MC0-03180

RAD File No. / No de dossier de la SAR : MC0-03180 MC0-03181 / MC0-03182 / MC0-03183 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 26, 2021 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Jean Rousseau Dorismé Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] Mr. XXXX XXXX, you, your wife, and your minor children, for whom you are the designated representative, are citizens of Mexico. You have stated that you fear persecution or that you would face a risk to your lives owing to your activities as a XXXX.1 [2] The Refugee Protection Division (RPD) concluded that you did not establish, on a balance of probabilities, that you have been a victim of persecution owing to your activities as a XXXX or that there was a serious possibility that this would occur if you had to return to live in Mexico. As the claims of other members of your family were based on the same allegations, the RPD drew the same conclusion with regard to them and rejected all your refugee protection claims.2 [3] On appeal, you submit that the RPD erred.3 [4] Based on my analysis, the RPD did not commit the errors you allege it did. [5] In light of this conclusion, your appeal is dismissed. ANALYSIS OF THE APPEAL [6] The role of the Refugee Appeal Division (RAD) is not to carry out a de novo consideration of refugee protection claims, but to determine whether the RPD erred as alleged.4 I conducted my own analysis of the record, primarily by listening to the recording of the hearing held before the RPD5 and reading the documentary evidence. I am of the opinion that the correctness standard of review must be applied.6 A. The Refugee Protection Division's alleged errors [7] The Refugee Appeal Division Rules state that the persons who are the subject of the appeal must specify: i) the errors that are the grounds of the appeal, and ii) where the errors are located in the RPD's decision or in the transcript or in any audio or other electronic recording of the hearing.7 [8] In your memorandum, you submit that the RPD incorrectly rejected your refugee protection claims.8 [9] More specifically, you submit that: - The fact that you omitted certain facts cannot discredit you because you did not know the individuals who threatened your lives;9 - Following the murder of XXXX XXXX XXXX XXXX, you contacted the authorities in your country but you never obtained their protection;10 - The RPD never asked your wife about her fears and those of your children in the event of your return to Mexico;11 - You have provided, in a satisfactory manner, reasonable explanations concerning questions relating to omissions and contradictions, without trying to enhance or exaggerate your claim.12 B. According to my own analysis, the RPD did not commit the errors you allege [10] After conducting my own analysis of your case, I conclude that the RPD did not commit the errors you allege. The reasons are as follows. [11] After summarizing your allegations13 in its decision, the RPD indicated that the determinative issue was your credibility14 and it explained why, in its opinion, you were not credible regarding the threats you allegedly received owing to your activity as a XXXX: - Because you did not establish that you were exposed by taking a position on social issues as a XXXX;15 - Because you failed to include in your Basis of Claim Form (BOC Form) the fact that you allegedly XXXX, together with a XXXX XXXX, in an XXXX on the XXXX XXXX;16 - Because you failed to include in your BOC Form the fact that you allegedly XXXX in XXXX XXXX XXXX a presumed corruption scandal involving two Mexican personalities and your explanation about this matter-that you had forgotten this detail-was not acceptable;17 - Because you were not able to provide any details about this XXXX, in which you allegedlyXXXX XXXX;18 - Because there was a contradiction in your testimony regarding the precautions you stated you took to seek shelter from threats;19 - Because the documents issued by the Mexican authorities which you submitted in evidence do not outline the reasons of the complaint made to these authorities.20 [12] Moreover, the RPD analyzed whether the mere fact of carrying out the profession of XXXX could create a serious possibility of persecution for you, but it concluded that, because you were not able to set out in detail the positions you had taken, you were not a XXXX who would be perceived to be a political opponent or a XXXX whom a criminal group would want to silence.21 [13] As the refugee protection claims of the other members of your family are based on your allegations, the RPD came to the same conclusion with regard to them.22 [14] When they swear to the truth of certain allegations, refugee protection claimants are presumed to tell the truth. However, the presumption is rebuttable where the evidence is inconsistent with the testimony or where the RPD is unsatisfied with the explanation provided for the inconsistencies.23 The RPD can draw negative inferences based on implausibilities, inconsistencies or omissions. It is the entirety of the evidence that must be assessed.24 [15] Based on my analysis of your case, the omissions that were identified by the RPD were significant and concerned elements central to your refugee protection claim. Moreover, the explanations you give regarding these omissions are not acceptable, as it is understood that failing to include in your BOC Form the fact that you XXXX in an XXXX about possible corruption among Mexican personalities is not a detail that you could reasonably have forgotten because there was too much information.25 Consequently, these omissions could undermine your credibility. [16] Moreover, the contradiction identified by the RPD regarding measures you allegedly took with regard to threats you were experiencing is significant. You told the RPD that you moved in late XXXX 2018 to the home of your in-laws, following threats that began in late XXXX 2018. However, according to the information in one of your immigration forms, you had lived at their home since 2015. By signing this form, you stated that the information you gave was true, complete and correct.26 [17] We should exercise caution regarding information provided in forms completed at a Canadian port of entry. It would be an error to question the credibility of a refugee protection claimant simply because the information given at that point is not detailed.27 However, it is not prohibited to analyze the information and rule on whether it undermines the veracity of their allegations.28 Based on my own analysis of your case, your credibility was not undermined solely because the information you provided in form IMM 5669 was not detailed. In my opinion, the RPD did not err in taking into account the contradiction between what you stated in your testimony and the information included in this form. [18] In your appeal memorandum, you submit that, following the murder of XXXX XXXX XXXX XXXX, you contacted the authorities in your country but you never obtained their protection. However, in its decision, the RPD did analyze the documents you submitted in evidence on this matter.29 In your appeal memorandum, you did not specify which error the RPD allegedly committed in its analysis of these documents. For my part, I have read these documents and I conclude that the RPD did not err in any way in noting that they do not include the reasons for the complaint made to these authorities and that they do not establish that you sought protection from the Mexican authorities when faced with threats of which you were allegedly a victim owing to your activities as a XXXX. [19] The BOC Forms of your wife and your minor children state that they base their refugee protection claims on your written account.30 If your wife feared returning to Mexico for other reasons, she should have informed the RPD of that by making changes to her BOC Form and by testifying on this matter before the RPD. As regards your minor children, if other fears existed for them, as your designated representative it was up to you to inform the RPD about this by making changes to their BOC Forms and by testifying about this matter before the RPD. However, at the beginning of the RPD hearing, you did not make any changes to your BOC Form and you stated that the information provided in these forms was true, complete and correct, and that there was nothing to add.31 [20] Moreover, during the hearing, the RPD asked you if you feared anything else other than the criminal gang that was threatening you, and you answered no. The RPD also asked your wife if she feared anything else, and she replied that, in Mexico, corruption goes from one criminal gang to another criminal gang, and that she feared this situation.32 Consequently, I am of the opinion that your argument that the RPD never asked your wife about her fears is unfounded. [21] Based on my analysis of your case, the RPD did not incorrectly reject your refugee protection claims. Rather, it fulfilled its role, that is, to rule on the well-foundedness of your refugee protection claims, by assessing the evidence before it as objectively as possible and by applying the relevant legislation. CONCLUSION [22] For these reasons, I confirm the RPD's determination that you, your wife and your minor children have not established that you have a well-founded fear of persecution pursuant to section 96, or that you would face a risk within the meaning of section 97 of the Immigration and Refugee Protection Act if you had to return to Mexico. [23] Your appeal is dismissed. (Signed) Alain Bissonnette Me Alain Bissonnette February 26, 2021 Date IRB translation Original language: French 1 Your Basis of Claim Forms, including any changes to them, are reproduced on pages 12 to 87, and the documents you submitted before the Refugee Protection Division (RPD) are reproducted on pages 152 to 184 of the scanned version of the RPD Record. 2 RPD Reasons and Decision, February 26, 2020, pages 5 to 11 of the scanned version of the RPD record. 3 Your memorandum, February 8, 2021, which is reproduced on pages 4 to 7 of the scanned version of the appeal record. 4 Dahal v. Canada (Minister of Citizenship and Immigration) , No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 5 Recording of the hearing held on January 3, 2020, before the RPD, 00:01 to 02:37:32, that is, one second to 2 hours, 37 minutes and 32 seconds. 6 Canada (Citizenship and Immigration) v. Huruglica, A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 CAF 93. 7 Refugee Appeal Division (RAD) Rules, SOR/2012-257, subparagraph 3(3)(g)(ii). 8 Your memorandum, supra, endnote 3, at paragraph 22. 9 Ibid. paragraph 12. 10 Ibid., paragraphs 13 and 14. 11 Ibid., paragraph 15. 12 Ibid., paragraph 17. 13 RPD reasons and decision, supra, endnote 2, paragraphs 4 to 7. 14 Ibid. paragraph 9. 15 Ibid. paragraph 12. 16 Ibid., paragraph 13. 17 Ibid., paragraph 14. 18 Ibid., paragraph 15. 19 Ibid., paragraph 16. 20 Ibid., paragraph 17. 21 Ibid., paragraph 18. 22 Ibid., paragraph 20. 23 Lawani v. Canada (Minister of Citizenship and Immigration) , No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 24 Edmond v. Canada (Minister of Citizenship and Immigration) , No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 25 Recording of the hearing, supra, endnote 5, 01:09:50 to 01:10:30. 26 This is form IMM 5669, which is reproducted on pages 122 to 125 of the scanned version of the RPD record. 27 Cetinkaya v. Canada (Minister of Citizenship and Immigration), No. IMM-3362-11, Russell, January 4, 2012; 2012 FC 8, at paragraph 51. 28 Muhendanganyi v. Canada (Minister of Citizenship and Immigration), No. IMM-1436-14, Harrington, March 4, 2015; 2015 FC 269, at paragraph 13. 29 These are documents labelled R-6 and R-7, which are reproduced on pages 162 to 165 of the scanned version of the RPD record. 30 Their BOC Forms are reproduced at pages 30 to 87 of the scanned version of the RPD record. 31 Recording of the hearing, supra, endnote 5, 04:30 to 08:30. 32 Ibid., 27:30 to 28:35. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-03180 MC0-03181 / MC0-03182 / MC0-03183 RAD.25.02 (January 2020) Disponible en français 3 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.25.02 (January 2020) Disponible en français