MB6-03019

Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés Immigration and Refugee Board of Canada Refugee Appeal Division RAD File / Dossier de la SAR : MB6-03019 Huis clos/Private Proceeding Motifs et décision - Reasons and Decision Appelant(e)(s) XXXX XXXX Appellant(s) Appel instruit à Montréal, Québec Appeal considered / heard at Date de la décision August 22, 2017 Date of Decision Tribunal Paule Robitaille Panel Conseil(s) du (de la/des) Appelant(e)(s) Jack Davis Counsel for the Appellant(s) Représentant(e)(s) désigné(e)(s) N/A Designated Representative(s) Conseil du (de la) Ministre N/A Counsel for the Minister REASONS AND DECISION INTRODUCTION [1] XXXX XXXX (the Appellant), a citizen of Kosovo, appeals a decision of the Refugee Protection Division (RPD) rendered on April 25, 2016, which rejected his claim for refugee protection. [2] The Appellant did not submit new evidence in support of his appeal, or request a hearing. DETERMINATION [3] Pursuant to subsection 111(1) (a) of the Immigration and Refugee protection Act (IRPA), the RAD confirms the determination of the RPD, namely that XXXX XXXX is neither a "Convention refugee" according to section 96 of the IRPA, nor a "person in need of protection" as stated by section 97 of the same Law. [4] The appeal is dismissed. BACKGROUND Basis of claim [5] The Appellant alleges that he fears his ex-wife's family. They married in XXXX 2012 and divorced in XXXX 2013 (they divorced with mutual consent1). The Appellant claims that his parents-in-law never accepted this divorce, which went, allegedly, against the Kanun (the Kosovar's medieval code of conduct). According to the Kanun, a man cannot divorce his wife unless she was unfaithful or she was caught stealing something, which was not the case of his wife. He was threatened by the family and then, attacked by his ex-spouse's brother and cousin on XXXX XXXX XXXX 2015. He fought back with his friends hurting one of the two men seriously. It is allegedly after that incident that his ex-in-laws declared officially a blood feud against him and his family. RPD's decision [6] The RPD rejected Mr. XXXX claim concluding that he did not establish the credibility of his main allegations. Grounds of Appeal [7] The Appellant submits that the RPD made several errors in her analysis. He states that she erred when she rejected all the corroborative documentary evidence, simply because she did not believe his testimony. He argues that she should have considered all the documents when assessing the credibility of his allegations. [8] He argues that the RPD made a mistake when she rejected more precisely a police report and a verification from the Red Cross. The RPD rejected these documents explaining that, because she did not find his allegations credible, she did not give them any weight. She also judged these documents as "not really independent" and "self-serving". The Appellant argues that, on the contrary, the authors of these reports, the Kosovar police and the Red Cross, are independent and trustworthy. [9] The RPD also gave no weight to other corroborative evidence emanating from witnesses and close acquaintances of Mr. XXXX. The Appellant is of the opinion that the RPD shouldn't have done so. The RPD reasoning, he argues, was circular; she rejected these different affidavits supporting his allegations because she did not find his allegations credible. [10] He adds that the RPD should not have drawn any negative inference from the fact that the Appellant did not mention in his Basis of Claim form (BOC) his stay in the United States during the summer of 2013. He argues that the BOC form contains no questions whatsoever that requires the Appellant to list any travel outside his home country. Hence, the Appellant argues that he cannot be blamed for not answering a question that was not requested in the BOC. [11] The Appellant argues also that "refugee claimants are not obliged by the Convention to seek asylum in the first country they reach", and therefore, the RPD should not have drawn any negative inference from the fact that he spent several months in the United States in 2013 and never claimed asylum in that country. Also, the Appellant argues that the RPD should not have impugned his credibility either, based on his returned to Kosovo after his visit to the USA. [12] The Appellant alleges that the precipitating events that constrained him to flee Kosovo and seek international protection occurred in 2015, subsequent to his return to Kosovo from the United States in 2013. [13] He claims that his reason for returning to Kosovo from the United States was that, while he was in this country, his father in Kosovo had reported to him that there were no more problems and therefore he believed that the situation had calmed down. Hence, he claims that his explanation for returning from the United States to Kosovo in 2013 was reasonable. [14] Consequently, the Appellant asked the RAD to allow his appeal and grant him the status of "Convention refugee" or the one of "person in need of protection", or, in the alternative, to refer the matter back to the RPD for a redetermination by a different adjudicator. THE REFUGEE APPEAL DIVISION'S ROLE [15] The standard of review that the RAD must apply is that of correctness. To do so, the RAD conducts his own analysis and, therefore, considers all the evidence2. When the findings under review involve a question of credibility of the testimony, the RAD will show deference to the RPD in situations where the latter has an advantage in assessing the value of the testimony. The standard of review of each of the conclusions involving the credibility of the testimony will be one of reasonableness. Then the RAD will evaluate the RPD's decision in light of the evidence, as a whole, and determine if this decision is correct3. ANALYSIS EVIDENCE [16] The Appellant disclosed in his memorandum all the documents already presented to the RPD hearing. It was not necessary. All the evidence presented to the RPD is considered by the RAD as well and is included in its file. CREDIBILITY OF THE ALLEGATIONS His testimony in general [17] In her decision, the RPD adjudicator mentions that the Appellant's testimony was often confusing and vague, and the claimant changed his explanations as the hearing went along. When listening to the hearing, I also come to the same conclusion. During the first quarter of the hearing, for example, the Appellant got many dates confused. He stated several times that his divorce took place on XXXX XXXX XXXX when it was in fact on XXXX XXXX XXXX He also stated that he divorced in 2015, instead of 2013; that he got separated in XXXX 2012, not in 2013. He had no excuse for that confusion. Even if stress is taken into account, his way of testifying simply gave the impression that the Appellant was not telling the truth, improvising as he went along. This seriously undermined his credibility. Regarding major omissions [18] The Appellant writes in his narrative that he received threats from his ex-wife's family when he initiated the divorce proceedings in 2013. He writes: "Both our families have been involved in an ongoing conflict since XXXX of 2013, after my marriage break up (...)". He adds that these threats "increased" after the divorce was finalized two years and a haft later on XXXX XXXX, 2013. From his narrative, we understand that the threats were continuously increasing to the point that, on XXXX XXXX, 2015, he was attacked by his former brother-in-law and his cousin. It is after this attack, during which one of his two aggressors was injured, that his ex-wife's family declared a blood feud against the Appellant and his family. The Appellant left Kosovo on XXXX XXXX, 2015. Nowhere he mentions that he would have left Kosovo between XXXX 2013 and the end of XXXX 2015. [19] At the hearing, he told a different story: that the threats from the in-laws did not intensify after the divorce was finalized in XXXX 2013, but right after he separated from his wife, in the XXXX of 2013, saying that the threats were so serious that he had to leave the country for the United States in XXXX 2013 - an important allegation completely omitted in his BOC. Afterwards, the Appellant told the RPD that, while in the USA, he decided to come back, five months later, because the blood feud was not declared and it seemed that the threats dissipated to the point that Kosovo was safe again for him. We also see in his passport that he left Kosovo again on XXXX XXXX 2013, was in Zurich, Switzerland, on XXXX XXXX 2013, and returned to his country the same year. All this information leads us to believe that there were no serious threats in XXXX or XXXX 2013 for him, contrary to what the Appellant wrote in his narrative. He had no explanation for this inconsistency. [20] In his narrative, there is absolutely no sign or mention that the Appellant feared for his life to the point that he had to flee to the United States, in XXXX 2013; no sign that these threats had stopped long enough to prevent him from being afraid and return to Kosovo in the XXXX of 2013. To explain these important omissions or inconsistencies between his narrative and his testimony, the Appellant explained to the RPD that he never concealed the fact that he went to the United States because one could easily see the stamp of that country in his passport. I reject this explanation, as the RPD did. It is not because there is a stamp in his passport showing that he travelled to the United States, or because there is no specific question in the BOC regarding his travelling that the RPD should not have expected him to mention this important part of the story in his narrative. [21] The issue is not only the fact that he went to the USA, but moreover, the fact that he feared so much for his life because of the threats from his ex-wife's family, that were intensifying in XXXX 2013, that he had to flee to the United States for safety. Therefore, I agree with the RPD that, if he genuinely went to the USA because those threats had intensified to the point that he had to leave his country in XXXX 2013, it is reasonable to believe that he would have certainly mentioned this important allegation in his narrative. The point is not that there was no specific question in the BOC asking to indicate one's travels, but the fact that question 2a) of the BOC asks claimants to describe in detail all the threats that they have suffered. Therefore, it is reasonable to believe that he would have mentioned that he had to leave the country because he was very seriously threatened, if that were the case. This is a very serious omission or divergence from the narrative's story that impacts on the assessment of the credibility of the important allegation that his in-laws threatened him. It simply shows that the Appellant was only trying to embellish his story and it undermines seriously his credibility. [22] Furthermore, there is a serious contradiction. In his narrative; the Appellant writes that the threats had intensified in XXXX 2013 (as he writes in his narrative - after XXXX XXXX, 2013, the date when his divorce was finalized), but at the hearing, he testified that the threats intensified in XXXX 2013. The Appellant has no reasonable explanation for this lack of consistency. [23] Hence, the serious omission and the important contradiction between his testimony and his narrative have a negative impact on the credibility of the Appellant main allegation that he was targeted by his ex-wife's family. [24] If the seriousness of threats had led him to flee in XXXX 2013 to the USA, it is legitimate to wonder why the Appellant took the risk to go back to Kosovo in XXXX 2013, just about the time when his divorce was being concluded, instead of staying in the United States and claiming asylum? He answered that the blood feud against him and his family was not yet declared and it seemed like things had calmed down when he talked to his parents who were in Kosovo (his testimony was very vague regarding the fact that the threats had disappeared). The Appellant said that he thought it was safe for him to return in Kosovo and continue his life over there, without hiding or taking any specific measures to protect himself from his in-laws. [25] I agree with the RPD: the fact that there was no blood feud declared yet is not a satisfying answer to justify his return to Kosovo; there was no blood feud either when he fled to the United States in XXXX 2013. His explanation is not credible. It is also difficult to believe that the threats that pressed him to leave his country disappeared suddenly and he felt suddenly safe to come back, and this, just before the divorce judgement was about to be pronounced. [26] It is true that one is "not obliged by the Convention to seek asylum in the first country they reach"; nonetheless, the Federal Court of Appeal has held that the delay in claiming refugee status "is an important factor which the Board is entitled to consider in weighing a claim for refugee status"4. Moreover, in cases involving long delays in making a claim or returns to the country of alleged persecution, where no satisfactory explanation is provided, the Federal Court has upheld decisions finding that the delay or the return itself were incompatible with a subjective fear of persecution or with the behaviour of someone who feared for his life5,. It is the case of the Appellant. His behaviour when returning home without taking any precaution measures or moving to another city in 2013 is not the one of someone who was threatened five months earlier to the point that he had to leave his country and his business and run away. I do not believe that these serious threats suddenly evaporated for no specific reason, when honour and the laws of the Kanun were at play. Mention must be made that the divorce judgement pointed out that the Appellant and his former wife both agreed and waived the right to appeal6. If the in-laws were against this divorce, it is reasonable to believe that his ex-wife would not have agreed so easily to formalise the divorce. Questioned on the fact that she agreed to divorce, the Appellant could not explain why she agreed and her family did not so strongly. Hence, if the divorce agreement shows it was on mutual consent, it hard to believe that the former in-laws want to harm him. [27] In any case, the divorce judgement, the contradictions, the omission and inconsistencies, all show that the Appellant is not credible and that there were no threats in 2013 or afterwards. [28] Even if the Appellant had been credible when he declared that everything had calmed down and there were no more threats in XXXX XXXX XXXX 2013, one wonders why suddenly, two years later, in XXXX 2015, his former brother-in-law attack him savagely. This is not plausible because, realistically, his former in-laws had all the time in the world to plan an assault on him and seek vengeance in 2013 and 2014. Why wait two years? We do not know. Hence, these threats stopped for a while in the summer and XXXX of 2013, as he said in his testimony (according to his passport, he even goes in and out of Kosovo, to Switzerland, in XXXX 2013), but we do not know why suddenly, in XXXX 2015, two years later, his former in-laws decided to attack the Appellant. This also contradicts his narrative which mentions that the threats were constant since XXXX 2013, and intensified from XXXX XXXX, 2013, with no sign of calming down. This only shows that his explanations given at the hearing diverge from his narrative. This undermines again the credibility of his whole claim. [29] Moreover, regarding the alleged blood feud, the Appellant told the RPD that the man seriously injured in the assault of XXXX 2013 was his ex-wife's paternal cousin (XXXX XXXX); this was corroborated by a police report. In his narrative, he writes that it was rather his brother-in-law. So who was injured? This is an important allegation because the serious injury that resulted from that attack was the cause of the blood feud. The RPD confronted the Appellant with the narrative's information. The claimant explained that his two aggressors were injured in the altercation and that he does not know which of the two had been wounded more seriously. This explanation contradicts two documents corroborating that fight (the police report and a letter from the Red Cross). These documents mention there was only one member of the ex-wife's family that was injured. This explanation contradicts, therefore, his narrative, his testimony and both documents, showing again the lack of credibility of the Appellant who, as also mentioned by the RPD, changed his testimony as he went along. This confusing way of testifying undermines again the credibility of the allegation that the Appellant was attacked on XXXX XXXX XXXX 2015 and of the claim itself. [30] Consequently, I find that the RPD's conclusions regarding the lack of credibility of the blood feud, the threats in 2013 and the attack on the Appellant in XXXX 2015, are reasonable. [31] The fact that the Appellant did not establish the credibility of key allegations leads to conclude to the general lack of credibility of the claim. As mentioned in Sheikh7: "Even without disbelieving every word a claimant has uttered, a panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim. In other words, a general finding of a lack of credibility on the part of the claimant may conceivably extend to all relevant evidence emanating from his testimony". [32] Here, in the case of the Appellant, the lack of credibility and implausibility are tied to key issues that determined his claim - the alleged threats, the attack and the declaration of blood feud by the former in-laws. For these reasons, I agree with the RPD that the Appellant did not establish the credibility of his claim as a whole. [33] Therefore, I find reasonable the RPD's conclusion regarding the corroborative evidence presented; she did not give these documents any weight because they are based on allegations that were not judged credible. Moreover, some documents contradicted the Appellant's testimony8. The claimant did not establish the credibility of his testimony. He is not trustworthy. These documents could have been fabricated by anybody for the sole purpose of the hearing; they have no security features. Hence, it is reasonable not to give them any probative value. [34] The same reasoning applies to the medical report from a Kosovar "Orthopaedic clinic". We must mention that this document does not specify that the Appellant was injured in a fight. [35] Regarding the affidavits of friends, the RPD's reasoning is correct: people close to the Appellant, again based on allegations whose credibility could not be established, wrote them. Therefore, these documents have no weight. CONCLUSION [36] Consequently, I find that the RPD's decision is correct and consequently I confirm the decision in accordance with s.111 (1)a) of the IRPA, namely that Mr. XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection". The appeal is dismissed. Paule Robitaille Paule Robitaille August 22, 2017 Date /ag 1 See the judgement of divorce included in the Appellant package presented to the RPD. 2 Huruglica v. M.C.I., 2016 (F.C.A. at para 103). 3 See TB6-03419, paragraph 116. 4 Heer, Karnail Singh v. M.E.I., (F.C.A. no. A-474-87). 5 Cruz, Fernando Rodriguey v. M.C.I. (F.C.T.D. no. IMM-3848-93). Bello, Salihou v. M.C.I. (F.C.T.D. no IMM-1771-96). 6 See the last paragraph of the second page and the first paragraph of the third page of the Judgement of divorce translation. 7 Sheikh c. Canada (Minister of Employment and Immigration), (1990) 3 F.C. 238 (CA) at 244. 8 The documents from alleged independent sources (the police report and the Red Cross letter) contradicted a statement made by the Appellant during his testimony - as mentioned earlier he explained that both brother-in-law and his cousin were seriously injured but both documents mentioned that only one of them was injured - the police report mentions that the one injured was the paternal cousin, the Appellant's narrative mentions it was his brother-in-law. --------------- --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB6-03019 12