MB8-15986

RAD File No. / No de dossier de la SAR : MB8-15986 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision October 23, 2019 Date de la décision Panel Me Bianca Eleonora Suciu Tribunal Counsel for the person who is the subject of the appeal Me Claude Whalen Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX, a citizen of Pakistan, is appealing against the decision of the Refugee Protection Division (RPD) of June 29, 2018, rejecting his refugee protection claim filed under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant fell in love with XXXX XXXX, who was from a different caste. Her family had ties to the police and the ruling party. In 2015, when he was in the United States, the appellant found out that XXXX was pregnant and that she had had an abortion. A few months later, his father told him that XXXX had been killed because she brought dishonour to her family and that the appellant's family was subjected to threats and attacks. His father notified the appellant that they were also looking for him to kill him. The appellant left the United States on XXXX XXXX, 2017, to claim refugee protection in Canada. [3] The RPD found that the appellant was not credible on the basis of his refugee protection claim because several documents were considered to be fraudulent, some explanations were found to be unsatisfactory and his account was implausible. The RPD also concluded that the appellant did not risk persecution because he is a Shi'ite. The appellant submits that the RPD erred in the assessment of his credibility and the prospective risk because of his religion. He is asking the Refugee Appeal Division (RAD) to allow the appeal or refer the matter before the RPD for redetermination or hold a new hearing before the RAD. DETERMINATION [4] Having conducted an independent analysis of all the evidence on the record, including the recording of the hearing, I agree with the RPD's concerns related to credibility and the absence of prospective risk because he is a Shi'ite. I confirm the RPD's negative determination. THE REFUGEE APPEAL DIVISION'S ROLE [5] The RAD must review the RPD's decision and undertake its own analysis based on all the evidence on the record in order to determine whether, in light of the appellant's arguments, the RPD erred. The standard of review for findings of fact, of law or of mixed fact and law is the standard of correctness. In exceptional cases where the RPD enjoys a meaningful advantage, the RAD can show deference when providing its reasons. The analysis is therefore conducted on a case-by-case basis. I am of the opinion that the applicable standard of review in this case is the standard of correctness.1 ANALYSIS Credibility Fraudulent documents [6] On XXXX XXXX, 2017, the Canada Border Services Agency seized a package sent to the appellant by his brother in Pakistan. The package contained three documents: 1) a driver's licence, which is likely fraudulent based on expert evidence; 2) blank pages with only the letterhead of a lawyer's office in Pakistan; 3) blank pages containing only stamps, as used on affidavits in Pakistan. The RPD did not believe that the appellant was unaware of these documents and that he had found out about them just through the Minister's intervention on February 20. [7] The appellant submits that the RPD erred at paragraph 12 by rejecting his explanation that, according to the notice of seizure that he had received, he understood that the driver's licence was the only seized document because the description of the other documents described in the notice was in French.2 [8] The appellant is also challenging the RPD's lack of credibility finding because the appellant had pluralized "documents" in his request to have the seized documents returned, which in his opinion, does not allow the RPD to conclude that he actually believed that several documents had been seized, given that English is not his first language. [9] I am of the opinion that at paragraphs 11 to 14 of its decision, the RPD addressed in a comprehensive and detailed manner the arguments raised by the appellant. I agree with the RPD's lack of credibility findings for the same reasons. [10] The appellant also submits that his position does not contradict his testimony that he was unaware of the documents, except for the driver's licence, before XXXX 2018. That is when he confronted his brother3 after the Minister's Notice of Intervention. The appellant makes a circular argument. At paragraphs 12 and 13 of its decision, the RPD clearly explains why it did not give credence to this explanation, and I agree with its reasons. [11] He also criticizes the RPD for making a finding of implausibility at paragraph 13 of its decision based on the appellant's statement that he did not have a conversation with his brother about the documents in question after they had been seized. He states that this finding is unreasonable and only contingent upon the behaviour of a third party, who did not explain his behaviour at the hearing.4 [12] I cannot accept this argument. The RPD not only had difficulty believing that the appellant's brother, who had sent him the fraudulent documents did not mention it to the appellant after they had been sent, but also that the appellant, who had received the seizure notice listing three documents, did not bother to raise this issue with his brother. This behaviour demonstrates an indifferent implausibility on the part of the appellant, given that he stated that he had asked his brother to send him several important documents related to his refugee protection claim. [13] Lastly, the appellant submits that the panel's reasons regarding the seizure of documents cannot justify a negative credibility finding.5 [14] I am of the opinion that the RPD was justified in finding that the appellant's credibility was significantly undermined by the fact that his brother, who was responsible for sending him evidence related to his refugee protection claim, had sent him the type of documents that are often used in refugee protection claims, but that are clearly fraudulent in this case. The appellant also failed to provide credible explanations to the panel's questions about the documents in question. [15] However, that is not all. The RPD found other elements that further undermine the appellant's credibility, as explained below. The implausibility of the abortion story [16] The panel found that the appellant's allegations that employees from the clinic had spoken openly about sensitive abortion cases and that they mentioned the name of the appellant's girlfriend publicly, in front of other patients, are not credible. [17] The appellant alleges that it is unreasonable to question his credibility because of the behaviour of a third party. He submits that the coincidences raised by the panel about how the sister of his girlfriend, XXXX, found out about the abortion are insufficient to question the appellant's credibility. He alleges that the RPD did not note any contradictions in his testimony.6 [18] I am of the opinion that the RPD correctly and clearly considered the context of the country, all the evidence and the appellant's explanations at paragraphs 16 to 18 of its decision to find that the appellant's story is not credible. I agree with the RPD that, in a context where abortion is a criminal act, it is rather implausible that the clinic's employees would have spoken out loud about XXXX abortion a year after the procedure and that XXXX sister was in the same clinic at that exact moment, which was located far from her home, and that she would have heard that conversation. [19] It is necessary to note that the panel is not required to admit a testimony simply because it was not contradicted at the hearing. The RPD can make findings based on implausibilities, common sense and rationality. This means that, in considering the appellant's context, the panel must ask itself "if the facts as presented are outside the realm of what could reasonably be expected."7 [20] I am of the opinion that the appellant's allegations cannot be mere coincidences as he claims. I agree with the RPD's finding on this point for the same reasons. Fear of persecution because he is a Shi'ite [21] The appellant is challenging the RPD's conclusion that he does not risk persecution in the country because he is a Shi'ite when it acknowledged that Shi'ites suffer horrible violence throughout the country.8 [22] Once again, I am of the opinion that the RPD addressed this argument extensively at paragraphs 20 to 23 of its decision. Based on the documentary evidence, it correctly concluded that, although there is violence against Shi'ites throughout the country, this violence is primarily orchestrated attacks against large gatherings of Shi'ites or notorious people in that society, which is not the appellant's case. I agree with the RPD's conclusion on this aspect for the same reasons. CONCLUSION [23] Under paragraph 111(1)(a) of the IRPA, I dismiss the appeal and confirm the RPD's determination that the appellant, XXXX XXXX, failed to establish that he is a refugee or a person in need of protection under section 96 or 97 of the IRPA. [24] The appeal is dismissed. (Signed) Bianca Eleonora Suciu Me Bianca Eleonora Suciu October 23, 2019 Date IRB translation Original language: French 1 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, paras. 90, 91; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paras. 70-74. 2 The appellant's memorandum, paras. 10-14. 3 The appellant's memorandum, paras. 10-14. 4 The appellant's memorandum, paras. 15-16. 5 The appellant's memorandum, paras. 17-19. 6 The appellant's memorandum, paras. 20-25. 7 Valtchev, Rousko v. M.C.I. (F.C.T.D., No. IMM-4497-99), Muldoon, July 6, 2001; 2001 FCT 776. 8 The appellant's memorandum, paras. 26-27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-15986 RAD.25.02 (April 4, 2019) Disponible en français 2 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 4, 2019) Disponible en français