TB4-03433

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 : TB4-03433 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Person(s) who is(are) the subject of the appeal 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 July 14, 2014 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard Wazana Barrister and 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 (de la) ministre Reasons and Decision [1] XXXX XXXX (the Appellant) appeals a negative decision of the Refugee Protection Division (RPD) dated March 18, 2014. The Appellant is submitting new evidence. The Appellant is not asking for an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to "allow this appeal and send the Appellant's claim back to the Refugee Protection Division in Toronto for a new hearing before a different Board Member, with the right of the Appellant to submit further disclosures." In the alternative, the RAD will also consider setting aside the negative determination and substitute a positive determination, namely, to accept the Appellant's claim for protection. DETERMINATION [2] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. BACKGROUND [3] The Appellant alleges she became aware that she was a lesbian at the age of 9. She realized she had feelings for women in XXXX 1979. She began a relationship to test her sexuality with a man in 1989 and became pregnant and gave birth to twin boys in XXXX 1990. Despite being with a man, gossip that she was a lesbian and threats continued. The Appellant went to the police station following the first incident to file a complaint, but the police did not take a statement. The Appellant faced numerous incidents of threats and harassment and termination of employment in Jamaica because of her sexual orientation from 1981 until she left Jamaica for Canada in XXXX XXXX, 2003. She disclosed to her brother in Canada that she was a lesbian. The Appellant alleges she continues to live a lesbian lifestyle in Canada. The Appellant states she cannot return to Jamaica because she will be persecuted, beaten, ridiculed and killed for being a lesbian. [4] The Appellant's application for refugee protection was heard on November 4, 2013. In written reasons dated March 18, 2014, the RPD rejected her claim, finding that the Appellant is neither a Convention refugee nor a person in need of protection. [5] In its reasons, the RPD made the following findings: 1) The RPD accepted that the Appellant is a citizen of Jamaica. 2) The RPD drew a negative inference from the Appellant's failure to claim in the United States (US) and her reavailment to Jamaica. The RPD found that her actions bring into question the Appellant's credibility. 3) The RPD did not find her explanation for her lengthy delay in claiming to be reasonable and finds her actions are indicative of a lack of subjective fear and draws a strong negative inference as to her credibility. [6] The Minister did not intervene in this appeal. [7] In the case at hand, the Appellant alleges: 1) The Board erred in its credibility findings. 2) The Board erred by ignoring evidence. 3) The Board erred with respect to the Appellant's subjective fear. STANDARD OF REVIEW [8] The Federal Court, in Iyamuremye,1 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, as per Dunsmuir.2 [9] The Appellant submits that all three issues are reviewable on a standard of reasonableness. The RAD disagrees. The Appellant alleges that the RPD made errors of law by ignoring the evidence and not taking into account all of the evidence presented including the documentary evidence and the explanations for concerns in her testimony. The correctness standard applies to the analysis of the alleged errors of law. [10] The Appellant also alleges the RPD erred when it made adverse credibility findings and erred in the assessment of the evidence. The RAD finds these errors deal with issues of fact and the RPD's treatment of the evidence before it. The appropriate standard of review on this issue is one of reasonableness. Admissibility of New Evidence Presented on Appeal [11] Section 110(4) of 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." [12] The following evidence was submitted by the Appellant to the RAD and must first meet the statutory test described above in order to be admissible: (a) An internet printout "confirming that the principal of XXXX XXXX is in fact the XXXX XXXX, the author of the email that she submitted to the Board. It was never disclosed to the Board because the Appellant never thought the evidence would be doubted as it was. I would submit that this is a reasonable explanation as to why this evidence was not before the Board and therefore meets the test under s. 110(4) of IRPA". [13] The information contained in the internet printout described in (a) predates and was available prior to November 4, 2013, the date of the hearing and prior to March 18, 2014, the date of the rendering of the reasons. There is no explanation why the Appellant would not or could not have reasonably been expected to have presented the internet printout at the time of the hearing or post hearing and prior to the rejection of the claim. [14] The Appellant, in her pleadings, did not indicate that the internet printout was not reasonably available at the time of the refugee determination hearing. The Appellant states that she never thought the evidence would be doubted as it was. The RAD finds this is not a reasonable explanation. The Appellant could have been expected to have presented the internet printout at the hearing. The RAD finds that it would have been reasonable for the Appellants to present the internet printout of the confirmation of the principal at the school in Jamaica at the time of the hearing. The RAD finds that it is not persuaded that it would not have been reasonable for the Appellant to have provided the internet printout, at the time of the hearing and before the negative determination. The RAD finds that the new evidence does not fall within the provision of Section 110(4) of IRPA. [15] For the reasons set out above, the internet printout is not admissible as new evidence. ANALYSIS OF THE MERITS OF THE APPEAL [16] As identified above, based on the evidence and pleadings in the appeal, the RAD focused on two issues in assessing this appeal: a) Did the RPD err in law in its treatment of the evidence before it (failure to consider the Appellant's explanation for delay, and failure to consider the totality of the evidence)? b) Did the RPD err in fact in its finding that the Appellant is not a lesbian? THE RPD'S DETERMINATIVE ISSUE [17] The determinative issues in the RPD's reasons were credibility and subjective fear. Ignoring Evidence Letters from Employers, Family and Friends [18] The Appellant submits that the Board erred by ignoring evidence. [19] The Appellant submits that the RPD failed to refer to her Basis of Claim (BoC) form narrative. The Appellant submitted a six-page, single-spaced narrative in support of her claim, and the RPD did not comment in the reasons, on her BoC. [20] The Appellant also submits the RPD concluded that, on a balance of probabilities, the Appellant had not submitted sufficient credible evidence to establish that she is a lesbian. As a result, the RPD saw no need to assess the merits of the claim. [21] The RPD took issue with the Appellant's explanations and some of her supporting documentation. [22] The Appellant, to support her argument, points to the Federal Court decision, in Ali,3 that states: While the Board is entitled to deference in its credibility findings, in this case the Board did not base those findings on inconsistencies or discrepancies in testimony, which the Board is best placed to assess. Instead, the Board based its findings solely on deficiencies in the supporting documentary evidence and alleged implausibilities, none of which in my view were supportable. The Board cannot find the applicant not credible just because the documents did not contain all the details the Board would have preferred, particularly where the Board has identified no inconsistencies in the applicant's evidence or between the applicant's evidence and the documents. Evidence which is not believed because it is fabricated, in the case of documentary evidence, or implausible in the case of oral evidence, is given no weight. Documentary evidence or oral testimony, on the other hand, which is accepted as authentic or truthful, may nonetheless be of sufficient probative value to establish a claim. It may leave the evidentiary burden undischarged. Here, the Board repeatedly confused the two concepts, drawing negative credibility findings about the applicant in respect of documents whose provenance or authenticity was not questioned. [23] The RAD notes, for example, the RPD made negative credibility findings on the 40th birthday card from her alleged girlfriend, but it fails to comment about the other documentation proffered to support their alleged relationship. The RPD gave little weight to the letters from the Appellant's employers and her school principal as corroborating evidence to support her allegations of mistreatment in Jamaica, but only took issue with the form of the letters, not their substance. The RAD finds the RPD's negative credibility finding from the Appellant's inconsistent evidence without a credible or reasonable explanation in support of her claim is not transparent, justified or reasonable. [24] The Appellant also provided letters from family members and friends in support of her claim.4 The RPD noted that these letters are all typed letters or emails as opposed to sworn statements. It is unclear to the RAD if the format was a factor in the RPD providing the letters little weight. It is not a prerequisite for claimants to provide sworn statements as supporting documents. However, in this case, the RPD did not question the authenticity of the letters; instead, it rejected them and gave them little weight, as they found the supporting letters did not overcome the credibility concerns in the Appellant's own testimony and actions. The RPD may be referring to the Appellant's delay and reavailment; however, it is unclear to the RAD regarding the actions the RPD is referring to in its reasons. Therefore, the RAD finds the RPD applying little weight to the supporting letters is not transparent and, therefore, unreasonable. [25] The Appellant argues the law is clear: the Board cannot ignore relevant evidence and make negative credibility findings against a claimant. This Court reiterated this principle in Kabongo,5 where the Board did not believe the applicant's story but failed to give any weight to an arrest warrant: The Board cannot find the applicant's testimony not credible without consideration of relevant corroborative evidence, and then subsequently reject the supporting evidence because of the credibility finding. [26] The Appellant submits that, in this case, the Board has similarly erred. [27] Moreover, it is well established that corroborative evidence is only required if the Board has credibility concerns arising from the Appellant's testimony or BoC. Yet, in this case, the Board did not raise any credibility concerns with respect to the BoC. The credibility concerns only arise out of the corroborative evidence. [28] The RPD is not required to refer to each and every piece of documentary evidence before it. However, the more important the evidence not specifically mentioned and analyzed in the Board's reasons, the more willing the Federal Court is to find that the RPD made an erroneous finding of fact without regard to the evidence,6 and the same reasoning seems applicable to the RAD's review of the RPD's reasons. [29] In the RAD's view, when the RPD reaches a conclusion that is related to or contradicted by a particular document, the RPD should explain its reasons for giving little or no weight to that evidence. The letters from the Appellant's family members and friends corroborate some of the evidence put forth by the Appellant. The RAD finds the RPD applying little weight because they do not overcome credibility concerns in the Appellant's own testimony and actions is not transparent and, therefore, is unreasonable. Objective Evidence [30] The Appellant submits that the RPD erred by ignoring objective evidence that supported the well-foundedness of her fear of returning to Jamaica. The Appellant submits that the RPD did not consider the objective documentary evidence, which strongly supported the Appellant's subjective fear of returning to Jamaica. [31] The Appellant argues that there is nothing in the Appellant's BoC narrative or in her testimony of incidents in Jamaica that sheds any doubt on her credibility. [32] The Appellant states that it is well established that the Appellant's testimony is presumed to be true unless proven otherwise. The RAD accepts this argument. [33] The RPD found the Appellant has not provided sufficient credible evidence to establish her sexual orientation as a lesbian, on a balance of probabilities. The RPD found that the Appellant has not established, on a balance or probabilities, the factual basis for her fear that she would be persecuted or harmed in Jamaica. The RAD notes that there is no indication that the RPD challenged any inconsistencies or omissions in the evidence presented in the BoC. Given the lack of a clear finding related to the Appellant's allegations of mistreatment in Jamaica and a lack of state protection, it is assumed that the RPD accepted these allegations as truthful, including the Appellant's allegations that she was denied state protection on the two occasions when she reported the mistreatment to the police. Therefore, the evidence in the BoC is presumed to be true. The RPD cannot make negative credibility findings with respect to the Appellant's sexual orientation or her fears in Jamaica without addressing the totality of the evidence. As such, the RPD erred by ignoring the evidence with regard to the Appellant's subjective fear. Letters from the XXXX XXXX XXXX [34] The Appellant provided a letter7 from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in support of her claim. The RPD notes that the Appellant had been living in Canada since 2003, and it was not until XXXX 2013, just prior to filing of her refugee claim, that she became involved with the XXXX. The Appellant's explanation for this delay was that she joined after a friend had told her about it, the same friend from whom she learned of the refugee claim process in Canada. The RPD notes the letter states that the Appellant regularly attended a support group two months prior to the date of the letter and that anyone can join the programming at the XXXX. The RPD gave little weight towards establishing the Appellant's identity as a lesbian. The RAD notes that attendance at the XXXX does not confirm or deny the sexual orientation of the Appellant. The RAD finds the RPD reasonably placed little weight on the Appellant's evidence from the XXXX XXXX XXXX in support of being a lesbian in Toronto. Failure to claim in the US [35] The Appellant submits that the RPD dismissed her explanations for her failure to claim in the US without any reason. [36] The Appellant points to the decision of Federal Court, in Hidalgo,8 that states: While the failure of an applicant to seek protection elsewhere may indeed provide a basis for a finding of a lack of subjective fear, the Board's finding in this case was unreasonable. Ms. XXXX explained why she did not make a refugee claim in the United States. The Board seemingly accepted her explanation as truthful, but nevertheless found it to be "inconsistent with a well-founded fear of persecution. [37] The RAD notes the evidence that was before the RPD and not part of the RPD analysis in the reasons was that she did not know anyone in the United States, and she travelled to Canada to reside with her brother. She also alleges her brother accepted that she was a lesbian. There is no persuasive evidence before the RAD to show the RPD considered this evidence in making a negative credibility finding with regard to the Appellant's failure to claim for protection in the US. Therefore, the RAD finds the negative credibility finding in this regard is unreasonable, as it was speculative and unsupported by the evidence. [38] The Appellant also submits that the RPD failed to consider the psychological report. [39] The RAD notes that the RPD addressed the psychological report;9 however, there is no indication in the RPD's reasons that the Appellant's psychological condition was considered when her explanations were assessed. The RAD finds the RPD erred in its treatment of the Appellant's psychological assessment with respect to the RPD's credibility findings.10 SUMMARY [40] The Appellant contests other findings of the RPD, such as the RPD conflated the sufficiency of the corroborative evidence with the veracity of the evidence, and they did not refer to any objective documentary evidence of country conditions for the LGBT community in Jamaica nor the objective evidence which substantiates her subjective fear and which she alleges is unanimously in her favour. It is not necessary for the RAD to deal with further issues, as the RPD's findings above are sufficient to allow this appeal. [41] Once the RPD's unreasonable conclusions are removed, there is insufficient evidence for the RAD to make its own determination. The RAD has not seen or questioned the Appellant and is therefore in no position to make its own credibility finding on her refugee claim. The Appellant's new evidence was inadmissible, and therefore any substituted decision would have to rely on evidence that was already presented to the RPD. For these reasons, the RAD cannot substitute its own determination for that of the RPD, and it cannot find the Appellant to be a Convention refugee or a person in need of protection. As such, the RAD finds that the only remedy available is to refer the matter back to the RPD for redetermination. DISPOSITION [42] The RAD did not have sufficient evidence before it upon which to confirm the determination on alternate grounds or to render a positive determination. As such, the RAD directs the mater back to the RPD for redetermination by a differently-constituted panel, as per Section 111(1)(c) of IRPA. The appeal is allowed. (signed) "C. Forbes" C. Forbes July 14, 2014 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at para. 47. 3 Ali, Iftikhar v. M.C.I. (F.C., no. IMM-5800-11), Rennie, February 24, 2012; 2012 FC 259, at paragraphs 13-16. 4 RPD's record, Exhibits 7 and 9. 5 Kabongo, Johnson Moli Tshibola v. M.C.I. (F.C., no. IMM-5355-11), Rennie, March 19, 2012; 2012 FC 313, at paragraph 11. 6 Dessie, Worku v. M.C.I. (F.C., no. IMM-3927-11), Mactavish, December 19, 2011; 2011 FC 1497, para. 7-8. 7 RPD's record, Exhibit 9, p. 14. 8 Hidalgo Tranquino, Claudia Isabel v. M.C.I. (F.C., no. IMM-86-10), Mactavish, July 29, 2010; 2010 FC 793, at paragraphs 6-7. 9 RPD's reasons, paragraphs 8 and 9. 10 RPD's record, Exhibit 5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03433