TB4-12525

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 : TB4-12525 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXXXX (a.k.a. XXXXXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 11, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Nicholas Omere 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] XXXXXXX (the Appellant), a citizen of Ghana, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] The Appellant submitted documents to be considered as new evidence pursuant to s.110(4) of the Immigration and Refugee Protection Act (the Act or IRPA) in support of her appeal. However, the Appellant did not request a hearing before the Refugee Appeal Division (RAD) pursuant to section 110 (6) of the Act. [3] The Appellant requests that the RAD set aside the RPD's decision and remit the matter back to the RPD for redetermination. In the alternative, the Appellant requests that the RAD grant any other order that the Division deems reasonable and expedient having regard to the peculiar facts and circumstances of this case. DETERMINATION [4] Pursuant to Section 111(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 (CR) nor a person in need of protection pursuant to sections 96 and 97(1) of the IRPA. [5] This appeal is dismissed. Background: [6] The Appellant alleged before the RPD that her husband's family members want to carry out female circumcision (female genital mutilation) on her infant daughter who was born in Canada on XXX, 2014. The Appellant and her husband oppose this practice. The Appellant is afraid that she would personally face serious harm, torture or death due to her opposition to this practice. The Appellant's husband remains in Ghana and he does not believe that he could protect his wife or daughter in these circumstances. The Appellant also alleged that all female family members of her husband have undergone this procedure and her father-in-law in particular wishes to preserve this custom. [7] The Appellant is of the belief that the police would not assist her if her daughter, a Canadian citizen, were to be kidnapped by her husband's family members for FGM procedure. [8] The claimant arrived in Canada in April 2014 shortly before the birth of her daughter and made an inland claim for refugee protection in August 2014. Her claim was heard on October 28, 2014 and the RPD rejected the claim and found that the Appellant is not credible and that the Appellant has not rebutted the presumption of state protection. New Documents on Appeal. [9] The Appellant submitted three brief medical notes from a hospital in Ghana pursuant to section 110(4) of the Act. [10] Section 110(4) of IRPA provides that an Appellant may present only evidence that arose after the rejection of his or her claim or that was not reasonably available, or that he or she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [11] The four brief medical notes are all issued on the same day and have exactly the same wording except for the names of the person and read as follows: .... reported at the Ga West Municipal Hospital on the XX 2014. Of which Physical Examination was conducted and part of the findings showed that the Clitoris has being Mutilated with libia majora and libia minora intact leaving a little scaring there. [12] These documents do not contain any new information that arose after the rejection of the claim by the RPD. Therefore, I am not satisfied that these documents meet the express statutory conditions of the Act and therefore they are rejected as new evidence. [13] I also have serious concerns about the credibility of these documents because the author of these documents, allegedly a doctor, misspelled even the basic names of the body parts including libia majora and libia minora. [14] I also note the Appellant testified that her husband's sisters do not wish to go to the hospital to verify that they have undergone FGM as the police will be informed and her father-in-law will get arrested (starting at 1 hour 9 minutes in audio recording). The Appellant further added that the father-in-law will eventually be released after paying a bribe but they do not want to go through. The Appellant repeated that medical report "has to (be) back(ed) up with police report." (at 1hr 12 minute mark). Yet the Appellant manages to provide a report from the doctor but there is no evidence that police were involved or that her father-in-law was arrested. Based on the foregoing, I have serious concerns about the credibility of the documents. [15] I also note that these documents are not material because they did not indicate that the female genital mutilation was forced upon them by the Appellant's father-in-law. [16] Therefore these documents are not accepted as new evidence. Since there is no new evidence, the appeal is heard on the basis of the record. The Issues [17] The Appellant's issues are as follows: 1. Did the Panel Member err in rejecting the Appellant's entire claim on the basis of an unreasonable plausibility finding? 2. Did the Panel Member err in finding that the Appellant is not a Convention Refugee or a person in need of protection. [18] I will rephrase the Appellant's issues as "did the RPD err in its credibility analysis and if so, is the Appellant a Convention refugee or a person in need of protection" by rebutting the state protection presumption? Role of the RAD: [19] The Appellant submitted that the RAD does not need to defer to the findings of the RPD, and citing Huruglica1 submits that the RAD 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. [20] The Federal Court in Huruglica2 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. [551 In conducting its assessment, it can recognize and respect the conclusion or 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". [21] Guided by Huruglica (above), I will arrive at my determination after a review of the totality of the evidence before me while recognizing and respecting the RPD's credibility findings where it enjoys a particular advantage. In considering the RPD's findings, I also heard the audio recording of the hearing. [22] In refugee claims, there is rebuttable presumption that testimony given under oath3 is truthful. The Federal Court of Appeal, in Dan-Ash,4 states that the presumption of truthfulness may be rebutted by the existence of contradictions in the evidence presented by the claimant and that it is a valid basis for a finding of lack of credibility. [23] In this case, the RPD found that the Appellant is not a credible witness based on contradictions that were put to the Appellant; the RPD considered the explanation and found the explanation unreasonable. [24] The Appellant takes exception to the RPD statement regarding an alleged call from the Appellant's cousin informing her that her father-in-law wants to have the Appellant's daughter undergo FGM. The RPD found the inconsistency regarding the date of this call. The Appellant testified that her cousin contacted her on June 4, however the affidavit from her cousin indicates that this confrontation took place on July 1, 2014. [25] The Appellant submits that "alleged inconsistencies of dates were perverse as they did not meaningfully address elements of the evidence and were made capriciously and in disregard of the evidence before the RPD. In particular, the Appellant submits that, "it was not the Appellant's testimony at the hearing that her cousin contacted her on June the 4th as erroneously stated by the BM (Board Member) in the reasons for decisions, rather the Appellant said that her cousin contacted her on June 1st regarding the in-laws confrontation at her auntie's home in Ghana". [26] I have heard the audio recording of the hearing and find that the Appellant is mistaken. The Appellant clearly testified that the alleged call was on June 4, 2014 (at 58:43 minute mark in the audio recording of the hearing). The RPD cannot be found to have erred in this respect. [27] Moreover, her narrative states that her father-in-law called her on June 28; however, the Appellant testified that he called her on July 28, 2014 (at 1hr 3:30 minute mark). [28] The Appellant's whole story is based on two alleged and calls from Ghana, both recent at the time of the hearing and yet the Appellant provided contradictory information. The Appellant is a well-educated person who was represented by an experienced counsel. I also note that the RPD put the contradictions to the Appellant and found the explanation less that reasonable. [29] The Appellant submits that the RPD "unreasonably ignored the Appellant's sworn testimony at the hearing that she indeed has a short-term memory challenge which was giving her difficulty with dates and figures." The RPD acknowledged the presence of a psychiatric report, however the RPD stated "I nevertheless find that the claimant did not adequately explain these discrepancies given their recent occurrence and the importance of these events allegedly her counsel urged her to get help of the psychologist and to make her claim for refugee protection". I cannot find that the RPD ignored the report, however it was open to the RPD to assign the weight it considered appropriate. It is the RPD's responsibility to determine whether the Appellants are credible, and the RPD is not required to defer to a psychologist's report when making findings of fact in respect to alleged past persecution. [30] A psychological report presented by a refugee claimant does not serve to prove the alleged persecution suffered in the past or future persecution. Such reports may establish that the Appellant suffers from a condition or exhibits symptoms that are consistent with the alleged trauma. Further, a psychological report might assist the RPD in conducting the hearing in an appropriately sensitive manner or to consider whether apparent credibility problems are, instead, the result of a psychological condition. [31] The Federal Court in Mico5 stated: "Just because a patient is suffering from psychological problems and manifests symptoms associated with those problems does not mean that the patient's account of past persecution as the cause of those problems can be believed." The RPD noted in its reasons, "Having reviewed Dr. XX's report, I find that there is nothing in the document to suggest that the psychologist independently verified any of the allegations reported by the Appellant". I find that the RPD's finding is supportable. [32] I am aware that the Federal Court6 has accepted that a claimant's inconsistency in recollecting specific dates may well be peripheral to the central issues in the case at hand. However, in this case, the whole basis of the claim is based on two calls; first, a call about an alleged argument in the family and, second, another alleged call from her father-in-law. This was not a case of historic persecution. [33] The RPD questioned the Appellant about her husband; the RAD finds him to be a similarly situated person because he also is against FGM practice allegedly dear to her father-in-law. No harm has happened to him. [34] I also note that the Appellant arrived in Canada in April, a few weeks before she gave birth to her child on XX, 2014. She arrived without her husband or any other support and gave birth in Canada to a girl. It begs questions - did she know that she was pregnant with a girl; did she know of her father-in-law's desire to force her grandchild to undergo FGM? These issues were not put to the Appellant and thus the RAD is not going to speculate on these but notes that the timing is rather curious. [35] The Appellant was asked by the RPD reasons for her inability to provide any evidence of her husband's sister's and their daughter having undergone forced FGM. The RPD asked for corroborative evidence documents because of his concerns about the Appellant's credibility. The RPD thus did not err in asking for these documents. The documents in the form of medical reports were submitted on appeal and were not accepted into evidence for the reasons given above. However, I note that the Appellant's husband in his affidavit on appeal (to introduce medical documents mentioned above) makes no reference to any difficulties or police involvement in getting the documents from the hospital or his father getting arrested as the Appellant had testified at the hearing. [36] Based on the foregoing, I find that the RPD's credibility determination is supportable. Moreover, guided by Huruglica, I recognize and respect the RPD's credibility findings where it has particular advantage. [37] Having considered the totality of the evidence before me, I find that the Appellant is neither a Convention refugee nor a person in need of protection. Therefore, the RAD confirmed the RPD's determination. Alternate Analysis - State Protection: [38] The RPD also considered state protection. It is trite law that the burden is on the Appellant to provide clear and convincing evidence that the state is either unable or unwilling to provide adequate protection to the Appellant. [39] The RPD's stated in its reasons, "I cannot find on a balance of probabilities the police in Ghana would be indifferent to the issue of her child -- the claimant's child being forced to undergo this procedure as the claimant has alleged". [40] The RPD also found that "the authorities in Ghana are committed to eradicate the harmful tradition of FGM and efforts have had concrete results". (emphasis added) [41] I note that the RPD considered contradictory evidence that the police have high levels of corruption. The RPD also considered the particular situation of the Appellant in its state protection analysis. I would have preferred to see a more detailed analysis on the issue of effectiveness of the state's efforts to eradicate the heinous practice of the female genital mutilation; however, even though the RPD's analysis is rather brief, it is supportable. [42] I note that RPD correctly identified that this practice was outlawed in 1994. I also note that the government strengthened its efforts by ratifying the Maputo Protocol of 2007. In addition to the above, the Ghana Domestic Violence Act of 2007 provides protective orders for women juveniles. [43] The effectiveness of the government's efforts to curb this practice become more apparent when one considers the percentage of persons who have undergone the FGM procedure by age groups. The World Health Organization states that 3.8% of the females have undergone this procedure; however, when it is broken down by age groups,7 age group 15 to 19 years, shows the 1.4% of persons underwent FGM. Moreover, the documentary evidence also shows this practice is more prevalent in rural area (5.7%) vs. only 1.7% in urban areas. [44] Based on the foregoing, I find that, while the RPD could have provided some more details on state protection, the state of Ghana is able to provide adequate protection for the Appellant (and her Canadian-born minor daughter) and the state's efforts to eradicate the heinous practice of FGM are effective. [45] The Appellant also submits that the RPD did not conduct a thorough section 97 analysis. In this case there is no need to conduct a separate section 97 analysis because the RPD correctly identified that there is a nexus to the Convention and that the Appellant was found to be not credible and the Appellant did not rebut the presumption state protection. The Appellant is a young highly-educated person and has the support of her husband. [46] Based on the foregoing and a thorough review of the Record, I find that the RPD did not err in its credibility finding and that the Appellant has not rebutted the presumption of state protection with clear and convincing evidence. I find that the Appellant is neither a Convention refugee nor a person in need of protection. Therefore, this appeal fails. Conclusion: [47] Pursuant to subsection 111(1)(a) of IRPA, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [48] The appeal is therefore dismissed. (signed) 'Atam Uppal' Atam Uppal March 11, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799 3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.) 4 Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 (F.C.A.). 5 Mico, Aleksander v. M.C.I. (F.C., no. IMM-6477-10), Russell, July 29, 2011, 2011 FC 964 6 Adegbola, Victoria Bosede v. M.C.I. (F.C., no. IMM-3758-06), O'Keefe, May 14, 2007, 2007 FC 511,at para 33 7 RPD-1, National Documentation Package, Ghana, item 5.4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-12525