TB4-11943

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 : TB4-11943 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 2, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Savaglio 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 Pakistan, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] The Appellant did not submit documents to be considered as new evidence pursuant to s.110(4) of the Immigration and Refugee Protection Act (the Act or IRPA), and the Appellant did not request a hearing before the Refugee Appeal Division (RAD). [3] The Appellant requests that the RAD set aside the RPD's decision and accept her claim. In the alternative, the Appellant requests that this claim be referred back to the RPD to be re-heard by a differently constituted Panel. DETERMINATION [4] Pursuant to Section 111(a) of the Act, 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 Act. [5] This appeal is dismissed. Background: [6] The Appellant, a 76 year old widow, alleged before the RPD that her husband distributed his assets amongst their six children (three live in Pakistan, two in Canada and one in the UK) before he died. He also gave the Appellant two big houses. The Appellant was in Canada for five months and returned to Pakistan in May 2013. Upon her return to Pakistan, her children in Pakistan pressured her to transfer her properties in their names or else they will strangle her. She is afraid to return to Pakistan because she fears that her children might kill her. [7] Her claim was heard on October 23, 2014 and the RPD, by a written decision, dated November 13, 2014 rejected the claim and found that the Appellant is not credible and made up her story to seek health care in Canada. The Issues [8] The Appellant's issues are as follows: 1. What is the appropriate standard of review? 2. Did the RPD err in its credibility findings, and/or was its assessment of the Appellant's credibility, including the credibility of evidence adduced in support of her claim, unreasonable? 3. Based on the RAD's independent assessment of the RPD decision and the evidence adduced at the RPD hearing, is the Appellant a Convention refugee or a person in need of protection? [9] I will rephrase the Appellant's first issue as what is the appropriate role of the RAD, and her next two issues are rephrased 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? Role of the RAD: [10] I will rephrase the Appellant's first issue as - what is the role of the RAD in reviewing RPD's decisions. [11] The Appellant submits that the most recent Federal Court decision in Huruglica1 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 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". [12] I agree with the Appellant that guidance in Huruglica (above) is appropriate, and thus I will be guided by that decision, and arrive at my determination after a review of the totality of the evidence before me. [13] The Appellant's next two issues are considered jointly, as "did the RPD err in its credibility determination". Guided by Huruglica, I recognize and respect 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. After considering all the evidence, I find that the RPD did not err in its overall credibility determination, and I find that the Appellant is neither a Convention refugee nor a person in need of protection. I also considered whether the Appellant has rebutted the presumption of state protection as an alternative. [14] The RPD acknowledged that the presumption that testimony given under oath2 is truthful is rebuttable. In this case the RPD provided cogent and detailed reasons for its finding that the Appellant was not a credible witness. [15] The Appellant also submitted that "RPD's assessment of the medical note tendered by the Appellant was capricious and unreasonable" since the RPD panel is not a medical doctor. It is true that the panel is not a medical doctor. [16] The RPD assigned little probative value to the letter from the doctor,3 dated October 22, 2014. This letter reads as follows: "This letter has (sic) issued at her request to state that above patient is suffering multiple medical issues such as ischemic heart disease, recent myocardial infarction 2014 hypertension hyperlipidemia and memory loss as well as iron deficiency anemia". [17] The Panel noted that the medical note regarding the Appellant's health issues included loss of memory but the RPD found "The panel observed carefully the claimant during her testimony, and there was no evidence that the claimant suffers any memory loss and she was able to testify without hesitation. The RPD also noted that the medical note was issued the day before the hearing at the request of the claimant, and on the information provided by her to the doctor who signed the note. There was also no indication in the medical note that a diagnosis was made on the claimant's memory loss". [18] As the Honourable Justice Zinn stated in Ryan,4 "the trier of fact is simply saying the evidence that has been tendered does not have sufficient probative value, either on its own or coupled with the other tendered evidence, to establish, on the balance of probability, the fact for which it has been tendered". [19] The Appellant's daughter appeared as a witness who stated that the sole source of her information was the Appellant herself, yet her testimony contradicted her mother's testimony. [20] The Appellant testified that she was threatened by her children only once in May 2013 soon after her return to Pakistan; however, her daughter, the witness, testified that her mother was threatened four to five times (Audio recording at about 1 hour 10 minute mark). The Appellant submitted that "the RPD's assessment of the Appellant's credibility was unduly onerous, microscopic and unreasonable." The Appellant supported her statement above by submitting that the "RPD's requirement of corroborative documentation from the Appellant in circumstances where she was simply unable to obtain and tender same set an unduly onerous and, indeed, prohibitive standard of proof upon her". [21] The Appellant correctly submits that, in refugee law, corroboration, including documentary corroboration, is not an absolute requirement. The operative words in the previous sentence are "absolute requirement." [22] The Federal Court in Ryan5 stated: [19] Further, although there is a presumption that sworn evidence is true and cannot be undermined by a lack of corroborative evidence, there is an exception. The exception is triggered when a tribunal does not accept the applicant's explanation for failing to produce evidence when it would reasonably be expected to be available: Rojas v Canada (Minister of Citizenship and Immigration), 2011 FC 849 (CanLII) at para 6. ... [20] This was a valid concern. It is appropriate for an officer to weigh the lack of corroborative evidence if an applicant's explanation for failing to produce evidence that would reasonably be expected to be available is not accepted. ... [23] The central issue in the claim and this appeal is an alleged threat regarding ownership of two properties. The RPD is entitled to ask for corroborative evidence, consider explanation and arrive at its finding. I also note that the IRB provides clear instructions to claimants to provide documents that support their claim. For example, the Claimant's Guide states: "You must give the RPD documents that support your claim. Therefore, you should begin gathering evidence to support your claim as soon as possible." Moreover, the Basis of Claim form (BOC) states: "Attach two copies of all documents (identity, travel or other documents) that you have with you now to support your claim for refugee protection, including documents that are not genuine, documents that you got in an irregular or illegal way or by giving information that is not true, and documents you used that do not really belong to you." [24] The RPD expressed its concerns about lack of corroborative evidence, considered the Appellant's explanation that the ownership documents were with her son and found that her explanation was not reasonable. Therefore, I cannot find that the RPD erred in this case regarding the lack of key corroborative evidence that is reasonably expected and the RPD did not engage in a microscopic examination. In this case the Appellant, supported by her daughter who lives in Canada, was represented by an experienced counsel. [25] The RPD is required to explore the claim. A review of the audio recording of the hearing shows that the whole hearing including preliminaries, entry of evidence, very lengthy pauses and interpretation between English and Urdu; including questioning and submissions by the counsel lasted less than 1 hour and 37 minutes. This cannot be considered to be microscopic when the RPD considered several issues including credibility and state protection. I note that the RPD was awake to the profile of the Appellant and removed internal flight alternative as an issue, on its own, early on in the hearing. [26] Based on the foregoing, I find that the Appellant's allegation that "RPD's drawing of an adverse credibility inference from the lack of such corroborating documents was accordingly unreasonable" is not supportable. [27] The RPD panel is knowledgeable in making a determination about documentary evidence before it and the Appellant's testimony to make a credibility finding. The Federal Court in Diaz Serrato6 stated the following regarding medical reports: [22] Let us not forget that an expert report is a piece of evidence like any other; hence it was up to the RPD to decide how much weight it should be given. It is not for the expert to decide if the inconsistencies in the applicant's testimony could be excused by his Post Traumatic Stress Syndrome7. Having analyzed the evidence, the RPD found that there it was not a question of amnesia or forgetting incidents but of inconsistencies. In other words, the RPDfound that there was no relation between the syndrome found and the inconsistencies. So much then for the expertise even if the RPD could have commented on it in greater detail. [23] If, as it is obviously the case here, the RPD did consider the report, but did not believe that the psychological opinion expressed therein explained the inconsistencies, then the RPD was entitled to give it little or no weight (Min v. Canada (Minister of Citizenship and Immigration) 2004 FC 1676 (CanLII) at paragraph 6). [28] The RPD considered several other factors including major inconsistencies between the testimony of the Appellant and her witness; the fact that the Appellant continued to live for 11 months after the one alleged threat that was not followed by any physical action. More importantly, the RPD found that the alleged threat, if followed by physical action, (of killing the Appellant) would not benefit the alleged agents of persecution. The alleged threat, if followed by action, could, in fact, put the perpetrators behind bars for the murder of their mother. [29] While the Appellant's argument that the "reason she had come to Canada was to benefit from medical services in Canada, were highly speculative and essentially unsubstantiated findings" has some merit. However, the RPD noted that the timing of the events was rather curious. The Appellant, once she found that she needed expert attention regarding her heart issues, came to Canada, consulted a heart specialist, found out that it would cost $50,000, then shortly after that claimed protection and received needed health care including a heart operation at public expense. It might be coincidental and, even if the RPD erred, in my opinion, it is not fatal for the following reasons. In Pillai,8 The Honourable Mr. Justice Lemieux stated : [34] Justice Joyal put it this way in Miranda v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 437; 63 F.T.R. 81: For purposes of judicial review, however, it is my view that a Refugee Board decision must be interpreted as a whole. One might approach it with a pathologist'sscalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable ... I have now read through the transcript of the evidence before the Board and I have listened to arguments from both counsel. Although one may isolate one comment from the Board's decision and find some error therein, the error must nevertheless be material to the decision reached. And this is where I fail to find any kind of error. [30] In this case, the error of speculation on the part of the RPD is not material as the RPD's decision was supported by several other concerns. [31] Based on the foregoing, and considering the totality of evidence and direction by Huruglica to recognize and respect the RPD's credibility finding, I find that the Appellant is not a Convention refugee - the basic allegation is regarding greed and property and thus there is no nexus to the Convention. Moreover, the Appellant is not a person in need of protection as it is less than likely that she would face a risk to her life or the risk of cruel and unusual punishment and or torture. Therefore, this appeal is denied. STATE PROTECTION [32] I note that the RPD explored the issue of state protection but did not make a finding on this issue. The audio recording provides sufficient information to me to be able to make a finding. [33] It is trite law that there is a presumption that a state is capable of protecting its citizens except in situations where the state is in a state of complete breakdown. Absent an admission of the state's inability to protect, the claimant must provide clear and convincing evidence of the state's inability to protect that national. It is the Appellant who bears the burden of rebutting the presumption with clear and convincing evidence which establishes, on a balance of probabilities, that protection would not be adequate. [34] The Appellant must approach the state for protection, providing that state protection might be reasonably forthcoming. The Appellant cannot rebut the presumption in a functioning democracy only by asserting a subjective reluctance to engage the state. Moreover, doubting the effectiveness of the protection offered by the state when the Appellant has not really tested does not rebut the presumption of state protection. In a functioning democracy where the state is willing and able to provide a measure of protection, failure to pursue protection opportunities will be fatal to the claim unless there is a compelling explanation for the failure, even where those protective services have gaps or deficiencies. [35] Where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact it is not always successful at doing so will not be enough to justify a claim that the victims are unable to avail themselves of protection. The fact that state protection is not perfect does not constitute clear and convincing proof of the state's inability to protect its citizens, since no state can guarantee the protection of all its citizens at all times. Local failures to provide effective policing do not amount to a lack of state protection unless they are part of a broader pattern of the state's inability to provide protection. The burden on the claimant increases with the level of democracy of the state in question. The more democratic a state is, the more the claimant must have done to exhaust all course of action open to them to demonstrate state protection was or would not be forthcoming. [36] A claimant must show they have taken all reasonable steps in the circumstances to seek protection, taking into account the context of the country of origin, the steps taken, and the Appellant's interaction with the authorities. It is necessary to examine the nature of the human rights violation, the profile of the alleged abuser, the efforts the claimant took to seek protection, the response of the authorities to the efforts, and the available documentary evidence. [37] In this case the Appellant testified that she took no steps whatsoever to contact police or any state authority to complain about the alleged threat and, in explanation, testified (at 54:24 minute mark on the audio recording) that she cannot leave her house due to physical disability and cannot go to police all alone. The witness testified that "give money" to the police and one can do anything (1:09:10 mark), possibly implying that the police are corrupt. Counsel provided detailed submissions that the state protection should not be elusive and should be tangible. [38] In Osorio,9 a recent decision, the court stated: [5] As the Supreme Court of Canada stated in Canada (Attorney General) v Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689, refugee protection is meant to be a form of surrogate protection, invoked only in situations where a refugee claimant has unsuccessfully sought the protection of his home state (Ward, at para 18). This means that, absent a complete breakdown of the state apparatus, it is presumed that state protection is available for a refugee claimant and to rebut this presumption, the claimant must provide clear and convincing evidence of the state's inability or unwillingness to provide adequate - not perfect - protection (Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 (CanLII), at para 43 and 44; Carillo vCanada (Minister of Citizenship and Immigration), 2008 FCA 94 (CanLII), [2008] 4 FCR 636 at para 19; Ruszo v Canada (Minister of Citizenship and Immigration), 2013 FC 1004 (CanLII), at para 29; Salamon v Canada (Minister of Citizenship and Immigration), 2013 FC 582 (CanLII), at para 5; Ward, above at para 52). [39] The Appellant did not provide clear and convincing evidence that there is a complete breakdown of the state in Pakistan or that the state is unwilling or unable to provide her with protection. The Appellant obviously has recent health issues, yet she was able to return to Pakistan in May 2013 when the alleged threat took place. Moreover, despite serious health issues, she managed to make arrangements and travel from Pakistan to Canada. Thus her explanation that she could not go to the police station does not rebut the presumption. Moreover, there is no evidence of any attempt to call friends or neighbours for help to contact police. [40] I find that the Appellant did not rebut the presumption of state protection. Based on the foregoing, and a thorough review of the Record, I find that the Appellant is neither a Convention refugee nor a person in need of protection. Therefore, this appeal fails. CONCLUSION [41] 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. [42] The appeal is dismissed. (signed) 'Atam Uppal' Atam Uppal March 2, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 2 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.) 3 RPD-1, page 135 4 Ryan v. Canada (Citizenship and Immigration), 2012 FC 816 (CanLII) 5 Ryan v. Canada (Citizenship and Immigration), 2012 FC 816 (CanLII) 6 Diaz Serrato v. Canada (Citizenship and Immigration), 2009 FC 176 (CanLII) 7 In this case loss of memory stated in a brief note discussed in detail in the RPD's decision at paragraph 12. 8 Pillai v. Canada (Citizenship and Immigration), 2008 FC 1312 (CanLII) 9 Osorio v. Canada 2015 FC 20 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-11943