TB4-05997

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 : TB4-05997 PrivateProceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX 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 October 1, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A 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 Saint Vincent and the Grenadines, is appealing her decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant has submitted new evidence in support of her appeal and is requesting an oral hearing with the Refugee Appeal Division (RAD). DECISION [2] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. Background: [3] The Appellant fears her former boyfriend, XXXX XXXX, with whom she had a relationship in 2007. The Appellant alleges that she went to the police and, although they took the name and the details of the abuse, no arrest was made. [4] She left St. Vincent in 2007 and went to Jamaica to study until 2010. However, she did return from time to time to visit her family. She also travelled on numerous occasions to the United States (U.S.) as she held a 10 year multiple entry visa. For the most part, she went to the U.S. as a visitor, however she spent time in 2010 on a student exchange visa, but had to leave the U.S. when she was told that the program for which she had registered was full. She then applied to study at XXXX XXXX in Toronto in 2011. She made a refugee claim on November 28, 2013. [5] She married another man. XXXX then allegedly made threats against her between 2011 and 2013 and he threatened to kill her if she returned to St. Vincent. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL Express statutory conditions [6] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] If the statutory requirements have been met, the panel must then consider the factors in Raza,1in which the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA, Section 110(4), it is based on the very similar wording of Section 113(a) for the PRRA (Pre-Removal Risk Assessment). The Court in Raza held that new evidence should be considered for its newness, credibility, relevance, and materiality, in addition to any express statutory provisions. [8] The following evidence was submitted and must meet the test described above in order to be admissible: * Letter from agent of persecution; * Letter from pastor in XXXX XXXX XXXX having knowledge of the abuse; * Letter to the Commissioner of police requesting police records; * Follow-up Letter to the Police Commissioner; * E-mails exchanged between Appellant and persecutor, showing they had a relationship; * Explaining certain arguments the Judge made; * Newspaper showing the murder of her cousin; * Newspaper showing the murder of her teacher. * Letter dated XXXX XXXX, 2014 from XXXX XXXX, cousin of the Appellant; * Letter from XXXX XXXX of the XXXX Post Office in XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2014; * Letter from XXXX XXXX, sent to the Appellant's mother approximately XXXX 2014. [9] The letter from the agent of persecution is dated XXXX XXXX, 2006 and, therefore, could reasonably have been available at the time of the rejection of the claim. Moreover, no explanation has been provided why this letter was not available at that time. Accordingly, this letter does not meet the statutory requirement and is not admitted. [10] The letter from the Appellant's pastor is undated and could reasonably have been available at the time of the rejection of the claim. She has not provided an explanation as to why this was not reasonably available. Therefore, this letter does not meet the statutory requirement and is not admitted. [11] The letter to the Commissioner of police requesting police records is dated XXXX XXXX, 2014 and therefore post-dates the rejection of the claim; however, it could reasonably have been made available at the time of the rejection of the claim. She could have made this request prior to the RPD hearing and has not provided an explanation as to why she did not do so. Therefore, this letter does not meet the statutory requirement and is not admitted. [12] The follow-up letter to the Police Commissioner is dated XXXX XXXX XXXX 2014, which post-dates the rejection of the claim. This letter was a follow-up to the original letter and, therefore, could reasonably have been made available at the time of the rejection of the claim. Therefore, it does not meet the statutory requirement and is not admitted. [13] The e-mails pre-date the rejection of the claim and she has not provided an explanation for why these were not reasonably available. Therefore, they do not meet the statutory requirement and are not admitted. [14] The newspaper articles pre-date the rejection of the claim and she has not provided an explanation at to why these were not reasonably available at the time of the rejection of the claim, and therefore do not meet the statutory requirement and are not admitted. [15] The letters from the Appellant's cousin and the XXXX Post Office, although post-dating the rejection of the claim, could reasonably have been available at that time and, therefore, are not admitted. The contents of the letters relate to incidents that occurred prior to the rejection of the claim and no explanation has been provided as to why they were not reasonably available at the time of the rejection of the claim. [16] The letter from the agent of persecution sent to the Appellant's mother pre-dates the hearing; namely, approximately XXXX 2014, and is therefore not admitted. [17] Since the RAD finds that the evidence does not constitute "new" evidence pursuant to s. 110(4) of IRPA, an oral hearing pursuant to subsection 110(6) of IRPA, is denied. SUBMISSIONS BY THE APPELLANT [18] The Appellant is and was unrepresented on both the RAD appeal and at her RPD hearing. The RAD accepts her letter as a "memorandum" and the contents therein will constitute her argument for that purpose. As well, the Appellant has provided a document entitled "Significant Points that Need Review" (Exhibit D4), upon which she relies in support of her appeal and the RAD has considered this as submissions in support of the Appellant's appeal. [19] Most of the latter document deals with evidence presented before the RPD. The Appellant, however, argues that, when she went back home to St. Vincent, the level of persecution did not exist (2007). She further submits that up until 2011, the death threats did not exist, however she had experienced domestic violence, which escalated to these death threats in 2011. [20] The Appellant is arguing that she believed that she was legally in Canada when her sponsorship application was approved on XXXX XXXX, 2013, and only realized on XXXX XXXX, 2013, when the authorities came to her home, that her status was in question. [21] The Appellant is further submitting that her former boyfriend, XXXX XXXX, after loving her for many years, had mistreated her emotionally, psychologically, financially, and physically. As a result of her marriage, (which has now dissolved), the perpetrator has made numerous threats through family members that, if she returns to St. Vincent, he will kill her. RPD FINDINGS [22] The RAD acknowledges that the RPD was mindful of the cautions and instructions as set out in the Chairperson's Gender Guidelines.2 The RPD took breaks when requested by the Appellant and was not overzealous with any line of questioning that was sensitive. [23] The RPD properly acknowledged that domestic violence remains a serious problem in Saint Vincent and, despite state efforts to broaden protection mechanisms, the State has been unable to entrench durable and effective solutions for most women. However, the RPD went on to find, for other reasons, that the Appellant was not a Convention refugee or a person in need of protection. Delay and Re-availment: [24] The Appellant travelled to Canada on four occasions prior to her final arrival in XXXX 2011. On none of these occasions, did she think of filing a refugee claim. Her explanation, when asked why she would not do this, particularly when she had stated that the police had not provided state protection, her response was that she had been living in Jamaica for three years. The RAD notes, however, that the Appellant returned to St. Vincent on a number of occasions throughout this period. [25] The Appellant testified that she came to Canada on a student visa and attended the University for only one semester as the program was different from what she had already commenced. She then applied for another program, but did not return and her student visa expired in XXXX 2012. However, since she married shortly thereafter, she was advised that, once the sponsorship application was submitted, she would not be removed from Canada. She was, however, aware that she was deportable between XXXX and XXXX 31, 2012 and she and her husband had spoken about this and decided to file an inland sponsorship instead of filing a refugee claim. She testified that she was aware that her relationship with her husband was shaky, however did not know that her sponsorship had been withdrawn until Immigration authorities informed her. Although the Appellant was detained from XXXX XXXX, 2013 for XXXX days, she did not file her refugee claim until XXXX XXXX, 2013. It was only when she was scheduled for a removal process that she filed a claim. [26] The RPD found that the Appellant had not explained the delay from XXXX XXXX until XXXX XXXX, 2013, nor had she explained the delay in 2012 to the satisfaction of the RPD. The RPD further found that the Appellant's re-availments, when she was in Jamaica and the U.S., further cast doubt on the veracity of the Appellant's allegations. [27] In totality, the RPD found that the Appellant's numerous travels to Jamaica, the United States and Canada, undermined her credibility. In fact, her testimony revealed that, although she was aware of women leaving similar situations and venturing to Canada or the U.S., she did not pay much attention to this. The RAD finds that delay and re-availment speaks to the credibility of the Appellant, in the absence of reasonable explanations. [28] The RAD acknowledges that the Appellant submits that the serious risk occurred after 2011, when the perpetrator learned that she had re-married (between 2011 an 2013). However, there was much questioning surrounding allegations contained in her Basis of Claim form (BOC) with respect to domestic violence prior to that. Moreover, while the re-availments occurred prior to 2011, the periods when the Appellant was out of status are between 2011 and 2013, and therefore she could well have been deported during these timeframes in 2012 and 2013. [29] The RAD also notes that the Appellant is well-educated and, after listening to the audio recording of the proceedings, finds that she sought and received advice from multiple sources in connection with her status in Canada. Moreover, the RAD notes that the Appellant was a XXXX XXXX XXXX, employed by the XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [30] This aspect of the claimant's conduct is inconsistent with a person living in fear of persecution in their country. It is to be expected that genuine Convention refugees would seek protection as soon as is practical, once out of reach of their oppressors. The RAD is mindful, then, that one of the significant factors, which speaks to subjective fear and credibility, is the element of delay. Delay, in and of itself, is not normally a factor in refugee determination.3 However, it can be relevant and a potentially important consideration to the RAD,4 where the claimant has delayed in making a claim upon their arrival to Canada and failed to offer a reasonable explanation for the delay. In certain circumstances, however, delay can be a determinative and decisive factor.5 In the case at hand, given the delay, coupled with re-availments from Jamaica to St. Vincent, the RAD draws an adverse inference and finds, as a result of that delay, that the Appellant's credibility is undermined. Lack of corroborative evidence: [31] The RPD notes that the Appellant only lived with the agent of persecution, XXXX, for a short period in 2007, as the Appellant was still legally married to, but separated from her husband. The RPD further noted that the abuse escalated to death threats in 2011, and the perpetrator issued a threat to savagely kill her because she had severed ties with him and married someone else. [32] The RAD concurs with the finding of the RPD that the lack of corroborative documentation was significant, given the credibility concerns, particularly when it found that it did not accept explanations provided by the Appellant. It was reasonable for the RPD to expect this documentation, in the RAD's opinion, given the time that the Appellant had spent in Canada and the sophistication of the Appellant. [33] The RAD also notes that the instructions provided in the BOC, as well as Rule 11 of the RPD rules, provide guidance in this regard. [34] For example, the RPD found that the Appellant's explanation that she did not think that she could write to the XXXX XXXX Police Force requesting copies of documents was unreasonable. The explanation provided by the Appellant that she had made telephone calls, of which she had no record, to obtain police and medical records, but these calls had yielded no results, was not accepted by the RPD. She testified that she had destroyed letters and postcards from the agent of persecution. [35] Furthermore, the Appellant had no proof that the agent of persecution even existed or if there was, in fact, a relationship between her and this individual. She was unable to provide any photographs, or any evidence surrounding the alleged threats against her while she was in Canada. This is particularly significant, in the RAD's opinion, since the Appellant is arguing that it is the death threats that occurred in 2011 that caused her to file a refugee claim, even though the domestic violence began in 2007. The RAD finds that it would be reasonable to expect some proof of this relationship given their alleged problems between 2007 and 2013. The RAD finds that the Appellant's credibility has been called into question with respect to her fears at the hands of the abuser prior to her arrival in Canada in 2011. Moreover, the RAD concurs that the RPD's conclusion that even corroborative evidence from her pastor here in Canada would be reasonable to expect and, in its absence, this further undermined the Appellant's credibility. The RAD finds, in totality, given the length of stay in Canada prior to initiating her claim, and the level of education of sophistication, that it would have been reasonable for the Appellant to have provided some proof of her relationship and particularly the events that occurred since her arrival in Canada. SUMMARY [36] In the absence of any corroborative evidence, and in light of the credibility findings, and having considered the educational background and sophistication of the Appellant, the advice purportedly provided by various sources leading up to the filing of her refugee claim, the RAD finds that the RPD properly assessed the evidence that was before it. [37] The RAD concurs with the RPD and would have arrived at the same conclusion that there was insufficient credible evidence with respect to an alleged abusive relationship. CONCLUSION [38] The RAD, after conducting an independent assessment of the entire record, the evidence, and the RPD reasons, concurs with the RPD and would have arrived at the same conclusion that the Appellant is neither a Convention refugee nor a person in need of protection. [39] Accordingly, this appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. (signed) 'Roslyn Ahara' Roslyn Ahara October 1, 2014 Date 1Raza, Syed Masood v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 2Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 3Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 4Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988. 5Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003, 2003 FC 1324; Ghasemian, Marjan v. M.C.I. (F.C., no.IMM-5462-02), Gauthier, October 30, 2003, 2003 FC 1266; Bhandal, SurjitKaur v. M.C.I. (F.C., no.IMM-4277-05), Teitelbaum, April 3, 2006, 2006 FC 426. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05997