TB4-11308

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 : TB4-11308 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal 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 February 23, 2015 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Robin 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 ministre REASONS FOR DECISION [1] 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 has submitted new evidence in support of her appeal and requests an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to either substitute a positive determination or refer the matter back to the RPD for re-determination providing directions to accept her claim. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that, upon return to Jamaica, she will be harmed by homophobic citizens, including her former same-sex partner's two brothers, as it was discovered that she is bisexual. [4] The Appellant's application for refugee protection was heard on October 14, 2014. By a decision of October 20, 2014, the RPD rejected the claim, finding that the Appellant had provided insufficient credible and trustworthy evidence which, on a balance of probabilities, would persuade it that she is a bisexual fearing persecution in Jamaica. The RPD concluded that the Appellant was not a Convention refugee or a person in need of protection. The Appellant submits that the RPD, in making its decision, erred by not having regard to the totality of the evidence before it. ANALYSIS Role of the RAD [5] What is the role of the RAD in considering an appeal against a decision of the RPD? Although the Appellant makes no arguments with respect to the role of the RAD, 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 [6] Justice Phelan stated the following in Huruglica: 54. 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 55. 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 [7] 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 Evidence Submitted on Appeal [8] 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 her.5 [9] The Appellant has tendered two documents as proposed new evidence in support of her appeal. The first document is a Wikipedia article dated August 15, 2014 regarding the murder of a Jamaican gender-non-conforming male teenager on July 21, 2013.6 The second document is the news article Human Rights Watch: Jamaican gays, transgenders face unchecked abuse dated October 25, 2014.7 [10] In the case at hand, 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. Nonetheless, the first document fails to meet the requirements of Section 110(4) in that it is dated prior to the rejection of the claim by the RPD and the Appellant has not provided any explanation as to why she could not have tendered the document prior to the rejection of her claim. Furthermore, the document contains a discussion of an event that occurred prior to the rejection of the Appellant's claim by the RPD. Accordingly, the RAD finds that the first document does not meet the test of new evidence and, as such, will not be accepted as new evidence in this appeal. The second document arose after the rejection of the Appellant's claim and will be accepted as new evidence in this appeal.8 Application for an Oral Hearing [11] The Appellant asks that an oral hearing be held, pursuant to Section 110(6) of IRPA and RAD Rule 3(3)(d).9 [12] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD 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. [13] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 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). [14] 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. [15] The RAD has reviewed the new evidence admitted in this appeal. It notes that the majority of the information contained in the new evidence is also found in the documents the Appellant provided to the RPD and forms part of the RPD record.10 This information was before the RPD when a decision was rendered in this case. More importantly, the new evidence discusses general country conditions and is not Appellant-specific. The RAD finds that the new evidence does not raise a serious issue with respect to the credibility of the Appellant, is not central to the RPD's decision, and does not justify allowing the Appellant's refugee protection claim. As such, the RAD must proceed without a hearing and the Appellant's request for an oral hearing is denied. The RPD's Findings [16] The RPD found the Appellant's story, on a balance of probabilities, not credible. It found it implausible that the Appellant would not join her long time same-sex partner in Grand Cayman Island after the two had decided to flee Jamaica. It also took issue with the Appellant's significant delay in making a refugee claim in Canada. The RPD also found the Appellant not credible based on her lack of corroborating evidence. [17] The Appellant argues that the RPD decision is replete with unfairness and the RPD failed to take into consideration reasonable explanations she offered in describing the incidents that occurred in Jamaica. She also argues that the RPD committed a fundamental error when it failed to place weight and trust on the documentary evidence before it. [18] Lack of effort to obtain corroborating evidence from same-sex partner - The RPD drew a negative inference as it relates to the Appellant's credibility and her allegations of being in a same-sex relationship from her lack of effort to obtain corroborating evidence from her same-sex partner. [19] The RPD noted in the reasons for its decision that the Appellant alleges that she had been in a same-sex relationship with a woman named XXXX for approximately XXXX years, from the time they were in high school until they left Jamaica in 2010. It also noted that the Appellant alleges that she had not been in any other same-sex relationships in Jamaica or Canada and hoped to be reunited with XXXX. The RPD took notice of the Appellant's testimony that XXXX resides on Grand Cayman Island and they remained in contact over the telephone. When asked by the RPD if she had considered asking XXXX for a letter or other corroborative evidence to confirm their relationship, the Appellant indicated that she had not. [20] It would be reasonable to expect the Appellant to attempt to obtain documentation from her former same-sex partner to corroborate her allegation of a same-sex relationship with her in Jamaica. If the Appellant had been in a XXXX XXXX XXXX relationship with her former same-sex partner in Jamaica and they have been in contact with one another since they left Jamaica, it would be reasonable to expect that the Appellant would be able to obtain a letter or other form of evidence from her former same-sex partner to corroborate their relationship. It would be reasonable to expect that the Appellant's former same-sex partner would provide the Appellant with this evidence if she asked for it. The Appellant, in this case, did not ask her former same-sex partner for documentation to corroborate their relationship. [21] A notice on the Appellant's Basis of Claim Form (BoC) indicates that the refugee claimant is responsible for obtaining and providing to the Board any documents that may support their claim. The Federal Court has established that the burden of proof to establish a claim lies with the claimant. A claimant must come to a hearing with all of the evidence that they have to offer and believe necessary to prove the claim.11 The Board may draw a negative inference from a claimant's lack of effort in acquiring evidence to corroborate central elements of a claim since Rule 11 of the Refugee Protection Division Rules clearly states that the applicant must provide such documents. It is entirely reasonable for the RPD to attach great importance to documentation which would have supported the allegations.12 [22] The Appellant made no effort whatsoever to obtain the documentation noted above. The RPD's finding is supportable and the RAD concurs with the RPD drawing a negative inference with respect to the Appellant's credibility and her allegations of having been in a same-sex relationship from her lack of effort in obtaining corroborating documents from her former same-sex partner. [23] Lack of effort to obtain corroborating evidence from individuals in Jamaica who knew of her circumstances - The RPD drew a negative inference as it relates to the Appellant's allegation that she is a bisexual female fearing persecution in Jamaica from her lack of effort to obtain corroborating evidence form individuals in Jamaica who knew of her circumstances. [24] The RPD noted that the Appellant was in contact with many individuals in Jamaica who knew of her circumstances. These individuals include the Appellant's parents, siblings, daughters and a friend whose house she stayed at after the incident in XXXX 2009. When asked by the RPD if she had considered asking any of these individuals for letters or affidavits to corroborate the events or their knowledge of her bisexuality, the Appellant indicated that she had not. [25] The RAD notes that when questioned by the RPD about asking her same-sex partner or others who knew of her circumstances for corroborating evidence, the Appellant indicated that she had not and that she only considered asking her two cousins in Canada for such documentation. However, the Appellant's two cousins in Canada do not have first-hand knowledge regarding the Appellant's circumstances in Jamaica. The Appellant even indicated at her hearing that they came to know about her circumstances because she told them. This evidence suggests that the Appellant was aware that corroborating evidence was required to support her claim even though she sought such evidence from individuals who were not in a position to offer it. The Appellant's cousins merely reiterate in their letters what the Appellant had told them. The Appellant's evidence suggests that documentation from others in Jamaica who knew of her circumstances would have been readily available if she requested it. [26] The RPD's finding is supportable. The Appellant made no effort whatsoever to obtain documentation from individuals in Jamaica who personally knew of her circumstances. The RAD concurs with the RPD drawing a negative inference as it relates to the Appellant's allegation that she is a bisexual female fearing persecution in Jamaica from her lack of effort to obtain supporting documentation. The RAD further finds that the Appellant's lack of effort to obtain such documents further damages her credibility. [27] Efforts to be reunited with her same-sex partner - The RPD found it implausible that the Appellant made no effort to be reunited with her same-sex partner when she alleges she loved her and hoped to be reunited with her. [28] The RPD noted that the Appellant did not flee Jamaica to the Cayman Islands with her same-sex partner in XXXX 2009. The Appellant alleged that the home her same-sex partner was going to in the Cayman Islands could not accommodate both of them so she remained in hiding for several months in Jamaica before she fled to Canada. The RPD found that this was unreasonable given that they had been in a long-term relationship and that their relationship had been discovered in Jamaica. [29] The RPD also noted that the Appellant had obtained an invitation letter from her cousin in Canada, obtained a loan for her own travel to Canada and had the desire to be reunited with her same-sex partner in Canada, however made no effort to be reunited with her same-sex partner. The Appellant alleged that her cousin could not have written two letters of invitation, one for her and one for her same-sex partner, and she had no status in Canada so she could not have written her an invitation letter. The RPD found it implausible that the Appellant would not have made efforts to be reunited with her same-sex partner given the length and seriousness of the relationship and her assertion that she loved her same-sex partner who she hoped to rejoin. [30] The RPD's findings above are supportable. It is not reasonable or probable that a long-term, same-sex couple fleeing Jamaica, with the intention of being together, would not make efforts to flee their country together or to travel to the same country or to reunite soon after fleeing. The Appellant, in this case, made no such efforts and the RAD concurs with the RPD that it is implausible. The RAD further finds that it further damages the Appellant's credibility. The RAD additionally finds that the general credibility of the Appellant's allegations of her sexual orientation is undermined. [31] Due to credibility concerns, noted above, the RPD did not believe that the Appellant was involved in a same-sex relationship with her alleged same-sex partner in Jamaica and did not believe that she was caught having sexual relations with a same-sex partner on XXXX XXXX, 2009. The RAD concurs with these findings which are supported by the evidence noted above. [32] Delay in claiming - The RPD drew a negative inference from the Appellant's delay in claiming refugee protection in Canada. It noted that she fled Jamaica in XXXX 2010 and her visitor status in Canada would have been valid until XXXX 2010. When asked by the RPD if she made any efforts to research or find out about making a refugee claim, the Appellant testified that it was not until she heard someone talking about the subject that she learned she could, at which time she retained counsel. When asked if she was worried about being out of status, the Appellant indicated that she was afraid of being detained or deported and was constantly looking over her shoulder. The RPD found the Appellant's actions unreasonable or inconsistent with people who have a genuine fear of persecution. [33] The RAD notes that the Appellant is not uneducated or unsophisticated. She graduated from high school and worked as a XXXX XXXX at a high school in Jamaica for many years. She testified at her hearing before the RPD that, as a XXXX XXXX, she assisted students with XXXX XXXX XXXX XXXX XXXX and assisted XXXX XXXX XXXX XXXX together. She had travelled to the United States of America and to Canada on a number of occasions before her last entry into Canada. She commented at her hearing before the RPD that she had observed how gays and lesbians were accepted in Canada from her previous travel here. The RAD notes that the Appellant resided in Canada for approximately four years without status before she made her claim for refugee protection. [34] It is reasonable to expect that a person with a genuine fear of persecution would, at the very least, make some inquiries as to if and how they could remain safely in Canada when their status expired. There was insufficient evidence presented by the Appellant that she made such inquiries or conducted appropriate research. Her evidence suggests that she had the capacity and wherewithal to do so. No reasonable explanation was provided as to why she did not approach anyone for some guidance as to how she could avoid returning to Jamaica. The Appellant's explanation that she was unaware of refugee claims does not excuse or disregard the delay. The appropriate research or discussion of her circumstances would have quickly revealed the process and it would be reasonable to expect a person fleeing persecution to do this. [35] The RPD's finding that the Appellant's actions were unreasonable or inconsistent with people who have a genuine fear of persecution is supportable. The negative inference drawn by the RPD from the Appellant's delay in claiming is also supportable. Having reviewed the evidence, the RAD reaches the same conclusion: the Appellant's actions were highly inconsistent with her alleged fear. The RAD further finds that the Appellant's delay in claiming, without a reasonable explanation, further damages her credibility. [36] Appellant's LGBT activities in Canada - The RPD noted that the Appellant had not attended any locations to socialize with and meet lesbian, gay, bisexual and transgender (LGBT) persons in Canada except The 519 Church Street Community Centre (The 519). However, it was also noted that the Appellant joined The 519 only after being told about the organization by her counsel in XXXX 2014. The RPD noted that the Appellant had not frequented any websites or read books or magazines specific to the LGBT community. It also noted that the Appellant had not revealed her sexual orientation to anyone in Canada, except her two cousins mentioned above. [37] The RPD assigned little weight to the two letters13 from the Appellant's cousins in Canada. One of the Appellant's cousins is also her landlord. The RPD noted that the Appellant's cousins know about the events that transpired in Jamaica and the Appellant's sexual orientation because the Appellant told them. As noted above, the Appellant's two cousins in Canada do not have first-hand knowledge regarding the Appellant's circumstances in Jamaica and merely reiterate in their letters what the Appellant had told them. Furthermore, the Appellant was found to lack credibility. As such, the RPD's assignment of little weight to the letters is supportable. The RAD concurs with the allocation of little weight to these letters. [38] The RPD found it unreasonable and drew a negative inference from the Appellant's concealment of her sexual orientation to those at The 519. The Appellant testified that she did not disclose her sexual orientation to anyone at the 519, including a person she befriended at The 519 whom she had gone with for coffee. The RPD noted that the support group the Appellant attended at The 519 is known to assist newcomers to Canada, including refugee claimants that identify themselves as members of the LGBT community. The RPD findings are supportable. The Appellant alleges to have fled Jamaica due to persecutory treatment after her sexual orientation was revealed. She indicated that gays and lesbians were well treated in Canada. She testified that she discussed her feelings with her support group at The 519. It would be reasonable to expect her to have discussed her feelings with respect to her alleged sexual orientation. The RAD concurs with the RPD drawing a negative inference from the Appellant's concealment of her sexual orientation to those in a group intended to assist individuals such as her when she alleges a fear of returning to Jamaica based on her sexual orientation. DISPOSITION [39] The Appellant has alleged that the RPD did not have regard to the totality of the evidence before it and had therefore erred in law. The RAD finds no such error and, upon review of the evidence, has reached the same conclusion as the RPD, that the Appellant has failed to provide credible and trustworthy evidence to establish, on a balance of probabilities, that she is a bisexual woman fearing persecution in Jamaica. CONCLUSION [40] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is therefore dismissed. (signed) 'M. Pettinella' M. Pettinella February 23, 2015 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 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 6 Exhibit P-2, at pp. 55-61. 7 Exhibit P-2, at pp. 62-63. 8 Exhibit P-3. 9 Exhibit P-2, at p. 11. 10 Exhibit RPD, at pp. 73-90. 11 Kante, Abdoulaye v. Canada (Minister of Employment and Immigration), (F.C.T.D., no. IMM-2585-93), Nadon, March 23, 1994. 12 Luzi, Tshongo Ngongo v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-4183-03) Pinard, June 28, 2004; 2004 FC 916. 13 Exhibit RPD-1, at pp. 117-120. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-11308