TB7-23370

RAD File / Dossier de la SAR : TB7-23370 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, ON Appel instruit / entendu à Date of decision April 8, 2019 Date de la décision Panel Matthew Oh Tribunal Counsel for the person(s) who is(are) the subject of the appeal Laura Mariana Santos Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX ("the Appellant") appeals a decision of the Refugee Protection Division ("RPD"), rejecting her claim for refugee protection. The Appellant is a citizen of Venezuela and fears that she will be targeted by gangs because she bears the same surname as the XXXX crime family. She argues that the RPD erred in its assessment of her credibility, which was the determinative issue in her case. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"), the appeal is dismissed. The RPD did not err in its assessment of the Appellant's credibility. After conducting an independent assessment of the evidence, I agree that the Appellant has not established that she is either a Convention refugee or a person in need of protection. BACKGROUND [3] The Appellant claims that in XXXX 2011, she was abducted by men in XXXX, who searched through her phone and later left her in the forest. Days later, the Appellant's nephew was killed, and police believed that his murder was due to his surname, XXXX, which is shared by a gang in Venezuela. The Appellant herself began to receive harassing and threatening phone calls, telling her that they knew where she lives, and that she should watch herself as she knew what had happened the last time they had taken her. Years later, in XXXX 2014, the Appellant was robbed by armed men, who told her that they had been following her and knew what she was doing. Around the same time, the driver of a car attempted to stop the Appellant while she was driving, but when she ignored him, he slammed his car into hers and drove off. [4] Throughout these years, the Appellant traveled back and forth between Canada and Venezuela. Her daughter lives in Canada, but the Appellant required medical treatment in Venezuela. In April 2017, after having received mixed information about her prospects for making a refugee claim, the Appellant finally initiated a claim for refugee protection. The RPD heard the claim over the course of two sittings in July and August 2017, and finally rejected the claim after determining that the Appellant's evidence was not credible. Role of the Refugee Appeal Division [5] The jurisprudence establishes that the Refugee Appeal Division ("RAD") is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.1 [6] In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at my own independent findings based on the evidence before me. Admissibility of New Evidence [7] The Appellant has submitted numerous documents as new evidence in her appeal. These include: * An affidavit from the Appellant;2 * Medical documents and a website print-out about PTSD;3 * Counseling letter from the Mennonite New Life Centre;4 and * Country conditions documents.5 [8] None of the documents are admissible. [9] The IRPA limits the ability of appellants to present new evidence on appeal to the RAD. Subsection 110(4) of the IRPA states that, on appeal, the person who is the subject of the appeal may 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 claim's rejection. If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must then consider factors around the credibility, relevance, and newness of the evidence.6 Appellant's personal affidavit [10] The Appellant's affidavit contains a somewhat more elaborate medical history as compared to the one she presented in her Basis of Claim narrative, as well as brief additional facts about her attempts to register her daughter with a different surname when she was born. [11] It was open to the Appellant to present the information in her affidavit to the RPD before it rejected her claim. Though she seems to blame her former counsel for failing to consider the information, in fact the Basis of Claim narrative contains a rather detailed medical history and specifically mentions how she had tried to have her daughter's surname changed. The Appellant spoke at length about her medical treatments during her hearings, and her counsel made submissions on the issue. None of the information in the affidavit arose after the rejection of the claim. The Appellant had every opportunity to present this information to the RPD, and it cannot be said that she could not reasonably have been expected to present such information to the RPD before it rejected her claim. The affidavit does not meet the criteria of ss. 110(4) of the IRPA. Medical documents and PTSD website print-out [12] The medical records submitted as new evidence include discharge summaries from XXXX XXXX Hospital, dated XXXX XXXX, 2016 and XXXX XXXX, 2016.7 Both predate the rejection of the Appellant's claim. There is also a medical history provided from Dr. XXXX XXXX, dated February 1, 2018.8 Finally, the Appellant's Record contains a print-out from the Anxiety and Depression Association of America's website, regarding Post-Traumatic Stress Disorder symptoms. [13] Counsel argues that the Appellant's previous counsel failed to submit documents that were relevant to her claim, presumably including her medical records. Counsel argues that these are relevant because they explain why the Appellant delayed in making her refugee claim; that is to say that she did not initiate her claim because of her poor health. Counsel makes no submissions with respect to the admissibility of the PTSD print-out. [14] All of these documents are inadmissible. The discharge letters were reasonably available to the Appellant at the time of the rejection of her claim. There is nothing to indicate that a medical history letter could not also have been presented to the RPD. Finally, it was open to the Appellant to submit information about PTSD symptoms to the RPD when her claim was heard. It cannot be said that any of this evidence arose after the rejection of the claim, that it was not reasonably available, or that the Appellant could not have been expected to present this evidence under the circumstances. [15] Although the evidence does not meet the criteria of ss. 110(4) of the IRPA, it is worth saying more about this evidence, as the Appellant appears to allege that insufficient documentation was disclosed to the RPD as a result of incompetent representation from her former counsel. I am not satisfied that the Appellant's representation at the RPD was in any way deficient. As mentioned already, the Basis of Claim Form set out a detailed medical history, evidence about the Appellant's condition was submitted, the Appellant gave testimony about her condition and her treatments, and counsel gave submissions about her poor health and its effect on the Appellant's delay in claiming. The RPD did not dispute the information about her health condition. It accepted her testimony about having been hospitalized and about having to see her doctor every two months. However, considering the Appellant's own testimony, the RPD found that she was still able to carry out her activities of daily living for most of the period in question between 2014 and 2016, and that the medical evidence did not indicate that she was so impaired or restricted that she could not seek legal advice or follow through on referrals. The Appellant's new evidence, even if admitted, would not change this assessment. The Appellant's attempt to submit this new evidence is merely an effort to supplement what she considers to be a deficient record that was put before the RPD. Counselling letter from Mennonite New Life Centre [16] A letter from the Mennonite New Life Centre indicates that the Appellant is receiving counseling and emotional support through their community mental health program. The letter states that the Appellant first went to the organization in XXXX 2018.9 [17] Counsel makes no submissions on the admissibility of this evidence. It is true that this evidence arose after the rejection of her claim, however when the factors of newness and relevance are considered, I am not satisfied that this evidence ought to be admitted. [18] The letter refers to how the Appellant appeared agitated, stressed, and anguished during her interview. It restates some of the allegations that were recounted by the Appellant. The letter also states that the Appellant has attended two individual counseling sessions. However, this has little relevance to the issues on appeal nor is the fact of the Appellant's need for counseling 'new' information. The RPD already considered a report from a psychiatrist, which provided a detailed and fulsome assessment of the Appellant's psychological condition. The RPD accepted the diagnoses contained in it, and was careful to consider its contents in assessing the Appellant's credibility. The fact that the Appellant has attended subsequent counseling sessions, and that she appeared agitated or stressed in one such session, is of little relevance. The counseling letter also does not provide any meaningful or additional insight into the Appellant's psychological condition that goes beyond what is included in the psychiatric report that the RPD considered. In this regard, the counseling letter has little relevance in aiding the assessment of the Appellant's credibility, nor is the 'newness' criterion met. Country conditions evidence [19] The Appellant has not made any submissions as to how the new country conditions evidence meets the criteria of ss. 110(4) of the IRPA. The vast majority of the documents were published prior to the rejection the Appellant's claim and thus do not meet the criteria of ss. 110(4) of the IRPA. Only two of the documents actually appear to post-date the rejection of the claim - an updated Amnesty International annual report on Venezuela; and an article written by Georgina Turner, an analyst. Another of the documents, from "Numbeo.com" regarding crime levels in Venezuela, is undated. The two articles that post-date the rejection of the claim do not appear to have relevance to the appeal. The RPD rejected the claim based on credibility and the Appellant only disputes the RPD's credibility assessment. The articles have no relevance to the credibility issues that are disputed. As such, the new country conditions evidence is inadmissible. MERITS OF THE APPEAL [20] The Appellant argues the following on appeal: a) That the RPD erred in its assessment of the Appellant's delay in claiming; b) That the RPD erred in its consideration of the Appellant's psychological condition; and c) That the RPD erred in its treatment of the Appellant's supporting evidence. [21] These issues are addressed in detail below. a) Assessment of Delay in Claiming [22] The RPD found that the Appellant's delay in making a refugee claim in Canada undermined the credibility of her allegations of the risk to her in Venezuela. The Appellant challenges this finding, however I find no error in the RPD's assessment. [23] The Appellant claimed that her problems in Venezuela began in XXXX 2011, when she was abducted by men whom she believes killed her nephew just days later. Despite learning about the death of her nephew that same month while in Canada, and despite learning that the police had informed the family that he was probably targeted because his surname was XXXX, the Appellant did not initiate a refugee claim. When she returned to Venezuela, she began to receive threatening calls, yet she continued to travel regularly back and forth between Canada and Venezuela over the years, until she initiated her refugee claim in 2017. [24] The Appellant presented three reasons for her delay in claiming and her reavailment to Venezuela: 1) She did not know who to speak to about making a refugee claim; 2) She did not have the finances to obtain legal advice or representation; and 3) That her health problems prevented her from seeking or following through on advice. The RPD rejected all three reasons. The panel found that she had at least become aware of her option of making a refugee claim sometime between 2012 and 2014. In regard to her financial circumstances, the RPD noted that the Appellant's brother was supposedly assisting her in paying for her flights to Venezuela, yet the Appellant did not ask her brother for money to consult a lawyer because he was only able to offer financial help to her in Venezuelan currency. Importantly, the RPD found it unreasonable that the Appellant had not even taken any steps to find out what it would cost to meet with a lawyer. The RPD also found that despite her medical problems, for most of the period between 2014 and 2016, the Appellant was still able to carry out her activities of daily living. [25] The Appellant argues that the RPD erred in its assessment of her explanations. She argues that the RPD wrongfully assumed that if her brother was able to fund her flights to Venezuela, then he could also assist her financially in accessing legal services for a refugee claim. The Appellant argues that she reasonably explained that her brother could only provide her with Venezuelan currency and that this would not be sufficient to assist her with her legal fees. In addition, she argues that these funds were provided to her by her brother only for the purpose of visiting Venezuela for medical treatment. [26] I am not persuaded by this argument. The Appellant fails to grasp what is at the core of the RPD's concern. The real issue here is that the Appellant did not take the necessary steps to ascertain what she could do in her situation. The Appellant claims that she was attacked, kidnapped, threatened, and that she would be killed if she returns to Venezuela. Despite this, she did not even attempt to find out what it would cost her to consult or retain a lawyer. She did not even attempt to ask her brother if he could assist her in paying for legal services. The RPD concluded that a person with the level of fear alleged would have made more efforts than what was demonstrated by the Appellant. I entirely agree with the RPD's analysis. b) The RPD's Consideration of the Appellant's Psychological Condition [27] The Appellant also challenges the RPD's consideration of her psychological condition. I do not agree with the Appellant's argument. [28] The Appellant argues that the RPD failed to take into account her mental condition when assessing her explanation for her delay in claiming. Citing new evidence about PTSD symptoms, the Appellant submits that victims of PTSD have an inability to remember important aspects of traumatic events, and that they have persistent fear, horror, or guilt. The Appellant also argues that each individual suffers from PTSD differently, and as such the RPD cannot apply an objective set of characteristics of a medical condition to the Appellant in particular. [29] There is no merit to the Appellant's argument. The RPD considered the psychological report, accepted the diagnosis contained in it, and refrained from drawing any inferences from the vagueness of the Appellant's testimony. The RPD held a pre-hearing conference with the Appellant's counsel and discussed the Appellant's psychological and medical conditions and whether she required any kind of accommodation. [30] I would accept that individuals with PTSD may have different presentations of the condition. That is precisely why it is important to consider, as the RPD did, the Appellant's particular presentation and the psychiatric assessment that she herself had undergone. That assessment, conducted by a psychiatrist, concluded that the Appellant met diagnostic criteria for PTSD and major depressive disorder. However, the psychiatrist found that the Appellant's insight, judgment, and impulse control were intact.10 The report mentioned nothing of any difficulties with memory. The report did not address the Appellant's delay in claiming, or how the Appellant's psychological condition might aid in understanding why she did not take the necessary steps to initiate her refugee claim in Canada if she actually feared a risk to her life. The report did not speak to any issues that would sufficiently and adequately explain the inconsistencies and omissions in the Appellant's evidence. [31] Though the RPD gave the psychological report little weight in terms of its capacity to establish the Appellant's allegations, there was no error in this. The purpose of the psychological report was not to assess the credibility of the Appellant's allegations. The report speaks to how her mental status is in keeping with an individual who has experienced significant trauma, and that it is consistent with the abuse and persecution she describes. However, that trauma might have resulted from any number of factors unrelated to the allegations the Appellant has put forward in her refugee claim. I am not satisfied that any error arises from the RPD's consideration of the Appellant's psychological condition. c) The RPD's Treatment of the Evidence [32] The Appellant disclosed a number of documents in support of her allegations. For various reasons, the RPD did not assign significant weight to the evidence, and the Appellant now challenges this assessment. I find, however, that the RPD did not err in its treatment of the Appellant's supporting evidence. [33] The Appellant argues that the RPD failed to consider the weight of her supporting evidence, such as support letters and reports regarding her nephew's death. She also submits that the RPD erred in rejecting a document regarding a criminal complaint that the Appellant had filed in Venezuela, arguing that the RPD applied Canadian standards to Venezuelan documents. [34] I disagree with the Appellant's arguments. The RPD considered the evidence and correctly found that the documents did not have significant weight. Criminal complaint-related documents [35] In regard to the criminal complaint in Venezuela, the RPD did not appear to dispute that a complaint had been made. The RPD believed that the Appellant had filed a complaint, that a prosecutor ordered her to undergo a medical examination, and that the complaint had been disqualified. The RPD questioned whether the complaint had been filed for the reasons alleged by the Appellant. After examining the evidence, the RPD observed that a Venezuelan court had actually disqualified the complaint, and that none of the complaint-related documents gave any details about the actual basis for the complaint. Without any of these details, I agree that the evidence has little probative value in establishing the facts for which it was offered as proof. The evidence only establishes that the Appellant had filed a criminal complaint for some reason, that it was investigated to some degree, and that a court finally ordered a disqualification of her complaint. These documents do not establish that the incidents described by the Appellant in her narrative occurred, nor do they establish that she was targeted due to perceptions that she is associated with the XXXX gang. [36] In regard to whether the RPD applied Canadian standards to Venezuelan documents, I do not believe that was the case here. Again, the RPD did not question the authenticity of the documents, but rather questioned their probative value. The RPD did not necessarily expect to see details in the documents about what was being investigated or what was being complained by the Appellant. Rather, it could not assign the documents significant probative value, given that they did not contain sufficient detail to establish that the Appellant was targeted in the manner alleged by her in her Basis of Claim Form, nor did the evidence establish the allegations that these events occurred due to the Appellant's surname and her perceived association with the XXXX crime family. Reports of nephew's death [37] The Appellant argues that the RPD failed to consider the weight of the documents establishing her nephew's death, however I again disagree. [38] There were several documents establishing the nephew's death, such as a death certificate, court documents, and news reports. The RPD considered these, and accepted that these documents confirmed that the Appellant's nephew had been murdered in an armed attack. The RPD, however, did not accept that his death was for the reasons alleged - that is, due to mistaken perceptions of his association with the XXXX crime family as a result of his surname. [39] Again, the issue here is not around the credibility of the death certificate, court document, or news reports. Rather, the issue is around the probative value of the evidence in terms of its capacity to establish the facts alleged by the Appellant. The Appellant simply asserts that the RPD failed to consider the weight of the evidence, but she has not demonstrated any error in the RPD's reasoning. I agree with the RPD's assessment of these documents. Support letters [40] Finally, in regard to the Appellant's support letters, I do not agree that the RPD failed to consider their weight. [41] The RPD considered the letters, but could not assign them significant weight. The RPD correctly observed that the letters failed to provide details about the events that occurred, and only spoke generally to the allegations. None of the authors indicated that they witnessed the events personally. Instead, they seem to have relied on the Appellant's version of the events or else failed to explain how they have personal knowledge of the incidents. These are important factors to consider in assessing the weight of the evidence, and the RPD was not wrong to assign them little weight. CONCLUSION [42] The Appellant has not demonstrated any error in the RPD's decision. In addition, I note that much of the RPD's credibility assessment is based on inconsistencies and omissions in the Appellant's evidence in regard to the attacks and threats she allegedly experienced in Venezuela. The Appellant does not challenge any of those findings. [43] As I agree with the RPD's findings and decision, the RPD's negative determination is confirmed. The appeal is dismissed, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "Matthew Oh" Matthew Oh April 8, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; see also Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-18), Diner, November 14, 2018; 2018 FC 1145. 2 Exhibit P-2, Appellant's Record, at pp. 10-13. 3 Exhibit P-2, Appellant's Record, at pp. 47-53, 56, 279-280. 4 Exhibit P-2, Appellant's Record, at pp. 54-55. 5 Exhibit P-2, Appellant's Record, at pp. 227-278. 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 7 Exhibit P-2, Appellant's Record, at pp. 47-53. 8 Exhibit P-2, Appellant's Record, at p. 56. 9 Exhibit P-2, Appellant's Record, at pp. 54-55. 10 Exhibit RPD-1, RPD Record, at pp. 202-204, Exhibit 5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-23370 RAD.25.02 (September 18, 2018) Disponible en français 13 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 (September 18, 2018) Disponible en français