MB4-01586

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 : MB4-01586 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision July 22, 2014 Date de la décision Panel Me Diane Sokolyk Tribunal Counsel for the person who is the subject of the appeal Raed Mahko Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] Ms. XXXX XXXX XXXX XXXX, a citizen of Barbados, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Tribunal has read the Appellant's Record, reviewed all documentary evidence submitted before the RPD and has listened to the recording of the hearing. The Appellant requests that the RAD overturn the RPD decision and return the file to the RPD for a new hearing. No new evidence was submitted. DETERMINATION OF THE APPEAL Confirms RPD determination [2] Pursuant to ss. 111(1)(b) of the Immigration and Refugee Protection Act (the Act), the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention Refugee" pursuant to s. 96 of the Act nor is she a person in need of protection pursuant to s. 97 of the Act. BACKGROUND Basis of the claim [3] The Appellant alleged before the RPD that she feared returning to Barbados because she suffered abuse from a boyfriend with whom she lived with in Barbados from XXXX 2009 until she left for Canada on XXXX XXXX, 2012 to flee from the abuse. She alleged that she feared that he would rape her or carry out threats towards her if she were to return. The Appellant claimed asylum in Canada on January 10, 2014, approximately 18 months after arriving in Canada. The Appellant's father lives in Montreal, Quebec and her mother lives in Barbados. [4] The Minister submitted documentary evidence before the RPD which established that during the period of alleged abuse, the Appellant made six short trips to Trinidad and Tobago and one trip to the United States. Following her arrival in Canada on XXXX XXXX, 2012, she left on XXXX XXXX, 2013 for a five month visit to a relative in the United States, until XXXX XXXX, 2013. On re-entering Canada, she was met by immigration officials who authorized her to remain in Canada as a temporary resident until XXXX XXXX, 2013. The Appellant established before the immigration officials that she had an airplane ticket to Barbados for XXXX XXXX, 2013 and that her intention was to study film in Barbados. Grounds of appeal [5] The Appellant's Memorandum of Argument raises three issues: firstly that the RPD erred in finding that the Appellant was not credible; secondly, that the RPD erred by not considering the Appellant's credibility in view of all of the evidence submitted; and thirdly, that the RPD did not complete a detailed analysis of the claim under both Section 96 of the Act and Section 97 of the Act. ANALYSIS OF THE MERITS OF THE APPEAL Standard of Review [6] The first two issues identified by the Appellant relate to the RPD's assessment of credibility. The first issue is an issue of fact as it relates to the RPD's assessment of the testimony and evidence submitted. The second issue contains an element of law, as the Appellant argues that the RPD did not consider all of the documents submitted in light of her credibility. The second issue is therefore one of mixed fact and law. According to the Supreme Court of Canada in Dunsmuir v. New Brunswick1, at paragraph 51, the standard of review applicable to matters of fact or matters of mixed fact and law is the standard of reasonableness. The Court states in paragraph 47 that a reasonableness review involves recognition that certain decisions do not lend themselves to one specific result; a tribunal has a margin of appreciation within the range of acceptable and rational solutions2. "Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. The Federal Court has recently confirmed this standard of review in the case of Iyamuremye v. Canada (M.C.I.)3, where, at paragraphs 2 and 40, Justice Shore confirms that the appropriate standard of review to be used by the RAD should be reasonableness with respect to errors of fact or errors of mixed fact and law. At paragraph 40 of this decision, Justice Shore states: "In this case, the Court is entirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law, and applying a reasonableness standard to those involving questions of mixed fact and law (White, above; also, Budhai, above; andFurlong, above)." The RPD erred in finding the Appellant not credible [7] The Appellant argues that all of her explanations with respect to her omissions were satisfactory (Paragraph 6, Appellant's Memorandum), and that the omissions were not central to the claim (Paragraph 10, Appellant's Memorandum) She argues that incoherent statements, false declarations and concealment of facts should not be considered on matters unless they are central to the claim (Paragraph 12, Appellant's Memorandum). [8] The RPD found that the Appellant was not credible based on a number of factors which are summarized in paragraph 23 of the RPD decision. The Tribunal will examine three factors. [9] There was a contradiction between her testimony and her written Basis of Claim form about where she lived in Barbados. The RPD questioned the Appellant about why she had written and testified that she was living at her mother's address but had claimed that the abuse took place while she was living with her boyfriend at his address. The Appellant replied that she did not want to put his address but she did not know why. Counsel argued at the hearing that his client had omitted the address because it was too painful to remember this information. However, the RPD noted that the Appellant had related the facts of her alleged abuse in the BOC. The RPD found after questioning that it did not believe that the Appellant was living with an abusive boyfriend. The Tribunal finds that it was reasonable for the RPD to reach this conclusion as this is a major inconsistency: it would be expected that if an Appellant had lived at a certain place for three and a half years that she would know the address despite the circumstances. [10] The RPD also found it not credible that the Appellant testified that one month after she left Barbados, her boyfriend had visited her mother and told her that he wanted to kill the Appellant. Following this visit a car drove by the mother's house and a rock was thrown through the window. None of these facts were included in the BOC. The RPD questioned the Appellant and she had no explanation for this omission. The RPD concluded that the incident did not take place. The Tribunal finds it was reasonable for the RPD to have reached this conclusion. This is a major omission. One would expect that such an incident would have caused great fear in both the Appellant and her mother and one would expect that such a death threat would have been uppermost in her mind when writing her narrative in the BOC. [11] The Appellant alleged that the RPD did not consider the evidence in her claim when reviewing her credibility with respect to the issue of the delay in claiming for asylum. (Paragraph 13, Appellant's Memorandum) The Appellant alleges further that this is accessory to the central claim. [12] The RPD reviewed the evidence from the Minister with respect to the Appellant's travel to and from Barbados during the alleged period of abuse in paragraph 4 of the decision. The RPD found that the Appellant had multiple opportunities to claim asylum, either in Trinidad and Tobago, the United States or in Canada prior to the date asylum was claimed. The RPD questioned the Appellant as to why she did not claim asylum at any of the previous opportunities when she had left Barbados. The Appellant replied that she did not know that she could have claimed asylum and she only travelled in conjunction with training for a job with an airline and for her work. The RPD did not find this to be an acceptable explanation given that the Appellant claimed that she was living in fear of her boyfriend at that time. A secondary issue arose with respect to the Appellant's delay to claim in conjunction with her allegation of her father's decision not to sponsor her in December 2012. The Appellant testified that her father told her directly that he would not sponsor her in December 2012. The Appellant also submitted a letter in evidence from a step-sister (Exhibit C-3) which stated that it was the step-sister who told the Appellant her father would not sponsor her. When confronted at the hearing about the contradiction between her testimony and the letter, the Appellant changed her testimony to say that her father had told her he couldn't sponsor her "right now', and he had not told her directly. This was a contradiction of her previous testimony which the RPD found not credible. The Tribunal finds that the combination of multiple trips away from the alleged abuser with multiple opportunities to claim for asylum, the fact that she had purchased a plane ticket prior to her status expiring on XXXX XXXX, 2013 and had declared her intention to return to Barbados and study film to an immigration official, and that she had submitted directly contradictory evidence about when she had learned of her father's refusal to sponsor her - all support the reasonableness of the conclusion reached by the RPD as to her lack of credibility. The RPD erred in finding the Appellant not credible without considering all of the documents submitted. [13] The Appellant alleges in her Affidavit at paragraph 5, and in the Appellant's Memorandum at paragraphs 6 and 13 that the RPD did not consider the corroborating proof submitted and an error was thus committed. The Appellant submitted Documents C-1 to C-7. The documents filed as C-1 included the prescription for Ativan the Appellant was taking. The RPD acknowledged and reviewed this matter at the hearing and in paragraph 7 of the decision. The documents filed at C-2 were submitted to establish that the Appellant was enrolled in training as a flight attendant. The RPD referred to this training without challenge at paragraph 18 of the decision. Document C-3 was a letter from the Appellant's step-sister, Sabrina De Luca. The RPD referred to this letter in paragraphs 15 and 16 of the decision and questioned the Appellant about it during the hearing. Document C-4 is entitled "Social Worker information" a sheet of paper with two names and what appear to be identifying numbers but no other information. This is not referred to in the RPD decision but I do not see how it could change the credibility analysis of the Appellant. Documents C-5, C-6 and C-7 are country condition evidence with respect to rape of tourists in Barbados and domestic abuse in the Barbados. This evidence was not considered by the RPD. The Tribunal finds that in light of the extensive questioning of the Appellant on all of the subjects in her claim at the hearing and in light of the apparent finding of a total lack of subjective fear, in such cases, it is not necessary to extensively review country conditions which are at that point insufficient in and of themselves to suggest a valid case for asylum. The RPD erred by not analyzing this claim thoroughly under both Section 96 and Section 97 of the Act [14] The Appellant alleges in paragraphs 15 and 16 of the Appellant's Memorandum that the RPD erred by not analyzing this claim under both Section 96 and Section 97 of the Act. The RPD states at the beginning of the decision that the claim is being made under Section 96 and 97 of the Act. At the end of the claim, the RPD finds that the Appellant was not a "convention refugee" (Section 96) nor a "person in need of protection" (Section 97). The Tribunal notes that the RPD found the Appellant to be completely not credible for multiple reasons, that she had no subjective fear under Section 96, and that her behavior was not compatible with someone who fears a risk to her life or a risk of cruel and unusual treatment or punishment. In this case, the RAD finds that it was not necessary to engage in a separate analysis under Section 97. In the recent case of Qiongzhong Ye v. Canda (Citizenship and Immigration)4, the Court found that a negative credibility finding is determinative of a claim and it was not necessary for the RPD to carry out a separate analysis under Section 97. REMEDIES [15] For all these reasons, I confirm the determination of the RPD. The appellant was not credible whether an analysis was undertaken under s. 96 or s. 97 of the Act. CONCLUSION [16] I find that XXXX XXXX XXXX XXXX is neither a "Convention refugee" pursuant to s. 96 of the Act nor a "person in need of protection" pursuant to s. 97 of the Act. [17] The appeal is dismissed. Diane Sokolyk Me Diane Sokolyk July 22, 2014 Date /mar 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. 2 Ibid. 3 Iyamuremye v. Canada (M.C.I.), IMM-5282-13, 2014 CF 494. 4 Ye v. Canda (Citizenship and Immigration), 2014 FC 647, (F.C. No IMM-3025-13). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB4-01586 2 RAD.25.02 (7 février 2014) Available in English