TB5-03994

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 : TB5-03994 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXX XXXXX a.k.a. XXXXX XXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 24, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ron Shacter 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX(the Appellant) (a.k.a. XXXX XXXX XXXX), a citizen of Somalia, 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 allow the appeal and to grant the Appellant refugee status or in the alternative, to send the claim back to the RPD to be heard by a different panel member. Should the RAD be unable to extend either remedy, the Appellant requests a hearing to explore the new evidence and the issue of credibility. 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 has suffered forced female genital mutilation (FGM), is a single female of a minority clan (the Asharaf) who fears the majority clan (the Habar Gidir) and the terrorist group, Al Shabaab. Greater details will be found in the Appellant's Basis of Claim1 (BOC) form and in her testimony given over a period of five sittings. [4] The Appellant's application for refugee protection was heard on December 9, 2013, March 11, 2014, April 15, 2014, August 8, 2014 and November 12, 2014. A written decision with reasons was handed down on March 30, 2015. That decision was a negative one based on many credibility issues identified throughout the decision. [5] The Appellant submits that the RPD erred in its assessment of the medical report2 submitted. [6] The Appellant submits that the RPD erred in its assessment of the interpretation issues raised by the Appellant during her RPD hearing. [7] The Appellant submits that the RPD erred in its assessment of the Appellant's use of her "fake name". [8] The Appellant submits that the RPD erred in its assessment of the Appellant's clan and religious identity. [9] The Appellant submits that the RPD erred by failing to consider the Appellant's risk profile. [10] The Appellant submits that the new evidence established the Appellant's credibility. Analysis Admissibility of Evidence Submitted on Appeal [11] 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. [12] 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. The Appellant has disclosed two pieces of evidence she wished to be accepted as new. [13] The first item is a statutory declaration sworn in Toronto by XXXX XXXX XXXX, on April 27, 2015. This affidavit speaks to the Appellant's identity. The author had not been aware of the Appellant's existence in Toronto prior to meeting her in March of 2015, but knew her and her family in Somalia. Even though the Appellant was unaware of Mr. XXXX and vice versa prior to the decision, this document does not qualify as new as it was reasonably obtainable prior to the decision. The Appellant met Mr. XXXX in March and the decision was not handed down by the RPD until March 30. According to the RPD rules, the Appellant could have submitted an application to submit post-hearing evidence. She did not nor did she provide an explanation for why this document was not available before the decision. The RAD will not accept this document as new evidence. [14] The second item disclosed is a report from a Registered Psychotherapist, XXXX XXXX, written on May 5, 2015 after an interview with the Appellant. The Appellant submits that this is new evidence because it was not reasonably available before the decision as the Appellant was not aware before the hearing that the panel had concerns regarding the initial medical/psychological report disclosed as exhibit 8 of the RPD's record. The RAD notes that the Appellant was represented at her hearing by counsel. The Appellant was obviously aware of the potential value of a psychological report as it was her evidence disclosed at hearing which was questioned by the panel. The fact that the report submitted originally was inadequate to support the claim does not give rise to the opportunity to find one "more adequate" and to have that submitted as "new" evidence. The choice of doctors or Psychotherapists was a choice made by the Appellant and/or her counsel. The content of that report was available to the Appellant before she had her hearing. It was the responsibility of the Appellant and/or her counsel to ensure that the evidence presented was what was needed. [15] The panel found that first report to be unsuitable for a number of reasons. First, there was limited information given to substantiate the qualifications of the author of the report.3 The author is neither a psychologist nor psychiatrist. There is no diagnosis made in the report. There are further issues identified as reason to give little weight to that report however, that does not mean that the Appellant can go out and get a better report in response to the weaknesses identified in her evidence and present it now. This new report could have been obtained prior to the rendering of the decision just as easily as it was afterwards. Such a report was reasonably available prior to the decision being rendered, therefore, this evidence fails the test of section 110 (4) of the IRPA. The second piece of evidence will not be allowed. [16] As there is no evidence in this particular case, the request for an oral hearing is denied in accordance with section 110 (6) of the Act. Role of the RAD [17] Counsel has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,4 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must 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 its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it 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 but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [18] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [19] The Appellant argues that the RPD erred in its assessment of the medical report5 submitted. The RAD has read the report and finds that the RPD's assessment is a good assessment. The Appellant, in her argument says "...the RPD ignored the fact that the doctor also made findings based on her own observations..."6 The RAD disagrees and reminds the Appellant of the Reasons and Decision where the panel clearly writes "...and the doctor confines herself to the comment that the claimant has demonstrated multiple symptoms of the conditions she mentions, rather than concluding that the claimant actually suffers from them." The RPD has shown (in the Reasons and Decison) by commenting on the observations made by the doctor in the medical report that the RPD has not ignored what the doctor has written in regards to the doctor's own observations. The Appellant submits that the RPD's reasoning is perverse because the report did not say that the Appellant's XXXX XXXX XXXX XXXX(XXXX), XXXX or XXXX affected her ability to testify. However, the Appellant has missed the point here. The RPD found that the report failed to diagnose the Appellant with any of those issues, saying only that she displayed symptoms of XXXX, etc. Further, the panel did acknowledge that the Appellant displayed such symptoms to the doctor, however, the panel noted that the doctor failed to relate any of these symptoms to the issue of the Appellant's testimonial inadequacy wherein she had been unable to provide in many cases, reasonable explanations or consistent explanations for the many credibility issues and discrepancies noted. The Appellant's argument that the RPD contradicted itself is not accepted by the RAD. The RPD simply wrote that it (the panel)was not qualified to dispute the observations of a doctor. That is a fact. A totally separate fact is that the report submitted to the RPD failed to answer the questions of the panel and is a fact that is in no way contradictory to the first one. The RAD noted that this medical report does not actually make a diagnosis of the Appellant. The reports speak to some symptoms which are displayed by the Appellant but it falls short of actually diagnosing her. The RAD notes further that the doctor who apparently assessed the Appellant does not indicate psychiatric qualifications or any other qualifications which may allow the RAD to attribute "expert" status to this disclosure. The RAD can find nothing in this medical report submitted for the hearing which would lead the RAD to give it any more weight than did the RPD. The RAD finds that the RPD did not miss-assess the medical report and the RPD was totally within its right to give that report the weight it gave. [20] The Appellant argues that the RPD erred in its assessment of the interpretation issues raised by the Appellant during her RPD hearing. The Appellant has consistently blamed interpretation issues for what the RPD cited as inconsistencies or contradictions between testimony and documentation. The Appellant argues that the fact that she was consistent in insisting that the errors were interpretation errors was not accepted by the panel is an egregious error especially when one considers that the US narrative, in which there are errors, was certified by legal intern and not by a lawyer. The panel found the inconsistencies and contradictions to be more reflective of an "evolving testimony" rather than of interpretation errors. [21] The appellant is correct in her assertion that her U.S. narrative was certified by a legal intern, however, she was represented by a lawyer in the U.S. and was represented by counsel in Canada at her hearings. The hearings began on December 9, 2013 and continued over five sittings until November 12, 2014, almost an entire year. It is a fact that not all of the credibility issues were identified in the first sitting, for sure. Therefore, the Appellant had ample time with counsel to set the record straight by submitting an amended narrative to reflect the story as she contends it was meant to be. Issues such as not referring to her husband as a husband but instead, according to testimony, referring to her husband as a "relative of her father" does not make sense. The Appellant claimed to have been given the money to flee Somalia by a relative of her father, in her Asylum Declaration7while in her Basis of Claim Form (BOC), the Appellant identified her husband as having given her the $9,000.00. When the panel asked about this inconsistency, the Appellant testified that her husband gave her $9,000.00, the local community donated about $150.00 and she had saved $2,000.00 selling tea. The Appellant testified that she thought that the inconsistency could be explained by the way different people asked her the question. The Appellant argues that her husband was a relative of her father so there really was no inconsistency there. The panel found that to be an issue as it would be very unlikely that a wife would refer to her husband as "a relative of her father" when identifying him, as opposed to, identifying him simply as "my husband". The RAD agrees and finds that in this case and the other inconsistencies, blaming them all on interpreters does not hold water. Again, if there were issues in interpretations, the Appellant had a great deal of time to submit a revised narrative, she had counsel at almost all the time while going through the system and cannot use interpretation as a reasonable excuse for all of the inconsistencies identified in the Reasons and Decision8 of the panel. [22] The Appellant argues that the RPD erred in its assessment of the Appellant's use of her "fake name". The Appellant argues that the panel cannot simply go looking for inconsistencies to build a case against a claimant. The RAD finds that the Appellant is in error when she refers to this "fake name" issue as the RPD looking for inconsistencies. This is a glaring issue. It did not require the RPD to go looking for it. The Appellant admitted to using a fake name in order to gain status in the U.S.A. and had she not been found out through a DNA test, would certainly have continued her claim under false pretenses. She then used the same alias when she made her Canadian claim. She argues that she wanted to be consistent, yet, when the Appellant affirmed to tell the truth at the hearing, she did so under her legitimate name, XXXX. The when asked by the RPD whether she had any other name, she responded that XXXX was the only name she had. The RPD held this against the Appellant and the Appellant believes this to be improper because it was only a misunderstanding of the question put to her by the panel and it is such a minor detail. The RAD disagrees with the Appellant. The question of the other name is not minor. Identity is a major issue in all refugee claims. If one cannot prove his or her identity, then it is likely that a claim will fail. Again, the RAD point out that this Appellant was represented by counsel throughout her five hearing dates and the onus is on the Appellant to ensure that she has presented her best evidence and testimony at those hearings. The Appellant argues that the RPD asked the Appellant "if she had any other name and she responded that (XXXX) was the only name she had"9and that the Appellant answered truthfully that she had no other name. The Appellant argues that this was a misunderstanding when the RPD inferred negative credibility there because the Appellant had used a fraudulent name previously. The RAD has listened to the recording of the hearings and would like to correct the Appellant. In the audio recording10the panel asked the Appellant "What is your full name?" This was answered by the Appellant as "XXXX XXXX XXXX". The panel then asked "Are you known by any other name?", this was responded to by the Appellant with a "No". The panel then asked "So, you are not known by any other name?" After the third question and great hesitation, the Appellant testified "that is the only name I have." The panel then asked "So who is XXXX XXXX XXXX? At this point, the Appellant began to explain how that name was given toher by a family in Kenya, and so on. The RAD finds that the RPD gave very direct questions on this matter and after three separate times finally had to confront the Appellant with the other name the Appellant had used before the Appellant admitted its usage. In listening to the audio recording, the RAD finds that there was no logical explanation given by the Appellant for her continuing use of the fraudulent name. She was asked whether she was known by any other name and denied that she was. [23] The RAD finds that the RPD did not err in its assessment of the use of the fraudulent name by the Appellant. The Appellant argues that the RPD erred in its assessment of the Appellant's clan and religious identity. The Appellant argues that she did not know of her natural clan affiliation (Ashraf) until her father was threatened (on or about 2003/12/8) as she grew up thinking she was a member of the Habar Gidir clan. The Appellant argues that this is a reasonable explanation for the fact that the Appellant was unable to answer some of the questions put to her by the panel in regard to the differences between the two clans. The Appellant must be reminded that in later testimony, during her April 2014 sitting, she testified that she was practicing the Ashraf form of religious practice, called "dikrae" as early as the year 2000, while her father was not threatened until very late in the year of 2003 (2003/12/10 according to the Appellant's BOC). This is another major inconsistency which the RAD finds to severely impact the credibility of the Appellant in regards to her identity. The RAD finds that the RPD did not err in its assessment regarding the Appellant's clan and religious identity but made reasonable findings based on the evidence before it. [24] The Appellant argues that the RPD erred by failing to consider the Appellant's risk profile. The RPD found that the Appellant failed to meet the burden of establishing her identity on a balance of probabilities and that her evidence lacked credibility in other material areas. As the RPD was not satisfied as to the Appellant's identity and therefore was under no obligation to consider risk factors. The RAD agrees with the RPD in this case. The RAD does not have sufficient evidence before it to determine whether the Appellant is a single woman, a married woman or a married woman separated from her spouse. The Appellant has failed to establish to the RAD's satisfaction that she belongs to any minority clan, or that she is a citizen of SomaliaDisposition [25] The RAD has found that the RPD decision will stand. CONCLUSION [26] 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) "David Lowe" David Lowe June 24, 2015 Date 1 Appellant's Record, at pp.30-40. 2 RPD's Record, Exhibit 8, at pp. 134-142. 3 Appellant's Record, Reasons and Decision, at p. 26, para. 49. 4 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799. 5 RPD's Record, Exhibit 8, at pp. 134-142. 6 Appellant's Record, Appellant's memorandum, at p. 103. 7 RPD's Record, Exhibit 5,at p.102, at para 52. 8 Appellant's Record, page 2-28 9 Appellant's Memorandum, page 109, line 1 and 2 10 Audio recording December 9, 2013, minute mark 42:05 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03994