TB5-02276

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 : TB5-02276 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) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 28, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dariusz Wroblewski 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 (the Appellant), a citizen of Cameroon, 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 that the Refugee Appeal Division (RAD) set aside the decision of the RPD and grant the Appeal. Oddly enough, the Appellant does not specify what relief she is seeking. 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 fears going back to Cameroon, based on her sexual orientation, that she would face persecution, as her sexual orientation identity became known to the police and judicial authorities. The Appellant came to Canada to XXXX XXXX XXXX, and it was while she was here in Canada, that the authorities learnt of her sexual orientation. The Appellant arrived in Canada on XXXX XXXX, 2014 and made an inland claim on or about November 25, 2014. [4] The Appellant's application for refugee protection was heard on January 26, 2015. In a written decision dated February 05, 2015, the RPD rejected the claim, finding that the Appellant is neither a Convention refugee nor a person in need of protection. The RPD found the Appellant was not a credible witness. [5] The Appellant argues that RPD err in its credibility findings. Application for an Oral Hearing [6] The Appellant asks in her Written Statement that an oral hearing be held, pursuant to Section 110(6) of IRPA. [7] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their 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." [8] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [9] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellants, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [10] The Appellant has not submitted any new evidence, and therefore, the RAD has not admitted any new evidence submitted by the Appellant in support of her appeal. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. ROLE OF THE RAD [11] Counsel has not made submissions in this regard to the role that the RAD plays in the review of an RPD decision which is consistent with the recent Federal Court decision in Huruglica.1 The RAD finds that the Huruglica2 decision provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. [12] Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." ANALYSIS OF THE MERITS OF THE APPEAL 1) Did the RPD err in its credibility findings? 2) Did the negative credibility finding lack an overall assessment of evidence before it? 3) Did the Panel fail to consider or misconstrue or misunderstand evidence and rely on that evidence in coming to its decision in this matter? Did the RPD err in its credibility findings? [13] The Appellant argues that the RPD erred when it gave less/no weight to the Appellant's documents which was not centred on their content but rather their form and procedural protocols in their issuance? The Appellant further argues that the RPD gave diminished or no weight solely on the foundation that the letters were fraudulent or fraudulently acquired.3 . The Appellant maintains that these formalistic requirements impose an unreasonable burden on the Appellant. [14] The RAD disagrees with the Appellant's argument, the RPD provided a detailed assessment of the Appellant's documents in its reasons; the RAD, after reviewing the documents, finds that there was sufficient foundation to give the documents less weight.4 The RPD clearly stated in its reasons, that the Appellant's general credibility had been undermined and that the allegations made by the Appellant caused her claim for refugee protection to have been weakened. The RAD finds that, given the significant credibility findings, it was open to the RPD to assign the appropriate weight to these documents, and further that they do not overcome the totality of the adverse credibility findings in the absence of further corroborative proof. The RAD noted that when it assessed these documents that one of documents provided some corroborative evidence5, however, there is no independent evidence of the Appellant's sexual orientation while she resided and worked in Cameroon. There is a note from XXXX XXXX who speaks about meeting the Appellant and others at a bar located in the gay village here in Toronto. The balance of the content of the note is based on self-reporting by the Appellant, it did not provide any independent or persuasive evidence about the Appellant's sexual orientation identity. The other documents such as the letter from XXXX XXXX XXXXCommunity Centre,6 its content merely states that the Appellant is an active member of the community centre. The letter goes on to describe what XXXX is, but does not state the sexual orientation of the Appellant, and as such does not provide any evidence to support the Appellant's claim. [15] The RAD conducted an assessment of the police documents which the Appellant argues the RPD erred in its conclusion that the documents were fraudulent. The RAD, upon conducting its own assessment of the documents, arrived at the same conclusion that the documents were not genuine. The RAD provided notice to the Minister and the Appellant's counsel of its concerns; however, to date no submissions have been received from either the Minister or the Appellant's counsel on the RAD's concerns of the genuineness of the police documents. The RAD will provide its assessment on the police documents. The Convocation which bears the Appellant's name is issued on XXXX XXXX, 2014 demanding she present herself at the XXXX XXXX Police Station on XXXX XXXX, 2014. Upon review of the RIR provided in the National Documentation Package, CMR104623.FE, which provides an overview of the issuance of Appear Notices and summons. A sample of the Summons (Convocation) is attached to the RIR. When the RAD looked at the Convocation that the Appellant tendered into evidence, and looking at the sample provided, it is very clear that they are very much different in their format and content. The RIR also speaks of the fraudulent use of this document by persons who obtain and use them for illegal use. [16] The RAD further reviewed Law N°2005 of 27 July 2005 on the CRIMINAL PROCEDURE CODE, The National Assembly deliberated and adopted, and The President of the Republic hereby enacts the law set out below: BOOK I, GENERAL PROVISIONS; of which the Appellant provided excerpts pertaining specifically to sections 11(1) and 11 (2) which deal with the court processes which include the issuance of Summons and argues that the RPD erred by misunderstanding the legal terms, and points to the decision that the summons was fraudulent that was made by the Panel, the issuance of the Summons was not issued by the proper authorities. PART II COURT PROCESSES Section 11: (1) A court process shall be a written document by which a magistrate or a court orders either: - the appearance or production of an individual before them; or - the remand in custody of a suspect, a defendant, an accused, or - a witness suspected of hindering the search for evidence; or - the imprisonment of a convict; or - the search of objects either used for or procured by the commission of an offence. (2) The following shall constitute court processes: - summons, bench warrant, remand warrant, production, warrant, search warrant, warrant of arrest and imprisonment warrant. Section 12: (1) a) The State Counsel may issue summonses, warrants of arrest, search warrants, or production warrants; b) In cases of offences committed flagrante delicto, he may issue remand warrants (2) The Examining Magistrate may issue, a summons, a bench warrant, search warrant, a remand warrant, and a production warrant. (3) The trial court may issue a summons, a bench warrant, a search warrant, a remand warrant, an imprisonment warrant, and a production warrant. Section 13: (1) The purpose of a summons is to command the person named therein to appear before the State Counsel, an Examining Magistrate, or a trial court on the date and hour mentioned in the summons. (2) It shall be served on the person named therein by an officer or agent of the judicial police or by any other person who has been assigned such duties. (3) Service shall consist of the delivering of a summons to the person named therein, an Ire shall sign the original which shall be returned to the magistrate who issued it. If he cannot sign, he shall make a right hand-thumb print or make a print by using any other finger. If he refuses to sign or to thumb-print, mention shall be made of this fact on the original. (4) Where the person named therein appears, he shall without delay be heard. If he fails to appear, a warrant may be issued for his arrest. Section 14: (1) A bench warrant shall be an order given by a court to any officer of the judicial police to bring immediately before it, the person named therein. It shall be executed in accordance with section 27 herein. (2) (a) The signatory of the warrant shall hear the person named therein as soon as he is brought before him; (b) At the end of the hearing, the said warrant shall have no further effect. (3) If the person against whom a bench warrant has been issued is arrested outside the territorial jurisdiction of the court or outside the place of residence of the judicial authority who issued the said warrant, he shall be brought to the nearest Legal Department which, after ascertaining his identity, shall take all necessary steps to ensure his appearance before such authority. (4) Throughout the formalities and the transfer referred to in the preceding sub-section, the person against whom the bench warrant has been issued shall be considered as having been remanded in police custody. (5) If the person against whom the bench warrant has been issued cannot be found, a detailed report on the unsuccessful attempts to find him shall be drawn up and sent to the judicial authority who issued it. (6) In the case provided for in sub-section (5) above: - the original of the warrant is signed either by the head of the administrative unit, or the mayor, or the village or quarter head of the residence or the last known place of abode of the wanted person; - a copy of the warrant shall be posted either at the residence or last known place of abode of that person, or at the offices of the administrative unit, the council office or the village community hall; mention of such posting shall be made on the original of the warrant; - a report of the entire process shall be made, for transmission to the author of the warrant; a copy of the report shall be posted at the same place as the copy of the warrant. [17] The RAD has read and assessed all the section pertaining to the Issuance of Summons, Notice to Appear and Arrest Warrant which are contained in sections 10 to 38. As stated above, the RAD notified the Minister of its concerns regarding the authenticity of the documents, only Appellant's counsel replied and indicated that he would be out of the country, but nothing regarding RAD's concerns. It is the finding of the RAD that after conducting the assessment of the police and court documents, and the Appellant's arguments, the RAD finds that they do not conform with what is set out in the Cameroon Criminal Procedure Code, and on a balance of probabilities, the RAD finds these police and court documents to be fraudulent. [18] The RAD, as a result, is not persuaded by the argument that has been put forth by the Appellant as it does not find it supportable and, therefore, the Appellant's argument fails. [19] The RAD notes that all persons, whether they are claimants, Appellants and especially counsels are very aware that credibility, which certainly includes supporting documents, is always an issue at every hearing. The Appellant was represented by competent counsel who ought to have known that the Appellant's documents would be assessed by the presiding member and that the documents would be given the appropriate weight according to their relevance and credibility. The RAD finds it would be improper to consider that the RPD would be in a position to give prior notice of its assessment of the documents. It would be a prerequisite for the RPD to examine all the documents and properly assess them for weight and then after considering all of the evidence presented at the hearing and certainly not before the hearing. [20] In assessing the evidence before the RAD, which includes the RPD's reasons, the RAD notes that the RPD did not accept in its findings that the Appellant lacked an objectively well-founded fear of persecution if she was to return to Cameroon. In its reasons, the RPD made numerous adverse findings of the Appellant regarding her overall credibility, which spills over to numerous facets of her claim, which comprise her allegations of her alleged sexual orientation identity. [21] The Appellant submits, as a result of her testimony, that the RPD's credibility findings were marginal without regard for the record. The Appellant further argues that the RPD, in its finding that the Appellant lacked credibility, ignored relevant material which was before it. In particular, the panel failed to consider the documentary evidence regarding the claimant's charges and court proceedings in Cameroon.7 However, the Appellant has failed to follow Rule 3 (3) (g) (ii) of the RAD. [22] The RPD finds that the Appellant did not meet the requirements of RAD Rule 3(3) which states: (g) a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing. [23] The RAD, in its assessment of the evidence, can see that the record reveals that the Appellant was vague in her testimony regarding the questions relating to the court documents and her friend XXXX. [24] Given the evidence in the record, the RAD finds the RPD findings on credibility to be supportable in this area of the evidence. [25] The RAD, upon review of the audio of the hearing, finds that there was sufficient reason for the RPD to find that her testimony was not credible. [26] The RAD disagrees with the Appellant's arguments and finds that the RPD provided very fulsome reasons in regards to the court documents and the Appellant's credibility as a whole. In regards to the credibility findings by the RPD, the RAD recognizes and respects those findings. SUMMARY AND DETERMINATION [27] The RAD finds that the RPD's credibility findings were thorough and are supported by the evidence and, as a result of those findings; the RAD affords deference to those findings. The RAD also finds, on a balance of probabilities, that evidence on the record is abundant to support the RPD's overall determination. The RAD finds that, after conducting an independent assessment on the evidence before it in its entirety, it arrived at the same conclusion as did the RPD in its overall determination. The RAD further finds that the Appellant has not satisfied her burden of establishing a serious possibility that she would be persecuted or that she would be personally subjected to a risk to her life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Cameroon. DISPOSITION [28] 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, therefore, dismissed. (signed) "Luis F. Agostinho" Luis F. Agostinho July 28, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Exhibit P-2, Appellant's Record, Appellant's memorandum, at pp. 82- 83, paras 9-13. 4 Exhibit P-2, Appellant's Record, Reasons for Decision, at p. 9, paragraph 10. 5 Exhibit P-2, Appellant's Record, Notarized letter from Sonia Guobadia dated January 12, 2015, at p. 35. 6 Exhibit P-2, Appellant's Record, Letter from 519 Church Street, Community Centre, at p. 63. 7 Exhibit P-2, Appellant's Record, at p. 82, paragraph 11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-02276