TB4-03238

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 : TB4-03238 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 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 July 16, 2014 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Robin O. 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 N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX, (the Appellant), a citizen of Jamaica, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD, and either determine her to be a refugee or refer the matter to the RPD for re-determination by a differently-constituted panel. DETERMINATION [3] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA" or the "Act"),1 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 entered into a romantic relationship with XXXX XXXX XXXX XXXX XXXX while she was still in high school. They maintained this relationship through university and during the Appellant's time in Canada; however, the relationship was kept hidden. Due to pressure from her family, XXXX entered into relationship with a man named XXXX XXXX XXXX XXXX XXXX XXXX now knows about the Appellant's relationship with XXXX. XXXX assaulted the Appellant in XXXX 2013 when she was in Jamaica. [5] Out of fear of harm, the Appellant fled Jamaica and arrived in Canada on XXXX XXXX, 2013. The Appellant fears returning to Jamaica because XXXX has threatened to expose her relationship with XXXX to the wider community in Jamaica. She filed her claim for refugee protection in November 2013. [6] The Appellant's application for refugee protection was heard on February 3, 2014. In the decision of March 17, 2014, the RPD rejected her refugee claim. [7] The RPD found that the Appellant was generally lacking in credibility. The RPD found that, on a balance of probabilities, none of the significant events that the Appellant alleged happened, actually happened. The RPD found that, on a balance of probabilities, the Appellant is not a lesbian as she alleged, and thus the RPD found that the Appellant does not face a serious possibility of persecution or, on a balance of probabilities, she would not be subjected to a danger of torture, or to a risk to life or to a risk of cruel and unusual treatment or punishment upon return to Jamaica. [8] The Appellant submits that the RPD's decision is replete with errors of law and fact. The Appellant submits that the RPD failed to place weight and trust on the documentary evidence before it. The Appellant submits that the RPD failed to take into consideration reasonable explanations offered by the Appellant in describing mistreatment, torture, and death threats she received from the community in Jamaica because of her sexual orientation. [9] In support of her Appeal, the Appellant has submitted new evidence that was not presented at the RPD. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [10] The Appellant provided the following documents as new evidence:2 (i) Letter from XXXX XXXX; dated XXXX XXXX, 2014 (ii) Photographs; one photograph is date-stamped, XXXX XXXX XXXX/2008 (iii) Skype Call logs; 2013-XXXX XXXX XXXX to 2014-XXXX XXXX XXXX (iv) Agreement between the Appellant and XXXX XXXX (the Tenants) and XXXX XXXX (the Landlord) to rent residential premises; created on XXXX XXXX, 2006 (v) Letter from XXXX XXXX XXXX (the Appellant's father); dated XXXX XXXX, 2014 (vi) Letter from XXXX XXXX XXXX XXXX XXXX (the Appellant's mother); dated XXXX XXXX, 2014 [11] As provided for in Section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and person subject to the appeal. Section 110(4) of the IRPA provides that the person may 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. The RAD assesses the Appellant's proposed new evidence, items (i) to (vi), as per Section 110 (4) of the IRPA and in the context of the totality of the Appellant's evidence adduced at the RPD, including the recording of the RPD proceedings. [12] The Appellant does not provide submissions as to why she could not reasonably have been expected in the circumstances to have presented these documents prior to the rejection of her claim. In the absence of the Appellant's submissions, the RAD reviews date(s) of creation of these documents. The RAD finds items (i), (v), and (vi), i.e., letters from XXXX XXXX (the Appellant's same-sex partner in Jamaica), XXXX XXXX XXXX (the Appellant's father), and XXXX XXXX XXXX XXXX XXXX (the Appellant's mother) all post-date the rejection of the claim. The RAD, however, finds the three letters are from individuals with whom the Appellant would be expected to have been in regular communication and exercise some influence such that she could have requested these letters prior to the rejection of her claim. As such, the RAD finds the Appellant could reasonably have been expected, in the circumstances, to have presented this evidence to the RPD prior to the rejection of her claim. Based on these reasons, the RAD finds the three letters submitted to the RAD do not meet the requirements of Section 110(4) of the IRPA. [13] The RAD cannot determine creation date(s) of photographs in item (ii), as the photographs are not date-stamped except one which bears the date XXXX XXXX XXXX/2008. Item (iv) refers to an Agreement between the Appellant and XXXX XXXX (the Tenants) and XXXX XXXX (the Landlord) to rent residential premises; the document reads as to have been created on XXXX XXXX, 2006. In the absence of reasons why these documents were not reasonably available to the Appellant prior to the rejection of her claim, the RAD finds the Appellant could reasonably have been expected in the circumstances to have presented these documents prior to the rejection of her claim. Therefore, the RAD finds the photographs and the Agreement to rent residential premises do not meet the requirements of Section 110(4) of the IRPA. [14] Item (iii), the Skype Call logs, cover the period between 2013-XXXX XXXX XXXX (before the rejection of the claim) and 2014-XXXX XXXX XXXX (after the rejection of the claim). In the absence of reasons why a record of the Skype Calls made prior to the rejection of the claim was not reasonably available to the Appellant, the RAD finds the Appellant could reasonably have been expected in the circumstances to have presented a record of those calls prior to the rejection of her claim. Some of the Skype Calls post-date the rejection of the claim. The RAD finds the Appellant could not reasonably have been expected in the circumstances to have presented a record of those calls prior to the rejection of the claim. Based on these reasons, the RAD finds the part of the Skype Call logs that post-date the rejection of the claim meets the test set out in Section 110(4) of the IRPA, and the part that predates the rejection of the claim does not meet the test set out in Section 110(4) of the IRPA. [15] Based on the above reasons, the RAD finds the Appellant's proposed new evidence, except parts of the Skype Call logs that post-date the rejection of the claim, does not meet the test set out in Section 110(4) of the IRPA. Even though parts of the alleged new evidence meet the test set out in Section 110(4) of the IRPA, this would not require the RAD to admit it into evidence without any further consideration. Section 110(4) of the IRPA is worded in a similar manner to Section 113 of the IRPA that deals with pre-removal risk assessment (PRRA). Section 113(a) provides that an applicant whose claim for refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. The PRRA is not an appeal of the RPD decision as is the situation for the RAD; however, guidance can be obtained from the jurisprudence interpreting Section 113 of the IRPA. [16] The leading case on "new" evidence for PRRA, Raza,3 was decided by the Federal Court of Appeal. While Raza predates the introduction of the IRPA Section 110(4), it is based on the very similar wording of Section 113(a). [17] In Raza, the Court outlined factors to be considered in determining what constitutes new evidence. These factors were: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been available to the RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (a) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [18] Although the RAD finds the parts of the Skype Call logs that post-date the rejection of the claim meet the test set out in Section 110(4) of the IRPA, in consideration of the Raza factors, a document's "newness", however, is not to be tested solely by its date of creation but by the date of the events or circumstances it seeks to prove.4 The RAD finds the document adds nothing new to that which was already on the record at the RPD. Further, the document would not be admissible, as the evidence is not material, in the sense that it would not have changed the outcome of the Appellant`s refugee claim if this evidence had been available to the RPD at the rejection of the claim. The focus in this document is the same facts that were presented to the RPD prior to the rejection of this claim. Based on these reasons, the RAD determines that even if the document, i.e., the parts of the Skype Call logs that post-date the rejection of the claim, submitted to the RAD by the Appellant satisfied the requirements of Section 110(4) of the IRPA, the RAD would not accept it as new evidence based on the Raza factors, newness and materiality. [19] The RAD also considers the Appellant's affidavit5 submitted with the Appeal Record. The RAD finds it does not include any new information that was not already presented to the RPD and so it is not admitted with respect to the portions that restate the basis of her claim. The affidavit, however, raises issue with the RPD's rejection of the Appellant's application to submit two additional documents post-hearing. The RPD rejected the application pursuant to RPD Rule 43 because the Appellant provided insufficient information or no explanation why these documents could not have been presented prior to the hearing, i.e., within the timelines required by the RPD Rule 34. In addition to reviewing the Appellant's application within the RPD guidelines, the RPD reviewed and assessed the probative value of the documents. The RPD found that the documents added little or no new information to what was already in front of the parties at the RPD hearing. For these reasons, the RPD rejected the Appellant's application to enter these documents post-hearing. The RAD finds the RPD's decision in this respect reasonable because the RPD reviewed and assessed the probative value of the post-hearing documents, and found that they added little or no new information to what was already in front of the parties at the RPD hearing. The RAD finds this matter was dealt with by the RPD. The RAD finds the RPD's findings in this case reasonable as the RPD reviewed and assessed the probative value of these documents and ruled that they added little or no new information to what was already in front of the parties at the RPD hearing. For all of these reasons, the RAD denies the Appellant's request to allow into evidence the post hearing documents previously rejected by the RPD. [20] Based on the foregoing reasons, all of the documents submitted, including the Appellant's affidavit, are not admitted as evidence at the RAD. [21] The Appellant is requesting a hearing. Application for an Oral Hearing [22] The Appellant asks in her Written Statement that an oral hearing be held, pursuant to Section 110(6) of IRPA. [23] 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." [24] 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. [25] The RAD has not admitted any of the alleged new evidence submitted by the Appellant in support of her appeal. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. [26] The Minister is not intervening in this matter. ANALYSIS Standard of Review [27] The Appellant argues that the RPD made errors in assessing her credibility, and in assessing the weight and credibility of the documentary evidence, which are questions of fact. In considering these issues, it is necessary to determine the standard of review that will be used. [28] The standard of review is not specified in the legislation. Section 110(1) of the IRPA sets out the grounds for an appeal to the RAD. The appeal may be on a question of law, of fact or of mixed fact and law. There are a number of decisions or determinations of the RPD that cannot be appealed to the RAD as set out in Section 110(2) of the IRPA. [29] The Appellant made no submissions on standard of review. [30] Section 111(1) sets out the decisions that the RAD can make after considering the appeal. The RAD can confirm the determination of the RPD; set aside the determination and substitute a determination that, in its opinion, should have been made; or, refer the matter to the RPD for re-determination, giving directions to the RPD that it considers appropriate. [31] The Refugee Protection Division's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection. The RAD must, conversely, proceed without a hearing except in certain circumstances.6 The Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.7 The RPD has an opportunity to see and question the refugee claimant, while the RAD is infrequently in a position to do so. An appeal body cannot substitute its own reasoning for that of the first-level tribunal which had the benefit of hearing oral testimony.8 The RPD is therefore in an advantageous position when it comes to assessing credibility and making findings of fact. [32] One of the purposes of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...."9 In Newton, the Alberta Court of Appeal noted that a failure to show deference to the first-level decision-maker could undermine the integrity of such hearings, which would in effect be reduced to a type of preliminary inquiry.10 A failure to show deference to the RPD on questions of fact would have a similar effect on the first-level refugee hearing, and this is not consistent with the purpose of IRPA or its specific provisions in respect to appeals. 11 In the RAD's view, IRPA clearly signals that an appeal is not to be a de novo hearing of the refugee claim, as the RAD is restricted in accepting new evidence and holding an oral hearing, and this too suggests that deference be shown to the findings of fact made at the first level. [33] For these reasons, the RAD will show deference to the RPD on findings of fact, including credibility, and on findings of mixed fact and law.12 The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.13 [34] The appropriate standard of review for questions of fact and of mixed fact and law is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.14 In considering the reasonableness of the decision, the RAD must be cognizant of the evidence that was before the RPD, and determine whether the RPD properly considered that evidence and reasonably justified the conclusions drawn from it.15 [35] The RAD will not show deference to the RPD, however, on questions of law.16 Here the lower and appellate tribunals have similar expertise with respect to questions of law, including those arising from their shared home statute, and this suggests that no deference is warranted. It is an appropriate function for the RAD to ensure that the RPD is applying the correct law; this approach promotes just decisions and avoids inconsistent application of the law.17 A correctness standard on questions of law ensures universality in the application of the law.18 [36] For these reasons, the RAD will review questions of law on a standard of correctness. The RAD will not show deference to the RPD's reasoning process on such issues, but will undertake its own analysis of the question to determine whether it agrees with the RPD on the matter.19 [37] In this appeal, the questions in issues relate to those of fact which favour a deferential standard of review.20 The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.21 Merits of the Appeal The Appellant's pleadings22 [38] The Appellant submits that the RPD's decision is replete with errors of law and fact. The Appellant submits that the RPD failed to place weight and trust on the documentary evidence before it. The Appellant submits that the RPD failed to take into consideration reasonable explanations offered by the Appellant in describing mistreatment, torture, death threat she received from the community in Jamaica because of her sexual orientation. The RPD's Findings23 [39] The Appellant came to Canada in XXXX 2010 as a student. She alleged at the RPD that she made the decision to come to Canada at that time because she was threatened by XXXX. XXXX told her that he suspected that she and XXXX were engaged in a sexual relationship. XXXX threatened to expose them to the community and to beat them. The Appellant returned to Jamaica in XXXX 2010; however, came quickly back to Canada because XXXX was furious and threatened to expose her relationship with XXXX within the community. The Appellant returned to Jamaica again in XXXX 2013. While she was in Jamaica, XXXX assaulted her. She came back to Canada in XXXX 2013 because she feared harm from XXXX and because Andre had threatened to expose her relationship with XXXX to the wider community in Jamaica. [40] The RPD found that, on a balance of probabilities, none of the significant events that the Appellant alleged happened, actually happened. [41] Hiding in Jamaica during trip to Jamaica in the summer of 2013:24 The Appellant alleged that she returned to Jamaica in XXXX 2013 to visit her partner XXXX. The Appellant alleged that, upon return to Jamaica in XXXX 2013, she remained in hiding. The RPD found the Appellant's testimony in this regard to be neither credible nor plausible. [42] The Appellant testified that she did not go out in the parish in which XXXX and the Appellant's families resided but in the neighbouring parish where XXXX was residing at the time. The RPD found that the Appellant went out regularly to bars and the beach with XXXX in the parish where XXXX was residing. The RPD states that the Appellant was out and about on a regular basis during her return to Jamaica in the XXXX of 2013 with XXXX, in the parish where XXXX was residing at the time. While the RPD recognized that the Appellant was going to bars and the beach in the parish neighbouring where XXXX and the Appellant's families lived, the RPD found it not reasonable that the Appellant was going to bars and the beach for fun in the parish where XXXX was residing at the time. The Appellant testified that she did not tell her family that she was in Jamaica; regardless; however, her own testimony showed that her family knew that she was in Jamaica. The Appellant testified at the RPD that she was warned by her father that she was not safe in Jamaica because XXXX and XXXX family had gone to his home and told him that they were suspecting that the Appellant was in Jamaica. The Appellant's father told her that she was not safe in Jamaica because XXXX would harm her. [43] Given the above, the RPD found that the Appellant was not in hiding as alleged during her visit to Jamaica in the XXXX of 2013. The RAD finds the RPD's finding reasonable because the evidence shows that the Appellant's family knew that she was in Jamaica and her father warned her that she was not safe in Jamaica because XXXX would harm her. Regardless, the Appellant was out and about visiting bars and the beach, and moreover was staying at XXXX place. [44] Staying at XXXX place during trip to Jamaica in the XXXX of 2013:25 Despite the warning by her father, the Appellant stayed at XXXX place. In this respect, the Appellant testified that she did not think that XXXX or anyone from XXXX family would visit the place at night. The RPD rejected her explanation and found her to be not credible. The RPD found the Appellant not credible given the circumstances that XXXX had visited the Appellant's father and told him that he suspected that the Appellant was in Jamaica, and had expressed the intent to harm her. Further, considering XXXX had been in relationship with XXXX for years, the RPD found it not credible that the Appellant would assume that she would be safe at XXXX place at any time of the day. Given the reasons above, the RAD finds the RPD's findings reasonable as they are transparent, intelligible and based on the Appellant's own testimony. [45] Lack of subjective fear:26 The RPD found that the Appellant's activities upon return to Jamaica in the XXXX of 2013 are demonstrative of a lack of subjective fear The RPD provided the following reasons for this finding. "The claimant's choices to socialize at the clubs and the beach and to stay at XXXX home during her 2013 trip to Jamaica undermine the legitimacy of her subjective fear to return to Jamaica. The claimant testified that she had faced threats from Andre in the past, believed that he would harm her if he found her with XXXX and believed that if XXXX exposed her sexual identity as a lesbian, she would face violence at the hands of the community. However, despite these alleged threats, the claimant returned to Jamaica to see her partner and took few steps, other than going out in a neighbouring parish and staying at a friend's home on some nights, to ensure her personal safety. The claimant's activities during her trip in 2013 are more akin to an individual on a pleasure vacation than to an individual in hiding out of fear for her life."27 [46] The RAD finds the RPD's findings are based on the Appellant's own evidence. The RPD's reasons are justifiable, transparent and intelligible. The RAD finds the RPD's finding that the Appellant's activities in Jamaica in the summer of 2013, i.e., going to the bars and the beach and staying at XXXX place, demonstrate a lack of subjective fear to return to Jamaica reasonable. [47] Involvement with the gay community in Canada:28 The Appellant has been in Canada since 2010. The Appellant alleged that she has been involved in the LGBT community while in Canada. The Appellant testified that she has only one friend from the gay community in Canada, other than a friend she knew from Jamaica. The RPD considered that the Appellant has been in Canada for a significant period of time and alleged to have been involved in the LGBT community in Canada. The RPD found that the Appellant's friendships within the gay community in Canada are not demonstrative of her involvement in the LGBT community for someone in her situation and circumstances, i.e., someone who has been residing in Canada since 2010 and especially someone who fled her own country to live life as a gay person without fear of harm. [48] The Appellant joined the XXXX XXXX XXXX XXXX XXXX in XXXX 2013. The Appellant became involved in the XXXX XXXX XXXX XXXX XXXX after making her claim for refugee protection in Canada. The RPD found, on a balance of probabilities, that the Appellant had attended/joined the XXXX XXXX XXXX XXXX XXXX for the purpose of bolstering her refugee claim. [49] The RAD finds the RPD has considered the Appellant's situation and circumstances both in Canada and in her home country, and made its findings in those contexts and in consideration of the totality of the evidence submitted, including the Appellant's testimony and the documents from the XXXX XXXX XXXX XXXX XXXX. The RAD finds the RPD's findings reasonable. [50] Relationship with XXXX:29 The RPD found that the Appellant did not have a sexual and romantic relationship with XXXX as she alleged. The Appellant alleged to have been in a relationship with XXXX since she was in high school. They have been in a relationship for over ten years. They lived together during their university years, and traveled to the United States during two school breaks for work opportunities. The Appellant provided photographs of her and XXXX from the XXXX of 2013; no other photographs from their past were submitted. The RPD found it reasonable to expect photographs chronicling their relationship. [51] The Appellant provided documentation showing email communication between her and XXXX, nine messages, totaling about twenty lines. Some of the messages were very general, others included reference to XXXX, and included short terms in reference to their relationship, such as "i love u n miss u" (part of the email message from the Appellant to XXXX) and "love u 2" (included in the reply from XXXX). The reference to XXXX and the "i love u n miss u", "love u 2" were found in the email exchange between the Appellant and XXXX after the Appellant returned from her XXXX 2013 trip to Jamaica. The RPD found the email communication submitted does not provide context and does not establish that the Appellant and XXXX were in a years-long sexual and romantic relationship. [52] There was one longer email from XXXX dated XXXX XXXX, 2014, the RPD gave this email minimal weight due to issues with the format, i.e., there was no email address. The Appellant's explanation was that she asked XXXX for a letter for her refugee claim and that is what XXXX sent her. Nonetheless, the Appellant's explanation did not resolve the RPD's concern that there was no email address in the email document. In view of all of the above, the RAD finds the RPD considered the totality of the Appellant's evidence, including photographs and emails, in making its findings, and provided clear reasons as to why the documentation provided was insufficient to establish that the Appellant and XXXX were in a years-long sexual and romantic relationship. The RAD finds the RPD's findings reasonable. [53] Other supporting documents:30 The Appellant submitted a psychological report by Dr. XXXX. Although the RPD noted that the report is based primarily on what the Appellant told the Dr. and that the report makes reference to the Appellant's PIF; the RPD, however, acknowledged the Dr.'s diagnosis that the Appellant is suffering from depression and anxiety. Since the RPD found the Appellant to be generally not a credible witness, the RPD gave the report very little weight in making the determination of the Appellant's subjective fear of persecution or risk of harm upon return to Jamaica. The RPD found that there was insufficient evidence in the DR.'s report to establish that the Appellant's depression and anxiety are the result of alleged persecution in Jamaica. [54] The Appellant submits that the RPD failed to take into consideration reasonable explanations offered by the Appellant in describing mistreatment, torture, death threat she received from the community in Jamaica because of her sexual orientation. The Appellant submits that the RPD failed to place weight and trust on the documentary evidence before it. The RAD finds the Appellant's these arguments without merit. As presented in the foregoing analysis, the RAD finds the RPD considered, reviewed, and assessed the totality of the evidence submitted, including the testimony of the Appellant. The RAD finds the RPD provided clear evidentiary-based reasons as to why the RPD found that the Appellant and XXXX were not in a sexual and romantic relationship as alleged by the Appellant. [55] The RPD found that, on a balance of probabilities, the Appellant is not a lesbian as she alleges and that as such she does not face persecution or risk of harm as she alleges upon return to Jamaica. The RPD found the Appellant to be generally not a credible witness. [56] Based on all of the foregoing, the RAD finds the RPD's determination that the Appellant has not established that there is a serious possibility of persecution on a Convention ground, nor, on a balance of probabilities, that she would be subjected to a danger of torture, or to a risk to life or to a risk of cruel and unusual treatment or punishment upon return to Jamaica was a reasonable conclusion grounded in the facts in the case and the legislation. [57] The RAD finds the RPD's decision to reject this claim falls within a range of possible, acceptable outcomes defensible in respect of the facts and the law. DISPOSITION [58] 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. [59] This appeal is therefore dismissed. (signed) "S.S. Kular" S.S. Kular July 16, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit P-2, Appellant's Record, item 5, New Documentary Evidence, pp. 79-115. 3 Raza, Syed Masood v. Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness 2007 FCA 385. 4 Raza, para. 16. 5 Exhibit P-2, Appellant's Record, item 3, the Appellant's Affidavit, pp. 14-17. 6 IRPA, Sections 110(3) and 110(6). 7 Khosa v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 332 (F.C.), para. 89. 8 Iyamuremye c. Canada (Citoyenneté et Immigration) 2014 CF 494, para. 39. 9 IRPA, Section 3(2)(e). 10 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 80. 11 Iyamuremye, para 1. 12 Iyamuremye, paras. 39-40. 13 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 14 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 15 Dunsmuir, para. 47; Iyamuremye, para 3. 16 Iyamuremye, para. 2. 17 Dunsmuir, para. 50. 18 Khosa, para. 90. 19 Dunsmuir, para. 50. 20 Khosa, para. 89. 21 Dunsmuir, para. 47; Khosa, para 4, the "range of reasonable outcomes". 22 Exhibit P-2, Appellant's Record, item 7, Memorandum, pp. 117-118. 23 Exhibit P-2, Appellant's Record, item 1, Decision and Reasons, pp. 1-12. 24 Exhibit P-2, Appellant's Record, item 1, Decision and Reasons, paras. 11-15. 25 Exhibit P-2, Appellant's Record, item 1, Decision and Reasons, paras. 16-18. 26 Exhibit P-2, Appellant's Record, item 1, Decision and Reasons, paras. 19-20. 27 Exhibit P-2, Appellant's Record, item 1, Decision and Reasons, para. 19. 28 Exhibit P-2, Appellant's Record, item 1, Decision and Reasons, paras. 21-23. 29 Exhibit P-2, Appellant's Record, item 1, Decision and Reasons, paras. 24-28. 30 Exhibit P-2, Appellant's Record, item 1, Decision and Reasons, paras. 29-31. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-03238