TB3-08255

RAD File No. / N° de dossier de la SAR : TB3-08255 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 XXXX (a.k.aXXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 11, 2014 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mercy Dadepo 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 (de la) ministre Reasons and Decision [1] XXXX XXXX XXXX XXXX, a citizen of Ghana, has appealed a negative determination of the Refugee Protection Division (RPD) dated October 11, 2013. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the RPD determination that the Appellant is not a Convention refugee nor is she a person in need of protection. BACKGROUND [3] Ms. XXXX (the Appellant) alleges that she has been a lesbian since her senior years at high school. She had an ongoing relationship with a friend, XXXX. The Appellant and her girlfriend were discovered by the Appellant's mother. The Appellant's mother told her uncle about the Appellant's sexual orientation. The uncle arranged a marriage. The uncle beat the Appellant. The Appellant was married on XXXX XXXX, 2010. [4] The Appellant found being intimate with her husband was painful. When she pushed him off her, he would beat her. The Appellant's husband discovered that the Appellant was having relations with a woman on the first week of XXXX 2013, as he had filmed encounters through hidden cameras. The Appellant was beaten. The Appellant's husband threatened to distribute the films to friends and family. [5] The Appellant went to live with a friend in Kumasi while she waited for her uncle in Edmonton to send an invitation to Canada. The Appellant's uncle learned about her sexual orientation and told her that she was no longer welcome to come. The Appellant decided to come to Toronto rather than Edmonton. [6] The Appellant arrived in Canada on XXXX XXXX, 2013 and made her claim for protection on May 15, 2013. The Appellant gave birth to a child in Toronto on May 22, 2013. [7] The Appellant had a refugee determination hearing on July 23, 2013. The Minister intervened1 by documents on a credibility issue. The Minister argued that the Appellant's allegations that she met a Ghanaian at the airport who directed her to Ghanaian church where she was referred to XXXX XXXX was not credible, given that the Appellant had a cousin in Toronto who indicated to Immigration officials that the Appellant would be staying with him. The Appellant's uncle was also contacted by Immigration and was aware of the visit which did not conform to the Basis of Claim (BoC) narrative allegations that the Appellant's uncle told her not to come to Canada and threatened to have her arrested. The Minister argues that these inconsistencies cast a doubt on the credibility and truthfulness of the Appellant. The Minister also indicated that the Appellant did not include the basis of her fear upon returning to Ghana in her BoC, and she did not make mention of any efforts to obtain state protection. The Appellant's delay in claiming was not consistent with someone who feared for her life as she alleged. [8] Counsel provided written submissions to the RPD on August 9, 2013. The RPD provided written reasons dismissing the claim on October 11, 2013. In its decision, the RPD found the Appellant did not provide sufficient credible and trustworthy evidence to support her fear of returning to Ghana nor to support her identity as a lesbian. The RPD made the following findings: 1. The Appellant's explanation as to why she failed to seek protection in the UK was not reasonable or plausible given that she was there for four weeks, and she was a seasoned traveller. The RPD drew a negative credibility inference from the failure to make a claim in the UK and the Appellant's reavailment to Ghana. 2. The Appellant's failure to cite in her BoC narrative that she feared a group of boys in her community was found to be a significant omission. The RPD drew a negative credibility inference from the omission and found that this allegation was added to bolster her claim. 3. The Appellant's inconsistent evidence regarding her female relationships between 2004 and 2013 caused the RPD to draw a negative credibility inference. 4. The Appellant's omission of any reference to persecution based on her sexual orientation in Ghana (2004 incident at aviation school) caused the RPD to assign a negative inference as this was an example of persecution which went to the heart of the claim. 5. The Appellant provided contradictory testimony as to whether or not people knew she was a lesbian. The RPD drew a negative credibility inference from the contradiction. 6. The letters from XXXX XXXX and Dr. XXXX were not sufficient to overcome the credibility concerns with the Appellant's testimony and evidence. [9] The Appellant's counsel submitted pleadings on November 28, 2013. In the pleadings, the Appellant's counsel alleged that the RPD made several errors including: 1. The RPD erred in substituting its own speculative views related to plausibility over the Appellant's non-contradicted evidence. 2. The RPD failed to comply with the unstated principle that, when weighing the evidence and assessing credibility, the Board should act reasonably and in good faith. The RPD did not exercise good faith, as it put too high a burden on the Appellant. 3. The RPD misapprehended the Appellant's evidence in its finding that the Appellant did not provide sufficient credible and trustworthy evidence to support her fear of returning to Ghana in paragraph 11 of the reasons. 4. The RPD based its findings in paragraphs 13 - 15 on the submissions by the Minister and not on the Appellant's explanations. 5. The RPD ignored the documentary evidence and focused on inconsistencies in making its determination that the objective component of the case was not made out. 6. The RPD erred in its treatment of the Appellant's explanation that she used partners to refer to her girlfriends but not her sexual partner. 7. The RPD erred in not placing weight on the evidence of Dr. XXXX and Nurse Practitioner XXXX. 8. The RPD erred in it conclusion that the Appellant was lacking in credibility that there was no credible evidence relevant to the claim as this is not in accord with the case law where the court has ruled that a finding of implausibility and incredibility does not invalidate a claim in general. [10] The Appellant did not provide new evidence. In the pleadings, the Appellant did not request a hearing, and requested that the determination be set aside or that the matter be referred back for redetermination. STANDARD OF REVIEW [11] The RAD focused on three issues in assessing this appeal: a) Did the RPD err in fact in its negative credibility findings? b) Did the RPD err in failing to place significant weight on the medical and psychological evidence before it? c) Did the RPD err in its finding of mixed fact and law that the Appellant was not a credible witness overall. [12] In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,2 which take into account the list of factors in Dunsmuir.3 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. These factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [13] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. [14] Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,4 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [15] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: the Immigration and Refugee Protection Act. Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." While the Divisions have many of the same powers, their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [16] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;5 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA highlighted below. [17] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.6 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing7 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [18] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD's ability to consider evidence. The RAD is not a tribunal of first instance but reviews decisions made by the RPD or considers the decision in light of new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.8 The RAD's authority to consider new evidence and hold hearings in the case of appeals brought by a refugee protection claimant, unless responding to evidence presented by the Minister, is limited to evidence that arose after the rejection of the 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.9 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.10 [19] Given that the RPD has held a hearing on the totality of the evidence, given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".11 [20] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".12 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.13 [21] In the case at hand, the Appellant alleges that the RPD made errors of fact based on its treatment of the evidence before it, and errors of mixed law and fact in its plausibility findings and its overall finding that the Appellant did not provide sufficient credible or trustworthy evidence in support of her claim. The RAD affords the RPD with deference and considered the reasonableness of the determination for the alleged errors of fact and errors of mixed fact and law. ANALYSIS OF THE MERITS OF THE APPEAL [22] As identified above, based on a review of all of the evidence and pleadings in the appeal, the RAD focused on three issues in assessing this appeal: a) Did the RPD err in fact in its negative credibility findings? b) Did the RPD err in failing to place significant weight on the medical and psychological evidence before it? c) Did the RPD err in its finding of mixed fact and law that the Appellant was not a credible witness overall? Negative Credibility Findings [23] The RPD made several negative credibility findings which it found supported its final determination that the Appellant did not provide sufficient credible or trustworthy evidence to attest to her identity as a lesbian as well as to support a well-founded fear of persecution or harm in Ghana. Failure to Claim and Reavailment [24] The RPD found that the Appellant's failure to seek protection while in the UK in 2012 and her reavailment to Ghana undermined her credibility. Counsel argued in the pleadings that the RPD did not adequately assess the Appellant's explanations for her failure to claim in the UK. The RAD finds that counsel's argument is not supported by the evidence on the record. The RAD noted that the RPD found that the Appellant's explanations (she was with her family all of the time; she did not have the chance to seek refugee status; her husband had family all over England) were explored by the RPD; however, these explanations were found not to be reasonable. The RPD made this finding based on the Appellant's history of foreign travel and her knowledge of immigration systems as evidenced by her ability to obtain visas for Canada, UK and China and her profile as a well-educated and experienced business woman. There was no evidence before the RPD that the Appellant was suffering from Post-Traumatic Stress Disorder or any psychological condition that would preclude her from seeking protection in the UK. [25] The RAD finds that a lack of subjective fear can ground a finding that there is no subjective basis for the claim. Failure to claim Convention refugee status in countries where the claimant resided or sojourned without a reasonable explanation can also negate a claimant's fear. Returning voluntarily to one's country of origin can also negate a person's subjective fear. The Appellant testified that she had been forced into a marriage against her will and had been beaten on several occasions by her husband before she travelled to the UK. The UK is a signatory to the Convention and is presumed to be able to provide protection to refugees. [26] Given the Appellant's history of travel and her personal profile (business person), given that the RPD was not provided with evidence of any psychological problems on the part of the Appellant which could explain her inability to seek protection in the UK, given that the Appellant could have informed UK officials at the airport before leaving that she wanted to obtain protection, and given the lack of evidence provided to attest to a lack of protection for the Appellant in the UK, the RAD finds that it was reasonable for the RPD to draw a negative credibility finding with regard to the Appellant's failure to seek protection and her reavailment to Ghana. Omission of Incident of Persecution and Fear of Youth [27] The RPD assigned a negative credibility inference to the Appellant's failure to include in her BoC the fact that she had been chased and had had stones thrown at her by a group of men in 2004 because of her sexual orientation. The Appellant explained that she did not include this as she wanted to shorten her BoC narrative. The RPD confronted the Appellant with the fact that the BoC instructions instruct claimants to put all important details in the BoC. The Appellant did not respond to this comment. The RPD found that being chased and having stones thrown at her was not an insignificant detail in her allegations, given that this was the only experience of physical harm by members of the community based on the Appellant's alleged sexual orientation. In addition, the explanation about making the BoC narrative short was not reasonable, as the Appellant provided significant detail in her narrative which was almost three typed, single-spaced pages. For the reasons cited above, the RAD finds that the RPD's finding related to the omission of being chased by a group of people in 2004 for her sexual orientation was reasonable as the explanation provided for the omission was not reasonable, and it was reasonable to expect the Appellant to make reference to the one incident of physical harm at the hands of community members that she experienced before coming to Canada especially given the Appellant's testimony at the hearing that she feared local youths. [28] The RPD drew a negative credibility inference to the Appellant's failure to mention in her BoC that she feared a group of youth in her community. The RPD found that this allegation was added at the hearing in order to bolster her claim. When confronted with the omission, the Appellant explained that it was an informal boy's group without a name. The RPD found that the explanation was not reasonable given that the youth were alleged agents of risk, which was central to the claim. The RAD finds that it was reasonable for the RPD to assign a negative credibility inference to the omission from the BoC of a fear from an agent of risk given that the Appellant was directed to provide-and she provided detailed allegations in her BoC narrative-and to identify if she would be harmed, mistreated or threatened by a person or group. The Appellant's BoC narrative was detailed (just under three typed, single-spaced pages). Furthermore, the lack of a formal name for the group was not a reasonable explanation for the Appellant's fear of the group, as she was able to explain at the hearing that the group had no official name. It was reasonable to expect her to state this in her BoC narrative. Given these reasons, the RAD finds that it was reasonable for the RPD to assign a negative credibility inference to the omission of any reference to threats by youth in her community in her BoC. In addition, the RAD noted that the finding that the Appellant embellished her claim by adding this new agent of persecution further supported the RPD's finding that the Appellant was not credible overall. Objective Evidence [29] In her pleadings, counsel argued that the RPD found that there was no objective basis for the claim. The RAD could not find any reference to this in the RPD's reasons. The RAD did find, however, that the RPD did not make specific reference to the affidavits and letters from the Appellant's brother and friend submitted in support of the claim. The RAD considered these documents, as they were on the record and went to the heart of the claim. The RAD noted that both affidavits14 fail to mention that the Appellant was a lesbian and that the Appellant was found by her husband having sex with women, which caused her to leave her home on XXXX XXXX XXXX 2013. Both affiants submitted handwritten letters15 explaining why they did not make reference to the fact that the Appellant was a lesbian in their affidavits. The explanations were similar: both feared negative legal consequences, being implicated by government officials in supporting the Appellant's illegal activity, as homosexuality is against the law in Ghana. [30] The RAD rejected the explanations for several reasons. Firstly, it would have been reasonable for the affiants to have made reference to the Appellant being caught having sex with someone who was not her husband in the affidavits without making reference to the gender of the person. Secondly, the affiants did not provide evidence that someone swearing an affidavit related to someone's homosexuality would be considered by Ghanaian authorities as a problem or a crime. The affidavits were sworn in front of a commissioner of oaths. There is no evidence that the commissioner would have reported the affiants to authorities for the content of their declarations. Finally, and most importantly, the affiants did not provide evidence that lesbian activities or relations are considered crimes in Ghana. The RAD finds that the documentary evidence on the record does not support this proposition. The UK Border Services Report confirms that same-sex activity between women was legal.16 Similarly, a GhanaWeb article of 7 June 2011, "Gays can be prosecuted", noted that "the law is, however, silent on any form of punishment for lesbianism."17 homosexuality is not considered illegal in Ghana. The US Department of State cites the criminal code: "unnatural carnal knowledge" is defined as "sexual intercourse with a person in an unnatural manner or with an animal." It states that individuals who have unnatural carnal knowledge "of any person of 16 years or over with his consent" is guilty of a misdemeanor." The Department of State goes on to indicate that there has been considerable debate over whether this legislation could be used to prosecute consenting gay adults, and there were no reports that it had ever been used. A Response to Information Request (RIR) indicates that: "According to Behind the Mask, an LGBT media non-profit organization (Behind the Mask n.d.), although the definition of unnatural carnal knowledge is not clear, it is assumed to include male-to-male sexual acts, such as sodomy (31 Aug. 2011)". 18 Furthermore, the same RIR indicates that sex between women is considered legal in Ghana.19 [31] Given the evidence, the RAD finds that the explanations in the two letters were not reasonable, and the RAD finds that the lack of mention of the Appellant's lesbian sexual identity and the lack of mention that she was discovered having sex with women by her husband undermined the affidavits in support of the Appellant's allegations. The RAD also finds that the letters were an attempt to make-up for the significant omission (entire basis of claim) in the affidavits, and therefore they had little probative value. [32] The RAD noted that Ms. XXXX letter does not provide an explanation as to how she knows that the Appellant's husband recorded the Appellant by video camera. Ms. XXXX stated that the Appellant was beaten; however, she did not include in the letter that she had observed any injuries on the Appellant's body when the Appellant arrived at her home shortly after the beating. Given these concerns with the letter and given the omission from the original affidavit of any reference to the Appellant being a lesbian or her being discovered having sex with another person, the RAD finds that the letter has little probative value. [33] The RAD also noted that the Judicial Declaration20 attached to Ms. XXXX affidavit referred to Ms. XXXX as the Appellant's sister instead of a friend. The letter from Ms. XXXX notes this inconsistency; however, she does not present an explanation for the inconsistency. Further, the RAD noted that Ms. XXXX affidavit was sworn in Accra, which was 5 - 6 hours away from her home. No explanation was provided in the affidavit or letter as to why the affidavit would have been sworn in Accra. The RAD finds it, more likely than not, that the affidavits were found to be lacking, as they did not address the core of the Appellant's claim (her lesbian identity) and her abuse because she was found to have had sex with women and the Appellant's friend and brother wrote the letters to plug holes in the affidavits. The RAD finds that the omission from the original affidavits and the unreasonable explanation for the omissions undermined the credibility of the affidavits as well as the letters, and further undermined the credibility of the Appellant's allegations as a whole. Testimony Regarding Same-Sex Partners [34] The RPD found the Appellant's oral testimony regarding her "partners" was confusing and internally contradictive, which led it to draw a negative inference regarding whether she had an exclusive relationship with XXXX or not. Counsel argued in the pleadings that the RPD erred in its assessment of the evidence. Counsel argued that the Appellant used the word "partners" to describe her girlfriend (XXXX) but not her sexual partners. Counsel argued that her only sexual partner was XXXX, and that the Appellant's testimony regarding this issue should be believed. [35] The RAD considered the recording of the hearing and found that the RPD's finding that the Appellant's testimony was contradictive and confusing was grounded in the evidence. At the hearing, the RPD asked the Appellant if she had relations with women during the time that XXXX was her girlfriend and the Appellant indicated no, but that the couple went out to parties with other lesbians and they communicated with lesbians. The RPD asked the Appellant to explain why she indicated in her BoC that she had female partners in her home if she did not have any partners. The Appellant's BoC narrative indicated that: "My husband was not aware of my sexual orientation so my marital home became a good place for my female partners some of whom he knew as my friends". The Appellant explained that there were people she was involved with and one person, XXXX XXXX whom she referred to as her partner. Upon questioning by counsel, after a break in the proceedings, the Appellant testified that there was a difference between occasional partners and XXXX, whom she referred to as her committed partner. The Appellant explained that XXXX is the person whom she had a commitment to and who was her real partner. [36] The RAD finds that this explanation was not reasonable. The explanation may clarify any confusion between the Appellant's use of the word "partner"; however, it cannot, and does not, clarify the Appellant's inconsistent oral testimony that she did not have sex with other women while she was with XXXX. The question was clear, and the answer was clear. Given the inconsistency and the lack of a reasonable explanation for it, the RAD finds that the RPD did not err in assigning a negative credibility inference with regard to the Appellant and her testimony regarding her relationship with XXXX. [37] The RAD noted a significant inconsistency between the Appellant's BoC narrative and her oral testimony that was not put to the Appellant at the hearing. The Appellant testified at the hearing that she was in a relationship with XXXX from 2004 - 2010. She met XXXX while she was in XXXX School. The Appellant's BoC did not mention the Appellant's relationship with XXXX in 2004. In fact, from a reading of the 4th paragraph of the Appellant's BoC narrative, it would appear that the Appellant alleged that she was in a relationship with XXXX XXXX in 2004. For example, the BoC says: "After our secondary school, XXXX and I continued our relationship. Our relationship advanced further when I was in the school of XXXX in 2004". The Appellant's BoC did not coincide with her oral testimony, and there was no mention of XXXX until the Appellant wrote about the events of January 2013. [38] The RAD also noted that the Appellant referred to XXXX as a friend in her testimony when she was recounting the fact that XXXX had been raped and beaten for being a lesbian. The Appellant did not mention that XXXX was the person with whom she first had sex. Later, in her testimony, she indicated that she had a relationship with XXXX until she found XXXX. The RAD finds it concerning that the Appellant did not refer to XXXX in a consistent manner. [39] Given the reasons highlighted above, the RAD finds that the RPD's placing of a negative credibility inference regarding the Appellant's relationship with XXXX was reasonable as it fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Other Credibility Concerns [40] Upon review of the evidence before the RAD, the RAD found several concerns with the Appellant's IMM5669, which did not coincide with her allegations. While these concerns were not put to the Appellant, the RAD finds that they support the overall finding of the RPD that the Appellant's allegations were not credible. For example, in Question 12 of the IMM5669,21 the Appellant indicated that she lived at the same address in Accra from XXXX 2010 until XXXX of 2013, when she left for Canada. There was no mention of the four months that the Appellant allegedly lived with her friend in Kumasi (some five to six hours away) from the first week of XXXX until XXXX of 2013. Similarly, the Appellant's response to her employment in Question 8 of the IMM566922 indicated that the Appellant ran her business in Accra until XXXX of 2013. It does not mention that the Appellant stopped working in XXXX of 2013. There is evidence that the Appellant had an opportunity to revise her responses in the IMM5669, as handwritten changes and additions, accompanied by a signature, were included throughout the IMM5669. The inconsistency between the Appellant's IMM5669 and her oral evidence and BoC allegations further supports the RPD's finding of a lack of credibility. Psychological and Medical Evidence [41] The Appellant provided a letter from a nurse practitioner23 and a psychological report by Dr. XXXX24 in support of the allegations. The RPD found that the letters had little probative value to overcome the credibility concerns (omissions and contradictions) with the Appellant's allegations and testimony highlighted above. Counsel argued that medial reports were important to assist the panel to understand the Appellant's state of mind and not to put too high a burden on the Appellant. Counsel also argued that disregarding the medical assessment placed the Appellant in a "catch 22" position, as the panel would have made a negative determination for the Appellant's failure to provide such reports. [42] The RAD noted that the RPD did not consider the content of the two reports. The RAD finds that the content of the reports is significant in assessing their weight and probative value. A review of the letters indicate that the letters are significant not for what they say, but for what they do not say. For example, the nurse practitioner's letter indicated that the Appellant has suffered from nightmares and persistent anxiety; however, the RAD noted that the psychological report makes no reference to persistent anxiety. It only refers to anxiety regarding the hearing date. The RAD noted that the nurse practitioner's letter does not indicate that the nurse practitioner has specialized training in psychology or is legally allowed to make a psychological diagnosis. The RAD therefore places more weight on the psychological findings by Dr. XXXX given that she has a PhD in psychology and can make a diagnosis in her area of expertise. The report does not make a mental health diagnosis. The report does not cite any results of psychological tests performed. The report does not make a correlation between the Appellant's "psychological condition" and the specific allegations that the Appellant alleges in her BoC. In fact, the Background Information section of the report does not mention abuse by her husband and a fear of the community because her sexual orientation was disclosed. The report does not comment on the coherence between the allegations and the Appellant's accounts of the allegations. The psychological report does not make reference to any specific incidents of harm (physically beaten with a belt or hit with a stick with a nail). Given the lack of connection between the allegations of persecution or harm and any mental health or psychological diagnosis, the RAD finds that the psychological report is of little probative value in support of the Appellant's allegations. [43] The RAD noted that the nurse practitioner's report does not mention the causality of the Appellant's abuse. It states, "She has suffered from tremendous abuse, physical, sexual and emotional, at the hand of her ex-partner and uncle in Ghana." The report fails to mention that the Appellant claims to be a lesbian and that she wants to remain in Canada, as she fears persecution or harm based on her sexual orientation. [44] The medical report indicated that the Appellant had been hit with a stick with a nail by her uncle, and that she had been beaten with a belt by her husband. These allegations were not included in the psychological report, and the allegations of being hit with a belt were not included in the Appellant's BoC. [45] The psychological and medical reports are to be viewed in context with the totality of the evidence. The RPD considered the credibility of the Appellant's allegations as well as her credibility as a witness. Given the credibility concerns, given that the psychological and medical report contents were based on the Appellant's self-reported allegations, and given the concerns with the reports highlighted by the RAD, the RAD finds that the RPD did not err in assigning the reports little probative value. Finding of a General Lack of Credibility [46] After having considered the totality of the evidence, the RPD made a general finding in paragraph 22 of its reasons that the Appellant was "so lacking in credibility that there was no credible evidence relevant to the claim". The RPD supported this finding with reference to Sheikh,25 and the Appellant's evidence can cast doubt on the totality of the oral evidence. Counsel argued that the RPD erred in that it ignored documentary evidence and important aspects of the Appellant's testimony while focusing on inconsistencies. The Appellant's counsel cited Mahathmasseelanm26 and Tharmalingam27 in support of this argument. [47] The RAD considered counsel's argument. The RAD finds that the Mahathmasseelanm decision cited above warns decision makers against making findings based on inconsistencies which are not significant or central to the claim. In the Tharmalingam decision cited above, the Federal Court overturned the decision given that the tribunal did not make a general finding of a lack of credibility. As such, there was an obligation for the tribunal to consider the remaining evidence. [48] The RAD finds that counsel's arguments are not supported in this case. As cited above, the RAD finds that the RPD made reasonable findings that the Appellant had not provided sufficient credible or trustworthy evidence to attest to her claim of being a lesbian and her allegations of persecution or harm in Ghana. The RPD focused its credibility findings on central aspects of the claim and not on peripheral details. In addition, the RPD made a finding that the Appellant was not a credible witness as a whole after assessing the totality of the evidence. The RAD noted that the RPD found that the Appellant embellished her evidence with regard to a fear of local youth. The RAD also noted concerns with the affidavits and letters provided by the Appellant in support of her claim. For these reasons, the RAD finds that counsel's arguments cannot stand. The RAD finds that the RPD did not err in mixed fact and law in finding that the Appellant was not credible regarding core aspects of her claim and that the Appellant was not credible in general. SUMMARY AND DETERMINATION [49] Based on the totality of the evidence before it, the RAD finds that the RPD's findings that the Appellant was not a lesbian and her fear of persecution or harm in Ghana were reasonable. As such, based on section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection. [50] The RAD dismisses the appeal. (signed) "Daniel McSweeney" Daniel McSweeney January 11, 2014 Date 1 RPD Record, Minister's Intervention, pp. 134 - 156. 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 5 IRPA, s. 110 (1). 6 IRPA, s. 107. 7 IRPA, s. 170. 8 IRPA, s. 110(3). 9 IRPA, s. 110(4). 10 RAD Rule 57. 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 13 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 14 RPD's Record, Affidavits from XXXX XXXX and XXXX XXXX, pp. 105 - 110. 15 RPD's Record, Letter from XXXX XXXX pp. 111 - 112 and Letter from XXXX XXXX, pp. 124 - 125. 16 RPD's Record, UK Country of Origin Report for Ghana, 11 May, 2012. Section 21.07. 17 RPD's Record, UK Country of Origin Report for Ghana, 11 May, 2012. Section 21.07. 18 RPD's Record, RIR Number GHA104153, 16 August 2013. 19 RPD's Record, RIR Number GHA104153, 16 August 2013. 20 RPD's Record, Judicial Declaration, p. 108. 21 RPD's Record, IMM5669, Question 12, p. 31. 22 RPD's Record, IMM5669; Question 8, p. 30. 23 RPD's Record, Letter from XXXX XXXX, July 19, 2013, p. 154. 24 RPD's Record, Report by Dr. XXXX, July 2, 2013, pp. 113 - 115. 25 Sheikh v. M.E.I., [1990] 3 F.C. 238 (C.A.). 26 Mahathmasseelanm v. M.E.I., (1991), 15 Imm. L.R. (2d) 29 (F.C.A.). 27 Tharmalingam v. M.E.I. (2008) FC 463. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08255