TB4-12869

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 : TB4-12869 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) (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 31, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dunstan Munro 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 is a citizen of Jamaica. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) refer his claim back to the RPD for redetermination or set aside the decision of the RPD and replace it with a different decision. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Memorandum of Appeal [3] The Appellant argues that the RPD erred when it found, on a balance of probabilities, that the Appellant was not credible. The particular areas where the Appellant submits that the RPD erred are listed below. He argues that he is not well educated, sophisticated, and may not be good with dates. [4] The Appellant submits that the RPD erred when it found that the Appellant's evidence regarding the dates the alleged shooting incident occurred was inconsistent with both his own testimony and the documentary evidence filed in support of his claim. [5] The Appellant submits that the RPD erred when it stated that the Appellant's lack of disclosure of a son in Jamaica was an indicator of his desire to mislead the panel regarding his perceived sexual orientation. [6] The Appellant argues that the RPD erred in finding that he was not shot at due to his involvement with the Jamaica Labour Party (JLP), nor was he persecuted due to his being perceived to be gay. [7] The Appellant submits that the RPD erred in finding the Appellant not credible because of his failure to claim refugee status as soon as he arrived in Canada in 2012. [8] The Appellant argues that he is in need of Canada's protection because he is perceived to be gay. [9] The Appellant argues that it is unreasonable for the RPD to discount the Appellant's entire testimony on the basis of a negative plausibility finding. Background [10] In XXXX2011, the Appellant returned to Jamaica after concluding his contract as a XXXX XXXX XXXX. Normally when he returned to Jamaica, the Appellant would receive XXXXwork from a JLP XXXX named Mr. XXXX XXXX. The People's National Party (PNP) supporters were very jealous of his relationship with Mr. XXXXand the JLP party. As a result of this relationship, he was often harassed and threatened in the street, and just before returning to Canada in XXXX2012, was chased and shot at by PNP supporters who referred to the Appellant as a XXXX XXXX XXXX. Being called a batty boy, in Jamaica, is very dangerous and can lead to very bad things, including death. Mr. XXXX counselled the Appellant go to the police station where a report was taken and the police informed the Appellant that they would speak to him later. Jamaica is a very small country, and there is no place to run and hide. The Appellant fears that he would be dead by now, if he did not receive his travel documents to leave Jamaica. [11] The Appellant's application for refugee protection was heard on November 5, 2014. In a decision of November 13, 2014, the RPD rejected his claim, finding that there was not a serious possibility of persecution on Convention ground, and the Appellant would not be subjected personally, on a balance of probabilities, to a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture, should he return to Jamaica. ROLE OF THE RAD [12] The Appellant, in his Memorandum of Appeal, outlined the changes in the Canadian Refugee System. The Appellant does not make any arguments as to the standard of review, but makes arguments as to the RAD's jurisdiction. These are not applicable, given that the RAD has jurisdiction to hear this appeal. The RAD finds that the recent Federal Court decision, in Huruglica,1 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. 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 Appellant 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." [13] Accordingly, the RAD conducts its own independent assessment and determines whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. [14] The Appellant submits that the RPD erred on a number of issues regarding credibility. Merits of the Appeal The Shooting [15] The RPD found that the Appellant's inability to remember when the shooting occurred was detrimental to his credibility. The RPD supported this by noting that the Appellant stated that he was shot at just before he left for Canada (XXXX2012). The Appellant then testified that it was a Saturday in 2011 and then stated late XXXX. The Appellant then stated that "did I say 2011? It was 2012." The Appellant then testified that the incident occurred on XXXX XXXX, 2012. The Appellant's explanation that he was bad with dates was not accepted by the RPD, given no medical or psychological evidence was presented, and that it was a reasonable expectation to remember the date when the shooting occurred. [16] The RPD also noted that two letters from the mother, allegedly to corroborate the incidents, were not probative. The first letter states that her son came under verbal attack from the opposing political team prior to the last General Election in Jamaica in 2011. The second letter provided no details of the alleged shooting, and was found not probative in supporting the alleged shooting. The RPD rejected the Appellant's explanation that his mother was also bad with dates. The RPD expected that such an important date would clearly be remembered by both the Appellant and his mother, and that appropriate documentation would be tendered. [17] The Appellant argues that he is not an educated person, is very poor with dates, and possesses a bad memory. However, in spite of this acknowledgment by the Appellant, the RPD continued to haunt and bagger the Appellant for dates even when he told the panel member that he could not recall the dates. The Appellant argues that the RPD should have established a timeline to acquire the information rather than force the Appellant to guess the date, and thereby question the credibility of the Appellant. The Appellant argues that the RPD's insistence on a date rather than the general term, "before he left for Canada," was an error. The Appellant reinforced this statement by referring to his Basis of Claim (BOC) narrative that stated, "shortly before he returned to Canada in XXXX of 2012, he was chased and shot at by PNP supporters." The appellant made no mention of the two letters of the Appellant's mother that were given in documentation. [18] After listening to the recording, the RAD supports the RPD's decision on this issue because of the total lack of consistency in the Appellant's testimony. The RPD's statement that the Appellant should reasonably remember when he was shot at, is sound. In listening to the record, the RAD found that the Appellant was not "baggered" by the RPD; rather, the Appellant was asked questions in a straightforward manner, and, as noted above, he lacked consistency in his responses. The RAD notes that the RPD took into consideration that the Appellant was not very well educated and may not be the most sophisticated of individuals. As a result of his stating that he was not good with dates, the RPD asked questions in a very straightforward manner. The RAD agrees with the RPD in that the Appellant altered his testimony to suit dates that were discussed at the hearing, changing the date from XXXXuntil XXXX XXXX, 2012. It is noted by the RAD that there is no XXXX XXXX, 2012 on the calendar. The RAD supports the RPD's statements in her decision, that the Appellant should reasonably have remembered the date of the shooting. The Appellant's Son [19] The RPD found that the Appellant's omission of naming his son in his BOC was done in order to buttress his allegation that he was perceived as gay. The RPD supported this finding by questioning the Appellant on this omission. The Appellant stated that he did not know why this information was not included, indicating that he can read and supports his son by sending him money, as well as seeing his son when he is able. The RPD found the Appellant's explanation for excluding this information in his BOC unreasonable, and impacted upon the Appellant's lack of credibility. [20] The Appellant argued that if he was trying to keep his son's existence away from the panel, he would not have brought in a copy of the Jamaican birth certificate for his son to the hearing. The Appellant also argued that he was a simple XXXX XXXX, not in the habit of filling out such forms, as the RPD and counsel do on a regular basis. The Appellant argues that this fact should have been taken into consideration by the RPD. [21] The RAD supports the RPD's finding on this issue. If, as the Appellant has stated, he sends money on a regular basis to support his son, and sees him when he is able, the Appellant should certainly have included his son on the BOC form. The Appellant included other members of his family, including a brother and sister. It is not credible that his son would not have been included as well. The Appellant was represented by counsel, and attested that the BOC was accurate and correct. The Appellant's Membership in the JLP [22] The RPD drew a negative inference because the Appellant provided no documentary evidence that he was a member of the JLP. The RPD supported this finding by the Appellant's lack of personal effort to obtain a letter from Mr. XXXX or the JLP in order to provide some evidence of his involvement. The Appellant testified that he was a member of the JLP party for 11 years. He testified that his mother had attempted to get some evidence on his behalf, but was unable to do so because Mr. XXXX was not in Jamaica. The RPD noted that the Appellant has come to Canada on three occasions for the purpose of working and spoke credibly about his value to his employers here in Canada due to his license to XXXX XXXX XXXX. The RPD rejected the Appellant's explanation for the lack of evidence and for his unreasonable efforts to personally obtain this evidence. [23] The Appellant found that the RPD's ruling was not plausible given his oral testimony and his BOC narrative. The Appellant argues that he was a supporter of the JLP, in particular Mr. XXXX, and that their friendship caused him to have occasional XXXX XXXXthrown his way. As a result, the PNP supporters who had not been given any XXXX XXXX, branded the Appellant as a gay person and harassed, threatened, chased, and shot at him. [24] The RAD finds that the RPD's decision on this issue is sound. The RPD's expectation that the Appellant would personally attempt to provide documents to support his testimony is sound. The RAD supports the RPD's finding that the Appellant's inability to produce documentation from either Mr. XXXX or the JLP undermines his credibility. The RAD finds that the basis of this claim was the alleged perception that he was gay because of his association with Mr. XXXX. No documentation was produced to support this allegation. Given the lack of documentation on this issue, and lack of credibility in other issues in this claim, the RAD finds that the Appellant's BOC narrative and testimony on this issue are not credible. Delay in claim [25] The RPD found that the Appellant's lackadaisical attitude towards pursuing options to remain in Canada, and the lengthy delay in claiming, suggest a lack of subjective fear. The RPD also found that this issue, coupled with the lack of credibility on other issues, was determinative of the Appellant's claim. The RPD did not accept the Appellant's explanation that he did not know about the refugee regime. The RPD noted that the Appellant's legal status in Canada ended at the end of 2012, and he did not claim asylum until XXXX 2014, almost 2 years later. The RPD rejected his explanation, given that he'd been illegally in the country for many months, not working, and faced deportation back to Jamaica, were he discovered here in Canada without status. [26] The Appellant argued that he provided a reasonable explanation and would have made a claim for refugee protection at the point of entry, if he had known about the system. The Appellant argues that the RPD erred in discounting the Appellant's entire testimony on the basis of a negative plausibility finding. [27] The RAD, in reviewing the decision by the RPD, finds that the RPD did not make a negative plausibility finding. The RPD found that the Appellant's lengthy delay in claiming refugee protection, given his background, demonstrated a lack of subjective fear. The RAD agrees. An applicant's delay in claiming refugee status "is an important factor which the Board is entitled to consider in weighing a claim for refugee status."2 While delay is generally not a determinative factor in a refugee claim, there are circumstances where delay can be such that it assumes a decisive role. What is fatal to the applicant's claim is his inability to provide any satisfactory explanation for the delay. Delays in leaving, exiting their country and/or claiming refugee protection can lead to a negative credibility finding.3 [28] The Appellant filed a claim for refugee protection in Canada approximately 21 months after his legal status in Canada expired. He maintains that he had no knowledge about making a refugee claim until a friend told him about his counsel, and he made a claim the same day. [29] The Appellant's explanation for his delay in filing a refugee claim in Canada was that he was unaware that he could apply. The RAD finds the RPD's rejection of this explanation is sound. According to testimony, the Appellant did not even speak with a lawyer or immigration about the possibility of remaining in Canada after his legal status had ended. If the Appellant had truly feared returning to Jamaica, one would expect him to seek the advice of professionals in immigration matters as soon as possible. [30] The Appellant has high school education, according to his BOC, and has worked in Canada as a XXXX XXXX, on three occasions. He was able to travel to Canada on these occasions, obtain accommodations and support himself. The Appellant testified that he worked in XXXXin Jamaica. Considering these factors, the RAD supports the RPD's finding that the Appellant had the wherewithal to pursue a refugee claim immediately upon his arrival in Canada, or when his legal status expired at the end of 2012. [31] The Federal Court has upheld RPD decisions rejecting claims because of a lack of subjective fear based on a delay in claiming protection in Canada, failing to seek protection in a third country, delay in leaving the country of persecution, or returning to that country.4 [32] The RAD finds that the Appellant's reason for not making a claim for protection in Canada immediately upon arriving, or at the end of his legal status, lacks credibility, and as such, the RAD finds that it undermines his credibility with regards to his subjective fear of returning to Jamaica. Disposition [33] The RAD finds that the RPD's decision can stand. CONCLUSION [34] Pursuant to Section 111(1)(a) of the 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) "Robert S. Garner" Robert S. Garner March 31, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Heer, Karnail Singh v. M.E.I (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988. 3 Onofre, Sofia Ramirez v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-2084-10), Bedard, December 2, 2010; 2010 FC 1219. 4 Rivera, Jesus Vargas v. M.C.I. (F.C., no. IMM-5826-02), Beaudry, November 5, 2003, 2003 FC 1292; Borges, Antonio Luis De Mello v. M.C.I. (F.C., no. IMM-2995-04), von Finckenstein, April 12, 2005, 2005 FC 491;Gilgorri, Ruben Dario Modernell v. M.C.I. (F.C., no. IMM-5423-05), Short, May 4, 2006, 2006 FC 559; Torres, Edison Colorado v. M.C.I. (F.C., no. IMM-7630-05), Harrington, July 27, 2006, 2006 FC 927; Mejia, Dario Edgardo Rodriguez v. M.C.I. (F.C., no. IMM-396-06), Mactavish, September 13, 2006, 2006 FC 1087;Sainnéus, Elange Bully v. M.C.I. (F.C., No. IMM-3777-06), Martineau, March 5, 2007; 2007 FC 249. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-12869