TB4-08954

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 : TB4-08954 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 XXXXXXXX XXXX XXXX XXXX XXXX XXXX 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 January 14, 2015 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Benjamin Allison 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 XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the Appellant), a citizen of Cameroon, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant asks the Refugee Appeal Division (RAD) to allow the appeal and grant the Appellant protection in Canada. [3] The Appellant has not submitted new evidence pursuant to Section 110(4) of the Immigration and Refugee Protection Act1 (IRPA) in support of her appeal. The Appellant has, however, submitted an affidavit that contains what appear to be submissions. The Appellant is asking for a hearing. The Minister is not intervening in this Appeal. DETERMINATION [4] 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. This appeal is dismissed. BACKGROUND [5] The Appellant alleged before the RPD that she fears for her life as a lesbian, and as a woman who was the victim of forced marriage and domestic abuse. In XXXX 2013, the Appellant left Cameroon and came to Canada on a student visa. She filed her application for refugee protection in Canada on June 23, 2014. [6] The Appellant's application for refugee protection was heard on August 22, 2014. By a decision of September 10, 2014, the RPD rejected the claim. [7] The RPD found the Appellant's testimony not to be credible relating to her identity as a lesbian. The RPD did not find the Appellant credible in that she was ever forcibly married, and that she suffered abuse at the hands of her alleged husband. [8] The Appellant submits that the RPD failed to consider the totality of the evidence in assessing the Appellant's credibility. The Appellant submits that the RPD completely disregarded both the subjective and objective evidence. THE ROLE OF RAD IN THE APPEAL [9] The Appellant argues that "the RAD must not only review the reasonableness of the RPD decision, it must also conduct an independent assessment of the Applicant's claim." The Appellant cites Huruglica as authority.2 The RAD agrees with the Appellant in this respect; in assessing the appeal, the RAD is guided by the recent Huruglica3 decision which outlines the approach that the RAD should take as an appellate body in reviewing the first level decisions of the RPD. [10] In Huruglica, Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD determination that, in its opinion, should have been made as per s. 111(b) of the IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusions; however, the RAD has equal or greater expertise to the RPD in the interpretation of country conditions evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [11] The RAD adopts and applies the Huruglica case law in this appeal. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [12] 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 indicates that: "the person who is the subject of the appeal 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." RAD Rule 3(3)(g)(iii) directs applicants to include an explanation of how the documentary evidence meets the requirements of Subsection 110(4) of the IRPA. The Appellant has submitted her affidavit.4 [13] The RAD reviews and assesses the Appellant's affidavit, 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. The RAD finds the affidavit provides the same factual information which was included in the Appellant's documents submitted to the RPD and in her testimony provided at the RPD. Further, the RAD finds the Appellant's affidavit regurgitates the Appellant's submissions included in the Memorandum.5 Therefore, in view of the criteria set out in Section 110(4) of the IRPA, the RAD finds the Appellant's affidavit is not new evidence as the facts in the affidavit did not arise after the rejection of the Appellant's claim. This evidence was available to the RPD at the rejection of the claim. [14] The RAD finds the Appellant's affidavit does not meet the requirements of Section 110(4) of the IRPA and therefore, does not accept the affidavit. [15] Moreover, regarding the inclusion of the affidavit, the Appellant submits the following: Appellant relies on the particulars contained in the affidavit of XXXX XXXX XXXX dated XXXX XXXX, 2014 Declaration regarding possible application of subsection 110(4) and (6) and subsection 110(6) of the IRPA Appellant is not relying on any evidence referred to in subsection 110(4) of the Act, ...6 [16] Despite, the RAD considers the Appellant's affidavit as supplementary submissions to the Appellant's Memorandum of Argument. APPLICATION FOR AN ORAL HEARING [17] The Appellant submits that since there is credibility finding by the RPD and in view of the decision of the Federal Court in Huruglica,7 the Appellant is requesting that a hearing be held under subsection 110(6) of the Act.8 [18] 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. [19] 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. [20] The RAD finds the Appellant has not submitted any new evidence as per requirements of Section 110(4) of the IRPA. In consideration of the totality of the evidence in this case, the Appellant's Appeal Record, and Sections 110(3), (4), and (6) of the IRPA, the RAD must proceed without a hearing. Therefore, the Appellant's request for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL [21] The Appellant submits the following issues: (a) Whether the Panel failed to observe a principle of natural justice or otherwise acted beyond his powers because the Member demonstrated a pervasive sense of scepticism at the hearing by ignoring material evidence and sworn testimony of the applicant. (b) Whether the Panel based its decision on an erroneous finding of fact and made its decision in a perverse or capricious manner without regard to the material before it.9 [22] The RAD reviewed the totality of the evidence adduced at the RPD, including the audio recording of the RPD hearing and the transcript of the same recording provided by the Appellant. [23] The RAD first addresses the issue identified under (a) above. In reviewing the recording of the proceedings, the RAD finds the RPD member proceeded in a courteous and professional manner. The RAD finds, at no time, the RPD member was abrupt or aggressive at the hearing. The RAD finds the RPD considered the Chairperson's Guidelines for Women Refugee Claimants Fearing Gender-Related Persecution.10 The RAD finds the RPD member was cognizant of the seriousness of the alleged abuse; for example, the RPD member advised the Appellant's counsel at the hearing that in consideration of the Gender Guidelines, it was not necessary to ask the Appellant for details for the specific events of persecution. [24] The Appellant writes in her affidavit:11 That I felt that during my hearing the panel appeared very less interested in hearing my story, the narrative of my persecution and the reason for my fear of returning to Cameroon, but appeared prosecutorial and focused in highlighting technical violations in the filling of my refugee claim forms, leading her to manifest a disturbing sense of aloofness towards my case. But for the redirect questions from my counsel, the major issues raised in my refugee claim would not have been addressed.12 The Appellant further wrote: That I felt that the panel seemed disengaged and out of tune with my refugee claim, but demonstrated from the beginning of the hearing a general intimidating posture, a nonchalant and distant attitude, and a rather careless demeanour that terrified me.13 In the last paragraph in her affidavit, the Appellant wrote: That overall, I strongly feel that the panel was insensitive to my case and was not alert to the seriousness of the issues raised in my refugee claim; and was generally uninterested in understanding the evidences of subjective fear, state protection, and the country conditions, and reasons for delay in claiming represented in my case.14 [25] The RAD finds the Appellant wrote in her affidavit how she felt (emphasis added) about the RPD member's demeanour while at the hearing, and about the way the RPD member conducted herself at the hearing. The RAD finds the Appellant speaks fluent English; the hearing was held in English. The hearing lasted for about two and half hours. The Appellant was represented by counsel at the hearing. In the circumstances, the RAD finds it reasonable to expect the Appellant to have alerted her counsel regarding her 'feelings' about the way she perceived the hearing was proceeding. Moreover, the RAD finds it reasonable to expect, on a balance of probabilities, that the Appellant's counsel would have raised an objection if the RPD hearing was proceeding in the manner depicted in the Appellant's affidavit. [26] In the absence of any objections raised by the Appellant and/or her counsel at the RPD hearing; the RAD finds the Appellant's allegations regarding the RPD member's demeanour and about the way the RPD member conducted herself at the hearing are not meritorious. [27] Moreover, the RAD finds the Appellant is raising serious objections about the RPD member's demeanour and about the way the RPD member conducted herself at the hearing without giving examples, except in one instance where the Appellant characterizes the RPD member being dismissive in acknowledging the Appellant's documents. The Appellant wrote: "I was surprised that the panel member only dismissively stated that she has read the record and seen the supporting documentations and did not ask any questions about their relevance to my refugee claim."15 [28] In regard to the above, the RAD finds nothing wrong in that the RPD member said that she had read the record and seen the supporting documents. The Appellant's allegation that the RPD member did not ask any questions about the relevance of her documents to her refugee claim, the RAD is unclear as to what the Appellant is referring to. The member asked the Appellant questions about the documents to clarify the points that the panel found needed clarification. Thus, the RAD finds even in the one example provided above, the RPD did nothing wrong. The Appellant was represented by counsel at the hearing. The burden is on the Applicant to show why he/she should be accepted as a refugee or a person in need of protection. In reviewing the totality of the evidence, including the recording of the RPD proceedings, the RAD finds it is clear that neither the Appellant nor the Appellant's counsel raised any concerns at the hearing, or anytime thereafter, before the rejection of the claim, regarding the RPD member having failed to observe principles of natural justice. [29] Based on the totality of the evidence adduced in this case and the reasons provided above, the RAD finds the RPD member did not fail to observe principles of natural justice or otherwise acted beyond the powers bestowed thereupon. The RAD finds the RPD hearing was conducted and proceeded in a fair and judicious manner. [30] In the next section, the RAD considers the Appellant's submissions relating to the issue identified as (b) above, whether the RPD member based its decision on an erroneous finding of fact and made its decision in a perverse or capricious manner without regard to the material before it. [31] The RPD found the Appellant's testimony not to be credible with respect to the forced marriage and the Appellant's identity as a lesbian. Forced Marriage The alleged forced marriage ceremony [32] The evidence shows that the Appellant did not list her spouse in the Basis of Claim (BoC) form,16 and entered her marital status as 'single' in the Generic Application form for Canada.17 The Appellant alleged that she was forcibly married to XXXX in the traditional ceremony, and that she lived with him for about ten months.18 The RPD found the above omissions to be significant as the Appellant's forced marriage to Charles is material to the claim. The Appellant's explanation for the omissions was that she did not live with XXXX for twelve months and thus did not consider herself legally married to XXXX. The RPD did not accept the Appellant's explanation for the omissions. The RPD wrote: "Considering that the forced marriage is at the heart of her claim, the panel does not believe the claimant's explanation for this important omission to be reasonable, as she had declared having been married traditionally in her narrative."19 The RPD found that this serious omission negatively affects the Appellant's credibility. The RAD finds this omission to be significant because the Appellant's marriage to XXXX is central to the claim; and the Appellant was married to XXXX in a traditional ceremony and cohabitated with him after the marriage for about ten months. The RAD finds the above omissions undermine the Appellant's credibility relating to her allegations that she was forced to marry XXXX and was a victim of domestic abuse at his hands. Living with the alleged husband, XXXX: [33] Further the Appellant testified that she lived with XXXX for about ten months in Mutengene; this address is not provided by the Appellant in the Schedule A form20. The Appellant's explanation for this omission was that she never wanted to connect herself to anything regarding Mutengene. The RPD did not accept the Appellant's explanation for the omission; the RPD found that this further undermined the Appellant's credibility. The RAD finds the Appellant's narrative provides details regarding the Appellant's alleged marriage to XXXX and XXXX Mutengene residence.21 Therefore, the RAD also does not find the Appellant's explanation that she never wanted to connect herself to anything regarding Mutengene satisfactory. The RAD concurs with the RPD that this omission further undermines the Appellant's credibility. Documents to corroborate the existence of XXXX [34] The RPD asked the Appellant if she had any documentation to establish the existence of XXXX. The Appellant referred to two letters of support she had submitted. Due to the credibility concerns around the Appellant's alleged forced marriage to XXXX, the RPD gave the two letters minimal weight. The Appellant's counsel asked the Appellant if she had any pictures of XXXX or the traditional wedding ceremony; the Appellant responded, that would be the last thing she would think of and that she did not like to keep memories. The Appellant alleged that she was forcibly married to XXXX and was a victim of domestic abuse at his hands. Thus, the existence of XXXX is material to the claim. Due to a lack of sufficient corroborative evidence to establish the existence of XXXX, the RPD found this further undermined the Appellant's credibility. Due to a lack of sufficient reliable and satisfactory evidence to establish that XXXX exists, the RAD concurs with the RPD's negative finding emanating from it. [35] Based on the Appellant's omissions from the BoC and the Generic Application Form to mention her relationship with XXXX, the omission to mention the address of her alleged husband's house where she allegedly lived with him for about ten months in the Schedule A form, and the Appellant's failure to provide reliable and trustworthy evidence to establish the very existence of XXXX, the RPD disbelieved the Appellant's story that she was ever forcibly married to XXXX. Based on the totality of the evidence in this case, including the recording of the RPD proceedings, the RAD concurs with the RPD in finding the Appellant not credible in that she was ever forcibly married to XXXX. Appellant's Identity as a Lesbian Relationship with XXXX22 [36] The Appellant submitted an affidavit from XXXX and a couple of photographs with XXXX in support of her identity as a lesbian. The RAD acknowledges the RPD's finding relating to the 'from' address on the DHL envelope;23 the RAD dismisses the RPD's negative finding in this respect. The RAD does not concur with the RPD in that just because the 'from' address on the DHL was different from the XXXX home address, it would amount to an inconsistency in the Appellant's evidence. The RAD reviewed the letter from XXXX;24 the RAD finds XXXX letter includes statements about the alleged relationship between them. XXXX wrote that they were in an intimate sexual relationship for about seven years. The RAD finds despite the two being in a longstanding intimate sexual relationship, i.e., more than seven years, the affidavit includes no specific details. The affidavit provides more details about the country conditions than the history of relationship between the two of them. The two pictures25 submitted show two girls standing next to each other. [37] The RPD found that the documentary evidence submitted was not sufficient in and of itself to establish that the Appellant is a lesbian. The RAD is cognizant of the Appellant's argument that their relationship was not in the open; nonetheless, the RAD finds it reasonable to expect that couples' letter and private pictures are not public documents. The RAD, however, is also of the view that letters and photos between two partners do not have to be and/or are not always explicitly sexual. Regardless, the RAD concurs with the RPD and finds that the Appellant's documentary evidence in and of itself regarding her same-sex relationship with XXXX is not persuasive in determining the Appellant's identity as a lesbian. The Appellant's knowledge about the legality of being a lesbian in Canada [38] The Appellant was asked whether she knew that it was legal to be a lesbian in Canada, to which the Appellant replied, "no." She testified that she learned about it at the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. She testified that before going to the XXXX, she researched on the internet; she added that the information she got from the internet was conflicting, some article stated that it was normal and legal to be a lesbian in Canada but the others provided contradictory information. In this respect, the RPD did not find the Appellant credible because the Appellant had testified that she decided to go to the XXXX after having seen advertisements on television about the 'Pride' parade. The RPD also found that given the Appellant's university degree in English, she would have been able to carry out a proper online research on the topic from reliable sources. The RPD found this further undermined her credibility. The RAD concurs with the RPD; the Appellant's testimony, on a balance of probabilities, shows that she went to the XXXX knowing that it was legal to be a lesbian in Canada. Letters and photographs submitted in support of the Appellant's identity as a lesbian [39] The Appellant submitted a letter from the XXXX, and photographs of her attending the Pride Parade and other LGBTQ events in Toronto. The RPD found that those letters and pictures did not confirm the Appellant's identity as a lesbian, but merely showed the people she socialized with and places she frequented. The Appellant had also submitted letter from relatives in support of her identity as a lesbian. Considering the totality of the evidence, including the recording of the proceedings, and the credibility concerns with the Appellant's testimony, the RAD concurs with the RPD in giving those letters and photographs minimal weight. Delay in Claiming [40] The Appellant testified that she came to Canada to study. Although the Appellant alleged that her life would in danger if she were to return to Cameroon, the Appellant took no steps to file for refugee protection in Canada for nine months. The Appellant testified that she was not aware that she could get protection in Canada until she went to the XXXX. The RAD is aware that delay in claiming is not a determinative factor in a refugee claim; however, there are circumstances where delay in claiming can be such that it would assume a decisive role; what is fatal to the applicant's claim is his or her inability to provide any satisfactory explanation for the delay. The Appellant's explanation was that she was not aware until she went to the XXXX. The RPD did not accept the Appellant's explanation for the delay considering the Appellant is fluent in English, had been in Canada for nine months prior to filing her claim; during six of those nine months the Appellant was attending school, socializing with fellow students, and being exposed to various types of Canadian media on and off campus. The RAD concurs with the RPD in that in consideration of the Appellant's situation and circumstances, the delay in claiming shows a lack of subjective fear. [41] Based on all of the above, the RAD finds the RPD considered the totality of the evidence submitted to the RPD, including the Appellant's testimony. The RAD finds the RPD did not ignore any of the Appellant's evidence, and did not err in making its credibility findings. [42] In consideration of the totality of the evidence in this case, the RAD finds that, when considered cumulatively, the RPD's credibility findings are sufficient to support the RPD's conclusion that the Appellant was generally lacking in credibility. [43] Based on all of the foregoing, the RAD confirms the RPD's determination that the Appellant is neither a Convention refugee, nor a person in need of Canada's protection pursuant to Sections 96 and 97(1) of the IRPA. DISPOSITION [44] 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) "S.S. Kular" S.S. Kular January 14, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit P-2, Appellant's Record, item 8, Appellant's Memorandum of Argument, pp. 102-103. 3 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799. 4 Exhibit P-2, Appellant's Record, item 3, Affidavit of XXXX XXXX XXXX. 5 Exhibit P-2, Appellant's Record, item 8, Appellant's Memorandum of Argument. 6 Exhibit P-2, Appellant's Record, item 8, Appellant's Memorandum of Argument, pp. 101-102. 7 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 8 Exhibit P-2, Appellant's Record, item 8, Appellant's Memorandum of Argument, p. 102. 9 Exhibit P-2, Appellant's Record, item 8, Appellant's Memorandum of Argument, p. 102. 10 Guideline on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993; Update: November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant to section 159(1) (h) of the Immigration and Refugee Protection Act. 11 Exhibit P-2, Appellant's Record, item 3, Affidavit of XXXX XXXX XXXX. 12 Exhibit P-2, Appellant's Record, item 3, Affidavit of XXXX XXXX XXXX, para. 4. 13 Exhibit P-2, Appellant's Record, item 3, Affidavit of XXXX XXXX XXXX, para. 5. 14 Exhibit P-2, Appellant's Record, item 3, Affidavit of XXXX XXXX XXXX, para. 7. 15 Exhibit P-2, Appellant's Record, item 3, Affidavit of XXXX XXXX XXXX, para. 5. 16 Exhibit RPD-1, RPD's Record, RPD Exhibit 2. 17 Exhibit RPD-1, RPD's Record, RPD Exhibit 1. 18 Exhibit P-2, Appellant's Record, item 2, the RPD's Reasons and Decision, paras. 9-10. 19 Exhibit P-2, Appellant's Record, item 2, the RPD's Reasons and Decision, para. 9. 20 Exhibit RPD-1, RPD's Record, RPD Exhibit 1. 21 Exhibit RPD-1, RPD's Record, RPD Exhibit 2, the BoC Narrative. 22 Exhibit RPD-1, RPD's Record, RPD Exhibit 2. 23 Exhibit P-2, Appellant's Record, item 6. 24 Exhibit P-2, Appellant's Record, item 6. 25 Exhibit P-2, Appellant's Record, item 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-08954