TB4-08824

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 : TB4-08824 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) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 22, 2014 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Calvert Lewin 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 XXXX (the Appellant), a citizen of Jamaica, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She submitted no new evidence with her initial appeal record. The Appellant subsequently submitted a new appeal record containing new submissions and new evidence and has made an application to the Refugee Appeal Division (RAD) to disregard the initial record and replace it with the subsequent record. The Appellant asks the RAD to set aside the determination of the RPD and to either find her to be a Convention refugee or refer the matter back to the RPD for re-determination by a differently-constituted panel. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that, upon return to Jamaica, she will be harmed by a former male partner and others as it is known that she is a lesbian. [4] The Appellant's application for refugee protection was heard on June 4, 2014. By a decision of September 3, 2014, the RPD rejected the claim, finding that the Appellant's allegations of persecution on the grounds of sexual orientation and domestic abuse were not credible. [5] The Appellant submits that the RPD erred by misinterpreting oral evidence and by ignoring relevant evidence that contradicts the conclusion reached. ANALYSIS Role of the RAD [6] What is the role of the RAD in considering an appeal against a decision of the RPD? In Huruglica, the Court considered the appropriate relationship between the RAD and the RPD.1 It found that the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.2 [7] Justice Phelan stated the following in Huruglica: Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.3 [8] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error."4 [9] The RAD will therefore review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. Admissibility of Documents and Written Submissions not Previously Provided [10] The Appellant filed her initial appeal record on October 7, 2014. On October 16, 2014 she filed a new appeal record containing new submissions and evidence. On October 22, 2014 the Appellant made an application to the RAD under Rule 29 asking that it disregard the October 7, 2014 appeal record and replace it with the October 16, 2014 appeal record. The Appellant's counsel indicates in the application that the documents and written submissions not previously provided were a result of his unfamiliarity with the process and requirements of an appeal. He also indicates that he was waiting for a transcript of the RPD hearing which had not arrived by the date the appeal had to be perfected. [11] Rule 29 of the RAD rules indicates that if a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37. The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person. In deciding whether to allow an application, the RAD must consider any relevant factors, including the document's relevance and probative value, any new evidence the document brings to the appeal, and whether the person, who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record. [12] The RAD notes that there was a short delay of nine days between the filing of the initial and subsequent appeal records. It is clear from the proposed replacement appeal record that an effort was made to submit a complete record as stipulated in RAD Rule 10 with respect to the content of an appellant's record. Furthermore, the proposed replacement appeal record contains new written submissions that appear to be better articulated and more thorough than the written submissions contained in the original appeal record. Considering that her counsel was waiting for the transcript of the RPD hearing and the other factors noted above, the RAD will accept the appeal record filed on October 16, 20145 to augment the appeal record filed on October 7, 2014.6 Admissibility of New Evidence [13] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in her Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.7 [14] The Appellant asks the RAD to admit the following documents: * A certificate from XXXX High School certifying the Appellant's attendance at the school from 1995 to 2000;8 * Academic progress reports from the XXXX XXXX XXXX- Jamaica, dated July 24, 2003 and January 26, 2004;9 and, * A letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX dated October 3, 2014.10 [15] The Appellant failed to make full and detailed submissions in her Memorandum about how the proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to her. She merely indicates in her Memorandum that she had no alternative than to submit these items. Document (a) was likely produced approximately 14 years before the Appellant's refugee hearing since it is a certificate certifying her attendance at a high school up to the year 2000. Documents in (b) were produced more than 10 years before the Appellant's refugee hearing. The Appellant has not demonstrated that these documents were not reasonably available at the time her claim was rejected by the RPD. [16] Document (c) is a letter from XXXX XXXX confirming the Appellant's volunteer work with the organization. The Appellant submits that the letter demonstrates her involvement with the LGBTQ community. The RAD notes that the letter is dated approximately one month after the RPD's rejection of the Appellant's claim. This document post-dates the rejection of the Appellant's refugee claim, but its contents do not. The letter confirms the Appellant's volunteer work since XXXX XXXX 2013. Since the Appellant had performed volunteer work with XXXX XXXX for approximately eight months prior to her hearing, it would be reasonable to assume that she could have obtained confirmation of her volunteer work prior to her hearing or prior to the rejection of her claim. She could reasonably have been expected in the circumstances to present a letter such as this to the RPD prior to or subsequent to the hearing. The RPD did not issue a decision until three months after the hearing. The Appellant has not demonstrated that the letter was not reasonably available at the time of the rejection. [17] It is for the Appellant to explain how the documents noted above meet the test for new evidence. She has not made such submissions. The RAD finds that the documents do not meet the test of new evidence and as such will not be accepted as new evidence in this appeal. The RPD's Findings [18] The RPD found that the Appellant was not a credible witness due to inconsistencies in her oral and written testimony. It also found that the Appellant lacked a subjective fear of persecution due to her failure to claim previously in Canada, her re-availment to Jamaica and her delay in claiming protection following her most recent arrival in Canada. The RPD found that the harassment suffered by the claimant does not amount to persecution. It concluded that the Appellant's allegations of persecution on the grounds of sexual orientation and domestic abuse were, on a balance of probabilities, not true. [19] The Appellant argues that the RPD erred by misinterpreting oral evidence and by ignoring relevant evidence and documentation that directly contradicts the conclusion reached. [20] Sexual orientation - The RPD drew a negative inference with respect to the Appellant's credibility from an apparent inconsistency regarding her sexual orientation. The RPD notes, in its decision, that the Appellant emphatically stated that she was a lesbian at her hearing when she had based her claim on being bisexual. The Appellant submits that she indicated in her Basis of Claim form (BoC) that she was a lesbian at heart and bisexual. She argues that the RPD's conclusion, with respect to this issue, is unfounded. [21] The RAD notes from the transcript of the RPD hearing that the Appellant was asked if she was claiming that she was a lesbian or that she was bisexual. She responded by saying she was a lesbian. The Appellant was not asked about any contradiction or inconsistency regarding this evidence. The RPD made a negative credibility finding with respect to this issue without providing the Appellant with an opportunity to explain, what the RPD believed to be, an inconsistency. [22] The Federal Court has held, in Gracielome and other cases, that the Board should afford the claimant (and any other witness) an opportunity to clarify the evidence and to explain apparent contradictions or inconsistencies within that person's testimony.11 The same principle applies to inconsistencies between the claimant's oral testimony and the Personal Information Form (PIF) (or BoC) or port of entry notes, as well as with respect to omissions therein.12 As noted by the Court of Appeal in Owusu-Ansah, the Board cannot ignore evidence explaining apparent inconsistencies and then make an adverse credibility finding. Evidence provided by the claimant should be acknowledged in the reasons for decision and the RPD should explain why the evidence was rejected, if that is the case. The explanation provided by the claimant must have been unreasonable or otherwise unsatisfactory to reject the claimant's testimony on the basis of credibility.13 [23] Furthermore, the Appellant indicates in her BoC that she was a lesbian at heart and a bisexual. Therefore, her testimony at the hearing was not entirely inconsistent with the information in her BoC. If the RPD was attempting to clarify the Appellant's sexual orientation at the hearing, by asking her what she was claiming to be, it failed to do so. The RPD posed one closed-ended question to her regarding this issue and it failed to ask her for an explanation for any perceived inconsistency. The RAD finds that the RPD erred by making a negative credibility finding with respect to the Appellant's sexual orientation from an apparent inconsistency without posing the inconsistency to the Appellant and assessing her explanation. Therefore, the finding of the RPD is not owed deference by the RAD. [24] Appellant's testimony with respect to graduating from high school - The RPD made a negative credibility finding with respect to a perceived inconsistency in the Appellant's testimony regarding her completion of high school. The RPD noted in its decision that the Appellant testified that she dropped out of high school and did not complete her studies and then testified that she completed high school and graduated. The Appellant argues that she never stated nor indicated in any document that she did not complete high school. [25] The RAD notes from the transcript of the RPD hearing that the Appellant testified she dropped out of the XXXX XXXX in 1999 and she graduated from high school in 2000. The XXXX XXXX XXXX the Appellant was involved in was separate from her formal academic schooling. The Appellant indicated that she left (XXXX) school and went into the sixth form (in high school) to buckle down in her studies to get into XXXX. There is no indication in any of the Appellant's documents or in her testimony that she dropped out of high school. As such, the RAD finds that the RPD erred in making a negative credibility finding with respect to an inconsistency which simply did not exist. Furthermore, the RPD erred by not affording the Appellant an opportunity to clarify the evidence or provide an explanation for the apparent inconsistency. [26] Another inconsistency regarding schooling - The RPD made another negative credibility finding with respect to a perceived inconsistency in the Appellant's testimony regarding her schooling. The RPD noted in its decision that the Appellant was asked a second time if she completed high school and the claimant stated that she did not graduate. [27] The RAD notes from the transcript of the RPD hearing that the Appellant testified she studied engineering at the XXXX XXXX XXXX after she finished high school. It was also noted that the RPD asked the Appellant if she completed the XXXX XXXX and the Appellant indicated that she had not. There is no indication in any of the Appellant's documents or in her testimony that she did not finish high school. The RAD finds that the RPD erred in making a negative credibility finding with respect to another inconsistency which simply did not exist. [28] Inconsistencies in the Appellant's story of her two same-sex relationships - The RPD found that the Appellant's story of her two same-sex relationships was not consistent with the dates that she provided and was not credible. It noted that the Appellant would have been 15 or 16 years old if she dropped out of high school in 1999 when she alleges her first same-sex relationship occurred in high school when she was 19 years old. [29] As indicated above, the RAD noted that the Appellant never alleged to have dropped out of high school thus rendering the RPD's analysis of this further inconsistency moot. Nonetheless, the RAD was unable to locate any reference to the Appellant being 19 years old when she had her first same-sex relationship. The Appellant was asked how old her first same-sex partner was when she had her first experience and the Appellant responded that she was 19 years old; however, the age of her first same-sex partner does not necessarily mean that the Appellant was the same age when she had the experience. As such, the RAD finds that the RPD erred in its credibility finding regarding the Appellant's same sex relationships in Jamaica. [30] Allegations of persecution and harassment - The RPD found that the Appellant's statements with respect to the mistreatment she suffered in Jamaica were inconsistent with her claim that her life was in danger. The RPD noted that the Appellant indicated there was never any physical attack on her person; however, there were some verbal comments made. [31] The RAD notes from the transcript of the RPD hearing that the Appellant indicated that the father of her first child hit her and threatened her with death on a number of occasions. She indicated that her sexual orientation was a factor in the abuse she suffered. She also indicated that she reported her abuser to police on approximately ten occasions. The Appellant indicated that her abuser told police she was a lesbian and she obtained a protection order against him in 2012. The Appellant also indicated that gang members, who knew she was a lesbian, threw bottles at her in Jamaica. [32] The RAD finds that the RPD erred by ignoring evidence when it found that the Appellant's statements with respect to the mistreatment she suffered in Jamaica were inconsistent with her claim that her life was in danger. The Appellant alleges to have suffered harm at the hands of a former male partner and gang members because of her sexual orientation. A protection order against one of the Appellant's former male partners was submitted to the Board and was before the RPD at the hearing. The Appellant was questioned at her hearing before the RPD about the abuse she suffered at the hands of one of her former male partners. It failed to address how the physical harm the Appellant allegedly suffered in Jamaica and how the death threats she allegedly received on account of her sexual orientation were inconsistent with her claim that her life was in danger. [33] Failure to claim previously in Canada, re-availment to Jamaica and delay in claiming as it relates to the Appellant's credibility and subjective fear - The RPD found that the Appellant lacked a subjective fear of persecution due to her re-availment, her failure to make a refugee claim in an expeditious manner and her general lack of credibility. It noted that the Appellant travelled to Canada in 2011, re-availed herself to Jamaica in 2012, returned to Canada in 2013 and waited XXXX months prior to making a claim for refugee protection. The RPD notes, in its decision, that the Appellant's reason for her delay in claiming - that she did not know the process and it took some time for her to learn that she could make a refugee claim - was not credible because she had applied for a student permit and was well aware of that process. The RPD also noted that the Appellant failed to disclose her student permit application in her BoC. [34] The RAD finds that the RPD erred in its analysis of the Appellant's failure to claim previously in Canada, re-availment to Jamaica and her subsequent delay in claiming refugee protection in Canada. The RPD noted that the Appellant's explanation for her delay in claiming was not credible but failed to elaborate on why it was not credible. The RPD noted that, in light of the Appellant's re-availment, delay in claiming and her general lack of credibility, it found that she lacked a subjective fear of persecution yet it failed to elaborate on why her re-availment to Jamaica and her delay in claiming impacted her subjective fear of persecution. The RPD based its analysis of the Appellant's subjective fear on her general lack credibility yet the RPD's credibility analysis as noted above was flawed. Therefore, the RPD's analysis of the Appellant's subjective fear is flawed. [35] As noted above, the RPD erred in its credibility analysis as well as its analysis of subjective fear and these errors taint all of the RPD's findings. As the RPD's determination of the Appellant's refugee claim was based on these same two issues, the determination cannot stand. Disposition [36] The Appellant asks the RAD to set aside the determination of the RPD and to find her to be a Convention refugee. The RAD is in no position to do so. There were multiple credibility concerns with the Appellant's evidence and the RAD is unable to make that determination only on the basis of the RPD record. The RAD has not seen or questioned the Appellant and therefore cannot reach its own conclusions on her credibility or lack thereof. [37] 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 person who is the subject of the appeal. 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." [38] According to Section 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in Section 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [39] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this 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 Appellant; is central to the RPD's decision; and that, if accepted, would justify allowing or rejecting the refugee protection claim. [40] For reasons set out above, the RAD has not accepted the Appellant's proposed new evidence. As such, the RAD must proceed without a hearing, notwithstanding the fact that the Appellant has not requested an oral hearing before the RAD. [41] In the alternative, the Appellant asks that the RAD refer the matter back to the RPD for re-determination by a differently-constituted panel. [42] The RAD allows the appeal and, pursuant to section 111(1)(c), refers the matter back to a new panel of the RPD. (signed) 'M. Pettinella' M. Pettinella December 22, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, para. 45. 3 Huruglica, para 54. 4 Huruglica, para 55. 5 Exhibit P-3, Addendum to Appellant's Record. 6 Exhibit P-2, Appellant's Record. 7 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 8 Exhibit P-3, at p. 117. 9 Exhibit P-3, at pp. 118-119. 10 Exhibit P-3, at p. 120. 11 Gracielome v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 237 (F.C.A.). 12 Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A). 13 Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-08824