MB9-15582

RAD File No. / No de dossier de la SAR : MB9-15582 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 July 31, 2020 Date de la décision Panel Me Love Saint-Fleur Tribunal Counsel for the person who is the subject of the appeal Raed Mahko 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] The appellant, XXXX XXXX XXXX XXXX, is a citizen of Egypt. She alleges that she fears the brothers of her late husband, who died in XXXX 2012, going after her as a result of a conflict stemming from the inheritance of the deceased. The appellant's problems reportedly began a year after the death of her husband, when she tried to recover from his brothers a piece of land that he had allegedly left to her and their eight children. Her husband's brothers allegedly threatened to go after her and the children if she asked for the inheritance again. [2] On June 28, 2019, the Refugee Protection Division (RPD) rejected the appellant's claim for refugee protection. The RPD found that she was not credible because of contradictions and inconsistencies in her account that were not satisfactorily explained. [3] The appellant argues that the RPD's decision is flawed because it made findings without giving any credibility to the evidence regarding her medical condition that could explain the quality, consistency and content of her testimony. [4] In my opinion, the determinative issue in this case is whether the RPD erred in its assessment of the appellant's credibility. Having carried out a complete and independent analysis of the evidence, I am of the opinion that the RPD decision is correct. DETERMINATION OF THE APPEAL [5] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. I dismiss the appeal. NEW EVIDENCE [6] Subsection 110(4) of the IRPA states that 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 rejection. [7] Pursuant to subsection 110(4) of the IRPA, the appellant submitted the following three documents as new evidence in this case: 1) An article titled: "Le diabète altère aussi la mémoire" [diabetes also impairs memory], published on July 9, 2012.1 2) An article titled: "Troubles de la mémoire chez les diabétiques type 2" [memory problems in people with type 2 diabetes], published in September 2016.2 3) An article titled: "Analyse multidisciplinaire du processus décisionnel de la CISR" [A Multidisciplinary Analysis of the Decision-making Process of the Canadian Immigration and Refugee Board], published in 2001.3 [8] After analysis, it is my opinion that, in accordance with the IRPA,4 these documents are not admissible as evidence for the following reasons. [9] These three articles were published in 2001, 2012 and 2016, well before the RPD rejected the appellant's claim for refugee protection on June 28, 2019. The first two articles deal with diabetes, a disease that the appellant has suffered from since before the rejection of her claim for refugee protection, and make the link between diabetes and an increased risk of certain cognitive disorders, including dementia and memory problems. The third article is an analysis of the work of the Immigration and Refugee Board of Canada conducted in 2001 by researchers. It should be noted that these articles do not report on events that have occurred since the rejection of the appellant's refugee protection claim. These articles therefore do not meet the first criterion under subsection 110(4) of the IRPA. [10] In addition, the appellant does not explain why these published articles were not reasonably available to her or, if they were, that she would not reasonably have submitted them to the RPD, in the circumstances, before the decision was rendered. This is despite the fact that the article is consistent with articles that the appellant filed in evidence to the RPD prior to the rejection of her claim.5 Consequently, these articles do not meet the other two criteria under subsection 110(4) of the IRPA. [11] In light of the above, I am not required to look at the credibility, relevance and newness of these documents based on the jurisprudential tests established in Singh6 and Raza.7 The articles submitted are not admitted in evidence. ROLE OF THE REFUGEE APPEAL DIVISION [12] The Refugee Appeal Division (RAD) must apply the correctness standard of review in accordance with the Federal Court of Appeal in Huruglica.8 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing credibility.9 In this case, it is my opinion that the RPD does not enjoy any particular advantage. Therefore, I will conduct my own analysis of the record, including listening to the recording of the hearing, to establish whether the RPD erred, applying the correctness standard of review. ANALYSIS OF THE MERITS OF THE APPEAL [13] The issue in this case is whether the RPD erred in its assessment of the credibility of the appellant's allegations. After analyzing all the evidence submitted, including the recording of the hearing before the RPD, along with the RPD's reasons for decision, it is my opinion that the answer to this question is no, for the following reasons. [14] In my opinion, the RPD's decision is based on contradictions, omissions and inconsistencies in the appellant's story that, in its view, were not satisfactorily explained and undermined the credibility of the appellant's allegations. Based on my own analysis of the record, I agree and find that these elements do indeed undermine the appellant's credibility. These elements are as follows. [15] The RPD found that the appellant's account of events during her testimony at the hearing contradicted the account she provided in her Basis of Claim Form (BOC Form). [16] According to the BOC Form, on March 15, 2013, one of the appellant's sons went to her late husband's brothers and they assaulted him. The appellant then reportedly filed a complaint with police against her husband's family but withdrew it after receiving death threats if she did not withdraw it. Her husband's family reportedly has contacts within the government and the police. On XXXX XXXX, 2018, two police officers reportedly came to her home and told her to stop claiming her inheritance rights, or the family would kill her. On XXXX XXXX, 2018, the appellant allegedly obtained her visa for Canada, where she arrived on XXXX XXXX, 2018. However, according to her testimony at the hearing, the two police officers instead went to her home at the family's request to threaten her so that she would withdraw her complaint. The appellant also testified that a month before she left the country, her brother-in-law and his children went to her home to threaten her and demand that she relinquish her rights to the land her husband left her. Confronted with her conflicting versions, she explained to the RPD that it was difficult for her to tell her story in chronological order and that she was telling the story of what had happened. [17] In my view, her answers do not explain the contradictions observed between the appellant's various statements. They are also unsatisfactory given that her account contains very few events and that she has not only mixed up events that occurred several years apart, one in 2013 and the other in 2018, but which, as the RPD pointed out, would have occurred in vastly different contexts. These are the events central to her story, which are the basis of her claim for refugee protection, and which involve the same perpetrators she allegedly still fears today. [18] Moreover, the fact that a month before she left the country for Canada her late husband's brother went in person, and with his children, to her home to threaten her directly is a recent event that she would have personally experienced just one month before her departure for Canada. In addition, the appellant signed her BOC Form certifying that the information provided in it is complete, true and correct and that her signature had the same force and effect as if made under oath. The appellant received assistance from her counsel in preparing and submitting her BOC Form. It is my view that in these circumstances, the contradictions and omissions observed seriously undermine the appellant's credibility. The RPD's finding is correct on this matter. [19] The RPD also considered an inconsistency in the appellant's behaviour following the threats made against her. While she could have simply waived her right to the land left to her by her late husband as her husband's family allegedly demanded in order to protect herself and her children, the appellant explained to the RPD that she refused to do so because her children need the money that will result from the sale of the land. In my view, given the appellant's testimony that giving up her rights to the inheritance would put an end to her problems with her husband's brothers, her alleged agents of harm, in these circumstances, the RPD correctly found that this inconsistency further undermines the appellant's credibility. [20] The appellant argues at paragraph 9 of her memorandum that the issue at hand in this case, then and now, is whether the quality, consistency and substance of the appellant's testimony before the RPD could have been in any way affected in terms of credibility by her medical condition. If the appellant is putting this question to the RAD, I believe it is up to the appellant to prove it. According to her memorandum, the fact that she suffers from type 2 diabetes may be the reason for her difficulty in testifying before the RPD, and the RPD erred in its assessment of this issue. After analyzing all the evidence on the record, I find that the appellant has failed to establish this for the following reasons. [21] First, I note that the RPD considered the evidence on the record, namely Exhibit C-21, which consists of the appellant's medical record indicating that she has type 2 diabetes and a newspaper article reporting that studies have shown that uncontrolled diabetes can increase the risk of cognitive problems such as memory loss or dementia. The RPD analyzed these matters at length at paragraphs 36 to 42 of its decision. In these circumstances, it is incorrect to say that the RPD made findings without giving any credibility to the evidence regarding her medical condition. [22] I have reviewed the articles submitted in evidence before the RPD, studies that tend to show that uncontrolled diabetes can increase the risk of certain cognitive problems in some patients. This is not sufficient in this case to demonstrate, on a balance of probabilities, that this risk manifested for the appellant. In my view, the evidence on the record does not demonstrate that the appellant's diabetes is not under control or that she suffers from any cognitive problems. [23] Second, a review of the recording of the RPD hearing reveals that the appellant understood the panel's questions and that she answered them and did not appear to have had any difficulty testifying. In fact, when confronted by the RPD about the contradictions, omissions and inconsistencies in her story, the appellant responded to the questions, which she clearly understood, and provided explanations. The RPD analyzed these explanations and did not find them reasonable; this had the effect of undermining the appellant's credibility. [24] In light of the above, it is my opinion that the appellant has failed to demonstrate that the fact that she has diabetes explains the contradictions, omissions and inconsistencies observed in her account. The RPD did not err by making such a finding. [25] Furthermore, based on my own analysis, I find that even if the appellant had been found credible, which is not the case here, it is apparent from her claims that the reason why her late husband's brothers allegedly threatened her and are going after her is her interest in the land her husband allegedly left her. In this context, I find that I am forced to conclude from the appellant's testimony that she would not be in danger in Egypt if she were to cease showing an interest in her late husband's estate, that is, land that the brothers have allegedly controlled since his death.10 [26] It is important to note that the right to private property is not a fundamental right in Canadian law and that it is not unreasonable to expect the appellant to forfeit such a right in order to protect herself.11 [27] In summary, having taken into account all of the evidence on the record, I conclude that the appellant has failed to discharge her burden of establishing that there is a serious possibility that she would be persecuted on a Convention ground or that, on a balance of probabilities, she would be personally subjected to a danger of torture, to a risk to her life or to a risk of cruel and unusual treatment or punishment if she returned to her country, Egypt. Therefore, I conclude that the RPD's decision is correct. DECISION [28] Pursuant to subsection 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the RPD's determination that the appellant, XXXX XXXX XXXX XXXX, is neither a Convention refugee nor a person in need of protection. (signed) Love Saint-Fleur Me Love Saint-Fleur July 31, 2020 Date 1 P-2, appellant's record, at pp. 14, 15 and 16. 2 P-2, appellant's record, at pp. 17 and 18. 3 P-2, appellant's record, at pp. 20 and 33. 4 Subsection 110(4) of the Immigration and Refugee Protection Act. 5 Refugee Protection Division (RPD) record. Document 5 -5 Exhibit C-21: Medical record, pp. 63-65, as well as articles on diabetes, at pp. 71-73. 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII). 7 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 8 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 9 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145. 10 SPR-1, RPD record. Document 2: Appellant's Basis of Claim Form. 11 Chan v. M.E.I., [1995] 3 S.C.R. 593, p. 635. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-15582 RAD.25.02 (January 2020) Disponible en français 4 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 (January 2020) Disponible en français