TB7-25145

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File / Dossier de la SAR : TB7-25145 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 14, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal H. J. Yehuda Levinson Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) a citizen of Albania appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of this appeal. The Appellant is not requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The Appellant alleges that his cousin, XXXX XXXX and his wife, XXXX XXXX faced persecution from XXXX XXXX radical Muslim family. The persecution stemmed from cultural and religious differences in religion between XXXX and XXXXs families. Both the claimant and XXXX are Catholic. [3] The Appellant assisted XXXX in trying to resolve the differences between the families and also assisted XXXX and XXXX while they were in hiding. As a result of his assistance to XXXX and XXXX, the claimant alleges that the XXXX family has beaten him up and made an attempt on his life. [4] The claimant alleges that the police refused to help him or investigate either the November 2015 beating or the March 2016 gunshot attack on his life. [5] The claimant further alleges that his mother, who remains in Albania, has been threatened and injured by the XXXX family. RPD's Reasons [6] In its reasons, the RPD found that the Appellant was not credible due largely to the Appellant's frequent use of fraudulent documents in support of the claim. [7] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed Appellant's Issues [8] It is submitted by the Appellant that the Refugee Protection Division ("RPD") made a flawed cumulative credibility finding regarding the Appellant's claim, based on several factual and legal errors, including: a. the Member's misapprehension of the Appellant's oral evidence; b. a misplaced reliance on the report of the RCMP's National Anti-Counterfeiting Bureau; c. an unreasonable finding that two signatures on two police reports attributed to a single person, Mr. XXXX XXXX, were in fact not signed by him; d. an unreasonable expectation of the Appellant to remember minute details only tangentially relevant to his claim; and e. unreasonable inferences about the documentary evidence in support of the claim, which fail to account for cultural differences in industry standards in journalism, and hospital record-keeping; [9] It is submitted that the RPD erred in law, as its decision is neither intelligible nor transparent with respect to its treatment of the documentary evidence. ANALYSIS Determinative Issue [10] The determinative issue in this appeal is credibility Standard of Review [11] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.1 Arguments [12] The primary issue to be dealt with herein is that of credibility of the Appellant. [13] Counsel argues that the panel's negative cumulative credibility finding is unreasonable as those individual findings are riddled with errors of fact and of law. [14] The panel had alleged a contradiction in the timing about when the Appellant had obtained a police report. The conversation went as follows (as provided by counsel): PRESIDING MEMBER: You know, I did forget to ask you one question back on the car incident: How did you obtain the police report? THE CLAIMANT: Well, I got that report from police that night when I reported the incident and when they were asking me questions. PRESIDING MEMBER: So the report that you provided to me, you got it the night of the accident? THE CLAIMANT: I am not understanding you. PRESIDING MEMBER: So the accident, the report that you have provided to me from the Lezhe police, you obtained that on the night of the accident? THE CLAIMANT: No, no. It was -- the report was written on the night - the report, Air (ph) report, was written on the night of the incident. PRESIDING MEMBER: Okay. And when did you get the report you provided to me? THE CLAIMANT: I am not too sure, maybe April? I am not too sure. I am not too sure, when. [15] Counsel argues that the Appellant clearly clarified in this exchange that he meant the report was written on or about the night of the incident, but that a copy was obtained later. As a result, the Member's analysis alleges a contradiction in the Appellant's evidence which simply is not there. Therefore his negative inference on this point is unreasonable. [16] I have listened to the actual audio recording2 with specific attention paid to this issue. Counsel's transcript is accurate. [17] I concur with counsel on this issue. It appears in the transcript as provided by counsel3 that the Appellant did, in fact say that he was unsure of the date on which he received the report but that it was written on the night of the incident, or so he believed. [18] The panel's negative inference on this single issue was an error. [19] Counsel argues that the panel erred in yet another alleged inconsistency, that occurred in connection to when and how the Appellant obtained a copy of the above police report. [20] The panel noted that the Appellant had testified or sworn that he went into hiding right after the shooting incident in March until he left Albania in May. The Appellant also testified that he obtained the police report in April. The panel found that it was an inconsistency for the Appellant to have been in hiding while at the same time the Appellant apparently travelled over an hour to the police station to obtain the report. [21] Counsel argues that there is no basis for this inconsistency finding as the Appellant did not testify to having personally left his hiding spot to obtain the report. Consequently there is no inconsistency. [22] However, when one looks back to the beginning of this incident discussion, the Appellant initially said that he got the report from the police the night of the incident. I note that he said "he" got the report from the police. A little later on, he clarified that he was unsure of the actual date on which he got the report from the police. This tells me that, regardless of the actual date that the Appellant obtained the report, he obtained it from the police. I do not agree with counsel on this issue as it is clear to me that the Appellant has testified that he obtained the report from the police. If that occurred in April as he later testified to, then that is inconsistent with his earlier testimony. The panel did not err in that issue. [23] Counsel argues that the panel erred in dismissing at least four official documents based on a forensic report which resulted in an "inconclusive" finding. [24] The term "inconclusive" is generally used when there is not 100% proof that something is what one is suspecting it may or may not be. In refugee law, evidence is judged in a more liberal manner that is it is judged on a balance of probabilities. [25] When examining the four documents4 in question, the Forensic Lab gave these results of their investigation.5 Results: 1. The police report from Shkoder, Malesi e Madhe, from the Republic of Albania, exhibit 0001, was produced by an ink jet printing system, including the blue seal at the bottom of the page. Wet seals on official documents are usually applied manually with a rubber stamp leaving impressions, not printed by ink jet. 2. The police report from Lezhe, from the Republic of Albania, exhibit 0002, was produced by an ink jet printing system, including the blue seal, blue text and signature. Wet seals on official documents are usually applied manually with a rubber stamp leaving impressions, not printed by ink jet. Signatures on official documents are usually hand written, not printed by ink jet 3. The medical report from Lezhe hospital in respect to XXXX XXXX XXXX XXXX from the Republic of Albania, exhibit 0003, was produced by an ink jet printing system. Additional hand drawn red lines were added at the top of the page and the blue circular seal at the bottom right of the page had some hand written text added to it. This type of manual alteration is not consistent with official documents. 4. The medical report from Lezhe hospital in respect to XXXX XXXX XXXX, from the Republic of Albania, exhibit 0004, was produced by a toner printing system. On the bottom left side of the page, a hand drawn simulation of a stamp was done in blue ink. On the bottom right side of the page, a blue circular seal applied with a rubber stamp, had some hand written text added to it. These types of manual alterations are not consistent with official documents. [26] Counsel argues that as the results of forensic testing were inconclusive it was therefore an error for the panel to find the documents to be fraudulent. [27] Pursuant to subsection 175(1)(b) of the Immigration and Refugee Protection Act6 the Refugee Protection Division is not bound by the technical rules of evidence. Subsections 175(1)(b) and (c) of the Immigration and Refugee Protection Act provides: (b) is not bound by any legal or technical rules of evidence; and (c) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances. [28] In the case of the above mentioned four documents, the panel has found them to be, on a balance of probabilities, fraudulent. The panel does not consider the documents to be trustworthy in accordance to sub-section 175(1)(b) of the IRPA. [29] The panel explained clearly his reasons for his dismissal of these documents and those reasons were in part based on the inconclusive forensic report. [30] Although the forensic report could not draw a conclusion on the authenticity of the documents in question, the report clearly referenced a number of issues with these documents, each on its own sufficient cause to suspect that there was something wrong with each document. [31] The issues identified by the panel and by the forensic investigators are sufficient cause to suspect that these documents are fraudulent. As the IRPA allows the decision maker to assess each item of evidence with a far less vigorous standard than would occur in a criminal court of law, the standard of "conclusive" exceeds the standard necessary in this case. [32] Having examined the evidence including the forensic report, I find that, on a balance of probabilities, these documents are fraudulent. I further find that the panel made no error in assigning these documents little weight. [33] Counsel argues that it is an error for the panel to make a negative inference based on the fact that the Appellant could not remember the precise time and sequence of events that led to his printing out a newspaper article describing the March 2, 2016 car incident, an article the Appellant had disclosed as evidence at the hearing. Counsel argues that the alleged inconsistency regarding the date on which the article was printed off the internet, is not material to the claim and that the inconsistency is easily explained as the Appellant simply forgot the correct date of this insignificant matter. [34] I concur with counsel inasmuch as the issue here is immaterial to the overall claim/appeal. The document has been verified by the Specific Information Research Unit (SIRU) as genuine and that is far more important than the date that the document was downloaded. It was an error for the panel to place little weight on this article, in spite of the errors contained in the article. However, this article is not, of itself, sufficient enough to overcome the credibility issues based on the submission of four fraudulent documents as evidence. [35] Counsel argues that the most damning evidence against the Appellant's story is the evidence before the Immigration and Refugee Board (the Board) that despite the Appellant's claim that he was hospitalized in November 2015, a hospital representative claimed that a search of the hospital's patient registry failed to list the Appellant. Counsel argues that the Appellant was not given an opportunity to proffer an explanation to address the reason that the hospital has no record of him, nor does he proffer one here. [36] When I consider the fraudulent medical report in conjunction with the lack of any records at the hospital showing that the Appellant attended that hospital as alleged, there is only one reasonable conclusion to arrive at and that is that the Appellant never attended the hospital as alleged. To further extrapolate, I find that the mitigating incident which he claims sent him to the hospital, on a balance of probabilities, never occurred. [37] Counsel argues that the panel erroneously dismissed the support letter of the Appellant's uncle who had obtained the hospital reports on the Appellant's behalf. The panel, having found the documents obtained by the uncle to be fraudulent, dismissed the uncle's letter as not being from a trustworthy source. Counsel argues that simply because the uncle obtained the other documents fraudulently does not mean the contents of the documents are not true. [38] I cannot understand counsel's line of reasoning. If evidence is knowingly obtained and is fraudulent, then the documents of course have no credibility. However, the person(s) who procured these fraudulent documents also has lost all or most of his or her credibility as well. That is common sense. How can one trust the source when the source has produced fraudulent evidence? [39] Counsel goes on to argue that the panel erred when he dismissed all other documentary evidence including a support letter from the Appellant's mother. Counsel correctly argues that each separate piece of evidence must be analyzed and considered on its own merit. [40] The panel placed no weight on the letters from the Appellant's mother and cousins based partially on the fact that the Appellant had previously tendered at least four fraudulent documents. When checked out by the Board, it was found that the Appellant had not attended the hospital as alleged. Given the propensity of the Appellant to provide false documents and to lie to the Board, it is totally reasonable for the panel to have dismissed any and all documents presented by this appellant. Summary [41] In my overall and independent review of the evidence, of the Reasons and Decision and of counsel's arguments, it is my finding that the panel made no significant errors. Disposition [42] The RAD has found that the RPD decision will stand. CONCLUSION [43] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe November 14, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Audio Recording of the Hearing held July 20, 2016, at minute 1:31:30. 3 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 4. 4 One police report from Shkoder, Malesi e Madhe, from "Republika E Shqiperise" (Republic of Albania), written in Albanian text, Nr. 29/9 prot, dated April 22 2016; One police report from Lezhe, from "Republika E Shqiperise" (Republic of Albania), written in Albanian text, Nr. 724 prot, dated April 15, 2016; One medical report from Lezhe hospital in respect to Ferd Gjergj KEQAJ, from "Republika E Shqiperise" (Republic of Albania), written in Albanian text, Nr. 429 prot, dated June 7, 2016; One medical report from Lezhe hospital in respect to Florjan Luigj KEQAJ, from "Republika E Shqiperise" (Republic of Albania), written in Albanian text, Nr. 429 prot, dated November 13, 2015. 5 Exhibit RPD-1, RPD Record, at pp. 137-140. 6 S. 175(1) Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-25145 RAD.25.02 (September 18, 2018) Disponible en français 10 RAD.25.02 (September 18, 2018) Disponible en français