TB3-07086

RAD File No. / N° de dossier de la SAR : TB3-07086 TB3-07087 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 XXXXXXXXa.k.a.XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 16, 2013 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Pablo Andres Irribarra Valdes Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX XXXX XXXX XXXX XXXX, and her minor son, XXXX XXXX XXXX, citizens of Antigua, have appealed a negative determination of the Refugee Protection Division (RPD) dated September 16, 2013. Ms. XXXX acted as the Designated Representative of her minor son, as per RPD Rule 23. DETERMINATION [2] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter back to the RPD for redetermination. BACKGROUND [3] Ms. XXXX (the Appellant) alleges that she is a lesbian and fears homophobia in Antigua. The Appellant alleges that she became attracted to women when she was fifteen years old. The Appellant decided to tell her mother of her attraction to women when she was sixteen. Her mother became angry and told the Appellant that, if she did not change immediately, she would tell people in the church and community, and no one would speak to her. The Appellant alleges that her mother was hostile with her from that time and threatened to tell her father who would stop supporting her. [4] The Appellant was confronted about her sexual orientation by her father in May of 2010. The Appellant's father threatened to chop her, accused her of turning her sister (who was also a lesbian) and demanded that she leave the home immediately. The Appellant went to her aunt's home. Her aunt confronted her a week later, and from then on, she became hostile. The aunt's husband touched and kissed the Appellant in an attempt to change her. [5] The Appellant told her aunt who accused the Appellant and told her to leave the house. The Appellant went to the home of a friend whom she was attracted to (XXXX) for two weeks until XXXX's aunt told her she could not stay because of rumours about the Appellant and XXXX. [6] The Appellant alleges that she was hired by a man whom she met in a night club. The Appellant lived at his house temporarily. The Appellant had sex with the man which resulted in a pregnancy in August of 2010. The man became angry when he was told about the pregnancy and told the Appellant to get an abortion. The Appellant left and moved in with XXXX in November 2010. The Appellant was fired shortly after. The Appellant and XXXX began an intimate relationship in July 2011. [7] The Appellant alleges that she and XXXX were victims of ongoing verbal abuse and ridicule in the community. XXXX received threatening text messages. The Appellant alleges that she and XXXX were threatened with death if they did not change by a group of men in November of 2012 when they were returning from a bar. The Appellant and XXXX had stones thrown at them, and they were chased. The Appellant learned that the people who attacked the Appellant were friends of her brother and that the Appellant's father had sent them to attack XXXX and the Appellant. The Appellant confronted her brother. [8] The Appellant came to Canada to stay with her sister, XXXX, on March 31, 2013. The Appellant did not make a claim at the airport, as she was not aware of the refugee protection program. The Appellants sought protection on April 19, 2013. [9] The Appellants had a refugee determination hearing which spanned two sittings (June 18, 2013 and July 4, 2013). The Minister intervened1 and focused on the issues of credibility, as it relates to the Appellant's allegations and her sexual orientation. The Appellant's counsel was allowed to question the Appellant first based on the contents of the psychological report.2 [10] The RPD provided written reasons dismissing the claim on September 16, 2013. In its decision, the RPD cited that the Minister's Notice of Intent to Intervene contained observations which demonstrated the Appellant's lack of credibility that seriously undermined the claim. 1. The RPD found the Appellant's explanation related to the discrepancy between her Basis of Claim (BoC) narrative that she called home and spoke to her mother shortly after her child was born was not reasonable, and the RPD therefore drew a negative inference with respect to the Appellant's credibility. 2. The RPD found the Appellant's explanations for the delay in claiming were not reasonable or credible and were given no weight. The testimony of the Appellant's witnesses related to the delay was found to be contradictory, and not trustworthy. 3. The RPD rejected the Appellant's explanations for why she took pictures with her son and Mr. XXXX as it was not reasonable for the appellant to willingly pose for photos given the cruel manner she was treated by XXXX. 4. The RPD found the Appellant was generally lacking in credibility, and that this general lack in credibility extends to her allegations of being a lesbian. [11] The Appellant's counsel submitted pleadings on November 4, 2013. In the pleadings, the Appellant's counsel alleged that the RPD made several errors including: 1. The RPD erred as its finding of fact that the Appellant should have made reference in her BoC to the fact that her relationship with her mother had become so estranged that she did not know that her mother was outside of Antigua was not reasonable. 2. The RPD erred in assigning a negative credibility inference to the Appellant's allegations that she did not know about seeking refugee protection upon her arrival in Canada based on credibility concerns with the testimony of her witnesses. The RPD was limited to giving the evidence of the witnesses no weight. 3. The RPD erred in rejecting the Appellant's explanation regarding the photos based on credibility concerns previously noted, as these credibility concerns were not reasonable. The Appellant should have been given the benefit of the doubt. 4. The RPD erred in finding that the Appellant was not a lesbian based on unreasonable and general credibility concerns. 5. The RPD erred by not making reference to any of the corroborative evidence to establish the Appellant's sexual orientation such as the letter from the 519 Community Centre, and the letter from the Appellant's female partner, photos with XXXX, etc. 6. The RPD erred in not addressing the testimony of the two witnesses regarding the Appellant's sexual orientation. [12] The Appellant did not provide new evidence. The Appellant did not request a hearing. The Appellant requests that the determination be set aside or that the matter be referred back for redetermination. STANDARD OF REVIEW [13] The RAD focused on one issue in assessing this appeal: a) Did the RPD err in its finding that the credibility concerns with the Appellant's allegations extended to her claim regarding her sexual orientation? [14] In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,3 which take into account the list of factors in Dunsmuir.4 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. These factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [15] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. [16] Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,5 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [17] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: the Immigration and Refugee Protection Act. Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." While the Divisions have many of the same powers, their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [18] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;6 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA highlighted below. [19] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.7 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing8 and assesses the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [20] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD's ability to consider evidence. The RAD is not a tribunal of first instance but reviews decisions made by the RPD or considers the decision in light of new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.9 The RAD's authority to consider new evidence and hold hearings in the case of appeals brought by a refugee protection claimant, unless responding to evidence presented by the Minister, is limited to evidence that arose after the rejection of the 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.10 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.11 [21] Given that the RPD has held a hearing on the totality of the evidence, given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".12 [22] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".13 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.14 [23] In the case at hand, the Appellant alleges that the RPD made errors of fact and mixed fact and law based on its failure to assess the totality of the evidence before it, and based on erroneous credibility findings. The RAD affords the RPD with deference and considered the reasonableness of the determination for the alleged errors of fact and mixed fact and law. ANALYSIS OF THE MERITS OF THE APPEAL [24] As identified above, based on a review of all of the evidence and pleadings in the appeal, the RAD focused on one issue in assessing this appeal: a) Did the RPD err in its finding that the credibility concerns with the Appellant's allegations extended to her claim regarding her sexual orientation? [25] The RPD made credibility findings which it found undermined the Appellant's overall credibility and the credibility of her allegations and sexual orientation. The first finding was that it found the Appellant's explanations that she did not know that the woman who picked up the telephone was not her mother as the conversation was brief was not reasonable. The RPD found that it was not credible that the Appellant did not recognize her mother's own voice. The RPD found that it would have been reasonable for the Appellant to have mentioned in her BoC that her relationship with her mother had deteriorated to the point that she did not know that her mother was out of the country. Counsel argued that it was unreasonable for the RPD to require that the Appellant provide the specific example of estrangement in her BoC given that she had indicated in her BoC that there were problems with the relationship with her parents. The RAD concurs with counsel that the RPD's expectation was not reasonable given that the BoC is a document which focuses on the core allegations and facts in the claim, and the extent of her estrangement with her mother was not a significant fact in the claim or allegations. Therefore, it was not reasonable for the RPD to expect the Appellant to make reference to this in her BoC. As such, the RAD finds that the RPD's negative credibility findings related to the Appellant's testimony and evidence about the conversation with her mother were not reasonable, as they were not justifiable. [26] The RPD made a second negative credibility finding regarding the credibility of the testimony of the Appellant's witness. The RPD found that the witness' testimony was not consistent regarding whether or not he had informed the Appellant about the process of making a refugee claim in Canada. The RPD gave the witness no weight and found that concerns with the witness led to the finding that the Appellant was not aware of the refugee process in Canada was not credible, which detracted from her overall credibility. Counsel argued that the RPD mistakenly drew a negative inference against the Appellant's credibility based on what it believed were unreasonable actions taken by third parties. The RPD did not make a finding on inconsistencies in the Appellant's own testimony. Again, the RAD concurs with counsel that the negative credibility inference assigned to the Appellant was not reasonable as it was not drawn based on the Appellant's own testimony; rather it was drawn based on concerns with the testimony and evidence of a third party. As such, the RAD finds the RPD's finding related to the delay in claiming not to be reasonable. [27] In its examination of the issue of delay, the RPD found that it did not make sense that the Appellant's sister would not inform her of refugee protection options in Canada. The RPD argued that the Appellant's sister was also a lesbian who had made a claim for protection in Canada. Given her sister's profile and history, the RPD found that it was not reasonable that the Appellant would not have been told of the availability of refugee protection in Canada. The RAD finds that this finding was well argued and supported by the RPD; however, it deals with a very short delay in claiming. The RAD is cognizant that delay in claiming can undermine a claimant's subjective fear of persecution and credibility; however, the delay must be assessed to determine if the delay can be said to be indicative of a lack of fear. Where the circumstances are such that a claimant does not have to seek protection when outside the country of persecution because the claimant is safe from being forced to return, not making a refugee claim at the first opportunity should not generally be held against the claimant.15 The Appellant had status in Canada until April 24, 2013. She made her claim for protection on April 19, 2013. The Appellant therefore had legal status in Canada at the time she sought protection, and she sought protection less than 20 days after her arrival in Canada. Given the jurisprudence, the RAD finds that the credibility concerns related to the very short delay were not determinative of the claim. [28] The RPD made a fourth credibility finding that the Appellant would not have taken photos with the father of her child if she was treated cruelly by him. The RPD did not accept the Appellant's explanation that the photos were staged. The RPD rejected the Appellant's explanation given the lack of overall credibility in other areas of her testimony. Counsel argued that the credibility concerns raised previously were not reasonable, and, consequently, they cannot be used to undermine the credibility of the Appellant's explanation regarding the photos. The RAD concurs that the negative credibility inference assigned to the explanation was not reasonable, as it was made based on findings that were found by the RAD to be unreasonable. [29] The RPD made a final determination that the Appellant was not a lesbian, as she alleged that she did not establish her claim on credible and trustworthy evidence, which she grounds in the credibility concerns highlighted in the reasons. Counsel argued that the RPD ignored evidence before it that contradicted the RPD's finding that the Appellant was not a lesbian, and her allegations (witness testimony, photos, letters, e-mails and affidavit), and therefore the general finding, were not reasonable. [30] The RAD noted that the RPD made a finding of a general lack of credibility. The RAD noted, however, that in some cases, contradictory testimony cannot cast doubt on the totality of the oral evidence when the findings of a lack of credibility and implausibility are not clearly tied to the ultimate issues to be determined in the claim.16 An adverse finding of credibility based on contradictions in a claimant's or witness' testimony must be based on real contradictions or discrepancies17 that are of a significant or serious nature. Minor or peripheral inconsistencies in the claimant's evidence should not lead to a finding of a general lack of credibility where documentary evidence supports the plausibility of the claimant's story.18 Rejecting a claim based solely on the non-credibility of secondary19 or peripheral issues20 without evaluating the credibility of the evidence concerning the substance of the claim constitutes a reviewable error. [31] The RAD found that all but one of the credibility concerns highlighted by the RPD were found not to be reasonable. The one reasonable credibility concern dealt with the delay in claiming which was not a determinative issue in the claim. In addition, the RAD finds that, even if they were reasonable, they were not sufficient to ground a finding of an overall lack of credibility, as they did not go to the determinative issues in the claim: was the Appellant a lesbian and would she face a serious possibility of persecution should she return to Antigua? [32] When viewed as a totality, the RAD finds that the RPD had before it a reasonable negative credibility finding related to the failure of the Appellant to be told about refugee protection in Canada by her sister. The remaining credibility findings were not reasonable and/or were not related to the determinative issue in the claim. Given this, the RAD finds that the RPD's finding of an overall lack of credibility was not reasonable, as it was not justified by the evidence. [33] Furthermore, the RAD finds that the RPD erred by not addressing the evidence presented in support of the determinative issue of this claim, the Appellant's sexual orientation as a lesbian. The Appellant provided documentary evidence, her own oral testimony, and testimony of witnesses attesting to her sexual orientation. Counsel argued that it was unreasonable for the RPD not to make reference to the evidence on the record which contradicted its findings, especially given that the evidence went to the heart of the claim. [34] The RAD is aware that the RPD is presumed to have taken all of the evidence into consideration or not whether or not it indicates that it has done so in its reasons; however, the more relevant the evidence, the more likely the Federal Court will find an error if it is omitted from the analysis as per Cepeda-Gutierrez21 and Bains.22 Furthermore, the RAD is aware that the Federal Court has determined that, when assessing the credibility of a claimant, it is important to consider all of the evidence. The RPD should not selectively refer to the evidence that supports its conclusions without also referring to evidence to the contrary.23 The RPD should also assess the evidence together and not parts of it in isolation from the rest of the evidence.24 [35] The RPD failed to mention the many pieces of evidence provided in support of the Appellant's sexual orientation. The decision made a global finding that the Appellant lacked credibility which extended to other relevant parts of her testimony, as per Sheikh.25 As outlined above, three of the four negative credibility findings were found not to be reasonable, and all four of the credibility findings did not go to the heart of the claim. As such, the RAD finds that the RPD's finding of a lack of credibility, which extended to all aspects of the claim (including the documentary evidence provided in support of the Appellant's sexual orientation), was not reasonable. [36] Furthermore, even if the credibility findings were found to be reasonable, it was incumbent on the RPD to assess the many pieces of evidence provided which went to the heart of the claim. The RAD finds that the RPD erred by not assessing these pieces of evidence. SUMMARY AND DETERMINATION [37] Based on the totality of the evidence before it, the RAD finds that the RPD's findings that the Appellant was not a lesbian and her fear of persecution or harm in Antigua and Barbuda were not reasonable. [38] Section 111(1)(b) provides the RAD with the ability to set aside the determination and substitute a determination that should have been made. The RAD is to make a determination based on the record. The RPD's reasons did not address the evidence presented in support of the Appellant's sexual orientation. Given this, the RAD finds that it did not have sufficient evidence on the record upon which to base an alternate determination. Furthermore, upon reviewing the evidence provided by the Appellant, the RAD noted some concerns on the face of the documents which relate directly to the Appellant's alleged relationship, her sexual orientation, and the allegations of persecution which require further examination, explanation, and submissions by counsel. For example, the Appellant in her BoC refers to her girlfriend as "XXXX XXXX"; however, the letter and identity document from XXXX indicates that her last name is XXXX. XXXX's letter26 refers to the Appellant as XXXX, and not by her name in the BoC which is XXXX. XXXX's letter includes all of the Appellant's core allegations, between lines 67 and 163 of the BoC narrative, in the exact same order and with much of the same language. The RAD finds that the issues of the origin of the letter and the plausibility that XXXX would relate events with the same level of detail in the same chronological order as the Appellant requires further exploration given that they are central to the claim. The RAD notes that the RPD is in the best position to assess the credibility of a claimant and the credibility of evidence before it. [39] Given the inability of the RAD to substitute a determination in this appeal, the RAD refers the matter back to the RPD for a de novo hearing, as per Section 111(1)(a) of IRPA. [40] The RAD allows the appeal. (signed) "Daniel McSweeney" Daniel McSweeney December 16, 2013 Date 1 Appeal Record, Tab C, Minister's Intervention, pp. 86 - 149. 2 Appeal Record, Tab D, Psychological Report by Dr. Pilowsky, pp. 160 - 164. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 4 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 5 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 6 IRPA, s. 110 (1). 7 IRPA, s. 107. 8 IRPA, s. 170. 9 IRPA, s. 110(3). 10 IRPA, s. 110(4). 11 RAD Rule 57. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 13 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 14 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 15 Hue, Marcel Simon Chang Tak v. M.E.I. (F.C.A., no. A-196-87) Marceau, Teitelbaum, Walsh, March 18, 1988. 16 Ferdosi , Jahan v. M.C.I. (F.C.T.D., no. IMM-2626-00), MacKay, November 5, 2001, 2001 FCT 1203. 17 Lai, Kam Ming v. M.E.I. (1989), 8 IMM. L.R. (2d) 245 (F.C.A.). 18 Attakora, Benjamin v. M.E.I. (1989), 99 N.R. 168 (F.C.A.). 19 Simba, Ayonda et al. v. M.C.I. (F.C.T.D., no. IMM-102-99), Lemieux, January 24, 2000. 20 Owusu-Ansah, Charles Kofi v. M.E.I. (1989), 8 Imm. L.R. (2d) 106; 98 N.R. 312 (F.C.A.). 21 Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 16, 1998. 22 Bains, Iqbal Singh v. M.E.I. (1993), 20 Imm. L.R. (2d) 296 (F.C.T.D.). 23 Polgari, Imre v. M.C.I. (F.C.T.D., no. IMM-502-00), Hansen, June 8, 2001; 2001 FCT 626. 24 Bosiakali, Mbokolo et al. v. M.C.I. (F.C.T.D., no. IMM-4948-00), Nadon, December 14, 2001; 2001 FCT 1381. 25 Sheikh, Abdulhakim Ali v. M.E.I., [1990] 3 F.C. 238 (C.A). 26 Appeal Pleadings, Letter from xxxx, Tab D, pp. 166 - 168. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-07086 TB3-07087