TB5-04241

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 : TB5-04241 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 July 29, 2015 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Bola Adetunji 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 (the Appellant), a citizen of St. Lucia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the RPD's decision and find her to be a Convention refugee; in addition, she asks the RAD to order a de novo hearing of her refugee claim by the RPD. DETERMINATION [2] 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 nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she is lesbian, and that she is at risk in St. Lucia, where her sexual orientation is rumoured or known. [4] The Appellant's application for refugee protection was heard on April 9, 2015. By a decision of April 13, 2015, the RPD rejected the claim on the basis of credibility. The panel considered the Appellant's lengthy delay in making a refugee claim, her hesitation in describing her own sexual orientation, and the inconsistent testimony of a witness. The RPD found that the Appellant had not established her sexual orientation, which was the basis for her claim. [5] The Appellant submits that the RPD erred by ignoring evidence, by failing to consider the circumstances behind her delay in claiming, and in faulting her for qualifying her answers with respect to her sexual identity. She also argues that the RPD was wrong to make a negative finding with respect to her failure to seek police assistance. Further, she submits that the RPD failed to consider the risk she faces as a perceived lesbian. ANALYSIS What is the Role of the RAD? [6] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [7] The Appellant submits that "the single issue on this application is whether the decision of the board is reasonable."1 However, she goes on to argue that the RAD should not apply a standard of reasonableness, but should review all aspects of the RPD's decision and come to an independent conclusion as to whether she is a Convention refugee or person in need of protection. She subsequently asks the RAD to find the RPD's decision unreasonable.2 [8] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.3 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [9] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [10] Where the proceeding is a true appeal-that is, where there is no admissible new evidence, as is the case here-the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [11] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.4 [12] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [13] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [14] Where the RPD's determination is entirely based on findings which warrant deference-such as an overall lack of credibility, based on oral testimony-the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [15] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The RPD's Findings [16] The Appellant argues that the RPD made various errors in rejecting her claim. Ignoring evidence [17] The Appellant argues that the RPD ignored evidence, in particular affidavits which affirmed both her sexual orientation and the rumours in St. Lucia about that sexual orientation. [18] The RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record.5 Here, however, the RPD did refer to these documents, though it gave them little or no weight.6 [19] As the RPD noted, one affiant lives in Toronto, but was not made available to testify before the RPD. His affidavit claims that he knew the Appellant "for over 6 years through acquaintance in St. Lucia;"7 the Appellant conceded to the RPD that she did not meet the affiant in St. Lucia, and in fact met him in Canada only two years ago, though she had "known" him through social media prior to that time. The RAD agrees that his evidence warrants little weight. [20] There were other corroborating letters and affidavits, and the RPD assigned them little probative value. In the RAD's view, this was not an error. The Appellant was seen and questioned by the RPD, as was her witness. As will be discussed below, the RPD did not err in finding the Appellant to be generally lacking in credibility. The RPD found credibility problems with both the Appellant and her witness. In these circumstances, it was not wrong for the RPD to give little weight to documents, supplied by the Appellant, from individuals whom the RPD could not see or question. Perceived lesbian [21] The Appellant argues that the RPD, while finding that she has not established her sexual identity, failed to consider that she would be perceived as a lesbian in St. Lucia. The RPD's reasons here could be more clear. However, as discussed above, the RPD gave little weight to documents alleging that the Appellant is perceived as a lesbian. Further, the RPD seems to have found the Appellant to be generally lacking in credibility. While this global credibility finding could and should have been clearly and explicitly made, it is nevertheless implicit in the RPD's reasons that the panel did not believe the Appellant's evidence.8 Having given little weight to documents alleging that the Appellant is perceived as lesbian, and having found the Appellant's evidence to be generally lacking in credibility, there was no remaining credible evidence to support the Appellant's claim about her perceived sexual orientation. Delay in claiming [22] The Appellant arrived in Canada in mid-2012, allegedly due to her fear of persecution in St. Lucia, but did not make a refugee claim until February of 2015. She explained to the RPD that she was afraid of claiming, as she had heard about changes to the refugee protection system and feared removal to St. Lucia. The RPD concluded that the lengthy delay was inconsistent with the Appellant's alleged fear of persecution, and made a negative credibility finding. [23] The Appellant argues on appeal that this was an error, as the RPD failed to consider her explanation that she lived in Canada with a woman who took a dim view of her homosexuality and preached at her.9 It would have been better had the RPD discussed this explanation, but the RAD finds that the explanation does not explain the delay. [24] The Appellant allegedly fled to Canada in fear for her life. Even though her status expired, and she was at risk of deportation, she did not seek protection. In the RAD's view, neither her concerns with changes to the refugee system nor the disapproval of a lady with whom she lived satisfactorily explain why she lived for about two years without status and at risk of being sent back to St. Lucia. [25] The delay in claiming was not a matter of weeks or even months, but more than two years. The RAD agrees with the RPD's finding that this delay seriously undermines the Appellant's claim to be afraid of persecution in St. Lucia. Self-identification as a lesbian [26] The RPD made a negative finding with respect to the Appellant's testimony about her sexual orientation, as she stated that "right now" she is a lesbian. The panel found that the Appellant had to be pressed to answer such questions; the RPD was "taken aback by the claimant's qualifying of her sexual identity," and drew a negative inference.10 [27] The RAD agrees with the Appellant that this was an error. The Appellant stated clearly in her Basis of Claim (BoC) narrative that "I am still unsure how to classify my sexuality,"11 and therefore it is not remarkable that, when pressed in the hearing, she hesitated and qualified. The RPD apparently expected the Appellant to strongly and clearly identify her sexual orientation, but the basis for this expectation is not clear in the RPD's reasons. The Appellant's testimony here was consistent with her BoC and it was wrong for the RPD to make a negative credibility finding. State protection [28] Although the RPD determined the Appellant's refugee claim on the basis of credibility, it included a paragraph entitled "state protection." There the RPD briefly considered that the Appellant did not go to the police when she was threatened and her house vandalized. The RPD wrote that "this is not credible," as the Appellant had not identified herself as a lesbian at the time of the incidents. [29] The RPD's analysis here is confused; it seems to deal with credibility, but also ventures into the issue of state protection: "The police cannot be faulted for not offering protection where incidents are not reported to them."12 However, there is no analysis of state protection, or finding with respect to that issue. [30] The RPD's credibility finding here is wrong. The Appellant testified that she was threatened because of her perceived sexual orientation, and that the threats were made in the context of homophobic comments. It was an error for the RPD to expect that the Appellant could report these to police without revealing that the incidents were linked to her perceived homosexuality. [31] The RPD erred in faulting the Appellant for the way in which she identified her sexual orientation, and in drawing a negative inference with respect to the Appellant's failure to approach the police. However, in the RAD's view, these errors are not fatal to the RPD's global credibility finding. [32] The Appellant allegedly fled to Canada for safety, then delayed for a significant period of time in seeking that protection. The RAD agrees that this seriously harms her credibility. Any credibility which remains is dispelled by the testimony of the Appellant's witness. The RPD made a negative credibility finding with respect to this testimony. Although the Appellant does not challenge that conclusion on appeal, the RAD must nevertheless consider it, as it is part of the basis for the global credibility finding. [33] The Appellant brought a witness with whom she claims to live. The witness, also a lesbian, did not assist the Appellant's case. Although the Appellant said the witness was not her girlfriend, the witness claimed otherwise. Despite the witness' claim that she shares the Appellant's home and her bed, and that they are so close that they kiss, the witness did not know the Appellant's age, her country of origin, her status in Canada, or even the reason for the RPD hearing. The RPD made a negative credibility finding with respect to this evidence. While the RAD will defer to the RPD in a situation such as this-where the RPD had the advantage of seeing and questioning the witness-the RAD would have reached the same conclusion even if it did not defer. In the RAD's view, the witness testimony and the delay in claiming together are fatal to the Appellant's refugee claim. [34] The RPD implicitly found the Appellant to be generally lacking in credibility. While the RPD did make some errors in reaching this conclusion, those errors are not fatal to the RPD's determination of the Appellant's refugee claim. Having reviewed the evidence, the RAD agrees that the Appellant is generally lacking in credibility. She has not established with credible or trustworthy evidence that she is lesbian, or that she would be perceived as lesbian, or that she faces any risk in St. Lucia. CONCLUSION [35] Pursuant to Section 111(1)(a) of 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) "Edward Bosveld" Edward Bosveld July 29, 2015 Date 1 Exhibit P-2, Appellant's Record, Memorandum, p. 92, para. 10 2 Exhibit P-2, Appellant's Record, Memorandum, p. 101, para. 25 3 X (Re), 2015 CanLII 19235 (CA IRB) 4 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 55 5Hassan, Noor v. M.E.I. (F.C.A., no. A-831-90), Isaac, Heald, Mahoney, October 22, 1992. Reported: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.) 6 Exhibit P-2, Appellant's Record, RPD Reasons and Decision, pp. 7-10, paras. 16, 23, 24. 7 Exhibit P-2, Appellant's Record, Affidavit ofXXXX XXXX XXXX, p.83 8 The Appellant also understands the RPD's decision this way: "What the board did in this case was to make a global credibility finding against the applicant...." (Exhibit P-2, Appellant's Record, Memorandum, p. 95, para. 16) 9 Exhibit P-2, Appellant's Record, Basis of Claim narrative, p. 73 10 Exhibit P-2, Appellant's Record, RPD Reasons and Decision, p.7, para. 14 11 Exhibit P-2. Appellant's Record, Basis of Claim Narrative, p. 73, last para. 12 Exhibit P-2, Appellant's Record, RPD Reasons and Decision, p.10, para. 25 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-04241