TB9-01379

RAD File / Dossier de la SAR : TB9-01379 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 Toronto, ON Appel instruit / entendu à Date of decision September 16, 2020 Date de la décision Panel D. Morris Tribunal Counsel for the person who is the subject of the appeal Hart A Kaminker 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] These are my reasons for dismissing the appeal of XXXX XXXX. The Appellant's claim for refugee protection was rejected by the Refugee Protection Division (RPD) on 11 December 2018. I confirm the RPD's decision and determine that the Appellant is neither a Convention refugee nor a person in need of protection. [2] The Appellant is a citizen of Bangladesh where he worked and operated a business in the city of Dhaka. In Dhaka, the Appellant faced threats and extortion from a man named XXXX XXXX. XXXX runs a local protection racket and has ties to the Awami League political party. When he could not pay the money demanded by XXXX, the Appellant was attacked by XXXX goons and hospitalized on two occasions: in XXXX and XXXX of 2017. [3] At the end of XXXX 2017, XXXX, the XXXX of a local Madrasa, demanded the Appellant stop donating to a XXXX XXXX XXXX. XXXX demanded the Appellant send his son to the Madrasa and also asked for money. [4] In XXXX 2017, when the Appellant failed to comply with XXXX, his son was kidnapped. The Appellant paid money to XXXX to secure his son's release and promised to pay the balance within XXXX days. [5] In XXXX 2017, XXXX goons assaulted the Appellant's father and ransacked their home in Dhaka. The Appellant and his wife, son and father went into hiding. [6] The Appellant received a Temporary Residence Visa (TRV) for Canada through his work and left Bangladesh on XXXX XXXX 2017. He claimed protection in Canada on 24 October 2017. RPD findings [7] The RPD found that the determinative issue in the Appellant's claim was credibility. The RPD found a number of inconsistencies in the Appellant's evidence and made the following negative credibility findings: 1. the Appellant failed to establish, on a balance of probabilities, his relationship to XXXX or the extortion attempts that stemmed from the relationship; 2. the medical reports relating to the XXXX and XXXX 2017 attacks on the Appellant were not authentic and therefore failed to establish that the alleged attacks actually took place; 3. the Appellant failed to establish, on a balance of probabilities, his relationship to XXXX, XXXX ties to Hefazat-e-Islam, or the threats and demands that were made by XXXX; 4. the Appellant failed, on a balance of probabilities, to establish that the agents of persecution were able to locate him after he fled Dhaka; 5. the letter from the Appellant's uncle was found to be unreliable as it contradicted the Appellant's narrative; 6. the Appellant's visa application, the timing of his departure, and his family remaining in Bangladesh pointed to his departure being motivated by his planned business trip and not by a fear of harm or persecution; 7. the Appellant's supporting documentation was insufficient to outweigh the Appellant's lack of credibility. Summary of Appellant's arguments [8] The Appellant's arguments may be summarized as follows: 1. The Appellant's testimony regarding XXXX was clear and detailed. The RPD misunderstood the Appellant's testimony and therefore erred in concluding the Appellant did not establish relationship with XXXX; 2. The issues relating to the medical documents were minor and should not have formed the basis for a negative inference;. 3. The contradictions between the Appellant's Basis of Claim (BOC) and his testimony respecting when XXXX started to call him were minor and should not detract from the Appellant's overall credibility; 4. The Appellant credibly explained XXXX link to Hefazat; 5. The RPD's negative credibility finding with respect to his TRV application is tied to its other erroneous credibility findings and is therefore flawed. The Appellant has plausibly explained why his family was not included on his original TRV application and why they have not applied since; 6. There was evidence which showed that the Appellant had in fact been traced to another part of Bangladesh. ANALYSIS [9] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [10] I have reviewed the Appellant's testimony, the documents he filed in support of his claim as well as the objective documentation. I find that the RPD had no meaningful advantage over the Refugee Appeal Division (RAD) in evaluating this evidence. Therefore, I have not deferred to the RPD's findings. [11] I find the RPD was correct in determining that there were inconsistencies and contradictions in the Appellant's evidence which undermined his credibility. Although I find that the RPD did err in its assessment of the Appellant's medical reports, I nonetheless find that these reports do not address the credibility issues raised by the Appellant's testimony. [12] Specifically, I find that the Appellant's testimony and the documentation he provided in support of his claim do not, on a balance of probabilities, show that he was targeted - either by XXXX or by XXXX - for the following reasons. The Appellant failed to establish, on a balance of probabilities, the extortion and threats by XXXX [13] The RPD found the Appellant originally testified that XXXX had first asked him for money in XXXX 2017. The Appellant then changed his testimony to indicate that he had already been paying him before then. The RPD found that this undermined the credibility of the alleged relationship and how it came into being. [14] The Appellant asserts that he provided detailed information with regard to his relationship with XXXX. The Appellant further submits that the RPD misunderstood the Appellant's evidence as to when he was first asked by XXXX for money. Specifically, the Appellant argues that, It is clear from the Record that when the appellant was asked when the first time, he asked for money by this man he understood this to be the larger extortion that he was requested in the middle of XXXX of 2017 rather than the smaller extortion or protection money that he had to pay to XXXX XXXX in order to operate the XXXX XXXX XXXX business.2 [15] Having reviewed the transcript, I find no support for the Appellant's contention that he misunderstood what was being asked or that the RPD misunderstood his answer. The Appellant testified as follows: PRESIDING MEMBER: When is the first time you were ever asked for money by this man or his associates? CLAIMANT: XXXX XXXX 2017.3 [16] I do not find the question or the answer to be ambiguous or that there was a misunderstanding as the Appellant asserts. The Appellant went on in testimony to indicate he had been paying since XXXX 2016. This was clearly at odds with his previous testimony that the first time he had ever paid money was XXXX XXXX 2017. [17] The RPD also found the Appellant was vague as to when he first met XXXX. I agree. [18] At his hearing, the Appellant testified that the first time he personally had any interaction with XXXX was on XXXX XXXX 2017 when XXXX came to his home to collect money from him.4 However, in his BOC narrative the Appellant states that, "So, I failed to pay the money to the cadre XXXX, the gang leader of XXXX XXXX. After that, on XXXX XXXX, 2017, XXXX, XXXX, XXXX and few of their associates came to my home, ground floor, where I had a very small office. He asked me why I did not pay to their leader's (XXXX) amount."5 [19] I find the Appellant was not simply vague, but that his evidence on this point was inconsistent. I find the RPD made no error in determining the Appellant had failed, on a balance of probabilities, to establish that there was an extortion attempt or threats made against the Appellant by XXXX. The RPD erred in finding the medical reports were not genuine but the reports were of limited value in establishing the Appellant's allegations of extortion [20] The Appellant submitted two medical discharge reports6 which he asserts show that he was injured and hospitalized after being attacked by XXXX goons. The RPD found that these reports were not authentic. [21] The first of these reports is from XXXX XXXX XXXX. The RPD noted the email address on the report appears to be misspelled as XXXX XXXX XXXX XXXX XXXX.7 The Appellant asserts that this is a minor issue and that the RPD should not have drawn a negative inference simply from the misspelling of the hospital's name. [22] Care should be taken when determining the "correct" English spelling for a place which is named in a foreign language. In fact, a search of google maps for "Bashobo, Dhaka, Bangladesh" shows that the English spellings of Bashobo and Basobo are both used for this area of Dhaka (as is Basaboo). From this it seems the RPD's assumption the English spelling of Bashabo would be consistent is incorrect. I therefore find that the RPD erred in finding that the document was not authentic simply because of the inconsistency in spelling. [23] With regard to the second report, the RPD found that the doctor's reference to the Appellant being hit by a heavy object "like bamboo" 8 was, "... unusually specific, highly coincidental, and without a reasonable explanation, and ... was added simply to bolster and correspond to the claimant's own allegations."9 On my own assessment, I find the doctor's speculation does nothing to "bolster" the Appellant's claim. I find the RPD erred in finding this document was fraudulent on this basis alone. [24] I have therefore considered the content of these reports and how the content relates to the Appellant's allegations. [25] The first report does not mention why the Appellant was being treated or what his injuries were and so is of limited probative value. Although the second report does indicate that the Appellant was assaulted, I find the statement that he was hit with something "like bamboo" is speculation as no basis is provided for this conclusion. Even if the Appellant was hit with a bamboo rod, this does not tie the alleged assault to XXXX or his associates. [26] Therefore, while I find no basis upon which to find that these documents are fraudulent, I find they do nothing to establish the relationship between XXXX and the Appellant or the Appellant's allegation that he was assaulted because of his refusal to pay extortion money to XXXX. While I accept these documents for what they say, they do not address the inconsistencies in the Appellant's testimony and BOC narrative. The Appellant failed to establish, on a balance of probabilities, the demands for money and threats by XXXX [27] The RPD drew a negative inference from the fact that, while the Appellant stated in his BOC that XXXX had called him many times to demand money prior to the kidnapping of the Appellant's son, he testified that XXXX only called him after the kidnapping. [28] In reviewing the transcript, it is clear that the Appellant first stated that he had not received any calls from XXXX prior to the kidnapping but then changed his story back to reflect what he had stated in his BOC: PRESIDING MEMBER: Did XXXX ever call you before your son was kidnapped? CLAIMANT: No XXXX didn't call me before my son was kidnapped. PRESIDING MEMBER: Sorry? CLAIMANT: XXXX did not call me before my son was kidnapped. PRESIDING MEMBER: It says in your narrative, XXXX called me many times on and off to send my son to Madrasah and also for the money. And this was before your son was kidnapped. So why did you tell me that he didn't call you before your son was kidnapped? CLAIMANT: XXXX came to my home and after paying the subscription - I mean money demanded he called me many times. PRESIDING MEMBER: Before your son was kidnapped? CLAIMANT: Yes. PRESIDING MEMBER: They why did you tell me he did not call before your son was kidnapped? CLAIMANT: That was a mistake by me. [29] The Appellant submits that this was a minor error that should not detract from the Appellant's overall credibility. [30] I disagree. The issue of how he came into conflict with XXXX and what had occurred between them was at the very heart of the Appellant's claim. Although the Appellant indicates that he made a mistake, I see no evidence of any error in his testimony. His answer, "XXXX did not call me before my son was kidnapped", is not equivocal in any way. It clearly shows that he understood the question and answered in the negative. It was only when he was confronted with the contradiction that the Appellant changed his testimony to reflect what he had said in his BOC. [31] I find no error in the RPD drawing a negative inference from this contradiction. The Appellant's testimony on XXXX ties to Hafazat-i-Islam was not credible [32] The RPD found that the Appellant replied in generalities about how he knew XXXX was tied to Hefazat and that these answers were unreliable and unconvincing. The Appellant argues that his explanations were credible. The Appellant testified as follows: PRESIDING MEMBER: Is he (XXXX) tied to Hefazat from your knowledge? CLAIMANT: That I know, yes he is. PRESIDING MEMBER: Okay. How - tell me about that connection? CLAIMANT: In Bangladesh fundamentalists have different parties, so he's involved with Hefazat. PRESIDING MEMBER: And how do you know that? CLAIMANT: He's in my area and he's involved with this politics for a long time, so this I could know. PRESIDING MEMBER: Okay. Tell me - tell me about this. Explain. CLAIMANT: It was at one of the many (inaudible) to teach the students radicalist (sic) activities in their Madrashas. PRESIDING MEMBER: But what I want to know is from your experience in your area and your knowledge of this XXXX, how do you know he's tied to that group? CLAIMANT: But there were things that happen seeing the (inaudible) that is - that's always turned by a puzzle. Since I live in that area I know the fact. PRESIDING MEMBER: Okay. How do you know this? I don't - I don't live in your neighbourhood. Tell me from your knowledge what you've seen from your experience how you know that this man, XXXX is necessarily tied to the group Hefazat. I know that - I know Hefazat exists as a group, I'm aware of that. I want to know how you know that this man is - is connected to them. CLAIMANT: It's not only me, everyone in my locality knows that. PRESIDING MEMBER: Okay. They're not here, you are so how do you know this? CLAIMANT: How do I answer? PRESIDING MEMBER: ... Tell me - tell me about what you know, tell me about why you believe this. CLAIMANT: They go for different protest and then process in favour of Hefazat. ... PRESIDING MEMBER: And how do you know that this XXXX has been involved in these - in these processions? CLAIMANT: Since XXXX, all the time he works under the cover of this particular - this party, so I could very (inaudible) relate that he's involved with Hefazat.10 [33] I find the Appellant's testimony on this issue was evasive and unresponsive, despite being given multiple opportunities by the RPD to explain how he knew XXXX was involved with Hefazat. The RPD was correct in determining that, on a balance of probabilities, the Appellant's testimony failed to demonstrate the alleged connection between XXXX and Hefazat. The circumstances around the Appellant's TRV application were not determinative [34] The RPD found that the Appellant's visa application, the delay in leaving Bangladesh and the fact that his family had not sought to leave the country indicated that the reason for his departure was not due to a fear of harm or persecution but was a planned business trip. [35] The Appellant argues that the RPD's findings on this issue are tied to its other credibility findings. He argues that since the other findings should not be followed, the basis for the findings with respect to the TRV application are undermined. This argument fails as I have found the RPD's other key credibility findings were correct. [36] The Appellant further submits that his way out of Bangladesh was through the TRV application. He submits that his family could not reasonably have been included in the application and that, having made a refugee claim in Canada, his family would not likely be issued a visa to join him. [37] I agree with the Appellant on these points. Also, although the Appellant has not addressed this issue, I find the delay of one month in leaving the country after being issued the Canadian TRV is not indicative, in and of itself, of a lack of fear. [38] However, the Appellant has failed to establish the core allegations upon which his claim was based. As a result, I find the timing and circumstances relating to the issuance of his Canadian TRV and his family's subsequent inability to obtain a visa are of limited relevance and, in any case, not determinative. The Appellant provided contradictory evidence as to whether he had actually been located at his uncle's home [39] The RPD drew a negative inference because the Appellant indicated in his BOC that Awami League members were able to track him and his family to the village of Pararbondh while he testified that they had not tracked him but he was worried about being found. [40] The Appellant first argues Internal Flight Alternative (IFA) was never raised as an issue. He then submits that there was evidence the Awami League was able to trace him to other parts of Bangladesh. [41] I agree with the Appellant that the issue of IFA does not arise in this case. However, this is because the Appellant failed to show a serious possibility he would be at risk in any part of the country. With regard to the Awami League being able to trace the Appellant to his uncle's house in Pararbondh, the issue for the RPD was not IFA, but that the Appellant had changed his story from actually being traced to being afraid of being traced. The Appellant testified as follows: PRESIDING MEMBER: You said in your narrative, a group of local Awami League members managed to track us in that village. How do you know this happened? CLAIMANT: Well (inaudible) said that we could trace you, you cannot hide yourself. So give us the money you committed. PRESIDING MEMBER: So he called you on your phone? CLAIMANT: Yes, they call me. Yes, he called me on my phone. PRESIDING MEMBER: Did he say that he - did he give any indication that he knew you were in that village? CLAIMANT: He said wherever you stay we will be able to find you out. PRESIDING MEMBER: Okay. But to me that's different than a group of Awami League members managed to track you in the village. Saying we'll find you to me is different than local members actually finding you. So did someone actually find you in that village? Or were you just afraid of being found? CLAIMANT: Muna called me the same time my uncle also warned me on that. So after all this I moved out from that place with my family. PRESIDING MEMBER: So just - just to clarify before I move on to ask about something else, did local Awami League members actually find you? CLAIMANT: Are you talking about my uncle's house? PRESIDING MEMBER: Yes. CLAIMANT: No, they didn't find me out in my uncle's house but my uncle warned me, cautioned me.11 [42] I agree with the RPD that there is a significant difference between the Appellant's BOC and his testimony. I find the Appellant's testimony, here as elsewhere, was unresponsive, evasive, and therefore unreliable. The Appellant's submission that there was evidence of his being traced to other parts of Bangladesh simply does not address the issue of the inconsistency between his BOC and his testimony. I find the RPD made no error in drawing a negative credibility inference from this inconsistency. Summary [43] The RPD erred with respect to its assessment of the medical documents. However, even if the medical documents are accepted for what they say, they do not, in themselves, establish the core elements of the Appellant's claim. As detailed above, the Appellant's testimony was inconsistent, vague and at times evasive with respect to his relationship to both XXXX and XXXX and how and when he was threatened by them. I find the RPD's negative credibility findings relating to the core aspects of the Appellant's claim were correct. [44] Having failed, on a balance of probabilities, to establish the core allegations on which his claim was based, I determine the Appellant does not face a serious possibility of persecution nor a likelihood he would he personally subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture if he were to return to Bangladesh. CONCLUSION [45] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.12 (signed) David Morris David Morris 16 September 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 2 Exhibit P-2, Appellant's Record, at para. 18. 3 Transcript of 4 December 2018, RPD Hearing, at p. 10, lines 11-14. 4 Transcript of 4 December 2018, RPD Hearing, at p. 9, lines 21-29 5 Exhibit RPD-1, RPD Record, Exhibit 2, at pp. 21-22, lines, 57-59. 6 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 134-141. 7 Ibid. at p. 134. 8 Ibid, at p. 138. 9 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 6, para 7. 10 Transcript of 4 December 2018, RPD Hearing, at p. 22, lines 18-52, p. 23 lines 5-40. 11 Transcript of 4 December 2018, RPD Hearing, at p. 19, lines 42-50, p. 20 lines 5-26. 12 Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-01379 RAD.25.02 (April 04, 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 04, 2019) Disponible en français