VC2-02458

RAD File / Dossier de la SAR : VC2-02458 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 Date of decision September 21, 2022 Date de la décision Panel Tess Acton Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Ms. XXXX) is a citizen of the Philippines. If forced to return to the Philippines, she fears violence from her husband. She also believes she will face risks from the individual who killed her husband's friend in 2007, will face risks from the police due to the ongoing war on drugs, and will be forcibly evicted by the government from the property on which her family has been living. The Refugee Protection Division (RPD) refused her claim for protection. It found she had not credibly established the violence from her husband and therefore did not have a well-founded fear of persecution on that basis. The RPD also found she did not credibly establish the threats related to her husband's friend's murder in 2007. Further, the RPD found the risks from police or forced eviction did not amount to a personal risk as required by section 97 of the Immigration and Refugee Protection Act1 (IRPA). Ms. XXXX challenges the RPD's finding about the allegations regarding her husband. She has not challenged the RPD's decision about the threats related to the 2007 murder or the risks related to the war on drugs or forcible eviction. [2] I dismiss the appeal. Although I do not agree with all of the RPD's credibility findings, I agree with its conclusion that Ms. XXXX has not established the allegations of violence or harm from her husband, on a balance of probabilities. I also agree with the RPD's unchallenged findings regarding the threats related to the 2007 murder and the risks related to the war on drugs or forcible eviction. I confirm the RPD's decision that Ms. XXXX is neither a Convention2 refugee nor a person in need of protection. [3] I applied the Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board (Guideline 4), effective July 18, 2022, in deciding this appeal.3 NEW EVIDENCE AND ORAL HEARING New evidence accepted [4] Section 110(4) of the IRPA4 states an Appellant may present evidence that arose after the rejection of their claim, that was not reasonably available, or that could not reasonably have been expected to be presented at the time of the rejection. Where evidence meets the requirements of section 110(4) of the IRPA, the Refugee Appeal Division (RAD) will then consider the newness, relevance, and credibility of the evidence.5 [5] Ms. XXXX submits an article from 2003 titled "Understanding Women's Responses to Domestic Violence" as new evidence on appeal.6 [6] I admit the article as new evidence. [7] The article did not arise after the RPD decision as it was published in 2003, which pre-dates the RPD's decision by nearly 20 years. I have no submissions to explain why the article was not reasonably available when the RPD rejected the claim and see none arising on the record before me. Ms. XXXX submits she could not reasonably have been expected to present the article before the RPD rejected her claim. She submits (1) the article is written in academic English and is beyond her comprehension level and (2) she was unrepresented at the RPD hearing, so was unaware the trauma she experienced would affect her credibility, was unaware of the extent of her trauma, and without representation or support from a psychologist it would be unreasonable for her to have relied on this evidence prior to the hearing. [8] The RAD's role is not to provide an opportunity to complete a deficient record before the RPD and claimants must put their best foot forward before the RPD.7 Claimants before the RPD do not have an absolute right to counsel, but rather an absolute right to fair proceedings.8 There is a heightened obligation for the RPD and the RAD to ensure the fairness of the proceedings for unrepresented parties.9 In Ms. XXXX case, she completed her Basis of Claim (BOC) form with the assistance of counsel, but was unrepresented before the RPD. As explained in more detail below, the RPD was mindful of Ms. XXXX circumstances and appropriately accommodated her. Realizing Ms. XXXX was not familiar with the disclosure requirements, the RPD also provided her the opportunity to file supporting evidence after the hearing. It cannot be said that the RPD conducted its hearing in a procedurally unfair manner. [9] However, I agree with Ms. XXXX that she was not aware how the RPD would assess her testimony about her husband. Specifically, the RPD found her credibility was undermined because she expressed a desire to reunite with him. I find Ms. XXXX could not have anticipated this reason for doubting her credibility, and thus it was not reasonable to expect her to provide this evidence before the RPD refused her claim. I also find the article meets the credibility, relevance, and newness requirements. The article is from a published research journal and is a credible source of information. It is relevant and new in that it addresses a credibility finding by the RPD. No oral hearing [10] I have accepted new evidence, so I considered whether I should convene an oral hearing. According to section 110(6) of the IRPA,10 the RAD may hold an oral hearing if there is new evidence that raises a serious issue of credibility with the person who is the subject of the appeal, that is central to the decision of the claim, and that, if accepted, would justify allowing or rejecting the claim.11 If all three of these factors are met, the RAD has discretion to hold an oral hearing. [11] The new evidence does not raise a serious issue related to Ms. XXXX credibility and would also not justify allowing or rejecting the claim. I have accepted that the concepts in the article assist in finding the RPD erred in one of its credibility findings, but this finding is not determinative of Ms. XXXX credibility or the claim. I conclude the factors in section 110(6) of the IRPA are not met and I will not hold an oral hearing. ANALYSIS [12] My role is to look at all the evidence and decide if the RPD made the correct decision.12 [13] The determinative issue in this appeal is whether Ms. XXXX has established her allegations, on balance of probabilities. RPD was correct Ms. XXXX did not establish allegations of violence from her husband, on a balance of probabilities RPD's reasons [14] The RPD found Ms. XXXX was not the victim of domestic violence, on a balance of probabilities. It drew negative inferences from the omission of any fear of her husband in her BOC form; her convoluted, vague, and inconsistent testimony; and her contradictory testimony that she wants to reunite with her husband in Canada if granted protection. It gave limited weight to the pictures submitted post-hearing because there was no evidence identifying the individuals in the pictures or the context in which the pictures were taken. It gave limited weight to text messages from her daughter submitted post-hearing because the messages were unclear and the events described are difficult to follow. The RPD also found Ms. XXXX delay in claiming protection undermined her subjective fear. It concluded Ms. XXXX provided insufficient evidence to establish that she faces a serious possibility of persecution from her husband in the Philippines. Ms. XXXX submissions [15] Ms. XXXX challenges the RPD's conclusion that she was not credible about the harm she fears from her husband. She submits the conclusion her testimony was vague, convoluted, and inconsistent is wrong because the RPD did not consider the impact of trauma on her ability to explain her circumstances clearly and consistently. She also submits the hearing process was unfamiliar and stressful and the experience was overwhelming. She submits the RPD should have considered allowing her to make written or video submissions or to complete her hearing before a Member specially trained in claims involving gender related persecution. [16] Ms. XXXX further submits it was an error for the RPD to find her credibility undermined because she indicated a possible desire to reunite with her husband in Canada. She submits it is not unreasonable for women who have experienced domestic abuse to express a desire to maintain the relationship and it should not have been held against her credibility as it is contrary to Guideline 4. She also submits the Member should have provided accommodations based on suspicions Ms. XXXX was exhibiting symptoms of Battered Woman Syndrome. [17] Ms. XXXX submits the RPD erred in assessing the post-hearing evidence. She submits the pictures and messages should carry more weight "under the presumption of credibility."13 She submits this was the best evidence she could provide about the abuse since her husband would have prevented any other attempts to gather evidence. She also submits the meaning of the message from her daughter was clear even if the syntax was difficult to follow. RAD's independent assessment [18] For the following reasons, I find Ms. XXXX has not established her allegations of violence from her husband, on a balance of probabilities. i. RPD applied principles of Guideline 4 and appropriately accommodated Ms. XXXX during the proceeding [19] Ms. XXXX submits the RPD ought to have made further accommodations for her in accordance with Guideline 4 and in recognition of her vulnerabilities as someone who has experienced gender-based violence. She submits she should have been able to complete her hearing in front of someone trained in claims involving gender related persecution, make written or video submissions, and been given other accommodations. [20] I find the RPD conducted the hearing in accordance with the principles in Guideline 4 and appropriately accommodated Ms. XXXX. [21] Ms. XXXX was unrepresented at the RPD hearing. I find the RPD ensured Ms. XXXX understood the nature of the proceedings and explained the process and issues in her claim. The RPD was not required to reconvene the hearing to someone trained in claims involving gender related persecution. Although there is a Gender Related Task Force at the RPD where members receive supplementary training on gender-related claims,14 all RPD members are required to conduct claims involving gender related persecution with a trauma-informed approach. I find the RPD did so during Ms. XXXX hearing. While the RPD asked questions about the violence from Ms. XXXX husband, this was appropriate as these allegations were raised for the first time at the start of the hearing. Given the inquisitorial nature of the proceedings, the RPD was correct to ask questions about the allegations to find out if they formed a basis for granting protection. Throughout its questions, the RPD was patient and respectful. At several points during the hearing, the RPD checked it was understanding Ms. XXXX testimony correctly to avoid confusion.15 When Ms. XXXX became emotional describing her children's circumstances, the RPD offered breaks and treated her with dignity. I note that Ms. XXXX testified both in English and with the assistance of an interpreter. The RPD confirmed Ms. XXXX understood this was her choice and was alert to ensuring she understood the questions when she was answering without the assistance of an interpreter. I find the RPD created a fair and safe adjudicative environment for Ms. XXXX to present her testimony. [22] Ms. XXXX also submits she should have been able to make written or video submissions or been given other accommodations. The RPD provided Ms. XXXX the opportunity to submit evidence after the hearing and accepted her written submissions. It also gave her the opportunity to give remarks at the end of the hearing (which was by video), which Ms. XXXX did not do. Ms. XXXX has not specified what other accommodations should have been provided. I find the RPD appropriately accommodated Ms. XXXX circumstances by allowing her to provide written submissions and post-hearing evidence. ii. Unchallenged RPD findings [23] The RPD found the omission of the violence from her husband from the BOC form undermined Ms. XXXX credibility. It also found Ms. XXXX delay from when she arrived in Canada with a work permit in 2014 to when she made her claim for protection in May 2019 undermined her subjective fear. Ms. XXXX has not challenged these findings on appeal. [24] I agree with the RPD's reasoning and conclusion about the omission from her BOC form, with one correction. The RPD stated Ms. XXXX completed the BOC form herself, but she in fact completed the BOC form with the assistance of counsel.16 In my view, this further supports the conclusion that the omission of this entire allegation from the BOC form is not adequately explained. Additionally, I agree with the RPD that Ms. XXXX explanation that she omitted the information because she was late in submitting her BOC form and then learned she could add information at the hearing does not explain the omission of such important information from the BOC form. I also do not find trauma or its aftereffects explain the omission, as Ms. XXXX has not submitted her experiences prevented her from disclosing these allegations to her previous counsel or in the BOC form. This is also not a situation where only some details were omitted from the BOC form or some events were disclosed and some were omitted. Rather, the entire allegation was omitted from the BOC form. The violence from her husband is material as it forms an entire basis for her claim. I find the material omission undermines the credibility of Ms. XXXX allegation of violence from her husband. [25] I do not agree with the RPD that the timing of Ms. XXXX claim for protection undermines her credibility. The Federal Court is clear that it "is only unexplained delay after the fear has crystalized and after it was possible to seek protection that can reasonably support an inference that the claim of subjective fear should not be believed because of the delay in seeking protection."17 Ms. XXXX testified she did not claim protection after she lost temporary status because she was not aware it was an option. She testified it was only after she contacted a lawyer that she was advised of the possibility.18 I find this credible, on a balance of probabilities. However, the evidence is unclear about when Ms. XXXX contacted the lawyer and learned of the ability to claim protection. Given this gap in the evidence, I do not have the information needed to determine when Ms. XXXX learned of the opportunity to make a refugee claim and whether there is any unexplained delay to when she took up that opportunity. It would be wrong for me to draw a negative inference related to the timing of her claim in the absence of such evidence and I have not done so. iii. Ms. XXXX testimony, submissions, and documents [26] I agree with Ms. XXXX that the RPD erred by finding her desire to potentially reunite with her husband in Canada was inconsistent with her subjective fear and undermined her credibility. Such a finding is wrong because it relies on the incorrect assumption that persons in abusive relationships will not return to an abuser or associate with them after traumatic events.19 I do not find Ms. XXXX testimony about potentially reuniting with her husband in Canada undermines her credibility. [27] The RPD characterized Ms. XXXX testimony and written submissions as convoluted, vague, and inconsistent. I have reviewed the record and find Ms. XXXX testimony was vague. [28] When asked directly by the RPD if he was physically abusive towards her, Ms. XXXX stated, "Yes, before, ma'am, when he is a drunk. He cannot control anything. He is emotion, and he is by his self..."20 Later, she testified when her husband is drunk, he "can do physical" to her.21 However, she did not provide further details and testified about her husband's mistreatment of her sons and daughters, including his anger towards the youngest daughter's boyfriend who is involved with drugs.22 She later explained she is scared of her husband,23 but then also testified if he located her and her children in the proposed IFAs he would not hurt her.24 Ms. XXXX post-hearing submissions are equally as vague. Much of the submissions focus on the insecurity in the Philippines and her family's difficult situation,25 although some parts mention her husband's mistreatment of their children and Ms. XXXX belief he will attack her if she argues with him about them.26 [29] I have considered whether trauma could have impacted Ms. XXXX ability to testify clearly and consistently, as she submits on appeal. I note the RPD asked Ms. XXXX many different questions to elicit testimony and gave her numerous opportunities to clarify her evidence and provide details, including the opportunity to provide post-hearing submissions and evidence. Her testimony remained vague and lacking details. There is no evidence that Ms. XXXX has any medical conditions that would impact her ability to testify or her memory, but I recognize experiences of trauma undoubtedly affect a person whether or not they have a medical diagnosis.27 Taking this possibility into account, I do not draw a negative inference from Ms. XXXX vague testimony. However, I am still left with vague testimony when assessing whether Ms. XXXX allegations are established. The considerations in Guideline 4 and the acknowledgement of how trauma can impact testimony do not change the requirements for allegations to be established on a balance of probabilities. [30] Ms. XXXX submitted supporting documents after the hearing, which the RPD gave limited weight. On appeal, Ms. XXXX submits the RPD should have given the documents more weight "under the presumption of credibility."28 The presumption of credibility of a claimant's sworn testimony, expressed by the Federal Court of Appeal in Maldonado,29 does not apply to documentary evidence. Rather, when considering documentary evidence, the RPD and RAD consider the weight to be given to documents by assessing their credibility and probative value.30 I agree with the RPD that the photographs should be given limited weight. I do not doubt their credibility, but they have low probative value towards establishing violence from Ms. XXXX husband. This is because the photographs of the daughter's self-harm and the son's abrasions do not tend to prove violence or harm from Ms. XXXX husband. The daughter's injuries are not alleged to be from Ms. XXXX husband, and it is not clear how the son got the abrasions.31 Contrary to the RPD, I find the text messages from Ms. XXXX daughter should be given moderate weight. I do not doubt the credibility of the messages, in that they come from Ms. XXXX daughter named XXXX XXXX. However, I do not agree with the submissions that the messages clearly establish Ms. XXXX experienced violence from her husband. The messages appear to have been sent by XXXX XXXX after an incident of self-harm; they are understandably distraught and somewhat disjointed. I find the text messages have moderate probative value because although they mention "hurting" and "physical abuse" related to Ms. XXXX, they are very vague. In other words, they have only moderate value towards proving violence or harm from Ms. XXXX husband because they are vague about the referenced events. Finally, Ms. XXXX submits these documents were the best available evidence she could provide. Neither the RPD nor I have found Ms. XXXX credibility undermined because of the kinds of documentary evidence submitted. Rather, both the RPD and I have assessed the submitted documents to determine the weight to give to them and whether they are sufficient to establish her claim. [31] Overall, I find there is very little testimony regarding violence from Ms. XXXX husband and the available testimony is vague. The photographs submitted after the hearing show difficult situations for her children, but I give them limited weight towards establishing violence or harm from Ms. XXXX husband. I give the text messages from her daughter moderate weight towards establishing violence or harm from Ms. XXXX husband. iv. RAD conclusion on allegations of violence from husband [32] I have found the RPD conducted the hearing in accordance with the principles in Guideline 4 and appropriately accommodated Ms. XXXX. I have found the RPD was correct to find the omission of the violence from her husband undermines the credibility of the allegations, but erred in finding the timing of her claim undermined her subjective fear. I have also found Ms. XXXX testimony was vague, despite numerous opportunities to clarify her evidence and provide details. I have given the photographs limited weight and the text messages moderate weight towards establishing violence or harm from Ms. XXXX husband. When considered in totality, the vague testimony and documents are insufficient to establish the allegations of violence or harm from her husband, on a balance of probabilities. [33] The RPD was correct in finding Ms. XXXX has not established her allegations of violence or harm from her husband, on a balance of probabilities. It follows I also find the RPD was correct in finding Ms. XXXX has provided insufficient evidence to establish that she faces a serious possibility of persecution from her husband in the Philippines. Other unchallenged findings [34] Ms. XXXX has not challenged the RPD's findings about the threats related to the 2007 murder of her husband's friend, the risks related to the war on drugs in the Philippines, or the risks related to the forcible eviction by the government from the property on which her family has been living. As the Federal Court has held, "[t]he RAD is not required to provide reasons for unchallenged findings."32 I note, however, that I have reviewed the findings and agree with the RPD's reasoning and conclusions. CONCLUSION [35] I dismiss the appeal. I confirm the decision of the RPD that Ms. XXXX is neither a Convention refugee nor a person in need of protection. [36] From Ms. XXXX testimony and written submissions, it is evident she wants to protect her children from what she believes are unsafe and insecure situations in the Philippines, provide for her children financially, and offer her children opportunities for their future in Canada. Although I have not found she is a Convention refugee or a person in need of protection, I have compassion for Ms. XXXX and her children. (signed) xxxx xxxx September 21, 2022 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 97(1)(b). 2 Convention relating to the Status of Refugees, Geneva, 28 July 1951, United Nations, Treaty Series, vol. 189, at p. 137 and Protocol relating to the Status of Refugees, New York, 31 January 1967, United Nations, Treaty Series, vol. 606, at p. 267; accession of Canada to both on 4 June 1969. 3 Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, Effective July 18, 2022. 4 IRPA, section 110(4). 5 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 6 Exhibit P-2, Appellant's Record, 5.3 New Evidence. 7 Marin v. Canada (MCI), 2016 FC 847, at paragraphs 27-28. 8 Mervilus v. Canada (MCI), 2004 FC 1206, at paragraphs 17, 20. 9 Nemeth v. Canada (MCI), 2003 FCT 590 (CanLII), at paragraph 13. 10 IRPA, section 110(6). 11 Ibid. 12 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 13 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 40. 14 Gender Related Task Force, Immigration and Refugee Board of Canada, available: https://irb.gc.ca/en/refugee-claims/Pages/gender-related-task-force-rpd.aspx. 15 Transcript of RPD Hearing on (January 28, 2022), at pages 7, 12-14. 16 Exhibit RPD-1, RPD Record, at page 24. 17 Zeah v. Canada (Citizenship and Immigration), 2020 FC 711, at paragraph 62. 18 Transcript of RPD Hearing on (January 28, 2022), at page 9. 19 Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, Effective July 18, 2022., section 4.4(c), citing R v. Lavallee, [1990] S.C.R. 852; Jaikaran v Canada (Minister of Citizenship and Immigration), 2005 FC 624, paras. 7-11; see also Exhibit P-2, Appellant's Record, at pages 18-19. 20 Transcript of RPD Hearing on (January 28, 2022), at page 7. 21 Ibid., at pages 14-15. 22 Ibid. 23 Ibid., at page 20. 24 Ibid., page 21 25 Exhibit RPD-1, RPD Record, at pages 69-71, 78-84, 86-88. 26 Ibid., at pages 72-76. 27 Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, Effective July 18, 2022, sections 7.5 to 7.7. 28 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 40. 29 Maldonado v. Minister of Employment and Immigration, 1979 CanLII 4098 (FCA), [1980] 2 FC 302. 30 Magonza v. Canada (Citizenship and Immigration), 2019 FC 14, paras 12-31. 31 The submissions state the photographs show proof of the husband's attacks in 2021, but then indicate the photographs show the son drinking beer because of his friend. There is no visible beer in the photographs, but the source of son's abrasions is unclear. 32 Akintola v. Canada (MCI), 2020 FC 971, at paragraph 21; Dahal v. Canada (Citizenship and Immigration), 2017 FC 1102, at paragraphs 35-37. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC2-02458 RAD.25.02 (August 20, 2021) Disponible en français 2 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.25.02 (August 20, 2021) Disponible en français