MB9-20680

RAD File No. / No de dossier de la SAR : MB9-20680 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 / entendu à Date of decision October 29, 2019 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Guffy Mushigo 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] This is the appeal made by XXXX XXXX XXXX XXXX, a citizen of Cameroon, against a decision rendered by the Refugee Protection Division (RPD) on August 9, 2019, rejecting her refugee protection claim. [2] The appellant is asking the Refugee Appeal Division (RAD) to allow this appeal, set aside the determination of the RPD and grant the appellant the status of person in need of protection or to set aside the determination of the RPD and refer the matter to the RPD for re-determination. [3] The appellant is asking to submit new evidence under subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA), and she would like an oral hearing to be held under subsection 110(6) of the IRPA. [4] Essentially, the appellant's account indicates that she is a lesbian. She alleges that she had an intimate relationship with a person who answers to the name XXXX. This person was allegedly beaten and found dead. XXXX family filed a complaint against the appellant. It found that she had dishonoured her family and her father no longer wished to see her. In addition, she fears the Cameroonian society in general. [5] On appeal, the appellant submits the following arguments: 1. Has the RPD erred in the assessment of the testimony with regard to her psychological condition? 2. She criticized several errors concerning credibility: the photographs submitted, XXXX last name and the process surrounding her refugee protection claim and, lastly, regarding the conversations on her cellphone and the police summons. [6] The Minister's representative did not intervene on appeal. [7] The RAD would like to point out that it considered the Chairperson's Guideline 9 in its assessment of this case. DETERMINATION [8] Under paragraph 111(1)(a) of the IRPA, the RAD confirms the determination that XXXX XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" under sections 96 and 97 of the IRPA. [9] The appeal is dismissed. ADMISSIBILITY OF NEW EVIDENCE [10] The appellant is asking to submit new evidence before the RAD, under subsection 110(4) of the IRPA. It is a short message dated September 16, 2019, from the appellant's uncle, Maurel Gnwegang. [11] The hearing before the RPD was held on August 2, 2019, and the decision is dated August 9 of the same year. The appellant must demonstrate that the new evidence meets the requirements of subsection 110(4) of the IRPA. Under that subsection, a person may only submit evidence to the RAD that arose after the rejection of the 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. [12] There is also the case law from the Federal Court of Appeal that must be considered in the test. However, in this case, this short message, while dated September 16, 2019, does not add anything to the record. In addition, the appellant could have and should have submitted this letter in preparation for her hearing in August 2019, which she failed to do. It should be mentioned that the event related in the letter dates from September 2017. This letter only confirms the appellant's testimony at the hearing that it was her uncle who informed her by telephone that in the neighbourhood, a young hairdresser named XXXX was found dead. I will not mention the fact that this letter has not been authenticated by an appropriate authority. This letter does not meet the requirements of subsection 110(4) of the IRPA. [13] For these reasons, the RAD concludes that the letter from XXXX XXXX is not admissible as evidence under subsection 110(4) of the IRPA. HOLDING AN ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [14] The appellant is asking the RAD to hold an oral hearing under subsection 110(6) of the IRPA. Subsection 110(6) of the IRPA states that the RAD may hold a hearing if it believes that there exists new evidence that is admissible and that meets the three conditions listed.2 In this case, I do not believe there is reason to hold an oral hearing, since the new evidence that the appellant wished to present was not admissible under subsection 110(4) of the IRPA. [15] For these reasons, there is no need to hold an oral hearing before the RAD. ANALYSIS Scope of the appeal [16] For questions of fact and of law, and questions of mixed fact and law, the RAD must apply the correctness standard of review in accordance with Huruglica.3 [17] I carried out an independent analysis of all the evidence on the record, after having carefully listened to the hearing, in order to form my own opinion with regard to this refugee protection claim and to determine whether the decision rendered by the RPD was correct. [18] After having assessed all the evidence on the record, both testimonial and documentary, the RAD has reached the same conclusion as the RPD that the appellant is not credible. [19] The appellant is of the opinion that the RPD failed to adequately assess her credibility, and that the impact of this on the decision is such that the appellant would not be persecuted in her country. [20] The very essence of this case rests on the appellant's credibility. [21] The first element raised in the appellant's memorandum concerns her psychological condition. She adds that while the RPD did ask questions at the beginning of the hearing to assess her ability to testify, there remain doubts. The RPD, in its decision, states that the appellant was able to efficiently follow the entire hearing and that questions were asked slowly and repeated as needed. The RPD concludes that the problems do not result from mental state, anxiety, panic or other. The appellant adds that Guideline 8 should have been applied in the circumstances. [22] It is true that this condition was raised at the beginning of the hearing. The member took great care in making the appellant feel confident by asking her simple and contextual questions. He asked her a few times if she wished to continue the hearing and she confirmed that she did. The RAD has a duty to listen to the recording of every hearing. Seeing the psychological document on the record, it paid close attention to the hearing. The RAD is of the opinion that throughout the hearing, the climate was peaceful, the questions asked to the appellant were simple and direct, and she was never taken by surprise or unable to answer all of the questioning, either from the member or her counsel. Breaks were offered and taken during the hearing and the RAD is of the opinion that bringing up mental state or anxiety is not relevant to the case. In addition, requesting after the fact, after the hearing, that the appellant be declared a vulnerable person makes no sense. This request must be made beforehand by counsel with explanations and supporting documents as needed, and it must be analyzed by the appropriate person. Furthermore, this request could have been submitted at the beginning of the hearing, which was not the case. [23] Consequently, the RAD is of the opinion that the RPD did not err in that regard. [24] The other item mentioned concerns the appellant's credibility, which covers various subjects. The text submitted in support of her refugee protection claim states that she spoke with XXXX by telephone (cellphone) on September 27, 2017. Her testimony is completely different. She stated that she had not received any calls at the end of September, but only text message exchanges. It also states that the last time she had a conversation with XXXX, it was by text message. There was an addition to this explanation that she had lost her cellphone, etc. However, at the end of the hearing, she testified that she had spoken with XXXX. This contradicts her previous statements and, consequently, undermines her credibility because these calls or text messages occurred just before the death of her girlfriend, a significant moment in her life. [25] Another item on which the appellant intervened concerns the two photographs submitted. She stated that it was a significant piece of evidence of their relationship and in the assessment of the facts. The RPD does not give any probative value to these two photographs because they do not prove anything with respect to the allegations made by the appellant. [26] She states that the two photographs were on her cellphone and that she removed them from the device in October 2017. She added that she had taken a screenshot and then sent them in her emails, and printed them in view of submitting them as evidence before the panel. She set this submission as evidence in time in 2017. Then, she corrected herself to state that it was in March 2018. I would like to point out that the appellant mentioned she had lost her cellphone. It is curious to note that photographs taken before October 2017 would be found in the evidence when she stated that she had lost her device in September 2017. The common thread between the appellant, her cellphone, the photographs being taken, the loss of the device and the submission of the two photographs is difficult to withdraw. Furthermore, it is difficult for anyone to establish that the other person on the photographs is XXXX, because we have nothing to compare it to. The only thing we can be sure of is that there are two women on the photographs. [27] At this point, the RAD is of the opinion that the RPD's analysis is correct. [28] Another aspect is addressed in the memorandum and it concerns the name of the girlfriend, XXXX. The appellant stated that not knowing XXXX last name is not a negative element that casts doubt over the existence of their relationship. The RPD is of the opinion that given the long relationship between the two women, it would have been reasonable to expect the appellant to know the last name and birth date of her partner. [29] The appellant recalled the various stages of their relationship. Their relationship allegedly began at the beginning of the 2012 school year, and when they would go fetch water from the well. This relationship then became romantic. They separated because XXXX family moved. However, a short while later, when the appellant was studying at the university in Dschang, they found each other and resumed contact. This relationship lasted for approximately three years. During that entire period, she did not think to ask for her last name or her birth date. All she knows is that she has a very long name, nothing more. She explained that they did not call each other by their last names. She hesitated on a last name, but nothing was confirmed. The only thing she knows about XXXX family members is that she has brothers and sisters, but she does not know how many. [30] Considering that the appellant is invoking her sexual orientation as the grounds for her refugee protection claim, that she had an approximately three-year relationship with XXXX and that it was her first and only intimate relationship, that they spent a lot of time together, the information provided by the appellant about her partner is very tenuous. Very few details emerged about her partner except those relating to physical appearance. If it is true that the appellant had a three-year romantic relationship, it must be noted that very few details have transpired from that relationship. This greatly undermines her credibility. [31] Another item raised in the memorandum is the analysis of the contradictions in the development of her case towards the refugee protection claim. She added that she was in the best position to explain her journey from the United States to Canada using her visitor visa. The RPD saw a contradiction between the letter from her school stating that she was going to visit family in Canada for a short period and return to the United States to continue her education, whereas in her own words, the appellant testified that her course had ended at the end of March 2017. [32] This part of the testimony is convoluted. She testified that she had to leave the United States in XXXX 2017, at the end of her studies program, and return to her country. She had the idea to come to Canada because she has family here. Therefore, on XXXX XXXX XXXX 2017, she arrived here with a visa. The plane ticket was valid until June 2017, even though her program ended in April. She stated that she bought her ticket for that month even though the course ended in April; however, she had in fact finished in March because it was less costly. What is strangest about this part of the record is that someone from the school where she studied wrote a letter of recommendation for her to the Canadian consular authorities, knowing that its contents were false. The appellant stated that the information had changed but that she did not know how to change her plane ticket. She added that she could not remain in the United States after April 2017. Her U.S. visa expired on June 2, 2017. When confronted with this information, the appellant stated that she did not know this. [33] It should be noted that the appellant has been in Canada with a visa since XXXX XXXX, 2017. It was only in October of the same year that she sought Canada's protection, when she alleged that she feared returning to her country. This behaviour greatly undermines her case and her credibility. [34] The last item that the RAD will assess concerns the police document, namely, a summons. The appellant stated that the RPD erred in giving no probative value to the police summons. She added that the first panel relied on stereotypes to not consider her evidence. The RPD does not give any probative value to this document because of all the problems raised concerning the appellant's credibility. [35] The RAD will repeat a part of the appellant's testimony about this document. She was questioned about this document and how people would have found out her name after her relationship with XXXX. She did not know how XXXX family had made the connection between the two women when the relationship had been discreet, even secret. Furthermore, and more importantly, the narrative submitted and acknowledged as complete does not include this police summons from November 17, 2017. This is an important item that she should have included in her account. When invited to explain this item's absence, the appellant lost herself in conjecture, testifying that she could not explain why the family was accusing her of killing XXXX. She added that she did not know why she was being accused, maybe because she went out with their daughter.... Furthermore, she did not ask XXXX for explanations. Lastly, the RPD never received an answer concerning the failure to mention the summons in the account attached to the information form. Once again, this undermines her credibility. Consequently, the RAD does not give any weight to this document. [36] For the reasons expressed in this decision, the RAD is of the opinion that the RPD rendered the correct decision. REMEDY [37] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" under section 97 of the IRPA. [38] The appeal is dismissed. (signed) Michel Jobin Me Michel Jobin October 29, 2019 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 2 M.C.I. v. Singh, 2016 FCA 96, paragraph 51. 3 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-20680 RAD.25.02 (April 4, 2019) Disponible en français 9 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 (April 4, 2019) Disponible en français