TB4-04542

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 : TB4-04542 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal 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 September 3, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jeffrey L Goldman Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor 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, (the Appellant), a citizen of St. Vincent and the Grenadines, appeals a decision of the Refugee Protection Division (RPD), denying his claim for refugee protection. The Appellant has not submitted new evidence in support of his claim and he has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that he is a Convention refugee or a person in need of protection. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD allows this appeal and refers the matter to the RPD for reconsideration by a differently-constituted panel. The appeal is allowed. BACKGROUND [3] The Appellant alleges he is a homosexual and he fears persecution in St. Vincent and the Grenadines because of his sexual orientation. He was aware of his feminine style as a school boy and he was harassed by other students. When he was 15, a young neighbour hit him. When he was 17, a man named XXXX attacked him with a cricket bat when he had smiled at him. He was taken to a hospital. A nurse called the police but they did not respond after it was explained what had happened. People in the village threw stones at him. [4] In 2001, the Appellant's father caught him kissing a man. His father beat him with a hose and someone called the police. The police came but nothing was done. They told his father that he did the right thing. After he started working, a childhood friend threatened him with a gun and hit him with the gun. His father also hit him and someone called the police, but nothing was done. He thought of committing suicide. [5] His sister, XXXX, sent him a ticket and he came to Canada. He did not know anything about the refugee system. He was told by his sister, XXXX, that he could apply for an extended stay. He applied but the forms were incomplete. They were returned and the fee was not paid. [6] Over many years he encountered fake immigration counselors and he could not pay others because of work and rent difficulties. He checked into XXXX XXXX on XXXX XXXX, 2013, and received information regarding legal aid and the refugee system. THE ISSUES [7] The RPD indicated the determinative issues were credibility and delay in making a claim. [8] The Appellant submits the issues are the following: Did the Panel err in ignoring relevant issues, misinterpreting evidence, making erroneous findings of fact, and placing reliance on irrelevant evidence? Did the Panel err in law by ignoring evidence? [9] The Minister intervened in the RPD hearing on the issue of credibility. ANALYSIS The Role of the RAD [10] While the Immigration and Refugee Protection Act (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. The RAD now has the benefit of some Federal Court jurisprudence which speaks to the appellant tribunal's role in relation to that of the RPD. [11] Most recently, the Court in Huruglica, considered the appropriate relationship between RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to 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 the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [12] The Court further determined that in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is a "palpable and overriding error." [13] As directed by the Court, the RAD will consider all the evidence in the record, both new evidence and that which was before the RPD. It will show deference to the RPD in areas where the lower tribunal has an advantage or greater expertise. In particular, the RAD will defer to findings of credibility, and findings of fact arising from personal evidence given at the RPD hearing. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.2 [14] The RAD will not, however, defer to findings that are based on objective evidence such as country condition documents, or on inferences or plausibility findings where the RPD has no advantage in reaching its conclusions. In considering findings of the RPD that involve both fact and law, or the application of the law to the facts, such as conclusions regarding state protection and internal fight alternative, the RAD will only show deference where the RPD was in an advantageous position to make the findings. The RAD will review the remaining aspects of the RPD's decision - that is, those portions which warrant no deference - and, as directed by the Court in Huruglica, come to its own assessment of whether the Appellant is a Convention refugee or a person in need of protection. Delay [15] The RPD noted that the Appellant arrived in Canada on XXXX XXXX, 2004, and he filed his claim on September 16, 2013, amounting to an eight-year delay in making a refugee claim. The RPD questioned the Appellant in this regard and he responded that he had contacted an immigration consultant who recommended he make a Humanitarian and Compassionate application. The Appellant was unable to provide any information as to when the contact was made and when the application was filed. The Appellant stated the consultant closed his office and took his money. He further stated that he filed his own application but it was rejected for incompleteness. He explained that he did not have the funds to proceed, and he did not make a refugee claim because he did not know the system. The Appellant also stated that he received information regarding making a claim only in XXXX 2013 when he became a resident of XXXX XXXX XXXX XXXXThe RPD noted that the Appellant had been living with his sister, who the Minister indicated was a successful refugee claimant in XXXX 2010. The RPD found it difficult to accept the Appellant would not have had conversations with his sister or have sought her advice regarding filing a claim. [16] The RPD cited the Federal Court decision in Garcia,3 in which the Court held a "delay in making a claim" is not a decisive factor in itself," but it is a "relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of the claimant". [17] The RPD found the Appellant's actions and inactions in attempting to regularize his status in Canada reflected a lack of subjective fear. The RPD further found the eight-year delay in filing a claim without a reasonable explanation went to the credibility of the Appellant. Other Credibility Issues [18] The RPD noted other issues of credibility as well. The RPD gave little weight to the Appellant's testimony concerning his effort to make a Humanitarian and Compassionate application as there was no corroborative record in this regard. The RPD also gave little weight to the Appellant's testimony concerning his experience with an immigration consultant as he offered no corroboration that he ever engaged a consultant. [19] The RPD found the Appellant's assertion that he knew nothing about the Canadian refugee system until just before his 2013 filing to be unreasonable. The RPD noted the Appellant had been living with his sister, who had been a successful claimant in 2010. [20] On the basis of its findings noted above, the RPD doubted the veracity of the Appellant's evidence, including with respect to the identity of the agent of persecution and the profile of the Appellant. The RPD further found that the central allegations in this case that the Appellant fears for his life because he is a gay man from St. Vincent were not true. [21] The Appellant submits the RPD did not consider the central issues of the claim, the Appellant's homosexuality, the fact that homosexuality is illegal in St. Vincent and the Grenadines, assaults by a family member, and the lack of help from the police. [22] The Appellant further submits if the RPD had considered the issues noted above, the issue of delay and lack of help from his sister would not have been issues. [23] The Appellant submits as well that the RPD's focus on the issue of the Humanitarian and Compassionate application is evidence of bias and failure to provide a fair hearing. The Appellant also submits that the RPD did not provide reasons why a refugee claimant would provide this application in support of his claim, as this was not evidence in support of the claim. The Appellant also submits the RPD provided no reasons to doubt the Appellant's explanation in this regard and also in regard to his experience with an immigration consultant. [24] The Appellant submits that the RPD failed to consider the relevant evidence concerning the sister with whom he stayed for a period of time when he arrived in Canada. The Appellant cites in this regard his Basis of Claim narrative (BoC), in which he stated that "My siblings stopped talking to me and started calling me names. After my sisters and brothers turned against me, I started getting more and more scared and isolated because now people had proof that I was gay and treated like garbage." [25] The Appellant further submits the reason his sister, XXXX, would provide bad advice and suggest the Appellant seek to remain in Canada on a temporary basis is in the narrative as noted above, and because she hates the Appellant. The Appellant submits as well she kicked him out and required him to go to a homeless shelter. [26] The Appellant submits the RPD failed to consider the psychological report in the RPD record. The Appellant notes in this regard the report's indication of a number of concerns that constrain his functioning in society as a result of XXXX XXXX XXXX. [27] The Appellant cites a number of Federal Court decisions concerning the Board's apparent overlooking of evidence and its failure to comment on important or relevant material evidence. The Appellant submits in this regard the RPD's failure to mention or consider the psychological report he disclosed, and as well the RPD's failure to provide a substantive analysis of the central issues in this case, the Appellant's homosexuality and the circumstances in this regard in St. Vincent and the Grenadines. [28] The RAD finds that it was open to the RPD to draw a negative inference from the Appellant's eight-year delay in making a refugee claim. The RAD further finds it was open to the RPD to request some corroboration over such a long period concerning the Appellant's alleged efforts to regularize his status in Canada. The RAD notes in this regard that the Appellant testified he attempted to make a Humanitarian and Compassionate application on his own but he did not complete the documentation and he lacked financial resources. The RAD finds the Appellant's efforts in this regard reflect some ability to access information from Canadian government sources. [29] The RAD finds no evidence of bias in the RPD's consideration of the alleged Humanitarian and Compassionate application. The Appellant provided testimony in this regard as evidence of his effort to regularize his status in Canada. As noted above, the RAD has found it was open to the RPD to seek some corroboration of this effort in the context of an eight-year delay in filing a refugee claim. [30] In regard to the Appellant's sister as a source of information concerning a refugee claim, the RAD notes the Appellant's BoC deals with his family members in St. Vincent and the Grenadines as agents of harm, and not with his sisters in Canada. The RAD further notes his sister, XXXX, who allegedly told him to extend his temporary stay, was not the sister he stayed with when he arrived in Canada. This was his sister, XXXX XXXX who also sent him a ticket to come to Canada. The RAD finds it was open to the RPD to find that the Appellant should have been able to obtain information from XXXX regarding a refugee claim while he lived with her. [31] The RAD notes that the RPD failed to comment on the psychological report. While the report emphasizes issues of XXXX XXXX XXXX, which are commonly experienced by those involved in a stressful refugee claim, the Federal Court, in Czonka,4 has stated that the failure of a tribunal to mention and consider a psychological report where credibility was the central issue is an error warranting the setting aside of the matter. [32] The RAD further notes that the RPD based its determination regarding this claim on the Appellant's long delay in making his claim and the credibility of his alleged efforts to regularize his status in Canada. It is clear that the Appellant's eight-year delay is egregious, and it was open to the RPD to find that it impacts on the credibility of the claim as a whole. However, the RPD failed to provide any analysis of the central issues in the Appellant's claim, his homosexuality, the fact that homosexuality is illegal in St. Vincent and the Grenadines, and the failure of the police to provide assistance. Rather, the RPD based its determination only on the long delay in making a claim even though the RPD cited Garcia in which the Court held a delay in making a claim is not a decisive factor itself. [33] The RAD finds the RPD erred in law in not considering the Appellant's psychological report, the evidence concerning his experiences in St. Vincent and the Grenadines, and the country document evidence in this regard disclosed by the Appellant. [34] The RAD has reviewed the supplemental submissions submitted by counsel in regard to recent Federal Court case law and has taken these submissions into consideration of this appeal. [35] The RAD has not seen or questioned the Appellant and, as there is no new evidence, the RAD is not able to conduct a hearing to address the concerns noted above. The RAD is therefore in no position to make its own findings on this refugee claim and the claim is therefore remitted to the RPD. DISPOSITION [36] Pursuant to section 111(1)(c) of IRPA, the RAD remits this matter to the RPD for redetermination by a differently-constituted panel. [37] The appeal is therefore allowed. (signed) 'Milton Israel' Milton Israel September 3, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 2 Newfoundland and Labrador Nurses' Union v. Ne3wfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12 3 Garcia v MCI, Near, 2012 FC 412 4 Czonka v MCI, Lemieux, 2001, FCT 915 at para 29 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04542