TB4-05591

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 : TB4-05591 Private Proceeding / 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 XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 10, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ron Shacter Barrister & Solicitor 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 (the Appellant), a citizen of Cuba, 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. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either find her to be a Convention refugee or refer the matter back to the RPD for redetermination. 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 she was a XXXX at a XXXX XXXX XXXX XXXX XXXX XXXX XXXX. She became involved in planning and presenting a theatrical production at the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. As a result, her employment was terminated and she was sought and harassed by the authorities. She obtained a visa to Canada, where she made a refugee claim. Upon return to Cuba, she fears that she will be persecuted as a perceived dissident. [4] The Appellant's application for refugee protection was heard on January 27, 2014. By a decision of June 4, 2014, the RPD rejected the claim, finding that the Appellant was generally lacking in credibility. [5] The Appellant submits that the RPD erred in its assessment of her credibility. She also asks the RAD to accept new evidence which she has presented in support of her appeal. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of 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. [7] Even where a document meets the test in Section 110(4), this does not require the RAD to admit it into evidence without any further consideration. In Raza,1 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). The Court held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.2 In Iyamuremye, the Federal Court accepted the RAD's application of the factors in Raza to new evidence submitted on an appeal under IRPA.3 [8] 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.4 [9] The Appellant asks the RAD to admit the following documents as new evidence: (a) A letter from her mother, dated XXXX XXXX, 2014.5 (b) A statutory declaration from XXXX XXXX XXXX, dated XXXX XXXX, 2014.6 (c) An undated and unsigned "reference letter" from XXXX XXXX XXXX.7 (d) A statutory declaration from the Appellant, dated XXXX XXXX, 2014.8 [10] In document (a), the Appellant's mother repeats the allegations made in the Appellant's refugee claim. The author explains that she paid money to the Appellant's former supervisor in order to obtain a letter indicating how long the Appellant had been employed and the reasons why she had been dismissed. This appears to be a reference to an undated letter which was presented by the Appellant to the RPD.9 [11] In Raza, para. 16, the Federal Court of Appeal endorsed the principle that a document's "newness" cannot be tested solely by its date of creation; what is important is the event or circumstance sought to be proved by the evidence. Although document (a) is dated after the rejection of the Appellant's refugee claim, its contents predate that rejection. The Appellant presented the employment letter to the RPD, and thus her mother's actions to obtain that letter must have been taken prior to the rejection of the claim. [12] As the RAD understands it, the Appellant is attempting to present a new explanation about how she obtained the employment letter presented to the RPD. The RPD rejected her explanation that her friend XXXX obtained the letter for her. Now the Appellant, through document (a), seeks to provide a different explanation-her mother paid to obtain the letter. [13] This evidence does not meet the test in Section 110(4). The contents of the letter predate the rejection of the Appellant's refugee claim. The employment letter was the subject of questions by the RPD, and the Appellant had more than four months between her hearing and the rejection of the claim in which to provide this information to the RPD. As the employment letter was clearly an issue in the RPD hearing, she could reasonably have been expected to provide her mother's explanation of how that letter was obtained, as she attempts to do now. Instead, she waited to see whether the RPD would accept her untruthful evidence. [14] Document (a) is not admissible as new evidence in this appeal. [15] Document (b) is a statutory declaration from an individual who was employed as a XXXX at the same XXXX XXXX was the Appellant. She met the Appellant there in 2009. The affiant was terminated in XXXX of 2011 because of her sexual orientation. On XXXX XXXX, 2014 she learned that the Appellant was in Canada. [16] The Appellant argues that this document confirms the identity of the official who signed her employment letter. It appears to the RAD that this document might not have been reasonably available to the Appellant at the time of the rejection of her claim, as she did not know that the affiant was in Canada. This affidavit therefore meets the requirements of Section 110(4). It does not, however, pass the requirements in Raza. This declaration is simply not material. At its strongest, this document establishes that the Appellant worked at the institution in 2009, and that the person whose name appears on the employment letter was also employed there. This does little to establish the core of her refugee claim-that she organized and participated in activities critical of the Cuban authorities, and that as a result she seen as a dissident-nor can it establish that the employment letter is genuine. [17] Had this letter been before the RPD, it simply would not have changed the outcome of the refugee claim. Document (b) is not material and is therefore not admissible in this appeal. [18] Document (c) is a "reference letter" from XXXX XXXX XXXX. The letter is undated, unsigned, and does not contain contact information. It does include a XXXX XXXX which is copied onto the bottom of the letter. [19] As this letter is undated, it is not possible for the RAD to determine whether it arose after the rejection of the Appellant's refugee claim. The Appellant has not explained in her Memorandum how this document meets the requirements of Section 110(4). [20] Even if this document did post-date the rejection of the Appellant's refugee claim, it would not be admissible here, as it is not material. The document speaks to the Appellant's employment at the institution, but makes no reference to her alleged political activities. In fact, the letter refers to the Appellant's work to organize several presentations for a project which is still in use. This hardly suggests that the authorities objected to her work. [21] The Appellant submits that the XXXX XXXX copied onto the letter confirms the name and signature XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In the RAD's view, this information is not material. The fact that the employment letter contains the name of a genuine XXXX XXXX does not mean the document itself is genuine. [22] Document (c) does not meet the requirements in Section 110(4), as the Appellant has not established that the document arose after the rejection of her claim. Even if it did pass the test in Section 110(4), it would not be admissible as it is not material. [23] Document (d) is the Appellant's own affidavit, in which she admits that she lied to the RPD about her date of firing. She explains that she was in fact terminated in 2011, not 2012, but misrepresented the date to the RPD because she was afraid she would be faulted for a delay in leaving Cuba. She declares further that she also lied about how she obtained an employment letter for the purpose of her visa application; she told the RPD that her friend XXXX obtained this, but in fact someone else did so. According to the affidavit, the Appellant discussed these misrepresentations with her counsel for her RAD appeal, and "decided not to continue this misinformation previously given to the RPD." [24] Despite the XXXX XXXX, 2014 date on the affidavit, its contents are not new evidence. The Appellant provided the RPD with a Basis of Claim (BoC) form showing the false date of termination10 and also included this misrepresentation in an amended BoC.11 Her BoC narrative also contained the false allegation about XXXX obtaining an employment letter for the purpose of her visa application.12 At her RPD hearing on January 27, 2014, the Appellant maintained both misrepresentations. The lack of truthfulness conceded in this affidavit occurred well before the rejection of the Appellant's claim. Had the Appellant admitted these misrepresentations to the RPD prior to the rejection of her claim, that panel would have been in a position to take such admission into account in its credibility analysis. Instead, the Appellant said nothing about her misrepresentations until she learned that they did not convince the RPD to accept her claim, and she then raised them on appeal. This is simply not new evidence and is not admissible here. [25] For these reasons, none of the Appellant's proposed new evidence is admitted in this appeal. Role of the RAD [26] What is the role of the RAD in considering an appeal against a decision of the RPD? [27] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [28] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [29] In Iyamuremye, the Court found itself: [E]ntirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law and by applying a reasonableness standard to those involving questions of mixed fact and law....13 The Court went on to hold that the RAD must review the evidence that was before the RPD and conduct its own, independent assessment of that evidence to determine whether the lower tribunal had properly considered the evidence and "reasonably justified its conclusion".14 [30] In the subsequent case of Alvarez, the Court clarified the role of the RAD in relation to the RPD.15 It held that the RAD is not to undertake a process of judicial review, but rather must perform its own assessments of the facts in order to determine whether the RPD made an error of law or misassessed the facts to the point of making a "palpable and overriding error."16 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a standard of reasonableness-but then required the use of a higher standard. [31] In Malhotra,17 issued after Alvarez and Eng, the Federal Court considered another decision of the RAD, in which the tribunal applied a standard of reasonableness to the RPD's decision under appeal. Although the Court did not specifically address the RAD's selection of the standard of review, it observed that the RAD had applied a standard of reasonableness and concluded that the RAD's decision did not contain any error which justified the intervention of the Court. [32] Most recently, the Court in Huruglica, considered the appropriate relationship between the RAD and the RPD.18 It found that the RAD 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.19 [33] While the Court had endorsed the standard of reasonableness in Iyamuremye, and accepted it in Malhotra, it found in Huruglica that the application of such standard was in error. In contrast to Alvarez and Eng, the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. [34] The Appellant submits that the RAD should follow Huruglica and conduct an independent assessment of the evidence in the RPD record. [35] In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". The RAD will therefore review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. The RPD's Findings [36] The Appellant argues that the RPD erred in rejecting her claim on the basis of credibility. Dismissal Letter [37] The RPD gave no weight to a letter, allegedly written by her former employer, setting out the reason that she was terminated. In the RPD's view, the Appellant had provided a genuine letter in support of her visa application, and that letter indicated that she was employed; the dismissal letter therefore could not be trusted. Further, the RPD noted that the dismissal letter is without a date. The panel also noted inconsistencies with respect to the Appellant's evidence about how the visa letter was obtained; the Appellant claimed that her friend XXXX arranged the letter, but the RPD noted that, according to the Appellant's own evidence, XXXX had already fled the country at the time of the letter. [38] The Appellant argues on appeal that the existence of other credibility concerns does not allow the RPD to give no weight to this evidence. She also submits that the RPD has no expertise in the assessment of foreign documents and therefore could not discount this letter because of the absence of dates. [39] The RPD's finding here is directly related to the Appellant's testimony, and thus the RAD must respect and recognize its credibility finding. However, even if the RAD showed no deference whatsoever to this finding, it would reach the same conclusion after its own review of the evidence. The Appellant provided a letter of employment in support of her visa application, which letter apparently showed that she was employed at a time she alleges she was jobless. She gave inconsistent evidence about how that letter was obtained. The purported termination letter is also suspicious. It contains no phone number, mailing address, e-mail address, web site, or any contact information whatsoever. The letter has no date and, despite the Appellant's submissions about foreign documents, the RAD has no reason to believe that employment-related letters in Cuba are normally undated. Although the letter speaks to her alleged termination from her employment, it gives no date of such termination. Considered on its own, this letter warrants little weight; when considered in the context of the Appellant's evidence about having provided a different employment letter for her visa application, this letter has even less probative value. [40] The RPD did not err by giving no weight to the dismissal letter. Profile [41] The Appellant also submits on appeal that her profile as a "politically unreliable woman with no possibility of employment" is enough to establish her claim for refugee protection. She points to objective evidence indicating that those who criticize the Cuban authorities are persecuted. This argument cannot succeed. The RPD, citing many credibility concerns, found that the Appellant had not established the allegations underlying her claim. She therefore failed to establish her alleged profile as a politically unreliable woman. Delay in Claiming [42] The RPD noted that the Appellant tried, without success, to come to Canada in 2009 and 2010, before the alleged persecution began. The panel also considered that she came to Canada in XXXX of 2013 but did not make a refugee claim until about XXXX months later. The RPD rejected the Appellant's explanation that she delayed in claiming because her aunt, who sponsored her visa application, was afraid of repercussions if the Appellant were to seek refugee protection. The RPD found the delay inconsistent with the Appellant's alleged fear, and also suggested that the Appellant's aunt, herself a former national of Cuba, would be well aware of the dangers faced by the Appellant in Cuba. The RPD also noted that the aunt was not called to testify. [43] The Appellant argues on appeal that the RPD improperly speculated that her aunt would not fear consequences if the Appellant claimed refugee protection earlier. Further, she submits that there is no legal requirement that refugee claimants seek protection at the moment of entry into Canada. [44] The RPD's finding here is based on the testimony of the Appellant, and that the RPD had the advantage of hearing and seeing that testimony. The RAD must therefore respect and recognize the RPD's credibility conclusion here. Even if the RAD did not defer to this finding however, it would reach the same conclusion based on its own assessment of the evidence. [45] The Appellant attempted to come to Canada on two occasions before she feared persecution. When she allegedly did fear persecution, and did succeed in entering Canada, she delayed in seeking protection. When these circumstances are considered together, they suggest that the Appellant did not come to Canada for refugee protection. [46] If the Appellant's aunt was the cause of the delay in claiming, the Appellant could have called her aunt to explain this to the RPD, or at least provided an affidavit. She did not. [47] The Appellant's BoC narrative indicates that she became even more afraid after her mother returned to Cuba in XXXX of 2013 and learned that the authorities were seeking the Appellant. The Appellant's family in Canada consulted a lawyer in XXXX of 2013, and learned that they would not suffer negative consequences here if she filed a refugee claim, which she proceeded to do. [48] Even if this explanation can be believed, it does not resolve the issue of delay. The Appellant appears to have initiated her refugee claim in early October of 2013.20 The Appellant arrived in Canada, allegedly fearing persecution, in XXXX, but did not claim. In early XXXX her mother returned to Cuba and learned that the authorities were seeking the Appellant, who did not file a refugee claim then either. In XXXX the family learned from a lawyer that the Appellant could file a refugee claim without repercussions to the family, but she did not file then either. In the RAD's view, the Appellant's lackadaisical approach to seeking protection is not consistent with her alleged fear. [49] The Appellant attempted to come to Canada on two prior occasions when she did not fear persecution, and when she arrived, allegedly fearing persecution, she did not promptly seek protection. This negatively impacts her credibility. [50] The RPD did not err in giving no weight to the dismissal letter, in its assessment of the Appellant's profile, or in its treatment of the delay in claiming. The RPD made other credibility findings which are not challenged by the Appellant. It was not wrong for the RPD to find the Appellant to be generally lacking in credibility. CONCLUSION [51] 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 dismissed. (signed) "Edward Bosveld" Edward Bosveld October 10, 2014 Date 1 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 2 Ibid., Raza, paras. 13-15. 3 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 45. 4 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 5 Appellant's Record, p. 147. 6 Appellant's Record, p. 155. 7 Appellant's Record, p. 158. 8 Appellant's Record, p. 163. 9 RPD Record, p. 163, ISA XXXX XXXX XXXX. 10 RPD Record, pp. 25-26, Basis of Claim Narrative, paras. 6-11. 11 RPD Record, pp. 29-30, Amended Basis of Claim Narrative, paras. 6-11. 12 RPD Record, p. 27, Basis of Claim Narrative, para. 16; and p. 31, Amended BoC Narrative, para. 16. 13 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 2 14 Iyamuremye, para. 3. 15 Alvarez, Ismael Garcia v.M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014, 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 16 Alvarez, para. 33. 17 Malhotra, Sunil v. M.C.I. (F.C., no. IMM-6899-13), Bédard, August 1, 2014, 2014 FC 768. 18 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799. 19 Huruglica, para. 45. 20 RPD Record, Page 52. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05591