TB4-09946

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 : TB4-09946 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 XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX 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 February 9, 2015 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Clarence Fenton 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX, a citizen of Jamaica, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant requests the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and substitute a positive determination and accept the Appellant's claim for refugee protection. In the alternative, the Appellant requests the RAD to refer the matter back to the RPD for re-determination with directions to the RPD to accept the Appellant's claim. [3] The RAD finds the Appellant has not submitted any new evidence pursuant to Section 110(4) of the Immigration and Refugee Protection Act1 (the IRPA or the Act). The Appellant submits in her Memorandum that she is relying on her Basis of Claim (BoC) form as evidence as the BoC form meets the requirements of Subsection 110(4) of the IRPA.2 The RAD finds the Appellant's BoC form3 is part of the RPD's Record and was already in front of the RPD at the rejection of the claim. The RAD also finds the Appellant later submitted that she is not relying on any new evidence as per Section 110(4) of the IRPA.4 Based on the above, the RAD finds the Appellant is not relying on any new evidence referred to in Section 110(4) of the IRPA. The Appellant requests a hearing; the Appellant submits that a hearing affords a better opportunity to present and respond to arguments.5 The Minister is not intervening in this Appeal. DETERMINATION [4] 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. The appeal is dismissed. BACKGROUND [5] The Appellant alleged that she fears persecution at the hands of her former common-law partner XXXX XXXX XXXX XXXX XXXX is the father of the Appellant's son. The Appellant's former common-law partner was verbally and physically abusive toward her during their relationship, which lasted from 2004 until the Appellant left Jamaica in 2012. [6] The Appellant was compelled to reside with her abusive former common-law partner at his rented home in XXXX XXXX XXXX XXXX XXXX XXXX for many years due to his threats of harm. The Appellant was only able to leave the home to attend a year-long vocational training course which ended in 2010. [7] The Appellant has family members in Canada. She came to Canada on a visitor's visa that she obtained in order to attend her maternal grandmother's funeral. The Appellant saw this occasion as an opportunity to escape her abusive common-law partner in Jamaica. [8] The Appellant fears that she will be a victim of violence or even death at the hands of her former common-law partner if she returns to Jamaica. [9] Details regarding the Appellant's allegations are included in her BoC form narrative.6 Additional details were provided by the Appellant at the RPD hearing. [10] The Appellant arrived in Canada XXXX XXXX, 2012 on a visitor's visa; her visitor's visa was valid for six months.7 Upon expiry of the visa; the Appellant stayed in Canada without status. The Appellant filed her claim for refugee protection on or about April 21, 2014 at an inland office of the Citizenship and Immigration Canada (CIC). [11] The Appellant's application for refugee protection was heard on June 27, 2014. By a decision of September 30, 2014, the RPD rejected her claim. [12] The RPD found that the Appellant has not provided consistent or credible testimony or documents in support of her allegedly abusive relationship with XXXX XXXX, her former common-law partner, in Jamaica, and that she has not provided a reasonable explanation for her delay in filing her claim for refugee protection in Canada. [13] The Appellant submits that the RPD's decision with respect to the Appellant's claim for refuge protection is replete with errors of law and fact. APPLICATION FOR AN ORAL HEARING [14] The Appellant requests a hearing pursuant to Subsection 110(6) of the IRPA; the Appellant submits that "a hearing affords a better opportunity to present and respond to arguments".8 [15] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's 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 Section 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. [16] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal unless there is new (Section 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 Appellants, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [17] The RAD finds the Appellant has not submitted any new evidence as per requirements of Section 110(4) of the IRPA. In consideration of the totality of the evidence in this case, the Appellant's Appeal Record, and Sections 110(3), (4), and (6) of the IRPA, the RAD must proceed without a hearing. Therefore, the Appellant's request for an oral hearing is denied. THE ROLE OF RAD IN THE APPEAL [18] In assessing the appeal, the RAD is guided by the recent Huruglica9 decision which outlines the approach that the RAD should take as an appellate body in reviewing the first level decisions of the RPD. [19] In Huruglica, Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD determination that, in its opinion, should have been made as per Section 111(b) of the IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusions; however, the RAD has equal or greater expertise to the RPD in the interpretation of country conditions evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [20] The RAD adopts and applies the Huruglica case law in this appeal. The Appellant has not submitted any arguments/submissions regarding the role of the RAD. The RAD considers the case law and the Statutes listed10 and referred to by the Appellant in her submissions.11 MERITS OF THE APPEAL [21] The Appellant refers to Federal Court decision in Adjei12 and submits: "The panel also essentially imposed a higher standard of proof on the appellant by requiring proof that she would be persecuted as opposed to the proper test which requires only a "reasonable chance or more than a mere possibility of protection [sic]."13 [22] The RAD is not clear as to which findings, or what parts of the RPD's Decision14 and Reasons the Appellant is referring to in this argument. The RAD finds the RPD assessed and made its findings relating to if the Appellant would face a serious possibility of harm amounting to persecution in Jamaica, as an alleged victim of domestic abuse, pursuant to Section 96 of the IRPA. The RAD finds the RPD also assessed and made the findings relating to if the Appellant would, on a balance of probabilities, be personally subjected to a danger of torture, or to a risk to life or of cruel and unusual treatment or punishment in Jamaica as alleged pursuant to Section 97(1) of the IRPA.15 Based on the totality of the evidence in this case, including the recording of the RPD proceedings, the RAD finds the RPD applied the requisite legal principles to the facts submitted/elicited in the case and then made the determination that the Appellant is not a Convention refugee pursuant to Section 96 of the IRPA, nor a person in need of Canada's protection pursuant to Section 97(1) of the IPRA.16 [23] The Appellant submits that the RPD imposed excessive burden on the Appellant when it required in its decision that the Appellant provide documents in support of her alleged abusive relationship with XXXX XXXX and to clarify the delay and inconsistency in making her claim.17 In this regard, the Appellant makes reference to paragraph 7 of the RPD's Decision and Reasons. Paragraph 7 of the RPD's Decision and reasons outlines the RPD's findings relating to the assessment of the totality of the evidence in this case, including the testimony of the Appellant. [24] In paragraph 7 of its Decision and Reasons, the RPD wrote: "I find that the claimant has not provided consistent or credible testimony or documents in support of her allegedly abusive relationship with XXXX XXXX in Jamaica and that she has not provided a reasonable explanation for her delay in putting forth her claim for refugee protection in Canada."18 [25] The RAD is unclear as to what the Appellant means by stating that the RPD "imposed excessive burden on the appellant" and relating it to the RPD's above-mentioned statement "...that the claimant has not provided consistent or credible testimony or documents in support of her allegedly abusive relationship with XXXX XXXX in Jamaica and that she has not provided a reasonable explanation for her delay in putting forth her claim for refugee protection in Canada." [26] The RAD finds the RPD did nothing wrong by stating its overall credibility findings in paragraph 7 of its Decision and Reasons. The RAD finds paragraph 7 of the RPD's Decision and Reasons is followed by the RPD's assessment of the credibility of the Appellant's allegations and the evidence submitted/elicited. The RAD notes the RPD proceeded diligently. The RPD considered the Chairperson's Gender Guidelines, and conducted its analysis by applying requisite law to the facts in the case, and then provided reasons for its findings relating to the credibility of the Appellant's allegations and the evidence submitted/elicited in support of those allegations. [27] The Appellant also submits that the RPD committed another error in paragraph 10. The Appellant submits: "The member committed another error (10) when the penal [sic] find [sic] that the appellant has not satisfactorily explain [sic], if the relationship with her ex-partner was of the nature which she has alleged and gave no weight to the appellant [sic] testimony of abuse and draw [sic] a negative inference to her subject of [sic] fear and her credibility."19 [28] The RAD reviewed the totality of the evidence in this case, including the recording of the RPD's proceedings. After having completed its own independent assessment, the RAD concurs with the RPD in finding the Appellant's story that she was in a longstanding abusive relationship with Kirk Thompson not credible, and in finding the Appellant to be not a credible witness. The RAD finds the Appellant's evidence is inconsistent; for example, her testimony relating to why XXXX XXXX address was different from the Appellant's address on the birth certificate of her son. Therefore, the RAD concurs with the RPD in finding the Appellant to be lacking in credibility. Moreover, the RAD finds the Appellant has provided little reliable and satisfactory documentary evidence to corroborate her allegations. The only reliable document that the Appellant provided to corroborate her alleged longstanding abusive relationship with XXXX XXXX was the birth certificate of the Appellant's son. Due to inconsistencies in the Appellant's evidence relating to the contents of the birth certificate, the RAD assigns it little weight in establishing that the Appellant and XXXX XXXX were live-in partners for several years and that the Appellant was a victim of abuse at the hands of XXXX XXXX as alleged. Based on the above reasons, the RAD concurs with the RPD's conclusion in finding the Appellant to be not a credible witness. [29] The Appellant also submits that the RPD continued to discredit the Appellant by reaching a negative decision.20 In reviewing the recording of the RPD's proceedings, the RAD finds the RPD asked the Appellant questions regarding her relationship with XXXX XXXX, the alleged abuse, and how she was able to hide her injuries from her mother and the co-workers. The Appellant submits that the RPD did not accept the Appellant's testimony about why the Appellant had not disclosed the abuse to her mother and her co-workers.21 In her narrative, the Appellant describes that her former common-law partner on occasion would beat her silly. Considering that the Appellant alleged physical abuse, the RPD did not find the Appellant credible in that no one was aware of the abuse she incurred over a period of eight years. [30] The RAD finds the alleged relationship lasted for about eight years. The Appellant alleged that she was abused most of the time, and that the abuse turned worst after the birth of her son in 2006. The RAD finds the Appellant has provided little documentary evidence that she and XXXX XXXX lived together, and/or were in a common-law relationship. There is no common address, no photos to demonstrate their courtship, and no documents to show the abuse incurred, i.e., medical report(s), police report(s). Although the RAD acknowledges the son's birth certificate22 and the letter from the Appellant's mother,23 the RAD finds there is very little evidence about the existence of the alleged longstanding cohabitation between the Appellant and XXXX XXXX, and the alleged abuse incurred by the Appellant at the hands of XXXX XXXX. In reviewing the totality of the evidence in this case, the RAD concurs with the RPD in finding the Appellant to be lacking in credibility; as the RAD would have come to the same conclusion. [31] Relating to corroborating evidence, the Appellant submits: "The panel committed further error when it indicated in (15) that the appellant [sic] own testimony on the issue of documentation was inconsistent as she stated that her ex-partner [sic] family home address was listed on his official identity card, although during the penal [sic] questioning the appellant testified that her ex-partner is a drug dealer and often use [sic] fake addresses to hide his real address, due to any attempts that maybe [sic] made to take his life, by fellow drug dealers. Yet the member drew negative findings."24 [32] In reference to paragraph 15 of the Decision and Reasons of the RPD, the RAD notes the RPD refers to the Appellant's testimony relating to XXXX XXXX address on their son's birth certificate. In this regard, the RPD found the Appellant's testimony to be inconsistent as the Appellant testified that XXXX XXXX family home address was listed on his government identity card, while the Appellant also testified that XXXX XXXX would give his friends' or his own old addresses so he could not be tracked. The RAD finds the Appellant's own evidence shows that XXXX XXXX had provided his family home address on his government identity card. The RAD finds the Appellant did not provide satisfactory explanation for the inconsistency in her evidence. Therefore, the RAD concurs with the RPD in finding the Appellant not credible in that she and her former common-law partner had lived together for several years, i.e., since 2004, and at the time of their son's birth, and for several years thereafter until the Appellant came to Canada. [33] Relating to the issue of documents, the Appellant submits the following: "The panel committed further error when it indicated in (18) that the appellant has failed to provide not only any corroborating or trustworthy documents of the alleged discovery incident, as stated above, but any other documentation of their relationship, such as the Basis of Claim Form including the Narrative should be used as such and should be accepted by the panel as supporting documents in her defense."25 [34] In paragraph 18, the RPD found that the Appellant has not provided credible or consistent documents or testimony to corroborate her allegations that she was physically abused for many years by her former common-law partner in Jamaica, and that the Appellant's failure to provide any evidence to corroborate their allegedly lengthy cohabitation has not been reasonably explained in the circumstances. [35] The Appellant testified that she lived in a rental property with XXXX XXXX at XXXX XXXX in XXXX XXXX, in XXXX XXXX from 2004 until she came to Canada in 2012. Their son was born on XXXX XXXX, 2006; the birth certificate was issued on XXXX XXXX XXXX 2008.26 The address for XXXX XXXX as it appears on the birth certificate is different than where the Appellant and XXXX XXXX allegedly lived since 2004, and at the time of their son's birth, and for several years thereafter until the Appellant came to Canada in 2012. The Appellant's explanation for this was that XXXX XXXX lied, and that almost all of his documents have different addresses. As mentioned earlier, the Appellant testified that her former common-law partner would give his friends' addresses or his old addresses but would not give his current address. The Appellant testified that XXXX XXXX is a criminal; he does not want to be found, and that is why he would not give his current address for official documents. As mentioned earlier, the Appellant testified that on his government identity card he had listed his Spanish town home address. The RPD found the Appellant's testimony to be inconsistent because the Appellant testified that XXXX XXXX would not give his proper address on official documents because he feared that he would be tracked down yet the Appellant's own testimony indicated that XXXX XXXX family Spanish town address was listed on his government-issued identity card. Moreover, the Appellant did not provide any details about XXXX XXXX criminal activities in which he is allegedly engaged, other than that he owned an illegal gun. Based on the evidence submitted/elicited or a lack thereof, the RPD found the Appellant's explanation for the inconsistency relating to XXXX XXXX address in their son's birth certificate not satisfactory. The Appellant provided insufficient reliable and satisfactory probative documents showing that she and XXXX XXXX had resided at XXXX XXXX in XXXX XXXX, in XXXX XXXX, where they both allegedly lived for several years. [36] The issue of cohabitation is central to the claim as the Appellant alleged to have lived with her abusive former common-law partner at XXXX XXXX XXXX XXXX XXXX, in XXXX XXXX for several years. The RPD found the Appellant's testimony not to be credible; therefore, the RPD was asking the Appellant for corroborating documentary evidence to establish that the Appellant and her former common-law partner XXXX XXXX lived together for several years as alleged, which the RPD also found lacking. There were no photographs, and no documents corroborating their cohabitation. Based on the evidence submitted/elicited or a lack thereof, the RPD did not find the Appellant's testimony credible that she and her former common-law partner had lived together for several years and that she suffered abuse at the hands of her former common-law partner as alleged. [37] Based on the above, the RPD made the following finding: "The panel finds therefore that the claimant has not provided credible or consistent documents or testimony to corroborate her allegations that she was physically abused for many years by her ex-partner in Jamaica, and finds that the claimant's failure to provide any evidence to corroborate their allegedly lengthy co-habitation has not been reasonably explained in the circumstances."27 [38] The RAD reviewed the totality of the evidence, including the recording of the proceedings, and finds the evidence adduced in this case, on a balance of probabilities, does not establish that the Appellant lived with her alleged abusive former common-law partner XXXX XXXX from 2004 onward until she came to Canada in 2012, and suffered abuse at his hands as alleged. In this respect, the RAD concurs with the RPD. [39] Further, in reference to the Appellant's argument in paragraph 33 above, the RAD finds the Appellant is alluding that the BoC Form including the Narrative should be used as supporting documents in support of the Appellant's allegations. In doing so, the RAD would find the Appellant's documentary evidence to be circular in providing corroboration. The RAD is of the view that the BoC narrative provides allegations, the Appellant's evidence including her testimony would provide details, lend support, and provide corroboration to support those allegations. In regard to the Appellant's these submissions, the RAD is at best at a loss as to what the Appellant alleges that the RPD did wrong. [40] Based on the above analysis and the reasons, the RAD finds the RPD's findings are supportable with the evidence adduced in this case. In reviewing the totality of the evidence, including the recording of the RPD's proceedings, the RAD concurs with the RPD's conclusion that the Appellant was lacking in credibility. [41] Based on the foregoing analysis and reasons, the RAD finds the Appellant is not a Convention refugee pursuant to Section 96 of the IRPA, nor a person in need of Canada's protection pursuant to Section 97(1) of the IRPA. DISPOSITION [42] 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) "S.S. Kular" S.S. Kular February 9, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit P-2, Appellant's Record (received at the Board on November 3, 2014), Item 5, Memorandum, para. 14. 3 Exhibit RPD-1, RPD's Record, RPD Exhibit 2, Appellant's BoC, including the Narrative. 4 Exhibit P-2, Appellant's Record, Statement (Amendment), received at the Board on November 12, 2014. 5 Exhibit P-2, Appellant's Record, Item 2, Statement, para. 1. 6 Exhibit RPD-1, RPD's Record, RPD Exhibit 2, Appellant's BoC, including the Narrative. 7 Exhibit RPD-1, RPD's Record, RPD Exhibit 1, Package of information from the referring CBSA/CIC. 8 Exhibit P-2, Appellant's Record, Item 2, Statement, para. 1. 9 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799. 10 Exhibit P-2, Appellant's Record, Item 4, List of Cases and Statutes. 11 Exhibit P-2, Appellant's Record, Item 5, Memorandum. 12 Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680. 13 Exhibit P-2, Appellant's Record, Item 5, Memorandum, para. 3. 14 Exhibit P-2, Appellant's Record, Item 1, Decision. 15 Ibid., paras. 7-28. 16 Ibid., para. 5. 17 Exhibit P-2, Appellant's Record, Item 5, Memorandum, para. 4. 18 Exhibit P-2, Appellant's Record, Item 1, Decision, para. 7. 19 Exhibit P-2, Appellant's Record, item 5, Memorandum, para. 6. 20 Ibid., para. 5. 21 Ibid., paras. 5 and 7. 22 Exhibit RPD-1, RPD's Record, RPD Exhibit 5 (submitted at the hearing). 23 Exhibit RPD-1, RPD's Record, RPD Exhibit 6 (submitted post-hearing; the RPD had agreed to it). 24 Exhibit P-2, Appellant's Record, item 5, Memorandum, para. 8. 25 Ibid., para. 9. 26 Exhibit RPD-1, RPD's Record, RPD Exhibit 5 (submitted at the hearing). 27 Exhibit P-2, Appellant's Record, Item 1, Decision, para. 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-09946