TB4-03695

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 : TB4-03695 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX- XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 20, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Giovanni Rico 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 N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX, (the Appellant), who claims to be a citizen of the Republic of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She asks that the Refugee Appeal Division (RAD) allow her appeal. [2] The Appellant did not submit new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA or the Act). The Appellant does not seek an oral hearing under subsection 110(6) of the IRPA. 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 alleged before the RPD that she came to Canada to study in XXXX 2010, and sometime in 2011 she entered into a same-sex relationship with another female. In XXXX 2012, while the claimant was attending school in Canada, she spoke to her father regarding further funding for her studies, and it was at this time that she acknowledged her sexual orientation to her father. The Appellant's father then demanded that she return to Nigeria immediately to undergo cleansing rituals, but the Appellant refused. When Canadian Immigration officials refused to extend the Appellant's status beyond XXXX XXXX, 2014, the Appellant filed a claim for refugee protection. [5] The Appellant's application for refugee protection was heard on March 28, 2014. By a decision of April 02, 2014, the RPD rejected the claim. It noted that the Appellant had not provided sufficient credible and trustworthy evidence in support of her allegations. [6] The RPD, in arriving at its decision, found that the Appellant was not credible with respect to key elements of her allegations and does not have a well-founded fear of persecution for a Convention ground in Nigeria, and further that the Appellant was not in need of protection, and accordingly denied her claim. [7] In her memorandum, the Appellant does not state what type of order or relief is being sought. The Appellant did not provide submissions on standard of review. The memorandum states that there is one issue1 regarding the RPD's decision, the credibility findings of the RPD. [8] Thus, the appeal is considered based on the RPD record. [9] The Appellant has provided some references to errors in the RPD decision, some legal authorities, and little to no supporting arguments. Standard of Intervention [10] The Appellant did not provide any submissions on standard of review. [11] The issue listed above by the Appellant can be rephrased as follows: whether the assessment of Appellant's credibility by the RPD is reasonable. This is an issue of fact. [12] Two recent Federal Court Decisions, Alvarez2 and Eng,3 have provided the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first level administrative tribunal. In both decisions, Justice Shore indicates that the appropriate terminology to be used by the RAD is Standard of Intervention given that a Standard of Review analysis relates to appeals for judicial review. [13] As the content of both decisions regarding the role of the RAD is identical, the RAD will cite Alvarez in the discussion of the standard of intervention. The Alvarez decision directs the RAD to move away from a reasonableness standard in the assessment of errors of fact and errors of mixed fact and law to a "palpable and overriding error" standard as per the Quebec Court of Appeal in Parizeau4 and the Supreme Court of Canada in Housen.5 Parizeau found that it was the administrative tribunal that could intervene to correct errors of fact, in relation to findings that were not supported by the evidence.6 Housen defines palpable error as one that is plainly seen.7 Overriding errors are those that are determinative to the outcome of the decision. [14] While Alvarez and Eng represent a departure from the reasonableness standard in Dunsmuir,8 these decisions confirm that the RAD owes the RPD a measure of deference in regards to its findings of fact and mixed law and fact.9 Housen indicates that the standard of palpable and overriding error involves a high level of deference to findings of fact; in part, due to the fact that the trial judge has an advantageous position having heard testimony viva voce and due to his or her familiarity with the case as a whole.10 Deference applies to findings of fact related to the credibility of witnesses and also to all conclusions of fact made by the trial judge.11 Housen also indicates that questions of mixed law and fact (where the legal principle is not readily extricable from the facts) involved the trial judge's interpretation of the evidence as a whole should not be overturned absent a palpable and overriding error.12 [15] The Federal Court in Alvarez at paragraph number 25 stated that, "the Court agrees that an appeal before the RAD is not an appeal de novo", given the limits of the RAD to accepting new evidence, and to hold hearings on the new evidence outlined in sections 110(4) and 110(6) of IRPA. [16] Given the direction by the Federal Court, the RAD will review errors of fact and mixed law on fact using the palpable and overriding standard. ANALYSIS [17] Based on a review of all of the evidence, the RAD focused on two determinative issues: 1) Did the tribunal err in its findings that the Appellant is not a credible witness? 2) Did the tribunal err in its failure to consider relevant evidence? [18] The RPD found that the Appellant did not provide sufficient credible or trustworthy evidence to support her allegations; the Appellant was not credible based on implausibilities in her allegations. The Appellant alleges that the RPD erred by assigning a negative credibility finding to her testimony related to the implausibility that an oracle, who consulted the Appellant's father, could have discovered her sexual orientation. [19] Did the tribunal err in its findings that the Appellant is not a credible witness? The Appellant argues that the RPD made erroneous credibility findings and thus erred. The Appellant argues that the RPD erred by impugning her credibility on the basis that it erred by discounting two letters which were presented in support of her allegations.13 The RAD has reviewed the evidence in this area, and notes the RPD clearly cites, in its reasons,14 its findings when joined by the Appellant's viva voce testimony regarding the writing styles and the allegation that the letters came from two different persons in two different countries. There was no explanation provided by the Appellant when asked about the letters.15 The RPD cites its reasons why it did not accept the Appellant's explanation, since the Appellant did not provide a reasonable explanation concerning the two letters and their origins.16 The RAD reviewed this portion of the evidence and concludes that the RPD made no overriding or palpable error in this finding. [20] The RAD interprets that the Appellant submits that it was unreasonable for the RPD to draw a negative inference about her sexual orientation from the fact that it did not place any significance on the weight of the contents of the letters, the affidavit, the telephone messages and the email from her mother, former girlfriend or any friends or relatives in terms of establishing her sexual orientation - so the issue is whether the RPD considered that in its decision. The RAD, from reviewing the Reasons and all the evidence in this area, finds that the RPD came to a supportable conclusion, as it clearly cites those concerns in its credibility findings regarding all the documents submitted by the Appellant at her hearing. [21] Issue 2: Did the tribunal err in its failure to consider relevant evidence? The RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record.17 However, there is no evidence which is contrary to its decision; the RPD analyzed that evidence and provided reasons why it found the Appellant's evidence not to be trustworthy. The RAD reviewed the evidence in its entirety in this area and did not find any relevant evidence that was ignored by the RPD. [22] The Appellant argues that the RPD erred by disregarding the evidence which came in the form of several documents. In its reasons (paragraph 20), the RPD addressed the documents found in the National Document Package.18 The RPD assigned little weight on the documents,19 which were presented into evidence by the Appellant based on an analysis of the individual concerns with each of the pieces of evidence in its reasons as well as in light of the totality of the evidence, including the Appellant's testimony. With respect to the documents, which came from Nigeria, the RAD noted that there was documentary evidence on the record,20 which places into question documents produced in Nigeria. For example, a 2010 Response to Information Request (RIR)21 indicates that Lagos is a centre for false document manufacturing. Therefore, based on the evidence in its entirety as it relates to this area, the RAD finds that the conclusion of which the RPD arrived at after reviewing the evidence in its entirety is supportable. [23] The UK Border Services Agency indicated that: ... corruption is endemic in Nigeria and the use of forged documents is widespread. Any printed official document can be forged. Genuine official documents such as birth, marriage, divorce, and death certificates, ID cards, diving licenses and passports can be obtained from officials by bribery. Furthermore, information contained in genuine official documents is often false, inaccurate or cannot be relied upon.22 [24] The Appellant further argues that the Board failed to take into consideration the impact of the Appellant's mental condition on her ability to provide detailed evidence. The Appellant submits that the report from the Psychotherapist asserts that the Appellant has concentration problems that interfere with the fluidity of thought. The report also states that the Appellant suffers from XXXX XXXX as well as XXXX, and finally the Appellant has problems with consistency "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX"23 [25] The RAD has reviewed this area of the evidence and finds that the RPD has cited in its reasons its finding in regards to the Psychotherapist's report.24 The Appellant was represented by counsel and there is nothing on the record that, previous to the hearing or at the hearing, any request was made to the Board for the Appellant to be accommodated. The RAD has listened to the audio recording, and found no areas in the hearing where the Appellant showed any of the signs of experiencing uncertainty in her viva voce testimony. The Appellant was answering the questions with consistency and smoothness; the Appellant did not appear to be having any difficulties that the RAD could detect in the audio of the hearing. [26] The RAD noted that the RPD placed no weight on the Psychological report25 in support of the Appellant's difficulties with difficulties in her testimony. As outlined below, the RAD finds that the author of the Psychological report cannot be considered an expert witness. As a general rule, an expert is characterized as a person possessed of the special skill and knowledge acquired through study or practical observation that entitles him [or her] to give opinion evidence or speak authoritatively concerning his or her area of expertise.26 [27] The RAD considered the credentials of the "psychotherapist" in relation to her ability to make mental health findings. The RAD noted that the psychological assessment and diagnosis was written by a person with a B.A. The assessment does not indicate that the author was a member of any college of regulated health professionals in Ontario or any other province such as the College of Psychologists of Ontario, which has been given the jurisdiction to make medical or psychiatric diagnoses. The assessment does not indicate that the writer has the regulatory and professional jurisdiction to make the following "medical diagnosis" under any regulatory or licensing body: "Ms. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX." Given the failure of the writer of the assessment to indicate that she has the credentials and authority to make findings under the DSM-IV, the RAD finds that the writer has not established her expertise.27 [28] The Regulated Health Professions Act of Ontario28 (Act) sets out the requirements for individuals to use the title of Psychotherapist as well as what controlled acts that a person is legally able to perform. The Act limits the use of the title Psychotherapist to the following: Psychotherapist Title 33.1 (1) Despite section 8 of the Psychotherapy Act, 2007, a person who holds a certificate of registration authorizing him or her to perform the controlled act of psychotherapy and is a member of one of the following Colleges may use the title "psychotherapist" if he or she complies with the conditions in subsections (2), (3) and (4): * 1. The College of Nurses of Ontario. * 2. The College of Occupational Therapists of Ontario. * 3. The College of Physicians and Surgeons of Ontario. * 4. The College of Psychologists of Ontario. 2009, c. 26, s. 24 (6). Oral identification (2) A person mentioned in subsection (1) shall not describe himself or herself orally as a "psychotherapist" to any person unless the member also mentions the full name of the College where he or she is a member and identifies himself or herself as a member of that College or identifies himself or herself using the title restricted to those who are members of the health profession to which the member belongs. 2009, c. 26, s. 24 (6). Written identification (3) A person mentioned in subsection (1) shall not use the title "psychotherapist" in writing in a way that identifies the member as a psychotherapist on a name tag, business card or any document, unless the member sets out his or her full name in writing, immediately followed by at least one of the following, followed in turn by "psychotherapist": * The full name of the College where he or she is a member. * The name of the health profession that the member practises. * The restricted title that the member may use under the health profession Act governing the member's profession. 2009, c. 26, s. 24 (6) [29] The Act also specifies acts that are controlled which include: Controlled acts * A "controlled act" is any one of the following done with respect to an individual: * Communicating to the individual or his or her personal representative a diagnosis identifying a disease or disorder as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the diagnosis. [30] Given that the evidence presented was not prepared by a member of a regulated health profession in Ontario, given that the writer did not have the legal authority to advertise herself as a Psychotherapist in Ontario, and given that the writer's assessment contained a diagnosis for which the writer did not have legal authority to put forward, the RAD finds that the RPD did not err in its conclusions and that its finding is supportable. [31] The RAD notes that, as stated in Rokni,29 a psychiatric report submitted as evidence "cannot possibly serve as a cure-all for any and all deficiencies in a claimant's testimony". The court reiterated its position in Danilov,30 with respect to the assessment of a physician's evidence and the question of the assessment of credibility; it was stated "that opinion evidence is only as valid as the truth of the facts on which it is based. [32] Given the concerns with all the documents included in the RPD's reasons, given that the affidavit, the letters, telephone messages, emails, and the Psychotherapist report were evaluated based on the totality of the evidence presented, and given the concerns in the documentary evidence related to the availability of fraudulent documents in Nigeria, the RAD finds that the RPD did not err in placing little weight on the affidavit, and letters and all other documents in support of the Appellant's allegations as the documentary evidence further supports the RPD's finding. [33] The RAD has assessed the entirety of the evidence and I have determined that there is no palpable and overriding error in the RPD decision regarding the credibility findings. CONCLUSION [34] Pursuant to Section 111(1) (a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. This appeal is therefore dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho August 20, 2014 Date 1 Appellant's Record, page 52 2 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 CF 702. 3 Eng v. Canada (Citizenship and Immigration) - 2014 FC 711 - 2014-07-17 4 Parizeau c Barreau du Québec, 2011 QCCA 1498, [2011] RJQ 1506. 5 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. 6 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 CF 702, at para. 26. 7 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 237. 8 Dunsmuir v New Brusnwick, 2008 SCC 9, [2008] 1 SCR 190 at para 47 9 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 CF 702 at para 33 10 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 251. 11 Housen v. Nikolaisen, 2002 SCC 33, [2002} 2 SCR 254-255. 12 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 262 at para 36. 13 Appellant's record, page 53, paragraph 6 14 Appellant's record, page 6, Reasons for Decision, paragraph 17 15 Appellant's record, page 7, Reasons for Decision, paragraph 20 16 Appellant's record, page 5, Reasons for Decision, paragraphs 14 & 16 17 Hassan v Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946. 18 RPD record, Exhibit 7, items 3.9 and 3.19 19 RPD record, Exhibits 3, items C-11 and C-13, and Exhibit 9, item C-14 20 RPD Record, Exhibit 4, item C-4 and Exhibit 4, item C-6 21 RPD's Record, National Documentation Package, Nigeria, item 3.9, Response to Information Request NGA103508.FE, 27 July 2010. 22 RPD's Record, UK Border Services Report, s. 32.02. 23 Appellant's record, page 53, paragraph 7 24 Appellant's record, page 7, Reasons for Decision paragraph 21 25 RPD's Record, Exhibit 3, item C-10, Report from Natalie Riback 26 Stobo, G., Expert Evidence, I.R.B. Legal Services, July 11, 1989, p. 3. 27 Appellant's record, page 20, paragraph 2 28 Regulated Health Professions Act, 1991, S.O. 1991, c. 18. 29 Rokni, Mohammad Mehdi v. M.C.I. (F.C.T.D., no. IMM-6068-93), Muldoon, January 27, 1995 at 10-11. 30Danailov (Danailoff), Vasco (Vassil) Valdimirov v. M.E.I. (F.C.T.D., no. T-273-93), Reed, October 6, 1993, at 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03695