TB6-08613

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 : TB6-08613 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 28, 2016 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Pablo Andres Irribarra Valdes 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 XXXX (the "Appellant"), a citizen of Antigua and Barbuda (Antigua), appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant is requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. Background [2] The Appellant alleged before the RPD that he fears persecution from the general population of Antigua because he is a bi-sexual man. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [3] The Appellant's application for refugee protection was heard on June 8, 2016. A negative decision was rendered in writing on June 13, 2016. The RPD found that the Appellant was unable to establish his claim on the basis of credible and trustworthy evidence. [4] 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 or a person in need of protection. This appeal is dismissed. Appellant's Issues [5] The Appellant submits that the RPD erred; a) In its assessment of the Appellant's credibility; and b) By unreasonably discounting the psychological assessment of the Appellant. Admissibility of New Evidence Application of Section 110(4) [6] Section 110(4) establishes a disjunctive test.2 I must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, I must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, I must consider whether the Appellant could reasonably have been expected, in his circumstances, to have presented the evidence to the RPD prior to the rejection of his claim. If he could not have been expected to do so, the evidence meets the requirements of the section. [7] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in Section 110(4). I do not have discretion to admit such evidence.3 [8] As I understand it, Section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. [9] In considering whether the evidence arose after the rejection of the claim, I will not restrict my analysis to the date on the proposed new evidence. In my view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.4 Old evidence remains old evidence, even if it is placed in a new document with a recent date. [10] The new evidence submitted on behalf of the Appellant includes two documents. [11] The RAD must first determine whether the new evidence meets the requirements of Section 110(4) of the IRPA. If the letters produced as new evidence were available prior to the RPD hearing and the RPD Decision, could this evidence have been presented at the time of the RPD proceedings or if not, why not. The fact that evidence presented does not go as anticipated is not a reason that other available evidence could not have been presented as well. However, in this case, the Appellant argues that he could not reasonably have expected in the circumstances to have presented these documents prior to the rejection of the claim. The first document is a letter from XXXX XXXX.5 The second document,6 is a letter from XXXX XXXX XXXX. In both letters, the authors write about incidents which occurred years before the hearing. [12] The new evidence is being submitted in answer to issues brought forward at the RPD hearing wherein the panel had made findings based on the evidence adduced at the hearing; those findings were not favourable to the Appellant. The Appellant is basically providing the documents now, which should have been before the RPD. [13] The Federal Court stated in a recent case: "I am satisfied that the RAD did not err in refusing to admit the applicant's proposed new evidence. The RAD's decision indicates that it was well aware of its role, that it assessed each piece of the proposed new evidence, including the applicant's submissions on the new evidence, in light of subsection 110(4) and, "within the context of the totality of the Appellant's evidence adduced at the RPD." The applicant's explanation for failing to place the proposed new evidence before the RPD was that he could not have foreseen that the RPD would make negative findings on: (1) his identity; and (2) the question of objective risk. This is simply not consistent with the record. I concur with the RAD's conclusion that the applicant had the onus to put forward his case to the RPD as to why he should be accepted as a Convention refugee or a person in need of protection. It was not open for him to wait to forward requisite and relevant evidence until the RPD rendered a negative determination."7 [14] I will consider each of the newly submitted documents as follows: 1) The letter from XXXX XXXX is an undated hand written letter with an illegible signature (according to the translator). The letter speaks to an alleged incident of 2012 which seriously pre-dates the RPD decision. The Appellant argues that he received the letter on June 10, two days after his hearing. Due to the RPD Rules, the Appellant had to have the letter translated into one of the two official languages of Canada before submitting it as evidence. Translation took longer than it took for the RPD to sign its Reasons and Decision resulting in the letter being too late to be considered. The Appellant claims that he could not reasonably have expected in the circumstances to have presented these documents prior to the rejection of the claim. 2) The second document is a letter from Mr. XXXX XXXX XXXX and, as in the first document, it speaks only to events of 2011 and 2012. The Appellant's argument is the exact same as with the first document. [15] Neither of these documents meet the test of IRPA Section 110(4). The first letter is undated but arrived at or near the same time as the second letter, which is dated May 27, 2016. The Appellant had filed his claim in April of 2016 and should have requested these letters at or before that time. Further, the Appellant has admitted in testimony that he came to Canada in XXXX of 2015 knowing full well that his intention was to remain in Canada. That gave him an additional five months to obtain any supporting documents for his hearing. [16] The Appellant was represented by counsel before and during his hearing. That counsel should have known of the need of a claimant (Appellant) to make the best case possible at his hearing. It is not an option for a claimant to make a poor presentation at the hearing so he may then determine what evidence will satisfy the Member, just so the claimant can then have a new hearing to present all of the evidence which should have been adduced at the original hearing (see Cabdi, above). [17] There is nothing new about either of these documents. They were written prior to the decision being made by the RPD. It would have taken a simple request to be submitted to the Board asking for time to translate these documents prior to a decision being rendered. There is no evidence that the Appellant requested such an advantage. There is no reasonable explanation given as to why these documents were not obtained months earlier, as the Appellant was aware what case he would have to make in order to gain refugee protection. Lastly, the letters only re-iterate what the Appellant has already alleged, making the content of the letters definitely not new. [18] As neither of these documents pass the test of Section 110(4), they cannot be admitted. As no new evidence is being admitted, no oral hearing can be convened in accordance to Section 110(6) of the IRPA. Therefore, the request for that hearing is dismissed. ANALYSIS The Role of the RAD [19] The RAD is an Appellate body governed by specific legislation8 and guided by the jurisprudence9 of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.10 Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD." [20] The Federal Court of Appeal, in its decision, clearly states that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.11 [21] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness,12 with no deference accorded to the RPD.13 [22] The RAD will show deference to the RPD's findings on credibility where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. [23] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [24] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [25] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [26] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD may determine the findings to be in error. [27] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. [28] 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. The Arguments [29] The Appellant argues that the RAD should admit the new evidence. As indicated above, the proposed new evidence may not be admitted as it fails the test of Section 110(4). [30] The Appellant argues that the RPD unreasonably discounted the psychotherapist's report, giving it no weight. The Appellant writes in his Memorandum of Appeal regarding the report, "In her report, Ms. XXXX detailed various symptoms of trauma currently suffered by the Appellant that were diagnosed [emphasis added] during the course of the assessment, including diminished concentration..."14 [31] I have read the document in order to properly assess its weight. I canvassed the RPD Reasons and Decision to ensure I was familiar with all the details on this issue only after having listened to the audio recording of the hearing. Although the RPD's assessment of the report in question is slightly "meagre", it is none the less accurate in what it does say. However, the RPD did not conduct a strong enough analysis of that report. My independent analysis of the report follows. The Psychotherapist's Report [32] The report's author, Ms. XXXX, is a registered psychotherapist "specializing in the assessment and treatment of serious disorders of thought, cognition, mood, emotional regulation, perception, and memory." Her assessments are based on "in-depth clinical interviews, which typically last between 60-90 minutes." 15 [33] While Ms. XXXX is not a medical doctor, psychiatrist, or psychologist, she appears to communicate a diagnosis: "...it is my clinical impression that XXXX XXXX is exhibiting symptoms consistent with XXXX XXXX with XXXX XXXX and XXXX XXXX - in other words, significant, even disabling, responses to an identifiable stressor or stressors. Furthermore, it is my opinion that Mr. XXXX condition displays the hallmarks of developmental trauma."16 [34] Section 27 of the Regulated Health Professionals Act, S.O. 1991, Chapter 18 describes the communication of a diagnosis as a "controlled act," not to be performed unless the communicator is so authorized by a health profession Act, or unless the action has been delegated by a person who is so authorized. It does not appear that Ms. XXXX meets either qualification. The controlled act of diagnosis, at S.27 (2) (1), is "Communicating to the individual or his or her personal representative a diagnosis identifying a disease or disorder as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the diagnosis." [35] Ms. XXXX letter clearly sets out to communicate a diagnosis, to be relied upon in these proceedings. I note that contravention of the Regulated Health Professionals Act by a psychotherapist is considered professional misconduct.17 This assessment deserves little weight, as its author is neither a doctor nor a psychologist and therefore not qualified to make or communicate a diagnosis.18 [36] I have also considered the manner in which the psychotherapist arrived at her conclusions. This process does not appear to have involved any tests or diagnostic tools. Rather, it appears that the Appellant participated in a 60 - 90 minute interview, and the psychotherapist drew her conclusions on this basis. I have no reason to believe that the report was written in the context of an on-going therapeutic relationship between the author and the Appellant. [37] It is the role of the RPD and the RAD, to determine the credibility of the Appellant's allegations and to determine the risk faced upon return to Antigua. Here the psychotherapist's report appears to have first strayed beyond her scope of practice - assessment and treatment19 - to provide a diagnosis, and then even further to conduct a risk assessment - "If returned to Antigua, Mr. XXXX condition would undoubtedly deteriorate, as he would once again be at risk for physical harm due to his sexual orientation."20 The author of the report has inappropriately mixed opinion with advocacy, and for this reason too, her report warrants little, if any, weight.21 [38] Although the RPD may have erred in its treatment of the psychotherapist's report by failing to fully assess it, this error is not fatal to the RPD's determination. I have conducted an independent assessment of the report. It is not a psychological report, and cannot communicate a diagnosis. It is not based on clinical testing or diagnostic tools, but rather on a one hour or so interview with the psychotherapist who has no authority under law to issue a diagnosis. Even counsel for the Appellant, in the Memorandum of Appeal, refers to what Ms. XXXX writes as a diagnosis. It crosses the line between opinion and advocacy. For all these reasons, I give this report no weight whatsoever. I find that the RPD did not err in its assessment of this report. [39] The Appellant argues that the RPD erred in its assessment of the Appellant's credibility. The Appellant refers to a number of issues of credibility findings by the RPD which he disputes. They include: 1) Appellant's failure to mention in his BOC, a relationship with Mr. XXXX, the Appellant's former partner, in XXXX 2016. 2) Appellant's testimony that he and Mr. XXXX never discussed the possibility of Mr. XXXX submitting a claim for refugee protection. 3) Appellant's delay in joining XXXX XXXX after first visiting it in XXXX 2016. The Appellant joined XXXX XXXX in XXXX of 2016. 4) Appellant's evasive testimony on various questions. 5) Appellant's delay in filing his claim for refugee protection for XXXX months. [40] In regards to the first credibility issue, the Appellant argues that the Federal Court has warned against focusing on minor or collateral omissions, noting that the BOC and its predecessor, the PIF, are not intended to be encyclopaedic recitations of the evidence. However, in the case at bar, the RPD was not referring to some minor or collateral piece of evidence. This case is about the identity of the Appellant as a bi-sexual man. Little or no independent evidence was adduced to support that claim. In his BOC, the Appellant listed only two supporting events, one of which involved the same person mentioned above, Mr. XXXX. The RPD was not asking for an encyclopaedic recitation of the Appellant's history, but reasonably found that the Appellant should have listed his encounter with Mr. XXXX in XXXX of 2016 in his BOC, as such an encounter in Canada, when the Appellant is in relative safety, would be very material information. The fact that this encounter was not mentioned is an issue. The Appellant argues that he was unsure of the stability of that XXXX relationship, so he did not mention it. Whether the Appellant thought the relationship would be a long term one or not is not relevant to the materiality of that relationship if it occurred. Failing to include it in the BOC, which clearly advises the claimant to include all relevant material, does raise a credibility concern. I find that the RPD's credibility assessment on this issue was not in error and find that I concur with the RPD on that issue. [41] In regards to the second credibility issue, the Appellant argues that the RPD found the Appellant's answers to question on Mr. XXXX failure to claim and any discussion the Appellant had with Mr. XXXX on that topic, implausible. The Appellant argues that "implausibility" findings can only be made in the clearest of cases, such as a case where the facts are outside of what could reasonably be expected or where documentary evidence demonstrates that the events in question could not have happened in the manner asserted. I concur with the Appellant in regards to the use of "implausibility"; however, in this case, the RPD has not written that the testimony was implausible but that it lacked credibility. However, even findings of "not credible" must be adequately explained and supported by evidence. In this case and this particular issue, the RPD found it not credible that two persons, basically co-habiting in an intimate relationship, both facing the same dangers and concerns would not, at some point in time, converse about that topic. Although I also find that to be highly unusual, I have seen no evidence adduced to support the RPD's position. An adverse finding of credibility must have a proper foundation in the evidence. The RPD can err in this regard by basing its conclusions on speculation. However, the RPD did not base its credibility finding on that lack of conversation between the men but on the apparent evasiveness displayed by the Appellant when asked questions in regard to this and other issues. The RPD wrote "For these reasons the Panel rejects the Claimant's explanations and draws a negative inference from his BOC omission and the testimony about XXXX presence in Canada..." From my reading of the RPD Reasons and Decision in this case, the RPD obviously drew its negative conclusion based on the total issue regarding Mr. XXXX in Canada predominantly, however with the evasiveness of the claimant's answers. I find that the RPD did not err in this matter. [42] The Appellant argues that the RPD erred when it rejected the Appellant's explanation as to why he did not attend an orientation at XXXX XXXX. The Appellant testified that he could not afford the $6.00 cost of public transit to get to and from the XXXX. The RPD found that not to be credible. However, what the RPD apparently failed to consider, according to the Appellant, was the Appellant's dire financial situation in which every dollar mattered. The Appellant had only visitor's status in Canada so was unable to work or to earn money in any manner. When one has no income, $6.00 spent on transportation can be a burden, even if it is for a good reason. I do not concur with the RPD on this issue and find that the negative inference here was an error. [43] The Appellant argues that the RPD erred when it found some of his testimony to be evasive and then inferred negative credibility because of that evasiveness. There were exchanges of questions and answers at the hearing but specifically those questions dealing with the Appellant's entry into Canada and the Appellant's interview with the Immigration officer at the airport were contentious. [44] The Appellant entered Canada on XXXX XXXX, 2015. The panel asked the Appellant a series of questions regarding the Appellant's intentions to remain in Canada and what the Appellant did or did not say to the Immigration officer as well as what the Immigration officer did or did not say to the Appellant. The panel found the Appellant to be evasive in his answers, denying recollection time and again about a major event in his life which occurred just a few short months before the hearing. The panel finally got the Appellant to admit that he (Appellant) believed that if he had told the truth about his intentions to remain in Canada, the Immigration officer would have turned him away. The Appellant appears to have been very reluctant to honestly answer these questions about his entry to Canada. It is well within the realms of possible reasonable findings for the panel to find this behaviour evasive. Such evasiveness in testimony, coupled with admissions of dishonesty, weigh heavily against the credibility of a witness, as this does. I find that the RPD did not err in its assessment of credibility on this issue. [45] The last issue argued by the Appellant is the panel's finding on the Appellant's delay in claiming. The Appellant arrived in Canada on XXXX XXXX, 2015 knowing that his own intention was to remain in Canada permanently yet he did not make a claim for another XXXX months. The panel had spoken on the issue of the Appellant's research into Canada in regards to the LGBT community and its general acceptance in Canada; however, according to testimony, the Appellant never researched refugee protection in Canada. This does strike me as very odd; however, what is more important is that the Appellant did not bother to file for XXXX months, during which time he had ample opportunity to find out about and apply for refugee protection. Failing to do so often speaks to subjective fear. If he truly feared going back to Antigua, why would he not apply for protection immediately? The reason given is that there was really no urgency as he had a six month visitor's visa which would not expire until XXXX XXXX, 2016. Even though it has at times been found that delays such as this do cause credibility concerns, I will accept the reasoning on this issue and find that the delay was reasonable. [46] After a complete and independent review of all of the concerns and issues presented, I find that the RPD did make an error in its credibility assessment on some minor issues; however, the majority of the concerns of the RPD were substantiated by evidence adduced and those which were not fatal to this claim. [47] Overall, I concur with the findings of the RPD on every major issue. Disposition [48] The RAD has found that the RPD decision can stand. CONCLUSION [49] 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) "David Lowe" David Lowe September 28, 2016 Date 1 Exhibit RPD-1, RPD Record at pages 13 - 34. 2 Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2015, 2015 FC 895, para. 19. 3 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55. 4 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 16. 5 Exhibit P-2, Appellant's Record, page 16. 6 Exhibit P-2, Appellant's Record, page 21. 7 Cabdi,Mahad Cali v. M.C.I., (F.C., no. IMM-1365-15), January 8, 2016, Gleeson, 2016 FC 26. 8 Immigration and Refugee Protection Act (IRPA). 9 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para 14; Huruglica: M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 10 Dhillon, paras. 14-18. 11 Huruglica, para. 103. 12 Ibid. 13 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 14 Exhibit P-2, Appellant's Memorandum, page 42, para. 40. 15 Exhibit RPD-1, RPD Record, page 77. 16 Ibid, page 79. 17 Ontario Regulation 317/12, under the Psychotherapy Act, 2007, S.O. 2007, c. 10, sched. R. The RAD has previously commented on psychotherapist reports such as this one in X (Re), 2014 CanLII 96038 (CA IRB), X (Re), 2013 CanLII 99308 (CA IRB), and X (Re), 2014 CanLII 95954 (CA IRB). 18 Boros, Andras Erno v. M.C.I. (F.C.T.D., no. IMM-3915-00), Lemieux, July 26, 2001, para. 13; Boros, Andras Erno v. M.C.I. (F.C.T.D., no. IMM-3915-00), Lemieux, June 12, 2002. 19 Psychotherapy Act, 2007, S.O. 2007, c. 10, Sections 3 and 4. 20 Exhibit RPD-1, Psychotherapist report at bottom of page 79. 21 Moriyike, Egbesola v. M.C.I. (F.C., no. IMM-3058-15), Zinn, February 16, 2016, 2016 FC 204, para. 13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-08613