application for extension of time allowed. d) November 30, 2015 - ADC allows request for a designated representative. e) December 4, 2015 - New evidence filed with respect to an alleged attack on the Appellant's house. This evidence had been referred to on October 28, 2015, as having been received but not yet translated. SUBMISSIONS BY THE APPELLANT [5] Does the "new" evidence meet the criteria as set out in section 110(4) of the IRPA? ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL EXPRESS STATUTORY CONDITIONS [6] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The following new evidence was submitted prior to the perfection of the appeal: a) Medical report dated XXXX XXXX, 2015 from Dr. XXXX XXXX XXXX XXXX, received on October 28, 2015. b) Letter, dated XXXX XXXX, 2015, from staff at the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, received on October 28, 2015. c) An editorial entitled "Mental health: Priorities in Pakistan" by Muhammad Iqbal Afridi, from the Journal of Pakistan Medical Association, Vol. 58, No. 5, May 2008, received on October 28, 2015, however, its contents are somewhat dated going back to May 2008. [8] Dr. XXXX report contains statements by the Appellant that there were many things that he had wished to articulate at his RPD hearing, in particular related to historical details, however, he had forgotten to do so. Dr. XXXX has diagnosed the Appellant as meeting the criteria of "Major Depressive Episode". [9] The letter from the XXXX indicates that the caseworkers have worked with the Appellant since early XXXX 2015, in assisting him with the necessary paperwork for his in-land refugee claim. The case workers indicate that often times the Appellant would provide different answers to the same question and he had difficulty remembering important events in his life. Subsequent to the rejection of the Appellant's claim, XXXX XXXX XXXX took over the role of caseworker. He and others assisted the Appellant in procuring an appointment with Dr. XXXX. [10] The Appellant submits that after he received the negative decision from the RPD, he had been working with caseworkers, however, he did not consider the possibility that he might be struggling with a serious mental health issue, which caused the case workers to refer him to Dr. XXXX. [11] The Appellant submits that the three new medical documents were not reasonably available at the time of the hearing on September 9th, as the report is dated XXXX XXXX, 2015, and neither the Appellant nor his support workers suspected that there was an underlying mental health issue that would affect his credibility. [12] The Appellant submits that the need for the XXXX letter dated XXXX XXXX, 2015 was not apparent until after the XXXX XXXX XXXX 2015 medical report from Dr. XXXX. The document entitled "Mental health: Priorities in Pakistan" details the popular misconceptions about mental illness in Pakistan. The need for this documentation was also unknown until after the medical report was received. [13] Firstly, the Appellant submits that at some points during his hearing, he had difficulty providing testimony and the RPD thus found that his testimony was "circular and evasive".1 For example, when the RPD asked if he had any proof of having been summoned to appear in court as a witness in XXXX, it is submitted that he was confused after repeatedly being asked the question. [14] Secondly, the Appellant cites the fact that the RPD stated that he omitted some important details in his Basis of Claim (BOC). It is argued that in light of the Appellant's memory problems as indicated in the medical report, and Counsel being unaware of his underlying mental health issues, the RPD's determination might have been different if this information had come to light. [15] Thirdly, with respect to the delay in claiming, the Appellant submits that in light of the new medical findings, his reasons for the delay may not have caused the RPD to draw a negative inference. [16] The RPD asked the Appellant whether he had any proof that he had been summoned to appear in court as a witness in XXXX. It is submitted, that due to his "confusion", when viewed in light of the new medical information, that this portion of the evidence was unclear to the Appellant. [17] In totality, the Appellant argues that the foregoing credibility findings tainted the corroborative evidence (e.g. several affidavits from family and friends), and again it is submitted that the medical information would likely have overcome these deficiencies. [18] Lastly, it is submitted by the Appellant that the RPD faulted him for his failure to obtain corroborative documentation about his summons to testify in court in XXXX, and his failure to provide evidence that the court case was ongoing in XXXX. He argues that had his credibility not been called into question, the outcome might have been different. RAD'S FINDINGS [19] The RAD finds that Dr. XXXX report could not reasonably have been available prior to the rejection of the claim as this referral was made through the XXXX subsequent to the rejection of the claim. Accordingly, the foregoing document is admitted as it meets the statutory requirements. [20] However, the RAD notes that the XXXX indicates the support workers had been working with the Appellant since XXXX 2015, well before the rejection of the claim, and indicated that the Appellant would frequently provide different answers to the same question. This statement leads the RAD to question why these same workers would not have had concerns with respect to the Appellant's behavior at a hearing. The RAD finds that these support workers could have reasonably sought advice as to the mental capabilities of the Appellant and given their observations, for the purpose of the Appellant's RPD hearing. The RAD has, however, admitted the medical report and will provide an analysis below as it relates to the Reasons cited by the RPD and the evidence elicited during the hearing process. The RAD admits this letter. [21] The RAD acknowledges that although Dr. XXXX is not a specialist, nevertheless, he is a doctor, with some training in mental health issues, who has assessed the Appellant as suffering from an Axis 1 (Psychiatric diagnosis) - Major Depressive Episode. [22] The RAD does note, however, that Dr. XXXX reaches very serious conclusions as to the Appellant's psychological health after only one interview, in which he spent one hour with the Appellant. Dr. XXXX states that he has no knowledge of the medical facilities in Pakistan, yet determines that it would be potentially medically unsafe for the Appellant to return to Pakistan. [23] The RAD has conducted an independent assessment of the entire record. Although the RAD accepts the Appellant's diagnosis of depression, after listening to the audio recording, I find that the Appellant's testimony was proffered with little hesitation. It was fluid and I did not note any confusion when he responded to questions. I noted only a few questions that necessitated repetition, however, these were not in areas which led to substantive findings by the RPD and the eventual disposition of the claim. [24] The RAD further notes that the omissions in the BOC which were noted by the RPD are far different from omissions in the Appellant's testimony. If, as has been suggested, the Appellant realized following the hearing that he had neglected to provide certain testimony, this would have been reflected in the opposite finding (i.e. omissions in the testimony, not the BOC). It was the BOC omissions to which the RPD referred when making its credibility findings. [25] Moreover, the RAD notes the comments by the RPD that the Appellant's responses to whether or not the case was "ongoing", led to a finding by the RPD that the Appellant's testimony was "evasive and circular". The RAD accepts, after listening to the audio recording of the proceedings, that the Appellant may not have fully understood the question as to how, after he returned from Hong Kong, the agents of persecution were aware of his return and as a consequence he was summoned as a witness. Setting this aside, the crux of the question referred to was whether or not the case was ongoing and whether or not the Appellant had any corroborative evidence with respect to this fact. The Appellant acknowledged that he had no such proof. In fact, after listening to the audio recording of the proceedings, most of the testimony with respect to the "ongoing" aspect of this case, if not all the testimony, related to the victim's widow asking him to come to her office (as opposed to the perpetrators' demands), however, nothing definitive was provided by the Appellant in this regard. Accordingly, the RAD concurs with the RPD's findings (paragraph 15) that it is not credible that the Appellant is at risk for both not testifying and potentially testifying. [26] With regard to the testimony of the Appellant stating that there was a second call from the victim's widow, after he returned from Pakistan, the RPD noted that this information was not in the Appellant's BOC. His explanation, that since he had not responded to her demand he did not include it in his BOC, was not accepted by the RPD. The RAD notes that the RPD considered the Appellant's credibility in this respect, however not in isolation. It also considered the fact that the Appellant's BOC does not indicate that six months after he returned to Pakistan, he moved from his home and the police came to his home on many occasions looking for him. This led the RPD to draw a negative inference. As stated above, the RAD finds that significant omissions in the BOC (not the testimony) cannot be explained by the Appellant's memory problems or depression which the Appellant argues created difficulty with him providing oral evidence. [27] With respect to the issue of delay in claiming, while not determinative, the RAD finds that the RPD considered the fact that the Appellant had lived in a foreign country for 10 years and had, in fact, made a claim for refugee protection at the United Nations High Commission for Refugees (UNHCR) office, and therefore ought to have paid heed to the fact that he might have been deported if he failed to claim in Canada. Although not indicated in the RPD reasons, after listening to the audio recording, the Appellant acknowledged that he had no documentation with respect to this application. At the same time, the RAD accepts the Appellant's testimony that he, in fact, began to make inquiries within a short period of time, however, this finding is not a determinative issue. [28] The RAD finds that there was insufficient persuasive evidence that the "murderers" were in pursuit of the Appellant, as due process had taken place and they had been apprehended. With respect to the Appellant's fears of the victim's widow, there was no proof that XXXX years after the murder, and more than XXXX years after appeals, that this case is "ongoing" and would therefore require the Appellant to appear in court. [29] The RAD accepts that the former XXXX XXXX XXXX XXXX XXXX XXXX XXXX was murdered and that in XXXX, the court rejected the appeal of his widow against the acquittal of two of the accused. [30] The RAD concurs with the RPD that the affidavits submitted from family members and friends, given their identical nature, the credibility findings, and the lack of corroborative evidence, led it to conclude that there was insufficient credible or trustworthy evidence to establish, on a balance of probabilities, the Appellant's allegations. With respect to the affidavits, the RAD concurs that they, being similar in content, provided insufficient probative value to overcome the credibility issues that were identified. The RAD finds that the Appellant has not established that he is currently being summoned to participate in any court hearings, nor would he be summoned in the future. By his own admission, he has not, in fact, ever provided any evidence in court with respect to this murder. [31] Finally, the RAD notes that the murder occurred XXXX years ago and the appeal more than XXXX years ago. Moreover, I further note that the Appellant was aware of the RPD's findings with respect to the lack of a corroborative link between the Appellant and this incident, and yet he has failed to provide any "new" evidence that would support this linkage. While the RAD acknowledges that the Appellant may have a subjective fear, I find that it is not objectively well-founded and seems to be based on speculation. [32] The RAD concludes after carefully considering all the evidence, that the medical report does not overcome the credibility findings relating to the central aspect of this claim. The RAD finds that the Appellant has failed to provide sufficient evidence to persuade the RAD that more than XXXX years later, the Appellant's fears are objectively well-founded. [33] Further evidence was submitted to the RAD subsequent to perfection of the appeal. This requires the RAD to consider this "new" evidence pursuant to Rule 29 of the RAD rules. 29. (1) A person who is the subject of an appeal who does not provide a document or written submissions with the appellant's record, respondent's record or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division. (2) If a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37. (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. (4) In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [34] The following new evidence was received on December 4, 2015: a) Letter dated XXXX XXXX XXXX 2015 from XXXX XXXX, XXXX XXXX XXXX Karachi, the Appellant's brother-in-law. This letter indicates that his brother-in-law has brought the Appellant's wife, XXXX XXXX, and his daughter, XXXX, to Karachi to reside with him. The letter further indicates that XXXX XXXX XXXX murderer has been hanged, and the Appellant's house was attacked on XXXX XXXX XXXX 2015. b) Letter dated XXXX XXXX XXXX 2015 from the Appellant's wife, XXXX XXXX, with respect to the foregoing attack on their house. c) Letter from the Appellant's daughter, XXXX, dated XXXX XXXX, 2015 with respect to the same attack as above. [35] The Appellant has made no submissions with respect to the foregoing evidence. RAD'S FINDING [36] The RAD notes that these letters were actually referred to when the Appellant was submitting his medical evidence, however, they had not yet been translated. I further note that these letters were dated XXXX XXXX and XXXX, 2015, yet were not received in translated form by the RAD until December 4, 2015. They are letters, as opposed to "sworn affidavits", from members of the Appellant's family. [37] More importantly however, is the probative value of these letters. The RAD finds that they provide little detail of a purported incident which occurred on XXXX XXXX, 2015. The letter states that "some people attacked your house; they fired their guns in the air outside your house". The Appellant's brother-in-law states that he has now brought the Appellant's wife and daughter to live with him. [38] The RAD finds that, when considering the provisions under Rule 29, if this incident had in fact occurred that more detail, including a police report, would be required to corroborate this incident. Accordingly, the RAD concludes that this Rule 29 application is denied as it provides insufficient probative value with respect to the central allegations of the Appellant's claim. Oral hearing (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim.2 [39] The RAD concludes in light of the foregoing that pursuant to section 110(6) of the IRPA, the "new" evidence does not meet the criteria which would provide the RAD with the jurisdiction to conduct an oral hearing. RAD'S CONCLUSION [40] The RAD finds that the medical evidence does not address the weakness in the Appellant's claim. The RAD finds a lack of evidence to support a finding, on a balance of probabilities, that the Appellant is being sought to testify in a XXXX year old murder case. This leads me to conclude that the Appellant is not a Convention refugee or a person in need of protection. [41] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara January 21, 2016 Date 1 Exhibit RPD-1, RPD's Record, Reasons and Decision, para. 15. 2 Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-09977