Docket: IMM-7565-14
Citation:
2015 FC 888
Ottawa, Ontario, July 21, 2015
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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RODRIGUEZ
TORRES, DAYSI
(A.K.A.
RODRIGUEZ TORRES, DAYSY)
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee
Board of Canada, dated October 10, 2014, in which the RAD confirmed the finding
of the Refugee Protection Division (RPD) that the Applicant is neither a
Convention refugee nor a person in need of protection pursuant to s 96 or s 97,
respectively, of the Immigration and Refugee Protection Act, SC 2001, c
27 [IRPA].
[2]
Having reviewed the materials filed and heard
the submissions of counsel for the parties, this application is denied.
[3]
The Applicant, Daysi Rodriguez Torres, is a
citizen of Cuba. The Applicant claims that she was employed at a school in
Havana and became involved in a play which protested the poor living conditions
of the students at the school. As a result, she was considered to be
politically unreliable, her employment was terminated and she was sought and
harassed by the authorities.
[4]
On April 26, 2013 she entered Canada with her mother
on a temporary resident visa that she obtained using an employment letter in
support of her application, and stayed with her aunt who sponsored her
application. Her mother returned to Cuba in July 2013. The Applicant remained
in Canada and sought refugee protection in October 2013 claiming that she fears
returning to Cuba because she will continue to be harassed by the authorities,
kept under surveillance, and will not have the right to work or study.
[5]
The RPD, in its decision dated May 30, 2014,
found that the Applicant had not demonstrated on the balance of probabilities
with credible and trustworthy evidence, that she was involved in the protest
play or that she was subsequently targeted by state authorities. The RPD also
found that there remained no residual profile sufficient to support her claim.
[6]
The RPD found that the Applicant was evasive in
her responses to questions about her involvement in the protest play and
inconsistent with her narrative. Further, although the Applicant claimed that
as a result of participating in the play she had been dismissed from her
employment in March 2013, she provided a letter of employment from her former
employer to the Canadian Embassy in support of her April 2013 visa application.
She explained that the letter of employment was not genuine in the sense that
she was no longer employed there, and that her friend had facilitated the
obtaining of the letter for which she had paid. The RPD found that her
explanation as to whether she was dismissed or employed was not credible as it
too contained inconsistencies. Specifically, that the Applicant had claimed
that her friend had given her the employment letter in March 2013, but also
that he had left Cuba within a month of the protest play, which would have been
November 2012, because he too was having difficulties with the Cuban
authorities. When confronted with this, she stated that she had been mistaken
due to nervousness, and that it was her friend’s mother who had hand-delivered
the employment letter to her. However, the RPD noted that neither event was in
harmony with her narrative which suggested that her friend’s involvement was
limited to putting her in touch with someone who obtained a false employment
letter for her. Based on these inconsistencies, the RPD found that it was more
likely than not that the Applicant was working at the school when she made her
visa application and had not been involved in a protest play or dismissed from
her employment as a result.
[7]
The RPD also noted a material omission in her
amended narrative arising from her testimony, concerning two students who had
been involved with the play and had been forced to leave Cuba. It also did not
accept as reliable an undated letter of support from her friend, now in Chile,
corroborating her account of her employment and her role in the play, because
the Applicant’s allegation of this friend having provided a false letter of
employment for her visa application undermined the reliability of the letter. In
addition, the Applicant had given inconsistent testimony as to when her friend
left Cuba, and the RPD found that this lack of knowledge about when he left
undermined her allegation that he underwent experiences similar to her that
forced him to leave.
[8]
The RPD gave no weight to her undated letter of
dismissal because it had found her explanation that the conflicting employment
letter was false was not credible, and because the dismissal letter was undated
and did not state when she was dismissed.
[9]
The RPD also had concerns about the fact that
although the Applicant had arrived in Canada in April 2013, she did not make
her claim for protection until October 2013. It did not accept her explanation
for the delay, being that her aunt who sponsored her visa application was
afraid that she would have problems if the Applicant were to make such a claim,
and that it was only after her aunt was assured by a lawyer that this would not
be the case was the Applicant able to make her claim. The RPD found this
explanation not to be credible as it did not align with her allegation that her
life would be in danger if she returned to Cuba and noted that she did not call
her aunt as a witness to address the delay. The RPD also noted that the
Applicant had made two prior unsuccessful attempts in 2009 and 2010 to acquire
a temporary resident visa to enter Canada.
[10]
Finally the RPD noted that the Applicant feared
only the Cuban state and had no other reason for fearing return, and thus there
was no residual profile sufficient to support her claim.
[11]
In her appeal of the RPD decision before the
RAD, the Applicant submitted that the RPD erred in its assessment of her
credibility. She also asked the RAD to accept new evidence in support of her
appeal. The RAD reviewed the test for the admission of new evidence in s 110(4)
of the IRPA and found that even when a document meets the s 110(4) test, this
did not require the RAD to admit it into evidence without further
consideration. The RAD found that the factors in Raza v Canada (Minister of
Citizenship and Immigration), 2007 FCA 385 paras 13-15 [Raza] should
be considered in assessing the admissibility of the four items of proposed new
evidence (Iyamuremye v Canada (Minister of Immigration and Citizenship),
2014 FC 494 at para 45).
[12]
The first item of new evidence was a new letter
from the Applicant’s mother dated June 12, 2014. This repeated the allegations
made in the Applicant’s refugee claim but also stated that her mother paid
money to the Applicant’s former supervisor at the school where she had worked
to obtain the dismissal letter. Based on Raza, the RAD noted that a
document’s “newness” cannot be tested solely by
its date of creation; rather, what is important is the event or circumstances
sought to be proved by the evidence. The RAD found that although the letter
from the Applicant’s mother was dated after the RPD hearing, its content
pre-dated that rejection. As the Applicant had provided the dismissal letter to
the RPD, her mother’s actions taken to obtain it had to have occurred prior to
the RPD’s rejection. Therefore, the RAD found that the Applicant could
reasonably have been expected to have provided her mother’s explanation to the
RPD. Instead, she waited to see if the RPD would accept the untruthful
explanation. The letter was found to be inadmissible as new evidence.
[13]
As the Applicant has not, in this judicial
review, challenged the RAD’s findings that the other three new documents were
also inadmissible, its reasoning need not be addressed here. However, it is of
note that the fourth document was a statutory declaration of the Applicant
dated July 10, 2014 in which the Applicant admitted to misrepresenting to the
RPD the date of her dismissal from employment. She was actually dismissed in
2011, not 2012, and claimed that she misrepresented this for fear of being
faulted for her delay in leaving Cuba. She also admitted that she had
misrepresented how she obtained the employment letter for purposes of her visa
application. The RAD noted that the misrepresentations were not raised until
the Applicant learned that they had not convinced the RPD to accept her claim,
and only then did she raise them on appeal.
[14]
The Applicant submitted before the RAD that it
should follow Huruglica v Canada (Minister of Citizenship and Immigration),
2014 FC 799 [Huruglica] and conduct an independent assessment of the
evidence in the RPD record. The RAD noted that in Huruglica, the Court
determined that the RAD is to conduct a hybrid appeal. Therefore, the RAD
should review all aspects of the RPD’s decision and come to an independent
assessment of the Applicant’s refugee claim, deferring to the RPD only where it
enjoys a particular advantage in reaching a conclusion. Where the RAD’s
assessment departs from that of the RPD, the RAD must substitute its own
determination.
[15]
As to the Applicant’s assertion that the RPD
erred in rejecting her claim on the basis of credibility, the RAD considered
the RPD’s treatment of the dismissal letter and the Applicant’s assertions that
the existence of other credibility concerns did not permit the RPD to give the
letter no weight. The RAD also noted the Applicant’s submission that the RPD
had no expertise in the assessment of foreign documents and, therefore, could
not discount the letter because of the absence of dates. The RAD noted that the
RPD’s finding was directly related to the Applicant’s testimony and, therefore,
its credibility finding was to be respected. In any event, even without such
deference, based on its own review of the evidence, which it set out in detail,
the RAD found that it would have reached the same conclusion and that the RPD
did not err in giving no weight to the dismissal letter.
[16]
As to the Applicant’s submission that her
profile as a politically unreliable woman with no possibility of employment was
sufficient to establish her claim, the RAD noted that this could not succeed as
the RPD, citing many credibility concerns, found that she had not established
the allegations underlying her claim. Therefore, she failed to establish the
alleged profile.
[17]
As to delay, on appeal the Applicant submitted
that the RPD improperly speculated that her aunt would not fear consequences if
the Applicant had claimed protection earlier and that there was no legal
requirement to seek protection at the moment of entry into Canada. The RAD
noted that deference was owed to the RPD on this credibility finding but, in
any event, that it would have reached the same conclusion based on its own
review of the evidence. In that regard, the RAD noted the Applicant’s two prior
attempts to enter Canada as well as her delay in claiming protection when she
finally succeeded. Together this suggested that she did not come to Canada for
refugee protection. The RAD further found that if her aunt was the cause of the
delay, the Applicant could have asked her to provide an affidavit or called her
as a witness to explain this but had failed to do so. And, even if her explanation
was believed, it would not resolve the issue of delay. She arrived in April
alleging that she feared persecution but did not claim at that time. Her mother
returned to Cuba in July 2013 and learned that the authorities were seeking the
Applicant, yet a claim was not made at that time either. In August 2013, a
lawyer confirmed that the claim could be made without repercussion to her aunt,
yet she did not file until October 2013. The RAD concluded that this
lackadaisical approach to seeking protection was not consistent with her
alleged fear.
[18]
The RAD concluded that the RPD did not err in
giving no weight to the dismissal letter, in its assessment of her profile or
in its treatment of the delay in claiming. The RPD had also made other
credibility findings that were not challenged by the Applicant and it did not
err in finding the Applicant to be generally lacking in credibility. The RAD
confirmed the RPD’s decision that the Applicant is neither a Convention refugee
nor a person in need of protection and dismissed her appeal.
[19]
Upon judicial review, the Applicant submits that
the RAD erred in refusing to admit her mother’s letter as new evidence, in
giving no weight to the dismissal letter and in its credibility and delay
assessments.
[20]
In my view, the primary issue is whether the RAD
reasonably refused to admit the letter from the Applicant’s mother as new
evidence, as the success of the remaining issues raised by the Applicant is
dependent upon that issue.
[21]
According to the Applicant, s 110(4) is to be
interpreted such that the RPD’s finding of a lack of credibility can be
properly contradicted on the basis of new evidence (Raza at para 26; Elizi
v Canada (Minister of Citizenship and Immigration), 2007 FC 240 at paras
43-46 [Elizi]). The Applicant further submits that Singh v Canada
(Minister of Citizenship and Immigration), 2014 FC 1022 at paras 49-57,
64-66 warned against a technical interpretation of the rules relating to the
admissibility of new evidence in the RAD context and requires a lenient
approach when deciding if the evidence, if material, was reasonably available
prior to the RPD hearing or if the applicant could not reasonably have been
expected in the circumstances to have presented it.
[22]
The letter from the Applicant’s mother
established that because the Applicant had been labeled as politically
unreliable, she was unable to work and that she had been harassed and
interrogated by the authorities as a suspected dissident. It also explained how
her mother obtained the dismissal letter and could have established the
Applicant’s profile as a dissident and supported the authenticity of the
dismissal letter which the RPD found to be false. The Applicant asserts that,
regardless of the fact that the letter from her mother was technically
inadmissible as it was reasonably available, based on the requirements of s
110(4), the RAD was still required to admit it as it goes to the heart of her
claim and because it is capable of contradicting the RAD’s credibility findings
and thereby, potentially, could have resulted in another outcome. As such, the
Applicant submits that such critical new evidence should have been admitted.
[23]
The Applicant also submits that the RAD erred in
giving no weight to the dismissal letter. Although the RAD noted that the
letter lacked contact information or dates and that the Applicant had presented
an employment letter from the same school in support of her visa application,
the Applicant argues that its assessment was tainted by the RAD’s negative
credibility finding. Had her mother’s letter been accepted into evidence, the
defects in the dismissal letter would have been explained.
[24]
The Applicant takes the position that even if she
was properly found not to be credible about certain aspects of her claim, such
as the obtaining of the false employment letter, she could still have been
found to be a Convention refugee due to credible evidence as to her profile as
a dissident (Kalsi v Canada (Minister of Citizenship and Immigration), 2004
FC 407 at paras 9-12). Although the RAD found that the Applicant’s delay in
claiming protection adversely affected her credibility, the Applicant submits
that this is not a determinative factor. She submits that had she been able to
establish her profile as a dissident through a proper assessment of the
dismissal letter and her mother’s letter, the outcome may have been different (Huerta
v Canada (Minister of Employment and Immigration) (1993), 157 NR 225 (FCA)
at p 227).
[25]
To begin my analysis of the Applicant’s
submissions, I note that s 110(4) of the IRPA states that, on appeal, an
applicant 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.
[26]
In the recent decision of Singh
(currently under appeal, see: A-512-14), Justice Gagné concluded both the RAD’s
interpretation of s 110(4) of the IRPA (as a question of law that is not of
general importance to the legal system as a whole and outside the expertise of
the RAD) and its application to the facts of this case (as a question of mixed
fact and law) are to be reviewed on the reasonableness standard (at para 42). I
agree with that view.
[27]
As noted above, the Applicant asserts that,
regardless of the fact that the letter from her mother was technically
inadmissible as it was reasonably available prior to the RPD’s rejection of her
claim, the RAD was required to interpret s 110(4) in a flexible way and admit
it as it goes to the heart of her claim and because it is capable of
contradicting the RAD’s credibility findings and thereby, potentially, resulting
in another outcome.
[28]
In my view, the test in Raza, relied upon
by the Applicant in support of this view, does not permit a pre-removal risk
assessment (PRRA) officer to admit evidence that does not meet the statutory
conditions of s 113(a) of the IRPA, which are nearly identical to those of s
110(4). It is clear that the implicit factors articulated by the Federal Court
of Appeal in Raza are only to be taken into consideration once an
officer has determined that the evidence first meets one of the explicit
statutory conditions. Thus, the factors in Raza only expand an officer’s
discretion by providing greater flexibility to refuse new evidence, rather than
greater flexibility to admit new evidence.
[29]
As stated in De Silva v Canada (Minister of
Immigration and Citizenship), 2007 FC 841 [De Silva] in the context
of s 113(a):
[17] Although the PRRA process is meant
to assess only evidence of new risks, this does not mean that new evidence
relating to old risks need not be considered. Moreover, one must be careful
not to mix up the issue of whether evidence is new evidence under subsection
133(a) with the issue of whether the evidence establishes risk. The PRRA
officer should first consider whether a document falls within one of the three
prongs of subsection 113(a). If it does, then the Officer should go on to
consider whether the document evidences a new risk.
[Emphasis in bold added; emphasis in
underline is original]
[30]
Of note, in Singh, Justice Gagné
ultimately found that the new evidence in that case could be material in
demonstrating that the RPD erred in its credibility findings (at para 59) and
that it was not reasonable, on the facts, for the RAD to conclude that the
applicant should have brought the evidence before the RPD (at para 60). She
also found it unreasonable for the RAD to have expected the applicant to have
filed a complaint against his former lawyer. She concluded that the new
evidence fell within the scope of s 110(4) and met its explicit criteria (at
para 62).
[31]
As to the Applicant’s reference to Elizi,
this is a decision of this Court made in the PRRA context and which pre-dates
the Federal Court of Appeal’s decision in Raza. There Justice de
Montigny commented that if Canada is to respect its international obligations
and abide by the Charter, “it cannot disregard credible
evidence that a person would be at risk if sent back to his or her country of
origin on the sole basis that this evidence is technically inadmissible”
(at para 45). However, in Elizi, Justice de Montigny actually found that
the officer’s decision not to admit the applicant’s new evidence under s 113(a)
was unreasonable because it was either created after the RPD’s decision, or the
applicant could not reasonably have been expected in the circumstances to have
presented the evidence to the RPD (at paras 39 and 43). In this regard, his
comments on the admissibility of evidence that is “technically
inadmissible” may properly be regarded as obiter. Further, this
proposed broadening of the test under s 113(a) of the IRPA does not appear to
have been subsequently followed.
[32]
The Applicant also relies on Sanchez v Canada
(Minister of Citizenship and Immigration), 2009 FC 101 at para 26 [Sanchez],
which is actually a stay decision. There the PRRA officer excluded a country
condition document pursuant to s 113(a) of the IRPA on the basis that it was
published prior to the date of his hearing and the applicant or his counsel
could have located and presented it at the RPD hearing. Justice Shore found
that the mere fact that the report was published prior to the hearing did not
mean that it was obvious or easily accessible to the applicant. As it was not
included in the National Documentation Package, he queried how the applicant
and his counsel could reasonably have been expected to have located it. He also
found that it was an extremely relevant report from a credible source. He
stated that even if the officer may exclude a report under s 113(a), he had
discretion to consider the report. On my reading of the decision, this
conclusion appears to be based on Justice Shore’s comment that a PRRA officer
is not limited to considering evidence submitted by the applicant, but has an
obligation to conduct sufficient independent research in order to come to a
proper determination. The officer in that case had, in fact, consulted and
relied on other sources. Justice Shore found that the PRRA officer failed to
properly exercise his discretion to consider credible, material evidence that
supported the applicant’s allegations of risk. For this and other reasons, the
applicant in that case had demonstrated that there was a serious issue to be
tried and a stay was warranted.
[33]
In my view, in Sanchez Justice Shore
appears to find that there was a reasonable explanation as to why the report
had not been submitted previously by the applicant. On that basis, even though
it pre-dated the RPD hearing, the PRRA officer had the discretion to consider
it as it was relevant and credible. The officer could also have considered it
as part of his independent research. As a result, I am not convinced that this
case is of assistance to the Applicant.
[34]
Here the Applicant does not challenge the RAD’s
finding that, although her mother’s letter post-dated the rejection of the
Applicant’s claim by the RPD, its contents pre-dated that decision. Nor does
she dispute that her mother’s actions in obtaining the dismissal letter that
was presented to the RPD must have also taken place before the rejection of the
claim. She also does not suggest that the RAD erred in applying the newness
analysis as per Raza. In fact, the Applicant concedes that her mother’s
letter “technically” does not meet the s 110(4)
test. She instead asserts that a lenient or flexible interpretation of the s
110(4) test should permit the admission of her mother’s letter. I do not agree.
[35]
Here, the new evidence does not meet the explicit
requirements of s 110(4). I see no reason why, as found in De Silva in
the context of s 113(a), the new evidence should be admissible if that
threshold requirement is not met. Nor do I understand Singh to suggest
that the explicit statutory requirements of s 110(4) need not be met. Further,
while it may be, as suggested in Singh, that in some circumstances the
context of a RAD decision may require a consideration of different, or a
modification of, the Raza factors, to be taken into account when
assessing the admissibility of new evidence, in my view, this is not such a
circumstance. Here, the Applicant knowingly misrepresented significant aspects
of her evidence. She now seeks to use a lenient or flexible interpretation of s
110(4) to allow her to rehabilitate her credibility which was damaged by her
own actions which she admitted to in her statutory declaration that she also sought
to admit as new evidence. I do not believe that any reasonable interpretation
of s 110(4) would permit the admission of this new evidence in these
circumstances, nor that its exclusion gives rise to the loss of a “full-fact based appeal”.
[36]
As to the dismissal letter, in my view, as noted
by the RAD, the RPD’s finding was directly related to the Applicant’s
testimony. Accordingly, there is jurisprudence that supports that it was open
to the RAD to defer to that credibility finding (Huruglica at para 37; Yin
v Canada (Minister of Citizenship and Immigration), 2014 FC 1209; Pataria
v Canada (Minister of Citizenship and Immigration), 2015 FC 465). However,
even if that were not so, the RAD stated that it reached the same conclusion
based on its own review of the evidence. It noted that the Applicant had
provided a letter of employment in support of her visa application which shows
that she was employed at a time that she claims to have been jobless. She gave
inconsistent evidence as to how that letter was obtained. Further, the
dismissal letter contained no phone number, mailing address, email address, web
site or any other contact information. It was undated and did not give the date
of the termination. Considered alone, the dismissal letter warranted little
weight. Considered in the context of the Applicant’s evidence concerning the
employment letter, it was of even less probative value. In my view, the RAD’s
analysis was reasonable and the Applicant simply takes issue with the weight
afforded to it by the RAD. It is not the role of this court to reweigh the
evidence (Win v Canada (Minister of Citizenship and Immigration), 2008
FC 1154 at para 9).
[37]
As to credibility, while the RPD made many
negative credibility findings, the Applicant did not challenge these before the
RAD. Instead she submitted to the RAD, as she does here on judicial review,
that her profile as a politically unreliable woman with no possibility of
employment is enough to establish her claim for refugee protection. As noted by
the RAD, this could not succeed because, based on its credibility concerns, the
RPD found that the Applicant had not established the allegations underlying her
claim. Therefore, she failed to establish her alleged profile. In my view, the
RAD did not err in this regard. There was no new admissible evidence to support
her claim and bring into question the RPD’s credibility findings, which she did
not otherwise challenge before the RAD, or to link her situation to that of the
individuals in the country conditions.
[38]
Finally, the RAD fully assessed the Applicant’s
submission as to her delay in claiming protection. It accepted the RPD’s
credibility finding but went on to assess the evidence itself and reached the
same conclusion. The Applicant does not challenge that finding but asserts that
it is not determinative. However, this does not assist the Applicant as the
RAD’s treatment of the dismissal letter and her mother’s letter was reasonable.
Her delay was only one of the considerations that led to the dismissal of her
appeal.
[39]
The RAD’s assessment of the admissibility of the
new evidence, the dismissal letter, the Applicant’s profile and the delay issue
was reasonable as it falls within a range of possible acceptable outcomes which
are defensible in respect of the facts and the law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
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