TB5-11566

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 : TB5-11566 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 November 30, 2015 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Kari Schroeder 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 Rhonda Macklin Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Lebanon, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either substitute a positive determination or return the matter to the RPD for reconsideration. [2] The Minister of Public Safety and Emergency Preparedness (the Minister) intervenes in this appeal, and asks the RAD to uphold the determination of the RPD. DETERMINATION [3] Pursuant to Section 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 [4] The Appellant left Lebanon in XXXX of 2011 and traveled to Canada on a visitor visa. He divorced his Lebanese wife and married a Canadian woman; however, that marriage also ended in divorce and a spousal sponsorship application was rejected in April of 2014, leaving the Appellant without status in Canada. In July of 2014 he made a refugee claim, in which he alleged that he fears harm at the hands of the XXXX family, which seeks to harm him because he supported a rival political candidate in a 2010 municipal election. [5] The Appellant's application for refugee protection was heard on May 26, 2015. By a decision of June 30, 2015, the RPD rejected the claim. Citing inconsistencies in the Appellant's evidence, the panel found that his allegations were not credible. [6] The Appellant submits that the RPD made several errors in its credibility findings, failed to consider the core elements of his claim, erred in its treatment of subjective fear, and engaged in an incomplete analysis of state protection. The Minister disagrees, arguing that the RPD reasonably found the Appellant to be generally lacking in credibility, and that this finding was sufficient basis for the rejection of the claim. ANALYSIS What is the Role of the RAD? [7] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [8] The Appellant submits that the RAD should conduct its own analysis of the evidence to determine whether the RPD's decision should be upheld. The Minister argues that the RAD should apply a standard of reasonableness. [9] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.1 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [10] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [11] Where the proceeding is a true appeal-that is, where there is no admissible new evidence, as is the case here-the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [12] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.2 [13] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [14] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [15] Where the RPD's determination is entirely based on findings which warrant deference-such as an overall lack of credibility, based on oral testimony-the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [16] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The RPD's Findings [17] The Appellant argues that the RPD made various errors in rejecting his refugee claim. [18] State protection: The RPD considered the Appellant's testimony that seeking help from the police would only create more problems from him. It found this evidence to lack credibility, since the Appellant in fact did turn to the police for assistance and received support.3 [19] The Appellant argues on appeal that the RPD failed to consider objective evidence with respect to state protection, and did not consider whether the police could provide meaningful protection. [20] This argument has no merit: The RPD did not consider the issue of state protection, or make a finding with respect to that issue. It made an observation that the Appellant's testimony about the harm that would befall him if he sought police help was not consistent with what actually happened. [21] As the RPD dismissed the Appellant's claim due to a lack of credibility, it was not required to consider the issue of state protection, as the Appellant did not provide credible evidence of a danger against which he required protection. [22] Canadian marriage: The Appellant argues on appeal that the RPD mentions, but does not make findings, with respect to his failed Canadian marriage. He submits that "it is not clear from the decision how the Appellant's failure to report his marriage breakdown to CIC factored into the decision."4 The RAD disagrees. The RPD reviewed, in some detail, the Appellant's inconsistent testimony about the breakdown of his Lebanese marriage as well as that of his Canadian marriage. The RPD concluded that "the claimant's lack of candor regarding his marriage in Lebanon and his marriage in Canada reflects negatively on his credibility generally."5 The RPD made a cumulative finding with respect to the inconsistent evidence about the Appellant's marriages; this was not an error. [23] Marriages: The Appellant also argues that the RPD focused on peripheral issues, such as the reason he divorced his Lebanese wife. He submits that, although there were some inconsistencies in his evidence with respect to dates, they are not so overwhelming as to cast doubt on all of his allegations. He also points out that he told the RPD he has trouble remembering dates. [24] The RAD has reviewed the evidence, as well as the RPD's analysis and findings with respect to that evidence. The Appellant wrote in his Basis of Claim form (BoC) that the XXXX family demanded a large sum of money from his wife's family to resolve the dispute. "My wife was not able to deal with the situation as a whole and was insisting I divorce her as she felt her life and our children's was in danger. The situation became extremely heated and so we agreed that divorcing was a way to protect the family."6 However, he testified to the RPD that the divorce happened because his wife was in a relationship with someone else. [25] The Minister points out that even the Appellant's affidavit filed in support of this appeal is inconsistent with other evidence. He claims in the affidavit that he left Lebanon in XXXX of 2011 and filed for divorce shortly afterward;7 however, the RPD record includes a divorce certificate indicating that the divorce occurred in XXXX of 2011, well prior to his departure.8 [26] In the RAD's view, this is not a peripheral issue, but goes to the core of the Appellant's claim. He alleged in his BoC that his family was in such danger that his wife demanded a divorce for reasons of safety; in his oral testimony, he gave a quite different reason. This was a significant inconsistency that damaged his credibility. [27] While the Appellant claims to have memory difficulties, he did not present any medical evidence to the RPD or to the RAD to corroborate this claim. Further, his claim to have difficulty in remembering dates does not explain why he gave different reasons for his Lebanese divorce. [28] The Appellant also gave significantly inconsistent evidence with respect to the breakdown of his Canadian marriage. He wrote on a work permit application that his relationship ended in XXXX 2013, but in forms accompanying his refugee application he claimed it ended in XXXX of 2014. His only explanation was that his Canadian ex-wife agreed to remain married until he could obtain his permanent residency, though in the RAD's view this cannot explain his use of the earlier date. While the Appellant argues that this issue is peripheral to his claim, the RAD disagrees: delay in claiming is at issue here, and when the Appellant's relationship with his Canadian wife-and sponsor-ended is highly relevant to his status in Canada and his delay in claiming. [29] Having considered the evidence, the RAD finds that the Appellant's inconsistent evidence with respect to his marriage seriously undermines his credibility. [30] Delay in claiming: The RPD noted that the Appellant's sponsorship application was rejected in April of 2014, leaving him without status; despite this, he did not initiate a refugee claim until July of 2014 and did not finalize this until after he was arrested by Canadian immigration officials. Although it did not consider the delay to be determinative, the RPD nevertheless found that it further damaged the Appellant's credibility. [31] The Appellant argues on appeal that, although he waited four years to make his refugee claim, it was clear that he was trying by all means necessary to secure other means to remain in Canada. The RAD notes that the delay in claiming should not be considered as four years, since the Appellant had status during most of that time and some of the alleged incidents in Lebanon did not occur until later in that time period. However, it is also clear that the Appellant, who had been living in Canada for some time and speaks English,9 did not promptly act to seek protection when he learned his other efforts had failed. In April of 2014 he knew that the sponsorship application had been rejected, and in fact he was separated or divorced from his Canadian wife. In this context, he could indeed have been expected to promptly seek protection. He did not, and the inconsistency between his actions and his alleged fear further damages his credibility. [32] Corroborative evidence: The RPD observed that corroborating documents may not be necessary when credibility is not a concern. Given its credibility concerns, however, the panel asked the Appellant why he did not provide supporting documents, such as an attestation from the candidate he allegedly supported. The Appellant told the RPD that he did not ask Mr. XXXX for any such letter. Although the Appellant testified that a Member of Parliament intervened on his behalf, he provided no corroboration of this. [33] The Appellant argues on appeal that it is an error for the RPD to require corroborating documents unless the panel has valid reason to question his credibility. He also submits that objective country-condition evidence supports his story. [34] As set out above, the RAD has found that the RPD did have valid reason to question the Appellant's credibility, and as such it was not an error to expect some corroborating documents. Section 11 of the Refugee Protection Division Rules requires that a refugee claimant "must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them." Here the Appellant did not provide documents, nor did he provide a reasonable explanation for his failure to provide corroboration from someone such as Mr. XXXX, given the allegedly life-changing consequences of the Appellant's work for that candidate. It was not an error for the RPD to make a negative credibility finding with respect to the absence of corroborating documents, especially given that almost a year elapsed between the filing and hearing of the claim. Having reviewed the evidence, the RAD has reached the same conclusion. [35] While objective evidence may indeed establish that problems similar to those alleged by the Appellant do occur in Lebanon, this simply does not help the Appellant to establish that his own claim is true. [36] Key elements of claim: The Appellant submits that the RPD made no specific findings with respect to his reasons for seeking protection, and appears to accept that he campaigned for municipal candidate Mr. XXXX. He argues that the RPD erred by failing to state clearly which parts of the story it believes or disbelieves. In his view, the panel had little regard for the presumption of truthfulness to which he was entitled. [37] The RAD cannot accept this argument. The RPD did make findings with respect to the central allegations of his claim. For example, the RAD noted the absence of corroboration from Mr. XXXX, as well as the inconsistency in the Appellant's evidence about whether his Lebanese divorce occurred because of threats against his family. The RAD also observed that the Appellant failed to include Mr. XXXX name in his BoC, and did not include the date on which he was allegedly shot at, despite BoC instructions to provide details.10 [38] It would have been better if the RPD had concluded its credibility analysis with a clear finding; however, the RPD's credibility determination is nevertheless apparent from its reasons. At the outside of its analysis, the panel wrote that "the claimant's credibility and subjective fear are undermined."11 In addressing the matter of supporting documents, the RPD added that "there are sufficient credibility issues that it is reasonable to ask the claimant why he has not provided any corroborative documents to support his claim...."12 The RPD went on to conclude that the Appellant had not established "through sufficient reliable evidence" that he faces persecution in Lebanon. While it is unfortunate that the RPD, after carefully explaining various credibility concerns, failed to specifically state that the Appellant was generally lacking in credibility, this conclusion is nevertheless evident from a reading of the entire reasons. [39] The RAD will show deference to the RPD's credibility findings where the lower tribunal was in an advantageous position to make such findings. However, even if the RAD would show no deference at all, it would reach the same conclusions as did the RPD, based on the RAD's independent review of the evidence. The Appellant is generally lacking in credibility; he has not established his refugee claim with credible or trustworthy evidence, and that claim therefore cannot succeed. CONCLUSION [40] 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) "Edward Bosveld" Edward Bosveld November 30, 2015 Date 1 X (Re), 2015 CanLII 19235 (CA IRB). 2 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 55. 3 RPD's Reasons, para. 12. 4 Appellant's Record, Page 190, Memorandum, para. 24. 5 RPD's Reasons, paras. 7-8. 6 Appellant's Record, Page 18, Basis of Claim form, Question 2(h). 7 Appellant's Record, Page 12, Affidavit, para. 9. 8 RPD's Record, Page 338, Divorce Certificate, showing date as XXXX XXXX 2011. The Appellant confirmed this date in the RPD's Record, Audio Recording, 1:39. See also RPD's Record, Page 391, where the Appellant explains that he divorced his wife after he came to Canada, because of her infidelity. 9 Appellant's Record, Page 15, Basis of Claim, Question 1(g). 10 RPD's Reasons, para. 10. 11 RPD's Reasons, para. 4. 12 RPD's Reasons, para. 11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-11566