TB5-13958

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 : TB5-13958 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, Ontario Appel instruit à Date of decision March 9, 2016 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Robin Edoh 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 Monwabisi Sobantu Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal; however, she requests an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination and substitute a positive determination accepting her claim for protection. In the alternative, the Appellant asks the RAD to refer the matter to the RPD for re-determination giving directions to accept her claim. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (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. Background [3] The Appellant alleged before the RPD that, upon return to Jamaica, she will be harmed by her ex-boyfriend because he had abused her in the past and has threatened to harm her. [4] The Appellant's claim for refugee protection was heard on December 2, 2015. By a decision of December 3, 2015, the RPD rejected the claim finding that the Appellant was not credible and, on a balance of probabilities, she had failed to establish her allegations with credible or trustworthy evidence. [5] The Appellant submits that the RPD's decision is replete with errors of law and fact. She further submits that the RPD failed to take into consideration her reasonable explanations for her ordeals and encounters with her ex-boyfriend. She submits that the RPD erred by failing to give weight to documentary evidence and did not have regard to the totality of the evidence before it. [6] The Minister of Immigration, Refugees and Citizenship Canada (the Minister) intervened before the RAD by making observations and submissions. The Minister submits that an oral hearing should not be granted as the Appellant has not submitted any new documentary evidence. It is further submitted that the RPD did not make any errors in its determination that the Appellant is not a Convention refugee or person in need of protection and the Appellant has failed to identify any specific errors in the RPD decision. The Minister submits that the RPD was reasonable in its assessment of the evidence and it should be awarded a high level of deference by the RAD. ANALYSIS Role of the RAD [7] What is the role of the RAD in considering an appeal against a decision of the RPD? While the Appellant makes no arguments with respect to the role of the RAD, the RAD notes in Huruglica1 the Court considered the appropriate relationship between the RAD and the RPD. It found that the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of the IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.2 [8] Justice Phelan stated the following in Huruglica: 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 claimant 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. 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." [9] Considering the most recent jurisprudence, including the Court's decision in Huruglica, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD will substitute its own determination. Application for an oral hearing [10] The Appellant seeks an oral hearing; however, she is not relying on new evidence.3 [11] Subsection 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to subsection 110(4), 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. [12] According to subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no further evidence from or in response to the Minister, the documentary evidence referred to in subsection 110(3) must be understood in relation to subsection 110(4). [13] When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (subsection 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. As there is no new evidence to consider in this appeal, the RAD must proceed without a hearing and the Appellant's request for an oral hearing is denied. Merits of the appeal Omission in Basis of Claim Form (BoC) regarding ex-boyfriend's continuing interest in Appellant [14] The RPD noted the Appellant's testimony that her ex-boyfriend contacted her son starting in XXXX 2015 asking for her whereabouts, yet, there is no mention of this in her BoC. It also noted that the Appellant indicated that there was no reason for the omission. The RPD drew a negative inference from the omission. [15] The RAD concurs with the RPD drawing a negative inference from the above-noted omission. The Appellant indicated at her hearing that she learned her ex-boyfriend had approached her son several times starting in XXXX 2015 asking about her whereabouts and saying what he would do. However, there is no indication in the Appellant's BoC about her ex-boyfriend looking for her or threatening her after she left Jamaica. It would be reasonable to expect refugee claimants to provide information in their BoC about an abuser looking for them and threatening them after they left their home country, if they became aware of that information before completing their BoC. Refugee claimants are instructed in their BoC to explain everything in order and to include everything that is important for their claim. They are instructed to include dates, names and places wherever possible. If the Appellant's ex-boyfriend continued to look for her and threaten her after she left Jamaica, one would expect her to write about it in her BoC to support her fear of returning to Jamaica. [16] Furthermore, the Appellant was represented by counsel when she completed her BoC. She indicated at her hearing that her counsel provided her with instructions on completing the BoC. The continued interest of the Appellant's ex-boyfriend to pursue her is a significant and pivotal aspect of the Appellant's claim for protection. The omission, without a reasonable explanation, seriously undermines the Appellant's credibility. The Board has been upheld by the Federal Court when making a negative credibility finding when a pivotal allegation, which goes to the heart of the claim, has been omitted from a Personal Information Form (a BoC in this case) and arises for the first time at a hearing, and for which a reasonable explanation has not been provided.4 Inconsistency in Appellant's evidence regarding the number of times she reported her ex-boyfriend to police [17] The RPD noted the Appellant's testimony that she reported her ex-boyfriend to police on two occasions; however, she indicated in her BoC that she reported him to police on one occasion. It found the Appellant's explanation for the omission - that she did not include one of her visits to police in her BoC because police had not taken a report on that occasion - to be not credible. The RPD drew a negative inference from the omission. [18] The RAD concurs with the RPD drawing a negative inference from the inconsistency noted above. In response to the BoC question, "Did you ask any authorities such as the police, or any other organization, in your country to protect or assist you?" the Appellant indicated that she approached the police for help on one occasion. At her hearing, the Appellant indicated that she went to police twice. She indicated that she went to police twice in total and she had a friend who was a police officer but he told her there was nothing he could do because he was not stationed in her area. When asked about the inconsistency at her hearing, the Appellant indicated that the first time police did not take a statement and the second time they took a statement. [19] The RAD rejects the Appellant's explanation for the omission. The BoC questions if the refugee claimant asked any authorities in their country to protect or assist them, not if they took a statement. Furthermore, the Appellant clearly indicates in her BoC that she approached police for help on one occasion. Even if police took her statement on one of her two visits, it would be reasonable to expect her to indicate that she approached police on two occasions or twice. The Appellant's alleged reporting of her ex-boyfriend to police is a significant element of her story, particularly if police did not assist her. It is reasonable to expect the Appellant to give consistent evidence about reporting her ex-boyfriend to police and her failure to do so further damages her credibility. Omission and inconsistency in Appellant's evidence regarding the nature and details of the XXXX XXXX, 2014 incident [20] The RPD noted the Appellant's testimony that, on XXXX XXXX XXXX 2014, her ex-boyfriend dragged her out of bed by the foot and on the way to the ground she injured her back on the edge of the bed. However, according to her BoC, the Appellant indicates that her ex-boyfriend attacked her with an object and she sustained injuries to her back and left hand. When asked about the object at her hearing, the Appellant indicated that her ex-boyfriend was holding a machete when he dragged her out of bed however he had not hurt her with it. The RPD drew a negative inference from the failure of the Appellant to mention the machete in her BoC and from the inconsistent versions of the XXXX XXXX, 2015 incident. [21] The RAD concurs with the RPD drawing a negative inference from the above-noted omission and inconsistency. The Appellant writes in her BoC that on XXXX XXXX, 2014 her ex-boyfriend attacked her with an object and she sustained injuries to her back and left hand. At her hearing the Appellant explained that the object was a cutlass or machete. When asked why she did not indicate it was a cutlass or machete in her BoC, the Appellant said she did not know and just wrote it was an object. When asked to describe the incident, the Appellant said her ex-boyfriend pulled her foot from the base of the bed and she hit her back on the board of the bed. [22] It would be reasonable to expect the Appellant to be specific in her BoC about the object her ex-boyfriend attacked her with in the XXXX XXXX, 2014 incident. If he attacked her with a lethal weapon such as a cutlass or machete, one would expect the Appellant to indicate this in her BoC. Referring to a cutlass or machete as an object does not reflect the serious harming potential of the weapon. One would expect the Appellant to stress that the object was a cutlass or machete in her BoC to support her contention that her ex-boyfriend is dangerous and intent on harming her. [23] It would also be reasonable to expect the Appellant to provide a detailed and consistent version of the XXXX XXXX XXXX 2014 assault. The Appellant's description of the assault in her BoC suggests that she was injured by her ex-boyfriend with an object. The Appellant's description of the assault at her hearing suggests that she was injured by being pulled off her bed and hitting the bed board. The alleged incident of XXXX XXXX, 2014 is a significant element of the Appellant's story, particularly because it is what caused her to leave Jamaica. It is reasonable to expect the Appellant to give consistent and detailed evidence about this incident and her failure to do so further damages her credibility. Omission in BoC regarding absence from work due to ex-boyfriend's abuse [24] The RPD noted the Appellant's testimony that due to her ex-boyfriend's actions she had to take almost one year off work starting in 2013. However, there is no mention of this in her BoC. The RPD drew a negative inference from the omission. [25] The RAD concurs with the RPD drawing a negative inference from the omission noted above. The Appellant indicated at her hearing that because of the situation with her ex-boyfriend, she stopped working and went away in XXXX 2013. She also indicated that she was off work for almost one year. There is no indication of this in the Appellant's BoC. Instructions for completing the BoC are clear in asking refugee claimants to explain everything in order. They are asked to include everything that is important for their claim. They are asked to include dates, names and places wherever possible. If the Appellant was required to be off work due to problems with her ex-boyfriend, it would be reasonable for her to state this in her BoC to support her claim. Her failure to do so further undermines her credibility. Delay in claiming [26] The RPD noted the Appellant's delay in claiming refugee protection. It found her testimony regarding her delay in claiming and attempting to find permanent status in Canada to be not credible. It noted that her testimony about her intentions at the time she entered Canada changed from intending to return to Jamaica to the opposite. It noted that her testimony about meeting her counsel changed from meeting him in August 2015 to meeting him in early 2015. The RPD found that the Appellant had not adequately explained her nine month delay in claiming and drew a negative inference. [27] The RAD notes the following from the Appellant's testimony at her hearing. The Appellant indicated that she came to Canada in XXXX 2014 to spend some time with her sister. She also indicated that she wanted to get away from Jamaica because of the challenges she had there. The Appellant indicated that it was her plan to return to Jamaica after approximately three months but after she heard about the continuing threats from her ex-boyfriend she began to explore ways she could remain in Canada. Later in the hearing, when asked if her intention was to return to Jamaica at the time she came to Canada, the Appellant indicated that her intention was to not return to Jamaica. When asked what she did during her first 6 months in Canada, the Appellant indicated that she was wondering what to do. She also indicated that she did not know what to do until she met a friend who told her what to do. [28] 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.5 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 or her 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.6 [29] In this case, the Appellant traveled to Canada on XXXX XXXX, 2014 and did not file a claim for refugee protection until September 2015, after the expiry of her Canadian visitor visa. The Appellant filed a claim for refugee protection in Canada, approximately ten months after her arrival. She alleges she did not know what to do after arriving in Canada. She also alleges she did not know about the refugee process until she spoke with a friend in or about January 2015 who referred her to an immigration consultant. She filed her claim for refugee protection approximately eight months later when she could afford to pay the immigration consultant's fee. [30] The RAD rejects the Appellant's explanations for her delay in filing a refugee claim in Canada. The Appellant alleges she left Jamaica, in part, to escape an abusive ex-boyfriend; however, she did not file a refugee claim in Canada and did not ask anyone about the possibility of filing a refugee claim immediately upon arrival. The Appellant had the wherewithal to apply for an extension to her temporary resident status.7 Considering that the Appellant is well-educated and well-travelled, it would be reasonable to expect her to inquire about the protection available to her in Canada as soon as she arrived if she was truly fearful of returning to Jamaica. [31] Notwithstanding the above, the RAD finds the Appellant's testimony regarding her intentions when she left Jamaica to be not credible. She first testified that when she left Jamaica she intended to return after spending a few months in Canada. She then testified that she had no intention of returning to Jamaica when she left on XXXX XXXX, 2014. It would be reasonable to expect refugee claimants to provide consistent testimony regarding their intentions when they left their home country. The Appellant's failure to do so further damages her credibility. [32] The Appellant did not speak with a lawyer or immigration consultant about the possibility of filing a refugee claim in Canada until months after her arrival, even though it was not likely that there was any risk in asking. If persons truly fear returning to their home country, it would be reasonable to expect them to seek the advice of professionals in immigration matters as soon as possible. [33] The Appellant maintains that she fled Jamaica, in part, because she feared for her life at the hands of her ex-boyfriend. One would expect a refugee claimant, who leaves her home country in fear for her life, to immediately seek protection in the safe country she travels to. It would be reasonable to expect refugee claimants to immediately seek protection in Canada if they feared returning to their home country. The Appellant in this case knew that it was likely she would have to return to Jamaica if she did not obtain status in Canada however she failed to inquire about it after she arrived and before she applied for an extension to her temporary resident status. She failed to tell her lawyer or immigration consultant who helped her apply for the extension about the problems she had in Jamaica or the fear she had of returning to Jamaica. It is unreasonable that the Appellant remained in Canada for almost one year, and did not pursue a refugee claim or even inquire about it in the initial months, in light of her alleged fear of returning to Jamaica. [34] 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.8 In this case, the Appellant's reason for not making a claim for protection immediately upon arriving in Canada on XXXX XXXX, 2014, or shortly afterwards, is unreasonable and the RAD finds it undermines her credibility with regards to her subjective fear of returning to Jamaica, her allegations and her overall credibility. Inconsistency in Appellant's evidence regarding her status with ex-boyfriend [35] The RPD noted information from Immigration, Refugees and Citizenship Canada indicating the Appellant's marital status as "common-law" when she testified that she had never cohabitated with her ex-boyfriend and their relationship was over in 2013. The RPD noted an apparent contradiction in the Appellant's testimony regarding the procurement of her Canadian visa - that she had answered all questions truthfully yet declared she was in a common-law relationship, when she was not, to avoid questions. The RPD found that the Appellant's declaration that she was in a common-law relationship casts significant doubt about her allegations. It drew a negative inference from the inconsistency. [36] The RAD concurs with the RPD drawing a negative inference from the inconsistency noted above. The Appellant indicated at her hearing that she never lived with her ex-boyfriend. She indicated that she would spend time at her ex-boyfriend's home but he would spend more time at her home. Furthermore, the Appellant indicated that she ended her relationship with her ex-boyfriend in 2013. She indicated that she had no contact with her ex-boyfriend after the XXXX XXXX, 2014 incident except when she would encounter him on the street. If the Appellant was not in a common-law relationship with her ex-boyfriend when she applied for her Canadian visa in or about XXXX 2014, it would be reasonable to expect her to indicate such to Canadian immigration officials. If the Appellant had ended her relationship with her ex-boyfriend in 2013 and had no contact with him other than chance encounters on the street since XXXX XXXX, 2014, it would be reasonable to expect her not to indicate to Canadian immigration officials that she was in a common-law relationship when she applied for a Canadian visa in or about XXXX 2014. The RAD rejects the Appellant's explanation for the inconsistency - to avoid questions and had always indicated she was in a common-law relationship - considering that the Appellant testified she was truthful in her Canadian visa application when her evidence suggests otherwise. The inconsistency regarding the Appellant's marital status when she applied for her Canadian visa in or about XXXX 2014, without a reasonable explanation, further undermines the Appellant's credibility. Weight to letter from son and letter from friend [37] The RPD noted that a letter from the Appellant's son was unsworn and contains very little detail. It found that it did little to overcome the significant credibility problems noted above. The RPD noted that a letter from the Appellant's friend was unsworn, brief and undetailed. It found that the letter does little to outweigh the negative inferences it had drawn. [38] The RAD has reviewed the letter from the Appellant's son9 and the letter from the Appellant's friend.10 They provide very little information and few details about the problems the Appellant alleges to have suffered at the hands of her ex-boyfriend. Furthermore, the Appellant's friend does not have first-hand knowledge of the Appellant's alleged problems with her ex-boyfriend. The Appellant testified at her hearing that her friend was aware of her problems with her ex-boyfriend because she told her about them. She also indicated that she provided her friend with very few details. The letter from the Appellant's son provides a very brief and non-detailed confirmation of threats the Appellant allegedly received from her ex-boyfriend; however, the Appellant's credibility has been undermined by the anomalies in her evidence noted above. As noted in Gomez,11 corroboration does not make an incredible story credible. Furthermore, the RAD finds that the letters submitted by the Appellant are not highly probative or credible evidence. The Federal Court has held that confirmatory evidence of family members and friends, which is not subject to cross-examination, is not highly probative or credible evidence. Highly probative evidence is intrinsically well-presented evidence from independent sources confirming a material fact in the matter.12 [39] The RPD was not wrong to give little weight to the letters from the Appellant's son and friend after it considered a number of factors. The letters were considered along with all the other evidence before an overall credibility finding was made. The RAD finds that the letters are not highly probative or credible evidence and assigns little weight to them. Disposition [40] The Appellant has alleged that the RPD decision contains errors and the RPD failed to consider evidence. The RAD has found that the RPD's analyses and findings are not flawed and that it had properly considered the evidence. Upon review of the evidence, the RAD has reached the same conclusion as the RPD. [41] As a cumulative result of the above-noted anomalies, the RAD finds that the Appellant lacks credibility. The RAD does not accept, on a balance of probabilities, that the events, as described by the Appellant in her Basis of Claim Form and at her hearing with the RPD, occurred as described. Therefore, the RAD finds that there is not a serious possibility of persecution should she return to Jamaica. The RAD therefore concludes that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and, for these same reasons, the RAD finds that the Appellant is not a person in need of protection or at a risk to life, or at risk of cruel and unusual treatment or punishment, or in danger of torture as set out in section 97 of the IRPA. CONCLUSION [42] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division and dismisses the appeal. (signed) "M. Pettinella" M. Pettinella March 9, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, para. 45. 3 Exhibit P-2, Appellant's Record, at p. 11. 4 Aragon, Romel Abutan v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-651-07), Frenette, February 4, 2008; 2008 FC 144; Kutuk, Aydin v. Canada (Minister of Citizenship and Immigration), (F.C.T.D., no. IMM-2484-94), Simpson, December 14, 1995. 5Heer, Karnail Singh v. M.E.I (F.C.A., no. A-474-87), Heald Marceau, Lacombe, April 13, 1988. 6Onofre, Sofia Ramirez v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-2084-10), Bedard, December 2, 2010; 2010 FC 1219. 7Exhibit RPD-1, RPD's Record, at p. 129. 8Rivera, 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. 9 Exhibit RPD-1, RPD's Record, at p. 125. 10Exhibit RPD-1, RPD's Record, at p. 121. 11Gomez, Hector Cisneros v. M.C.I. (F.C., no. IMM-5741-04), Harrington, June 16, 2005, 2005 FC 859. 12El Bouni, Haidar v. M.C.I. (F.C., no. IMM-7627-14), Annis, June 2, 2015; 2015 FC 700. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :