TB9-12163

RAD File / Dossier de la SAR : TB9-12163 TB9-12164 / TB9-12165 / TB9-12166 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 12, 2020 Date de la décision Panel S. Thompson Tribunal Counsel for the persons who are the subject of the appeal Steven Blakey Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Brandon Goncalves Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (the principal Appellant), XXXX XXXX XXXX (the associate Appellant) and their children XXXX XXXXand XXXX XXXX XXXX (the minor Appellants), all citizens of Bangladesh, are appealing a decision of the Refugee Protection Division (RPD) dated April 10, 2019 rejecting their claim for refugee protection. BACKGROUND AND OVERVIEW OF APPEAL The Appellants' claim, the RPD's decision, and the Appellants' arguments before the Refugee Appeal Division (RAD) [2] The appellants fear a criminal godfather in Bangladesh due to the female appellant's work as an XXXX XXXX XXXX. They travelled to Spain where they operated a XXXX. Later the male appellant was convicted of hiring an illegal worker. On XXXX XXXX XXXX 2017 he received a suspended sentence of two years in jail and was fined a little over XXXX XXXX XXXXEuros. After this incident, the Appellants allege that the police would come around the XXXX on a weekly basis looking for illegal workers and harassing their customers. The Appellants sold the XXXX and came to Canada, where they claimed refugee status XXXX months after their arrival. [3] The RPD rejected the Appellants' claim. The RPD determined that the Appellants were excluded under article 1E of the 1951 United Nations' Convention relating to the Status of Refugees1, in accordance with section 98 of the Immigration and Refugee Protection Act (IRPA)2, having found that they had permanent resident status in Spain. Credibility was another factor in the RPD's decision. The RPD found that the Appellants "were misleading in their testimony and omitted many elements of their claim from their BOC narrative, despite it being 13 pages long."3 [4] Before the RAD, the Appellants argue that the RPD erred in its exclusion analysis because its article 1E exclusion finding was based on the RPD's own lay interpretation of Spanish law without the assistance of expert evidence. The Appellants argue that the RPD's faulty application of the analytical framework in the Federal Court of Appeal's Zeng decision led it to wrongly determine that they had status in Spain comparable to that of nationals of that country. [5] On August 5, 2019 the Minister intervened in this appeal in writing, asking the RAD to dismiss the appeal and uphold the RPD's refusal of the claim. The Minister submits that "there are major concerns with regards to the Appellants' credibility, their application for refugee protection, as well [as] their establishment in Spain that excludes them from receiving refugee protection" in accordance with article 1E of the UN Refugee Convention. The Minister's intervention included new documents with information that, in their submission, "is sufficient to further rebut the presumption of truthfulness and confirm the original RPD finding."4 [6] On September 30, 2019 the Appellants responded in writing to the Minister's intervention, and argued that the new evidence disclosed as part of the Minister's Intervention should not be admitted into evidence "in its present form, as it is not probative". They continue to submit "tor the reasons articulated in their Appeal memorandum, [that] the Appeal should be allowed."5 [7] The Appellants are not relying on any items they wish to have admitted as evidence in accordance with subsection 110(4) of the IRPA. They do, however, request an oral hearing be convened in accordance with the provisions of subsection 110(6) of the IRPA.6 As no new evidence has been admitted in accordance with subsection 110(4), there is no basis for me to convene a hearing in accordance with subsection 110(6), and I must therefore reject their request. DETERMINATION [8] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, as they are excluded under section 98 of the Immigration and Refugee Protection Act (IRPA), in accordance with article 1E of the Convention. THE ROLE OF THE RAD [9] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting its own analysis of the record with a view to determining whether, as the appellant submits, the RPD erred.7 The RAD will only show deference to RPD findings based on the assessment of the credibility or weight to be granted to the oral evidence given before it, in situations where it enjoys a particular advantage. If the RAD finds that the RPD had a particular advantage, the reasons will indicate as much. ANALYSIS [10] I have independently assessed all the evidence on the record in the present appeal, including the transcript of the hearing provided by the claimant. I supplemented my review of the record by listening to the audio recording of the hearing that took place on February 18, 2019. Preliminary Issue: Minister's Written Intervention of August 5, 2019 [11] The Minister's written intervention attaches four exhibits, among them copies of e-mails sent between a Canada Border Services Agency (CBSA) Liaison Officer purporting to confirm the Appellants' permanent residency status in Spain through XXXX XXXX, 2022 inclusive.8 These e-mails are identified as Exhibit 1. [12] The Appellants submit Exhibit 1 to the Minister's written intervention should be excluded from evidence, as the e-mails "do not identify who it is that the Spanish authorities are confirming have valid residency status. The names of the individuals in question are not identified in either the email from CBSA to the Spanish authorities" or vice versa. They submit further that as the emails refer to an attached document that "is not included in the Minister's disclosure", the e-mails "have no persuasive value concerning the alleged fact that the Appellants have valid Spanish residency status."9 [13] Having reviewed Exhibit 1 to the Minister's Intervention, I agree with the Appellants that the e-mails do not contain any information that clearly and specifically links them to the Appellants, as they fail to refer specifically to the subjects of the present appeal. I therefore give these e-mails little weight for the purpose of establishing that the Appellants continue to have permanent residency in Spain through XXXX XXXX XXXX 2022 inclusive. Article 1E Exclusion [14] The Appellants dispute the RPD's finding, that they found that the Appellants failed to discharge the burden of proving they no longer had permanent residency status in Spain. As an alternative, the RPD found based on an analysis of factors in the Federal Court of Appeal's reasons in Zeng10 that "have not satisfied the panel, on a balance of probabilities, that they lost their status involuntarily, that they are not able to re-enter Spain, that they would not be able to return to Bangladesh, or that Canada's international obligations are triggered."11 [15] The RPD observed12 that the associate Appellant has a long-term residency permit that is valid until XXXX XXXX, 202213, which is the same period of validity for the permit of the principal Appellant and their children.14 The latter three Spanish residency permits are family reunification permits attached to the associate Appellant's residency document. [16] According to the Minister's submissions, these documents gave the Appellants "the right to live permanently and freely in Spain, the right to work and to social security, right to strike, the right to health care, the right to housing, the right to social services and many other rights set forth in the legislation."15 It appears that the Appellants do enjoy permanent residency status in Spain until XXXX XXXX XXXX 2022. [17] I have also considered the information in the Minister's submission to the RPD, that "holders of Spanish long-term residence permits may leave the European Union (EU) for a maximum period of 12 months" without losing their status.16 Thus, the Appellants having left Spain on XXXX XXXX, 201717, it appears they would have lost their right to permanent residency in that country as of XXXX XXXX, 2018. [18] Based on my review of the record, I believe that the RPD erred when it found that the Appellants would have to show that Spain's government had cancelled their residency permits in order to show that they had lost status in that country. Based on my independent assessment of information in the Minister's submissions that appears both relevant and credible, it appears that as of XXXX XXXX, 2018 the Appellants would have lost their status in Spain by operation of Spain's Organic Law 8/2000 of XXXX XXXX18. [19] The RPD acted correctly, however, in proceeding to determine whether the Appellants were excluded under article 1E of the Refugee Convention using the five-factor analysis set out in Zeng to consider: (a) the reasons for the Appellants' loss of status; (b) whether the Appellants would be able to return to Spain; (c) whether they would be at risk in Bangladesh; (d) Canada's international obligations, if any; and (e) any other relevant factors.19 Moreover, the RPD's Article 1E exclusion inquiry considered "all relevant facts to the date of the hearing."20 [20] Concerning factor (d) the RPD observed that the Appellants "would not be rendered stateless by a negative decision."21 It was satisfied that administrative processes in Canada, "including their ability to make a claim for humanitarian and compassionate consideration and their entitlement to a pre-removal risk assessment" meant that Canada's international obligations to the claimants were being met.22 The Appellants have not disputed this finding in their RAD memorandum. [21] Nor does the Appellants' RAD memorandum dispute the RPD's assessment of factor (e) that its factual finding that the Appellants were "the authors of their own misfortune by leaving Spain" was "a relevant factor to consider in its analysis."23 The RPD noted that after the associate Appellant was convicted of employing illegal labour, "[i]nstead of confronting the issue in Court, appealing the contrary ruling, or even finishing their sentence or attempting to obtain some sort of pardon by 2022, the claimants plead guilty and left the country XXXX months later."24 [22] This latter finding appears to have partly informed the RPD's assessment of factor (a). The RPD found that the Appellants did not lose their status involuntarily because the associate Appellant knew about the conditions regarding his permanent residence and he and his family "had no intention to return to Spain once they left for Canada." In the RPD's judgment the Appellants behaviour showed that they were "not mindful of the maximum duration of being outside of Spain regarding their status."25 [23] I reject the Appellants' argument26 that the RPD should have treated the Appellants' decision to remain outside of Spain beyond the 12-month limit as immaterial due to his criminal conviction. Based on my independent assessment there is no evidence that as of the RPD hearing on XXXX XXXX, 2019 the Appellants' loss of residency in Spain was a function of anything other than their decision to leave Spain and remain outside of the EU for more than 12 months. I also reject this argument for the reasons given in the following paragraph. [24] Concerning factor (b), the Appellants submit further that the RPD ignored evidence in the National Documentation Package (NDP) for Spain that indicates that having a criminal record in Spain is a bar to regaining permanent residency in that country. They rely on item 3.4 in the current NDP for Spain, a document that states in part that in order to regain permanent residency in Spain one must "not have any criminal record in Spain or in countries where [one] lived for the past five years". [25] The Appellants criticize the RPD for accepting the Minister's submission27 that the Appellants would only have to successfully apply for visas in order to re-enter Spain and resume their permanent resident status in that country, and that this application would be straightforward28 notwithstanding the associate Appellant's criminal conviction. They argue that the RPD erred in accepting the Minister's submissions on this point, as they were based on information on two websites neither published nor maintained by Spain's government absent evidence that the information on the websites was the product of expert knowledge of Spanish law.29 [26] The RPD found that the Appellants would be able to re-apply for residency in Spain because: (i) they provided "no evidence that the male [Appellant's] offence would itself be considered for a criminal record, or if it was, that it would prevent the [Appellants] from regaining their status"; (ii) as evidence of the latter possibility the Appellants provided only "a vague third hand account" that the RPD gave little weight; (iii) article 31(5) of Spain's Organic Law says that the renewal of residency permits for foreign nationals convicted of crimes will be assessed "'in the light of the circumstances in each case'"; and (iv) Spanish law does not require that foreign nationals re-applying for entry visas to regain permanent residency status not have criminal records.30 [27] My independent assessment of this factor is guided by section 6.13 ("Foreign Law") of the IRB's Weighing Evidence31 policy memorandum, which counsels that "[i]t is completely within the Appeal Division's jurisdiction to weigh conflicting evidence relating to foreign law" and also that "[d]ecision-makers cannot take judicial notice of foreign law, it must be proved as a fact".32 [28] On this point, the Appellants submit that the RPD's conclusion was based on "a reading of a translation of a Spanish statue [sic] that is not authenticated or established to be current" and therefore warrants little to no weight.33 In response, the Minister points to Exhibits 3 and 4 to his Written Intervention -- copies of Spain's Organic Law 4/2000 of 11 January. The Minister submits that these documents [were] obtained directly from the United Nations Office on Drugs and Crime (I-INODC) website. Specifically, the SHERLOC (Sharing Electronic Resources and Laws on Crime) portal. The relevant provisions disclosed by the Minister at the RPD is available in its original Spanish language. Furthermore, according to the SHERLOC portal, under the title "Contributor Access", it states that this "tool aims to enable focal points to directly upload relevant material in SHERLOC. Before being made available online, the uploaded content is reviewed by the SHERLOC team. Relevant national authorities are then asked to verify the content.34 [29] I accept the Minister's submissions and I find the copies of Spain's Organic Law 4/200 of 11 January included in the RPD Record are reliable for the purposes of my independent assessment in this appeal. [30] I have considered the letter referred to in the RPD decision.35 Dated XXXX XXXX XXXX 2018 the unsworn document from XXXX XXXX XXXX in Barcelona, states that the author has "met [the Appellants'] personal lawyer", according to whom "there is a very high chance that [the associate Appellant's] status will be affected in a negative way due to the case in [his] business" and "there will be a very low probability of [his] PR status [being renewed] in future."36 [31] Mr. XXXX XXXX letter simply reports a conversation he purportedly had with the Appellants' "personal lawyer" 37 in Spain about their immigration status, without identifying the lawyer by name or giving the date of their alleged conversation. There is no evidence that the information in the letter itself was the product of expert knowledge of Spanish law, which goes to its weight. [32] I find it implausible that a lawyer retained by the Appellants in Spain would breach solicitor-client privilege to discuss their private matters with a third party, and there is no evidence that the Appellants authorized their lawyer in Spain to have any such discussions. I see no reason why the Appellants could not simply have submitted a written legal opinion from their personal lawyer in Spain on this matter, a procedure contemplated at section 6.13.4 of the Weighing Evidence policy. I therefore give Mr. XXXX XXXX letter no weight in my assessment of factor (b) in the Zeng test. [33] I accept the Appellants' argument38 that the RPD erred in characterizing the offence for which the associate Appellant was convicted as "fairly minor" given the content of article 54(1)(d) of Spain's Organic Law. This is not in and of itself evidence, however, that the Appellants would not be able to re-apply to enter Spain. [34] First, the offence at article 54(1)(d) is in the chapter titled "On Infractions Involving Immigration and their Sanctioning Regulations."39 Article 51 of the Organic Law, which also falls under this heading, characterizes the offences in the section as "administrative infractions" that attract "administrative responsibility"40 rather than criminal or penal liability. This suggests that the associate Appellant's two year-long suspended prison sentence, fine payment, and payment of restitution to the complainant was in the nature of an administrative sanction rather than a criminal sanction with consequences for the Appellants' immigration status in Spain. [35] Second, even if I accepted that the associate Appellant was convicted of a criminal rather than an administrative offence, article 31(5) of Spain's Organic Law states: 5. For a temporary residency permit to be authorized it is required that the foreign national not have a criminal record in Spain or in the countries of previous residence for crimes declared to be so by Spanish ordinances, and that he is not classed as refusable in the territories of countries with which Spain has signed agreements in this regard. The possibility of renewing a residency permit for foreigner nationals who have been sentenced for a crime and who have completed this sentence, for those who have been pardoned, or for those in a situation of conditional remission, shall be evaluated in the light of the circumstances in each case.41 [36] The Organic Law provides that upon completion of his sentence there is a possibility that the associate Appellant's circumstances will be assessed by authorities in Spain and that he could be granted a temporary residency permit once he has completed his sentence. Based on my reading of the Spanish court judgment, the associate Appellant's two-year prison sentence was suspended upon condition that he pay both the fine levied against him and pay restitution to the complainant: The execution of the imposed prison sentence is suspended for a period of two years, conditioned to the payment of civil liability, and the convicted person must be warned that if he commits a crime during the fixed period of suspension or fails to comply with the imposed condition, the benefit granted may be revoked [emphasis added].42 [37] Given the Appellants' acknowledgement that the "custodial component of the sentence was suspended for a period of two years"43 their submission that the associate Appellant "had not actually completed his sentence" at the time of the RPD decision because "two years had yet to elapse from the date of sentencing"44 makes no sense. My reading of the judgment is that the sentence was suspended as of the date of judgment on XXXX XXXX XXXX 2017, once the Appellant paid the requisite fine and procedural costs. [38] According to notes of the Appellants' port of entry examination in Canada, the associate Appellant indicated that he "didn't serve any jail time as it was his first offense" and that "he paid only about XXXX Euros in fines and then left Spain for Canada" after the judgment against him.45 The notes also state that he and the principal Appellant affirmed "they have no fear of returning to Spain and are not making refugee claims against Spain."46 [39] In any event, as I have discussed at paragraph 32 above, the evidence on record does not support a finding that the associate Appellant was convicted of a penal offence instead of an administrative one. As such, I do not believe that the associate Appellant has a criminal record that would prevent him and his family from applying for visas to re-enter Spain and resume their residency in that country. The only apparent obstacle to such a visa application would be the associate Appellant's partial payment of the fine, and the resolution of the amount owed is entirely a matter of private interest. [40] Concerning the Appellants' argument that the principal and minor Appellants enjoy only temporary status47, article 31 of Spain's Organic Law defines temporary residency as "the situation which authorizes the foreign national to remain in Spain for a period of more than ninety days and less than five years.48 The principal and minor Appellants were issued temporary residency permits under Articles 17 and 18 of the same law, which provide for the reunification of immediate family members of permanent residents.49 [41] Furthermore, article 19 states the following concerning "The Effects of Family Reunification in Special Circumstances": 1. The spouse may obtain an independent residency authorization when: a) He or she obtains a work permit. b) Can prove that he or she has lived in Spain with his or her spouse for two years. This period of time may be reduced when there are family circumstances which justify doing so. 2. Reunited children shall obtain an independent residency authorization in the following cases: a) When they reach legal age. b) When they obtain an authorization to work.50 [42] Spain's law provides for those reunited with their permanent resident family members in Spain on temporary permits to obtain independent residency. Thus the evidence suggests that the principal and minor Appellants would be able to re-apply for visas to re-enter Spain, as they do not have criminal records. Upon resuming their residency, they would be in a position to convert their regular status from temporary to permanent, in accordance with the provisions of Spanish law and regulations. [43] I find on a balance of probabilities that the Appellants would not be prevented from returning to Spain. [44] Concerning factor (c), the RPD found that the credibility of their subjective fear of persecution in Bangladesh was undermined by the Appellants' behaviour "in actively fleeing from a country that they were relatively safe in, Spain, to Canada and risking their status [in Spain]".51 The Appellants submit that the RPD's analysis of the Appellants' risk in Bangladesh was "perfunctory and ignores the possibility that the [Appellants] applied for protection on consolidated grounds might be at risk for cruel and unusual treatment in the meaning of s. 97 of the IRPA."52 [45] The RPD considered the Appellants' testimony about their time in Spain. It examined this evidence and found they were not "generally credible".53 The Appellants' RAD memorandum does not contest any of the RPD's substantive credibility findings54 including the finding that they were not "generally credible".55 As the RPD's uncontested credibility findings go to the core of the Appellants' claim against Spain, there was no need for the RPD to conduct a separate risk analysis under section 97 of the IRPA concerning their allegations against that country. [46] Concerning the Appellants' alleged risk in Bangladesh, the RPD found that the Appellants had "no nexus with regard to their claim regarding Bangladesh": [T]he claimants fear a business person who they allege is a criminal "godfather." The female claimant reavailed to Bangladesh with the minor claimants in 2016 for two months after stating her fear of the matter, during which the claimant testified that her son was abducted for a few days and she returned to Spain.56 [47] The RPD could only have become aware of the substance of the Appellants' claim against Bangladesh by considering the evidence they disclosed to support their risk allegations. The RPD would not have known of the risks the Appellants alleged they faced in Bangladesh if it had not examined the evidence before it. I note that "[a] decision-maker is presumed to have considered all [the] evidence before it, even if not expressly mentioned in the decision".57 [48] I therefore reject the Appellants' submission that the RPD's analysis of the Appellants' risk in Bangladesh was perfunctory. Rather, the RPD found that their claim against Bangladesh had no nexus to the Convention as the Appellants were targeted by criminals in that country. This is supported by the account given in the principal Appellant's Basis of Claim (BOC) narrative: My husband was also working for the XXXX XXXX XXXX] funded project for the XXXX XXXX XXXX XXXX XXXXfrom 2001 until 2008 and then he left his job and went to Spain, where he stayed for three years and was able to get his residency permit as well as the work permit. After that he worked in an XXXX XXXX, XXXX XXXX and also in a XXXX. He came to Bangladesh to visit us in XXXX, 2012. However, on XXXX XXXX, 2012, he had gone to his village alone to visit the relatives there and suddenly he was attacked in the evening in his house by some cadres of the Awami League, belonging to the MP Maya, a widely known godfather who asked him to pay them Taka XXXX XXXX as he was living in Spain and the cadres had presumed that he had a lot of money [emphasis of dates as in original, all other emphasis added] [...].58 My Supervisor gave me the responsibility to check the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX for one location, based on an initial report by another colleague of mine. I took up this job on a priority basis since I was also very much worried about the consequences of this XXXX since the lives of the people in my country were badly affected due to the effects of the XXXX [emphasis added] [...].59 When I reviewed the results of the input from the many XXXX XXXX for the area earmarked for my observations, and which were owned by one company only, I found it very much unsafe and I submitted a report on XXXX XXXX XXXX 2013 to my Management about XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [emphasis of dates as in original, all other emphasis added] [...].60 On XXXX XXXX, 2013, when my mother had gone to our neighbor's house and I was alone in the house with my son in the evening, suddenly about 4-5 armed and cadre looking persons entered forcibly into our house and drove my son into our bedroom and started beating me. I could not understand why they had attacked me. I imagined that they were professional cadres trying to extort money from me and I thought they might even kill me. [...] The leader looking cadre told me if I had ever heard about XXXX XXXX and he asked me how I could recommend XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX He warned me that he is XXXX who works for XXXX XXXX and that I must promise never to visit those XXXX XXXX any time in my life if I had a desire for me and my son to live [emphasis added] [...].61 I came to know that XXXX XXXX and his cadres are the terrors of the town of XXXX and local people quake at the sound of their names since he is involved in politics, business, extortion, violence, forceful occupation of land and property, abductions, disappearances, murder and all sorts of crime. The political power of XXXX XXXX and his very close ties with the current ruler of the government of Bangladesh, Sheikh Hasina, has given him this clout and he is the one who is associated with all cases of murder, disappearances and all sorts of the stories pertaining to torture [emphasis added].62 [49] The associate Appellant was targeted by a criminal who "presumed that he had a lot of money". While the BOC narrative alleges that this criminal was a member of Bangladesh's Awami League political party, the account is clear that the associate Appellant was targeted because the criminals had identified him as someone who had money. [50] The principal Appellant and the minor Appellant XXXX were targeted by criminals because the former's work threatened to disrupt the business activities of XXXX XXXX, the owner of the XXXX XXXX whose closure had been recommended in the principal Appellant's report. The BOC narrative describes XXXX XXXX as "involved in all sorts of crime". The BOC narrative makes it clear that she was targeted by him on behalf of the XXXX XXXXowner because her report threatened the viability of his business. [51] The BOC narrative also discusses two occasions on which the minor Appellant XXXX was allegedly abducted and held for ransom by the same people who attacked the principal Appellant for calling for privately-owned commercial brick kilns in XXXX to be closed. On both occasions the abductions were reprisals for the principal Appellant's alleged decision to file a complaint with the police in Bangladesh about the previous attacks against her and for leaving Bangladesh, and the alleged abductors told the principal Appellant that because she lived in Spain she must be "very rich".63 In all cases the alleged activities feared by the Appellants are criminal activities. [52] The Federal Court has held that victims of crime, corruption or vendettas generally fail to establish a link between their fear of persecution and one of the Convention grounds. The BOC narrative does not support a finding that the Appellants were targeted by criminal elements for extortion or subsequently faced retaliation based on Convention grounds. As such, a mixed motives analysis is not warranted in this case as there is no evidence that any of the motives for the targeting were linked to a Convention ground.64 [53] I find the Appellants are victims of crime whose targeting has no link to any Convention ground, as their alleged risk in Bangladesh is not linked to race, religion, nationality, political opinion, or membership in a particular social group. Based on my independent assessment of the evidence, the RPD did not err in finding the Appellants' claim against Bangladesh had no nexus65, and their claim against Bangladesh under section 96 of the IRPA therefore fails. [54] I do, however, accept the Appellants' submission that the RPD "ignore[d] the possibility that the [Appellants] applied for protection on consolidated grounds might be at risk for cruel and unusual treatment in the meaning of s. 97 of the IRPA"66. I will therefore independently assess whether a separate section 97 analysis of the Appellants risk in Bangladesh is warranted in this appeal. [55] The RPD in this case made a general negative credibility finding against the Appellants. According to the Federal Court of Appeal in Sellan, where the Board makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim. The claimant bears the onus of demonstrating there was such evidence [emphasis added].67 [56] I have examined the package of documents marked as Exhibit 10 by the RPD68 and I find that the Appellants have not demonstrated that these documents are capable of supporting a positive disposition of their claim against Bangladesh. [57] For example, the associate Appellant's medical letter dated XXXX XXXX XXXX 2018 repeats his account of the attack he allegedly suffered on XXXX XXXX XXXX 2012. The author of this letter, Dr. XXXX XXXX XXXX XXXX, writes that the associate appellant was "under [his] treatment for XXXX days".69 This is inconsistent, however, with the associate Appellant's discharge certificate, bearing the same date from the same institution, which indicates that he was "Under Treatment of Dr. Professor: Dr. XXXX XXXX".70 [58] The inconsistency between these two documents about this key detail - which medical professional was responsible for the associate Appellant's care in the week after he was allegedly attacked - undermines the reliability of both documents. [59] For the same reasons, I find that the principal Appellant's medical notes - one dated XXXX XXXX XXXX 2013, which states she was under the treatment of "Dr./ Professor: Dr. XXXX XXXX XXXX XXXX XXXX"71 during her stay in hospital, and a second dated XXXX XXXX, 2018 and authored by Dr. XXXX XXXX, who writes that the principal Appellant "was under [her] treatment for XXXX days"72 - are also not reliable, and I give all four documents no weight. [60] The letter from Mr. XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2013 gives an account of the attack allegedly suffered by the principal Appellant on XXXX XXXX XXXX 2013. While this letter indicates that it was directed to a local police station in Dhaka, there is nothing in the letter to indicate that it was actually received by the police. For this reason I cannot accept that this letter supports the principal Appellant's account that she complained to police in Dhaka of being targeted by XXXX and XXXX XXXX XXXXI therefore give the letter no weight. [61] The letters from the principal Appellant's mother73 and friend XXXX74 make non-specific references to the Appellants' risk allegations. The first letter references the alleged attack against the principal Appellant, while the second discusses the alleged abduction of the minor Appellant XXXX, and generally repeats the Appellants' allegations of risk in Bangladesh. [62] The lack of specificity in the letters about central incidents alleged in the Appellant's claim against Bangladesh, particularly XXXX letter's reference to only one of two alleged abductions of XXXX, is of little utility in assessing the credibility of these allegations. The low reliability of the letters is intensified by the fact that both authors have an interest in the outcome of the Appellants' claim. [63] The XXXX XXXX XXXX 2018 letter from XXXX XXXX XXXX also refers generally to the Appellants' allegations of targeting and abduction in Bangladesh, but does not give any dates that would make the letter useful in testing the credibility of their risk allegations, beyond offering broad corroboration of the allegations. [64] The low probative value of these three letters is not assisted by the fact that they are not accompanied by copies of identity documents from the purported authors. In my independent assessment, all the three letters merit very low weight. [65] Furthermore, my adverse credibility finding concerning the Appellants' alleged risk in Bangladesh is aggravated by their decision to come to Canada and remain in this country without status for XXXX months before claiming surrogate protection, instead of returning to Spain after their XXXX month-long Canadian sojourn, and within the twelve month-long window prescribed by Spain's Organic Law - thereby risking deportation to Bangladesh. [66] The Appellants' decision to leave the relative safety of Spain where, according to the evidence on the record, they enjoyed valid immigration residency status until XXXX XXXX XXXX 202275 - including the principal and minor Appellants whose status flowed from the associate Appellant's permanent resident status - makes no sense given the serious nature of the risk they claim to face in Bangladesh, where the principal Appellant was allegedly assaulted on multiple occasions, the associate Appellant was attacked, and the Appellants' minor son XXXX was allegedly kidnapped not once but twice. [67] In summary, I find that the RPD did not err in its assessment of factor (c) in the Zeng test, and that while it did err as discussed at paragraph 33 of these reasons in assessing the facts in respect of factor (b) in the Zeng test, its overall conclusion that the Appellants are excluded under article 1E of the Convention is supported by my independent assessment of the evidence. [68] Moreover, in my independent assessment the Appellants' general lack of credibility is also determinative of their claim, as the general lack of credibility that was evident in their testimony about their risk in Spain applies to the Appellants' evidence concerning their alleged risk in Bangladesh. [69] My reasons below explain my finding that the Appellants do not have a credible fear in Spain under sections 96 and 97 of the IRPA, and affirm that the RPD did not err in finding that the Appellants were generally not credible. The Appellants are not credible [70] Having independently assessed the totality of the record, however, I find based on my independent assessment of the record that the Appellants were not credible witnesses regarding their forward-looking risk of persecution in Spain. [71] In their memorandum the Appellants acknowledge that where the RPD's findings are "based on directly listening to the claimant, those aspects of the Member's findings may be entitled to some deference."76 [72] For its part the RPD found the Appellants "were misleading in their testimony and omitted many elements of their claim from their BOC narrative, despite it being 13 pages long. The panel notes that the male claimant relied on the narrative that was filed with the female claimant as the primary claimant."77 [73] I have independently assessed each of the following specific credibility findings made by the RPD after hearing the Appellants' testimony: - The principal Appellant said that the criminal case against her spouse was brought by someone who bribed Spanish police to arrest him. This was not mentioned in their BOC narratives. The RPD refused the principal Appellant's explanation that she "forgot", as it found the allegation of bribery would be a "critical" element of their narrative of persecution. The RPD found that the bribery allegation "was an invention to cast the police in Spain as corrupt." It did not believe the Appellants' allegation and drew a negative inference about their credibility.78 - The principal Appellant testified that she and her spouse had pleaded guilty to the offence they were charged with in Spain, but did not disclose the guilty plea in their BOC narrative. She testified by way of explanation that she "did not think to write it." Her spouse testified that "he had just been tired of the procedure and wanted it to end." The RPD found that "any reasonable claimant would believe this to be relevant information to disclose" and drew a negative credibility inference, as the Appellants failure to disclose this "was an intentional omission and an attempt to mislead the panel."79 - The RPD drew a negative credibility inference from the fact that the associate Appellant Mohammed failed to mention in his BOC narrative that he was stopped by police in Spain "on numerous occasions after he was arrested" and that "this [was] part of the persecution he suffered in Spain." The RPD did not believe that Mr. XXXX "would forget [...] that he had been unjustly visited by police repeatedly after his criminal conviction." The RPD did not believe the police visits ever took place.80 - The principal Appellant cited her pregnancy as a "major factor" in the Appellants' delay in claiming in Canada. This explanation was not given in their BOC narratives, which stated that "a lawyer misguided them." The principal Appellant also testified "that she didn't mention it because she was stressed and she 'didn't think it was a legal document.'" The RPD did not accept this, as the delay in claiming had a significant impact on their ability to retain their status in Spain and was not included in their BOC narrative. The RPD drew a negative inference concerning the Appellants' credibility.81 The principal Appellant's testimony about an alleged bribery and entrapment scheme was inconsistent with the account given in her original and amended BOC narratives [74] First, the principal Appellant's BOC narrative states the following concerning her spouse's arrest in Spain: My husband's business of the XXXX was running well and he had a lot of customers, especially those from our subcontinent. He had a few employees working for him there. He had one customer who was originally from Pakistan named XXXX XXXX and he used to visit his place almost every day for dinner. My husband did not know anything about him except for his name and original nationality. However, on XXXX XXXX, 2015, on an otherwise normal day, suddenly some police people raided my husband's XXXX. This customer, who used to visit my husband's place on each day, XXXX XXXX XXXX XXXX XXXX and was XXXX XXXX. Suddenly this customer started XXXX XXXX XXXX. My husband did not have any idea that such a thing could happen. The police asked that customer what he was doing in the XXXX and he told the police that he was working there, although my husband had never employed him. Later on, my husband understood that it was just a ploy of that man, because as per the Spanish laws, if anyone is found to be working illegally anywhere in Spain and discovered in this state by the police, the State will provide him legal work permit and penalize the one who had employed him. Only to get the work permit as an illegal resident, this man made this drama and made a trap for my husband. The police did not even listen to my husband's plea denying that this customer had anything to do with this XXXX except as a customer. However, the police left the place along with that customer and submitted their findings to the court against my husband on XXXX XXXX, 2017, the court accused my husband of employing an illegal resident and he was penalized for two year[s]82 of imprisonment and a penalty of Euro XXXX. [...] My husband was very much upset by such an unprecedented verdict which could not be justified by any means. The police did not care to investigate the case properly, by talking to the other employees to make a proper judgment or reviewing the pay slips of the employees, but they considered the false statement of a customer posing as an employee just to fulfill his dream of getting a work permit, because he was an illegal person in Spain. [...] My husband was very much frustrated with the verdict of the court accusing him of an offense which he had never committed [emphasis on date of XXXX XXXX, 2015 in original, all other emphasis added].83 [75] When the RPD asked the principal Appellant why she had left Spain, she testified that "one Pakistani gentleman had conspired and filed a complaint against [her] husband. He had bribed the authorities and conspired against [her] husband, and that's why this raid [the police raid] had taken place."84 [76] The RPD was concerned that the account of this incident given in the BOC narrative was entirely different from the principal Appellant's testimony that the customer in question, XXXX XXXX, bribed Spanish police to arrest him, and the following exchange ensued: MEMBER: How do you know he bribed authorities in Spain? PRINCIPAL APPELLANT: I'm not saying that all the police in Spain are bad, but many that I know have - police resort to taking bribes and do these unlawful things. MEMBER: How do you know that? PRINCIPAL APPELLANT: I found it out from the individual who had complained against my husband and the XXXX - from his associates - that he was, this gentleman was, involved in this scheme together (inaudible). And there is a law in Spain that anybody who works illegally without any work permit in a particular place for XXXX months and if he can prove it in the court then he is likely to get a residency of that country. And XXXX XXXX, the gentleman who lodged the complaint against my husband, he did the same with him. He never worked in my husband's XXXX, but by bribing the police he staged this complaint against my husband. He was only a customer of our XXXX - he would come in for having [sic] his dinner. MEMBER: Okay, because in lines 261 to 289 of your Basis of Claim form - 261 to 289 - you never mention that this man bribed the police. PRINCIPAL APPELLANT: Yeah, but this is in fact. MEMBER: Why didn't you include this in your Basis of Claim? PRINCIPAL APPELLANT: Though I tried to recollect all the incidences that happened, I forgot to mention and bring up this point and put it in writing. MEMBER: 'Kay, because earlier today and when you signed the Basis of Claim you stated that all the information was complete, true and correct. Correct? PRINCIPAL APPELLANT: Yes. MEMBER: So you state you forgot to include that this person bribed authorities in Spain. PRINCIPAL APPELLANT: Yes. MEMBER: Do you know how much he bribed them? PRINCIPAL APPELLANT: No, I don't know that. MEMBER: And you said you discovered this through people who knew him? PRINCIPAL APPELLANT: Yes. MEMBER: Who were they? PRINCIPAL APPELLANT: They belong to the same community as XXXX XXXX, and they were friends - not directly, but friends of friends of my husband. They told me so. 85 [77] I note that when their BOC forms were placed before them during the RPD hearing, both the principal and associate Appellants testified: that they had seen their forms prior to the hearing; that the BOC forms were drafted with their consultation; that the BOC forms had been translated to their satisfaction; that the signature at the bottom of each of their respective BOC forms was their signature; and that the content of the BOC forms was complete, true and correct.86 [78] Despite this, none of the details testified to by the principal Appellant appear in either her original or amended BOC narratives. I note that the amended BOC narrative was disclosed to the RPD panel on February 8, 2019, with a covering letter that made reference to "minor corrections to be made in the BOC form and narrative".87 In fact, the principal Appellant's account of the XXXX 2015 raid on her spouse's XXXX in her amended BOC narrative suggests that the only deliberate wrongdoer was XXXX XXXX, and not the police: "Only to get the work permit as an illegal resident, this man made this drama and made a trap for my husband."88 [79] While being questioned by her own counsel the principal Appellant testified that she did not believe all police in Spain were bad, immediately after she re-iterated her allegation that the associate Appellant was entrapped by a bribery scheme involving corrupt and racist police in Spain, even though the bribery and entrapment allegations are not included in the BOC narrative: COUNSEL: Concerning the, um, the court issue with your husband - why do you think that that happened? PRINCIPAL APPELLANT: What I understand is because my husband became a victim of racial discrimination, as well as his religion. To the best of my knowledge, certain incidents has not taken place from any of the Spanish-owned stores, but it has happened with stores owned by immigrants. COUNSEL: What is your opinion of the police in Spain? PRINCIPAL APPELLANT: The opinion that I formed about the police in Spain is that, I'm not saying that all the police in Spain are bad but some police do favouritism in exchange for money. I know this because this is the exact situation that we got into.89 [80] Given the seriousness of the allegation that the associate Appellant was subjected to prosecution in Spain due to corruption of public officials in that country, and the detailed testimony of the principal Appellant on this point, this allegation should have been reflected in her BOC narrative. The same is true of the associate Appellant's testimony: MEMBER: All right. Did you believe that the police were bribed in your case? PRINCIPAL APPELLANT: Yes. MEMBER: Did you report this to any other agency in Spain or did you tell your lawyer? PRINCIPAL APPELLANT: I did inform my lawyer about this, but I did not have money with me to hire another lawyer, so I was really helpless. MEMBER: Do you have the name of the person who gave you all that information regarding the person whose arr-who had you arrested? PRINCIPAL APPELLANT: Yes. XXXX XXXX [emphasis added].90 [81] The associate Appellant testified that he advised his lawyer that he was entrapped, and that he knew the name of the person who implicated him in the alleged scheme, but did not include this relevant information in the BOC narrative even after it was amended. [82] I find that the inconsistency between the Appellants' testimony about the XXXX XXXX XXXX 2015 incident and the content of the original BOC narrative has a severe adverse effect on both Appellants' credibility, as the associate Appellant Mohammed relied on the principal Appellant's BOC and testimony. [83] I also find that the Appellants' omission of the police bribery allegation in the principal Appellant's amended BOC narrative exacerbates the adverse credibility finding flowing from the inconsistency between the BOC narrative and the principal Appellant's oral testimony, since it is logical that the narrative would have been amended to refer to this allegation in detail were it true. [84] I reject the principal Appellant's explanation that she forgot to detail the alleged police bribery and entrapment scheme in writing, given the level of detail about the allegation she remembered during the hearing. In short, the RPD did not err in making this negative credibility finding. The principal Appellant omitted her spouse's guilty plea from her original and amended BOC narratives [85] The principal Appellant's BOC narrative also states the following: [...] [T]he police left the place along with that customer and submitted their findings to the court against my husband on XXXX XXXX XXXX 2017, the court accused my husband of employing an illegal resident and he was penalized for one year of imprisonment and a penalty of Euro XXXX. As per the Spanish laws, if anyone is convicted of a jail sentence of less than 24 months, he does not need to be in prison. My husband was very much upset by such an unprecedented verdict which could not be justified by any means [emphasis on date of XXXX XXXX XXXX 2017 in original, all other emphasis added].91 [86] During the RPD hearing the principal Appellant testified as follows: MEMBER: All right, so, you were charged by the police? PRINCIPAL APPELLANT: Yes. MEMBER: With what? PRINCIPAL APPELLANT: He was fined with XXXX Euros and he was sen- XXXX Euros, and two years of imprisonment. MEMBER: Okay - so, you were charged with what, though? INTERPRETER: She said her husband was charged. MEMBER: Okay. So, your husband was charged with what? PRINCIPAL APPELLANT: The charge - the charge was that he had employed somebody illegally, but this was a false charge. MEMBER: Okay. Now, I read through the decision, that your counsel included at Exhibit 10, page 29 - it states in a section called "FACTUAL BACKGROUND", it states in the third point: "After the Oral Trial and read the indictment with the modifications made, the defendant was satisfied with the facts and with the requested penalties, all of which was ratified by his Attorney, who requested a ruling of conformity without the need to continue the trial." My read of this is that your husband pled guilty. Is that the case? PRINCIPAL APPELLANT: He consented because of the situation prevailing at that time. MEMBER: So, yes? PRINCIPAL APPELLANT: Yes. MEMBER: Why didn't you mention this in your Basis of Claim? PRINCIPAL APPELLANT: Sorry, that's my - my apologies. MEMBER: You don't have a reason why you didn't mention that? PRINCIPAL APPELLANT: We didn't have anybody from our own community and nobody to speak on our behalf. MEMBER: But you still didn't mention it in your Basis of Claim. Why did you not mention this if you said that the Basis of Claim was complete, true and correct? PRINCIPAL APPELLANT: I didn't understand if this needed to be written. MEMBER: So, just to (inaudible) - you didn't understand that you should have mentioned that in open court you acknowledged that this occurred. PRINCIPAL APPELLANT: Yes, I was a new person in Spain, I did not know the language - Spanish language. And also, I had some limitations in other language as well. MEMBER: That wasn't my question. My question was, why didn't you think it was relevant to tell the panel that you had said you had - these offences had occurred? PRINCIPAL APPELLANT: Yes, and at that time we agreed or consented to the allegations, because we were very scared as to what might happen if we didn't agree. MEMBER: Why didn't you tell me that, though, and why didn't you tell the Board that in the Basis of Claim? PRINCIPAL APPELLANT: Yes, after arrival here there were a lot of things which were escaping our memory. And, we were still unsure and very scared of our future. So, we may have - these things, likely that they have escaped our mind. At that time, I didn't realise that this will be considered to be very important for the case. MEMBER: But you acknowledge that when you signed it [RAD Panel's Note: the Basis of Claim form], it said it was complete, true and correct. PRINCIPAL APPELLANT: Yes. MEMBER: Okay [emphasis added].92 [87] The associate Appellant testified extensively about the XXXX raid of XXXX 201593, and testified as follows concerning his guilty plea in the court in Spain: MEMBER: Why did you plead guilty? PRINCIPAL APPELLANT: Because this gentleman, this Pakistani gentleman, along with the police, had presented the case in a way that I had no other alternative. After that, the police started coming to my XXXX once or twice every month. And because of the police presence I lost a lot of customers. I was incurring loss in my business. At one point I was even thinking of hiring another lawyer, but I did not have money to spend to get another lawyer. MEMBER: Okay, but - did your lawyer tell you that you had to plead guilty and that it was an impossible case? PRINCIPAL APPELLANT: Yes, my lawyer said that. MEMBER: Okay. Did you tell him you were innocent? PRINCIPAL APPELLANT: Yes. I repeatedly said that I was innocent. MEMBER: Then why did you say you did it? PRINCIPAL APPELLANT: Because I was very scared in the court. MEMBER: Did you testify at any point? PRINCIPAL APPELLANT: Yes. MEMBER: Okay. Did you (inaudible) some sort of arrangement or deal from the prosecutor for pleading guilty? PRINCIPAL APPELLANT: No. MEMBER: Were you aware that having a criminal conviction would impact your status in Spain? PRINCIPAL APPELLANT: Yes - after the verdict was announced, I came to know after that. My lawyer told me that since I've been convicted, it's going to affect my permanent residency status. MEMBER: Okay, but before you were convicted, weren't you aware that having a criminal conviction would impact your status? PRINCIPAL APPELLANT: Yes, I knew. MEMBER: Then why did you plead guilty? PRINCIPAL APPELLANT: Because I had nothing else to do, I could not think of anything. I was mentally extremely stressed out, I had no money, so that's the only choice I had.94 [88] The RPD's Reasons for Decision states that the Appellants' BOC narrative "implied that they had been unjustly convicted of the offence."95 The principal Appellant's amended BOC narrative states that her the associate Appellant "was very much worried" about being targeted in a similar alleged police bribery and entrapment scheme96 and her original BOC narrative states that the associate Appellant "was very much frustrated with the verdict of the court accusing him of an offense which he had never committed [emphasis added]."97 The court judgment that records the associate Appellant's guilty plea directly contradicts the way the outcome of the case is characterized in the principal Appellant's BOC narrative. [89] I have independently assessed the principal Appellant's amended BOC narrative which characterizes the verdict of the court in Spain as "unprecedented" and "not justified by any means."98 The RPD did not err in stating that the Appellants' narrative was phrased to suggest that the conviction was unwarranted. While this may have reflected the Appellants' subjective opinion of the court proceedings, the fact that the associate Appellant ultimately pleaded guilty to the offence was relevant information that should have been included in the BOC narrative. [90] I find that the Appellants mischaracterized the resolution of the criminal case against the associate Appellant in a manner that was unwarranted. I therefore draw a second negative inference concerning the Appellants' credibility. The Appellants' BOC narrative failed to mention the associate Appellant's allegation that he was harassed by police in Spain [91] The Appellants' BOC narrative speaks of the associate Appellants having interacted with police in Spain solely in the context of the XXXX XXXX, 2015 raid on the XXXX, except for a passing mention of the associate Appellant's alleged fear that "illegal persons visiting his XXXX for dinner [...] could arrange secretly to inform the police that there is an illegal person working in his XXXX".99 [92] The testimony of the associate Appellant was quite different, as demonstrated by the following exchange between himself and the RPD panel: MEMBER: So you said the police visited after you were convicted? ASSOCIATE APPELLANT: Yes. After the case the police would come to my XXXX once or twice every month 'til such time I was there in Spain. MEMBER: Okay, why didn't you mention this in your Basis of Claim? ASSOCIATE APPELLANT: When writing the narrative I did not remember. MEMBER: You didn't remember one of the reasons you left Spain? ASSOCIATE APPELLANT: Yes. MEMBER: Even though you signed that this narrative was complete, true and correct? ASSOCIATE APPELLANT: Yes [emphasis added].100 [93] Later during the hearing when the Appellant was questioned by his own counsel about his interactions with police in Spain after the XXXX XXXXXXXX, 2015 raid on his XXXX, he characterized their interactions with him as harassment: APPELLANTS' COUNSEL: Thank you for your testimony so far. What is your view on the incidents surrounding the- sorry, the incident surrounding your XXXX with the police and the Pakistani gentleman? ASSOCIATE APPELLANT: This was all a staged incident that took place in my XXXX. I was not aware or I had no knowledge of how a customer could enter and start working in the kitchen because he must have planned it within himself earlier, and that's why as soon as the police came he entered the kitchen. APPELLANTS' COUNSEL: Why do you think it was planned? ASSOCIATE APPELLANT: 'Til such time [as] this Pakistani gentleman got his status as a permanent resident, the police have come to my XXXX several times, and I've been harassed several times by the police. And the time came when my business was going down because of frequent police visits, and I was totally lost and I was not sure what to do. APPELLANTS' COUNSEL: How did they harass you? ASSOCIATE APPELLANT: The first when the police came, and they arrested me and took me to the police station, they took my fingerprints as well as took a photograph of mine. That itself is an harassment as far as I'm concerned because I was not even thinking of such an incident would take place. APPELLANTS' COUNSEL: In previous testimony you said that they came to your place two to three times a month. What would they do on those visits? ASSOCIATE APPELLANT: When the police would visit my XXXX, every time they would ask whether any illegal persons were working in my XXXX. They would go around checking all the employees. Because of that the customers felt very uncomfortable. APPELLANTS' COUNSEL: Do you know why they would do that? ASSOCIATE APPELLANT: I don't know why they would do that. APPELLANTS' COUNSEL: To your knowledge, it this - is it common for them to do this, in this situation? ASSOCIATE APPELLANT: No, this was not common because I've seen in that locality there were many Spanish XXXX, but I've not seen any police going to those XXXX anytime. Because they knew that I am from Bangladesh, that I am a Muslim, and my skin is dark [emphasis added].101 [94] Earlier on during the hearing the RPD had asked the principal Appellant if she and her family faced any persecution in Spain. In response to the RPD's question the principal Appellant did not testify that she and her spouse were harassed by police after the XXXX XXXX, 2015 raid on their XXXX: MEMBER: Do you face any persecution in Spain? PRINCIPAL APPELLANT: You mean me personally? MEMBER: Or your family, yes. PRINCIPAL APPELLANT: Yes. MEMBER: What? PRINCIPAL APPELLANT: The area that we used to reside, it was not - it was unsafe for us. MEMBER: Where did you reside? PRINCIPAL APPELLANT: XXXX, Barcelona. MEMBER: Why is Barcelona unsafe? PRINCIPAL APPELLANT: Because those who had conspired against my husband, they were very bad people and they were still there. And, in the future, if a similar thing happened once again and my husband is imprisoned, then where would I go? I used to feel very stressed mentally and helpless all the time. MEMBER: So when you say "these people", what do you mean? PRINCIPAL APPELLANT: There was some Pakistani people, bad people who were involved with these kind of activities all the time. MEMBER: Okay, so you've recounted one incident. Were there any other incidents that happened? PRINCIPAL APPELLANT: Yes. MEMBER: Please explain. PRINCIPAL APPELLANT: The area that we used to live, and since we were immigrants at that point, these things happened to the immigrants, because, first of all, there was a lot of discrimination towards being not of the same colour, as well as the religion. MEMBER: That wasn't the question I asked. The question I asked you was, did you have any other incidents with this group of people? PRINCIPAL APPELLANT: Not with our XXXX, but nearby local stores, such incidences have happened which we came to know. MEMBER: Okay, so, it's a general phenomenon then. PRINCIPAL APPELLANT: But these incidences never took place with the Spanish-owned XXXX or stores. MEMBER: How do you know that? PRINCIPAL APPELLANT: I lived there for almost three years so, in the neighbourhood of the XXXX that we owned, we found out that - I was well-known to, or I knew most of these neighbourhood stores. Because, any time certain incidents happens, everybody comes to know about it. MEMBER: Okay. Are there any other reasons that you've been persecuted in Spain or other incidents that have occurred? PRINCIPAL APPELLANT: Because when my child used to go to the school, we observed that he was being targeted with racial comments, and he was not being treated equally. Even the parents of other kids would not interact with us, they would try to avoid us. MEMBER: By - was your child being mistreated by adults at the school or by other children? PRINCIPAL APPELLANT: My child is to become - became target of bullying, because he did not know the language, their language, as well as because of race. MEMBER: So other children, not the adults in the school. PRINCIPAL APPELLANT: Yes, the parents of other children would not interact with us, or avoid us altogether. Their children were the ones who would mistreat my child. MEMBER: Okay, but your child was not being mistreated by the adults at the school PRINCIPAL APPELLANT: No. MEMBER: Okay. Were there any other incidents in Spain? PRINCIPAL APPELLANT: No. MEMBER: So the entirety of discriminatory incidents that you had mentioned in Spain, are that your child was picked on at school by other children, that the other parents at your child's school would not talk to you, the incident that you described with the Pakistani community, and your fear that they would have a similar occurrence as what happened to you in 2015- PRINCIPAL APPELLANT: Yes. MEMBER: -and the incident in 2015. PRINCIPAL APPELLANT: Yes. MEMBER: Are there any other incidents or feelings that you would have of persecution in Spain? PRINCIPAL APPELLANT: No [emphasis added].102 [95] The Appellants gave inconsistent testimony on the issue whether the police harassed them after the associate Appellant was convicted. Given the seriousness of this allegation one expects that the principal Appellant's testimony would have reflected her spouse's characterization of the police visits as harassment, given the pointed nature of the RPD panel's question. [96] Moreover, the associate Appellant's testimony that the police in Spain harassed him by frequenting his XXXX two to three times a week to check on the legal status of his employees was nowhere present in the BOC narrative. This is a material omission given the Appellants' continued insistence that the associate Appellant was convicted after police in Spain conspired with a Pakistani immigrant to entrap him. One expects that the allegation of harassment would have been mentioned as a continuation of the initial incident in which the associate Appellant was allegedly entrapped. [97] I find that the Appellants' inconsistent and incomplete evidence on this point generally undermines their credibility. The Appellants' explanation for their delay in claiming refugee protection in Canada is not reflected in their BOC narrative [98] In the BOC narrative the principal Appellant wrote the following about the period after their arrival in Canada: [...] [W]e departed from Spain on XXXX XXXX XXXX 2017 and arrived in Canada on the same day. After arriving here, we did not have much idea as to how we could get the needed assistance for me and my family. We approached one lawyer, but he had really misguided us and we lost a lot of time in this way. After searching for options, with the help of some community people, we were able to submit our refugee claim only today.103 [99] During the hearing, however, she gave the following testimony concerning the Appellants' delay in claiming once in Canada: MEMBER: Why did you wait so long after coming to Canada to ask for refugee status? PRINCIPAL APPELLANT: First of all it was another new country for us, and it took us some time to acclimatize ourselves with the climate and the weather. My kids became sick and we had to - they didn't have the health card and we had to pay to get treatment for them. We did get in touch with a counsel from our own community, but then he misguided us and basically he was not telling us exactly what to do. And then we continued to pursue our intentions with other community people and eventually they were able to help us. MEMBER: When did you first contact this lawyer? PRINCIPAL APPELLANT: We came here in XXXX of 2017 and we contacted this lawyer in XXXX of 2018. MEMBER: Could you repeat your answer please? Could you repeat your answer please? [RAD Panel's Note: communication in Bengali between principal Appellant and interpreter] Could you please repeat your answer? PRINCIPAL APPELLANT: The first time I was not able to understand you properly. Now I understand. MEMBER: So could you please repeat the answer that - to my question? When did you first contact this lawyer? PRINCIPAL APPELLANT: We first got in touch with this lawyer in XXXX of 2018. MEMBER: You mean the first lawyer that you talked to? PRINCIPAL APPELLANT: No, the present lawyer. MEMBER: I was asking about the first lawyer you got into contact with. When did you - PRINCIPAL APPELLANT: XXXX, early XXXX. 2018, early XXXX. MEMBER: And when did you arrive in Canada? PRINCIPAL APPELLANT: In XXXX of 2017. After coming here, I became pregnant once more in XXXX and since I am a XXXX patient I was very sick. Because of this also our claim was delayed. MEMBER: Why didn't you mention this in your Basis of Claim? PRINCIPAL APPELLANT: At that time I did not realise that this needs to be included in the Basis of Claim, for which I am sorry. MEMBER: But if that is what you're relying on to explain what your delay was, you didn't think it was relevant to include that fact? PRINCIPAL APPELLANT: Yes, I should have, but it was a mistake on my part [emphasis added].104 [100] Based on my independent assessment of the hearing testimony, I believe that the RPD was inaccurate when it wrote that the principal Appellant cited her XXXX 2018 pregnancy as "a major factor in the delay"105 in claiming refugee status in Canada. Rather, her pregnancy was only one of a number of factors that the principal Appellant testified had delayed her family's claim. [101] The other factors were: the Appellants' need to acclimatize themselves to the weather in Canada; the fact that the minor claimants became ill and the need to pay for their treatment; being misguided by the first counsel who they retained; and their effort to "pursue [their] intentions with other community people" in Canada. In short, the principal Appellant testified to a number of reasons for the delay. [102] The associate Appellant was also questioned by the RPD about his family's delay in seeking refugee status: MEMBER: And you left Bangladesh of your own - you left Spain of your own accord. ASSOCIATE APPELLANT: Yes. I was compelled to leave Spain because at that time I had no choice. MEMBER: Okay. Then why did you wait XXXX months to apply for your status in Canada? Why did you wait XXXX months to apply for refugee status? ASSOCIATE APPELLANT: Yes, because we had come to another new country and we did not know anybody. We were still with ourselves, as well as the climate. Our children became very sick, and my wife also conceived in XXXX. She's also a XXXX patient and she became very sick. Even though we did consult a lawyer from our community in XXXX, he unnecessarily spent a lot of time, like, spoiled [a] lot of our time. And then eventually we contacted the present lawyer in the month of XXXX 2018. MEMBER: If you were worried about your status in Spain, why didn't you act very quickly to make a claim? ASSOCIATE APPELLANT: After coming to this country it was again a new country for me. I was kind of lost. I could not know where to start from and how to. And also, in between my wife became pregnant and I was busy looking after her. MEMBER: I guess I'll make my questions clearer. If you were afraid of events in Bangladesh- actually, I should ask, were you afraid of returning to Bangladesh? ASSOCIATE APPELLANT: Going back to Bangladesh I was afraid of one godfather by the name of XXXX XXXX. MEMBER: Yes. ASSOCIATE APPELLANT: His men had kidnapped my son, or our son, twice. MEMBER: So the answer to my question was "Yes". ASSOCIATE APPELLANT: Yes. MEMBER: So you were afraid of going back to Bangladesh. ASSOCIATE APPELLANT: Yes. MEMBER: So for those purposes, if you were afraid of going back to Bangladesh, why would you risk your status in Spain by leaving for another country, and, even further, risk your status in Spain by waiting XXXX months to apply for asylum status in Canada? ASSOCIATE APPELLANT: First of all, while in Spain after these false allegations were made against me, I was very fearful and as soon as we knew - came to know that my status will be in jeopardy after the conviction, so we were trying to get out of there before I'm sent back. And after coming to Canada I was again lost, as I said, and busy taking care of my family who were all sick and my wife had got pregnant again, so taking care of her. That's why it took time [emphasis added].106 [103] The Appellant was also questioned by his own counsel about his family's delay in seeking refugee status: APPELLANTS' COUNSEL: You earlier testified that when you came to Canada your kids were sick. Can you tell us, uh, what they were suffering from or what their symptoms were? ASSOCIATE APPELLANT: They were suffering from cold and fever. And we did not have the right to go to a doctor or visit any medical facility. We had to pay for all the services from the medical persons. APPELLANTS' COUNSEL: Did you seek treatment for your kids? ASSOCIATE APPELLANT: Yes. APPELLANTS' COUNSEL: What did you do? ASSOCIATE APPELLANT: We did go to seek help from the professional medical persons. And once taken they're checked-up and then prescribed medicines. APPELLANTS' COUNSEL: You also said that you saw a lawyer in Canada in XXXX 2018 - do you remember his or her name? ASSOCIATE APPELLANT: XXXX XXXX, the name. APPELLANTS' COUNSEL: Can you spell that for me? ASSOCIATE APPELLANT: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX APPELLANTS' COUNSEL: Can you describe your relationship with him? ASSOCIATE APPELLANT: I went to him first of all after hearing about him from people of my own community. And once I went to him I explained to him my situation - or, rather, our situation. Initially he said that he is going to help me, and I visited him two or three times. But I did not feel comfortable and I could feel that he is not doing anything about it. And right now the office that I went to is also closed down. APPELLANTS' COUNSEL: How did you get this feeling that he was not doing anything? ASSOCIATE APPELLANT: The first time when I went to him and met him, I explained our situation. He agreed to take up our matter and do the needful, and asked us to come another day. And when we met, went the second time, I told him the same thing and he didn't seem to write down anything or do anything, so I felt that he is not going to help me at all.107 [104] Even though the Appellants testified to several different reasons for their delay in claiming refugee status after arriving in Canada, the only explanation for the delay given in the Appellants' BOC narrative is the allegation that they were misguided by the first lawyer that they approached in Canada. None of the other explanations were mentioned in either her original or her amended BOC narrative. [105] The principal Appellant acknowledged verbally to the RPD panel that the information was relevant and should have been included in her BOC narrative, since she relied on it in part to explain her delay. The same reasoning applies to the other explanations given in both Appellants' testimony. [106] Based on my independent assessment of the record, I find that the Appellants' testimony does not adequately explain their delay in claiming in Canada, and that the unexplained delay in seeking protection in Canada further undermines the credibility of their subjective fear of persecution in Bangladesh. [107] Based on my assessment of the record, I find that the Appellants are neither Convention refugees nor persons in need of protection, and that their appeal must therefore fail. CONCLUSION [108] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection as they are excluded under section 98 of the Immigration and Refugee Protection Act (IRPA), in accordance with article 1E of the Convention. (signed) "S. Thompson" S. Thompson March 12, 2020 Date 1 28 July 1951, Can TS 1969 No 6 (entered into force 22 April 1954, accession by Canada 4 June 1969) [the UN Refugee Convention]. 2 Immigration and Refugee Protection Act, SC 2001, c. 27. 3 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 5 at para. 11. 4 Exhibit M-1, Minister's Intervention in Writing dated September 5, 2019, Minister's Memorandum at pp. 2-3. 5 Exhibit P-3, Appellants' Response to Minister's Intervention dated September 30, 2019, p.4 at para. 16. 6 Exhibit P-2, Appellants' Record, Appellants' Written Statement Regarding Sections 110(4) and 110(6), dated 25 June 2019, at pp. 3-4 (received separately). 7 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 8 Exhibit M-1, Minister's Intervention in Writing dated September 5, 2019, pp. 7-8. 9 Exhibit P-3, Appellants' Response to Minister's Intervention dated September 30, 2019, at p.4, para 13. 10 Canada (Citizenship and Immigration) v Zeng, 2010 FCA 118 [Zeng]. 11 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 14 at para. 76. 12 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 8 at para. 36. 13 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 146-147. 14 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 145, 148-151. 15 Exhibit RPD-1, RPD Record, Exhibit 8, pp. 260-261 at para. 3. 16 Exhibit RPD-1, RPD Record, Exhibit 8, p. 261 at para. 4. 17 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 157, 163, 166 18 Exhibit RPD-1, RPD Record, Exhibit 8, at pp. 268-308. 19 Zeng, supra, footnote 6, at para. 28. 20 Zeng, supra, footnote 6, at para. 16. 21 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 12 at para. 66. 22 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 12-13 at para. 67. 23 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 13 at para. 73. 24 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 13 at para. 71. 25 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 11 at para. 56. 26 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 62 at paras. 34-35. 27 Exhibit RPD-1, RPD Record, Exhibit 8, p. 261 at para. 4. 28 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 11 at para. 59. 29 Exhibit P-2, Appellants' Record, Appellants' Memorandum,p. 62, at para. 36. 30 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 10 at paras. 46-50. 31 Effective December 31, 2003, online: https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/EvidPreu06.aspx#613 32 Ibid. 33 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 63 at para. 38. 34 Exhibit M-1, Minister's Intervention in Writing dated September 5, 2019, p. 2. 35 Exhibit RPD-1, RPD Record, Exhibit 10, pp. 353-356. 36 Exhibit RPD-1, RPD Record, Exhibit 10, at p. 353. 37 Exhibit RPD-1, RPD Record, Exhibit 10, at p. 353. 38 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 61, at para. 30. 39 Exhibit RPD-1, Exhibit 8, RPD Record, p. 292. 40 Exhibit RPD-1, Exhibit 8, RPD Record, p. 293. 41 Exhibit RPD-1, Exhibit 8, RPD Record, p. 283. 42 Exhibit RPD-1, RPD Record, Exhibit 10, p. 349. 43 Exhibit P-2, Appellants' Record, Appellants' memorandum, p. 54 at para. 5. 44 Exhibit P-2, Appellants' Record, Appellants' memorandum, p. 62 at para. 33. 45 Exhibit RPD-1, RPD Record, Exhibit 1, p. 93. 46 Exhibit RPD-1, RPD Record, Exhibit 1, p. 93. 47 Appellants' Record, Appellants' Memorandum, pp. 62-63 at para. 37. 48 Exhibit RPD-1, RPD Record, Exhibit 8, p. 283. 49 Exhibit RPD-1, RPD Record, Exhibit 8, pp. 276-277. 50 Exhibit RPD-1, RPD Record, Exhibit 8, p. 277. 51 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 12 at para. 64. 52 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 63 at para. 39. 53 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 12 at para. 64. 54 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 55, at paras. 10-11. See also Mohamed v Canada (Citizenship and Immigration), 2019 FC 1071 at paras. 21, 39 (Walker J). 55 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 12 at para. 64. 56 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 12 at para. 63. 57 Wang v. Canada (Citizenship and Immigration), 2019 FC 216 at para. 19 (Southcott J). 58 Exhibit RPD-1, RPD Record, Exhibit 2, p. 28 at lines 53-60. 59 Exhibit RPD-1, RPD Record, Exhibit 2, p. 29 at lines 75-78. 60 Exhibit RPD-1, RPD Record, Exhibit 2, p. 30 at lines 100-103. 61 Exhibit RPD-1, RPD Record, Exhibit 2, pp. 30-31 at lines 109-120. 62 Exhibit RPD-1, RPD Record, Exhibit 2, pp. 31-32 at lines 146-151. 63 Exhibit RPD-1, RPD Record: Exhibit 2, pp. 33-35, at lines 191-242, esp. lines 203-209 ("XXXX asked me why I had not withdrawn the G.D even after a reminder from XXXX and why I had fled from XXXX. He told me that they can find me out even if I hide inside a grave. He told me that I have disobeyed the instructions from XXXX XXXX and I must face the consequences for that [emphasis added]"); p. 37 at lines 298-307, esp. lines 303-307 ("XXXX asked me why I did not withdraw the G.D until now and that I had betrayed them by fleeing from place to place. He asked me how I dared to disobey the instructions of XXXX XXXX and told me that if I wanted to have my son back, I had to pay him Taka XXXX XXXX within 24 hours and that no extension of this time will be made since I am staying in Spain and I am a very rich person [emphasis added]."). 64 Gonsalves v Canada (Minister of Citizenship and Immigration), 2011 FC 648 at para. 29. 65 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 12 at para. 63. 66 Exhibit P-2, Appellants' Record, Appellants Memorandum, p. 63 at para. 39. 67 Canada (Citizenship and Immigration) v Sellan, 2008 FCA 381 at para. 3 (Nadon J). 68 Exhibit RPD-1, RPD Record, Exhibit 10, pp. 319-368. 69 Exhibit RPD-1, RPD Record, Exhibit 10, p. 344. 70 Exhibit RPD-1, RPD Record, Exhibit 10, p. 342. 71 Exhibit RPD-1, RPD Record, Exhibit 10, p. 341. 72 Exhibit RPD-1, RPD Record, Exhibit 10, p. 343. 73 Exhibit RPD-1, RPD Record, Exhibit 10, pp. 357-358. 74 Exhibit RPD-1, RPD Record, Exhibit 10, pp. 359-361. 75 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 144-155. 76 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 55 at para. 10. 77 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 5 at para. 11. 78 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6 at paras. 12-16. 79 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6 at paras. 17-22. 80 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7 at paras. 23-27. 81 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7 at paras. 28-32. 82 Exhibit RPD-1, RPD Record, Exhibit 9, p. 91 at line 278 (amendment to principal Appellant's original BOC narrative). 83 Exhibit RPD-1, RPD Record, Exhibit 2, pp. 35 (lines 261-265) to 36 (lines 66-280, 282-286). 84 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 00:26:59 to 00:28:35. 85 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 00:28:35 to 00:34:38. 86 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 00:17:20 to 00:19:04. 87 Exhibit RPD-1, RPD Record, Exhibit 9, at p. 89. 88 Exhibit RPD-1, RPD Record, Exhibit 9, at p. 91. 89 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 01:22:09 to 01:24:42. 90 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 02:03:50 to 02:05:15. 91 Exhibit RPD-1, RPD Record, Exhibit 9, p. 91 at lines 276-280, 282-283. 92 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 00:34:43 to 00:43:37. 93 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 01:43:08 to 01:57:10. 94 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 01:57:11 to 02:02:21. 95 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6 at para. 18. 96 Exhibit RPD-1, RPD Record, Exhibit 9, p. 91 at lines 286-289. 97 Exhibit RPD-1, RPD Record, Exhibit 2, p. 38 at lines 325-326 (emphasis added). 98 Exhibit RPD-1, RPD Record, Exhibit 9, p. 91 at lines 282-283. 99 Exhibit RPD-1, RPD Record, Exhibit 9, p. 91 at lines 287-288. 100 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 02:02:22 - 02:03:49. 101 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 02:26:40 to 02:32:26. 102 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 00:43:45 to 00:53:21. 103 Exhibit RPD-1, RPD Record, Exhibit 2, p. 38 at lines 342-343, 345-348. 104 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 00:58:43 to 01:05:18. 105 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7, at para. 28. 106 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 02:12:53 to 02:19:06. 107 Audio recording of hearing in RPD file TB8-12075 dated 18 February 2019 at timestamps 02:32:35 to 02:37:21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-12163 TB9-12164 / TB9-12165 / TB9-12166 RAD.25.02 (April 04, 2019) Disponible en français 39 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 (April 04, 2019) Disponible en français