MB8-14241

RAD File / Dossier de la SAR : MB8-14241 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 February 11, 2021 Date de la décision Panel E. Bobkin Tribunal Counsel for the person who is the subject of the appeal Melissa Singer 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] I dismiss the appeal of XXXX XXXX (the Appellant), a citizen of Zimbabwe. [2] The Appellant alleges that he was a member of a political group, Youths Liberating Zimbabwe (YLZ), and that he was arrested and beaten at a protest in XXXX 2016. He alleges that, after this detention, he suffered hearing loss and that he and his family began to experience threats. He alleges that, as a result of this, he decided to flee. He left Zimbabwe in XXXX 2016. [3] The Refugee Protection Division (RPD) heard the claim in May 2018. The Minister of Immigration, Refugees and Citizenship Canada (the Minister), intervened in person at the RPD hearing. The Minister alleged that the Appellant had fabricated his claim and alleged that there was evidence that the YLZ website lacked credibility, and many alleged members had come to Canada at the same time and in the same manner which undermined his credibility. The Minister has not intervened on appeal. [4] The RPD rejected the claim. The RPD found that the Appellant lacked credibility because of an inconsistency between the Appellant's testimony and a medical document, his limited knowledge of the YLZ and the lack of credible objective evidence about the group. [5] The Appellant argues that the RPD erred. He argues that the RPD failed to consider his reasonable explanation for the inconsistency between the testimony and the medical note. He argues that the RPD discounted the answers about his documents and that the lack of objective documentation should not be held against him. He argues that the claim is objectively founded and that his claim should succeed on the basis of the Maldonado1 principle. The Appellant did not submit new evidence, nor did he request an oral hearing. [6] I find the determinative issue is credibility. I find that the RPD correctly concluded that the Appellant's claim lacked credibility. I find that the Appellant has not established that he was a member of the YLZ and was detained, on a balance of probabilities. Therefore, the Appellant has not established that he faces a serious possibility of persecution or a section 97 risk, on a balance of probabilities, in Zimbabwe. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. THE ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [8] My role is to look at all of the evidence and decide if the RPD made the correct decision.2 There is an exception to this, where the RAD defers to the RPD if the RPD had a meaningful advantage in assessing the credibility of oral evidence. I do not find this case falls into the exception. Therefore, I will be looking at whether the RPD's decision was correct. ANALYSIS [9] The RPD found that the Appellant's allegations that he was involved in the YLZ movement and that this led to his arrest and hearing loss lacked credibility. The RPD found that the Appellant was not credible about his alleged persecution based on political opinion. For the following reasons, I agree with these conclusions. The Appellant lacked knowledge of the YLZ [10] The RPD found that the Appellant was unable to answer simple questions about the YLZ such as who the leader was.3 The RPD acknowledged that the Appellant had not been a member for a very long time and considered the Appellant's explanation that he was only an ordinary member. However, the RPD concluded that the Appellant had alleged that he attended a number of meetings of the YLZ, and it lacked credibility that he did not know or did not make an effort to find out who the leader of this group was. The RPD found that this undermined the allegation that the Appellant was a member of the YLZ. [11] The Appellant has not challenged this finding, and reviewing the record, I agree with it and find it is correct. The Appellant argues that the decision of the RPD is at variance with the decision of Maldonado. However, the Maldonado principle that sworn testimony is presumed to be true can be rebutted. One way it can be rebutted is vague testimony or a lack of reasonably expected knowledge. In this case, the RPD considered the Appellant's allegation that he attended a number of meetings, and although the length of involvement was not great, he could be expected to know basic things about the group. I see no error in this. [12] Moreover, the one answer the Appellant gave about YLZ leadership was inconsistent with his own documents.4 The Appellant testified that someone named Angela Cruat was the secretary or spokesperson,5 but materials in the Appellant's own disclosure identify Samantha Gombedza as the secretary.6 [13] For these reasons, I agree with the RPD that the Appellant's lack of basic knowledge about the YLZ undermines the allegation that he was involved in the group. Medical evidence undermines the allegation that the Appellant was injured in detention [14] The RPD found that there was inconsistent evidence about when the Appellant began suffering from hearing issues, which undermined the allegation that he was injured in detention.7 The Appellant argues that the RPD erred by failing to give weight to his explanation for the inconsistency.8 I do not find this argument persuasive. [15] The Appellant's Basis of Claim (BOC) form discusses his alleged detention and states: "After this incident [the detention] I had an unusual sensation on my left ear, I do not know if it is related to the beating I sustained while in detention."9 At the hearing, the Appellant was asked if his hearing problem started after he was arrested, and he answered, "Yes, when I was beaten."10 The RPD confronted the Appellant with a letter from a doctor who had examined the Appellant and who stated that the Appellant described his hearing loss as having begun four to five years before and stating that there is no history of a precipitating event, either infectious or traumatic.11 [16] The RPD asked the Appellant about this, and the Appellant answered that he previously had hearing problems, and they got worse after the beating.12 The RPD did consider this explanation and found it was not reasonable because the Appellant's evidence evolved based on the contradiction, and the medical report was deserving of more weight because it was collected by a neutral source.13 I see no error in this approach. I agree that the explanation is not reasonable, particularly because the BOC makes no mention of previous hearing loss and states that the Appellant had ear problems after the detention. Additionally, the letter from the doctor states that there is no history of a traumatic precipitating event, which would be in line with the Appellant's explanation that the beating made his hearing loss worse. [17] I agree with the RPD that this issue is significant, as the Appellant alleged that this was an injury sustained in detention. I find the RPD was correct to conclude that this inconsistency undermined the allegation that the Appellant was detained and beaten. The documentary evidence undermines the Appellant's claim [18] The Appellant argues that the responses about the Appellant's documents were discounted and that the RPD erred by concluding that the lack of corroborating documentation should not militate against the Appellant.14 I find that the RPD correctly considered the documents and that the documentary evidence undermines the Appellant's claim. [19] The Appellant has not clearly explained what he means by arguing that the responses to the questions involving the attestation letter, the letter from YLZ and the press articles were discounted.15 I understand the Appellant to be arguing that these documents should be given weight. I do not agree. The RPD dismissed the letter from the Appellant's father, the letter from the YLZ and the article from the YLZ website because it found the arrest lacked credibility,16 and it dismissed the YLZ membership card because the original was not presented and because of the credibility concerns with the arrest, as described above.17 [20] The RPD also found that there was no corroborating evidence of the YLZ group beyond its own website and no corroborating documents about the protest the Appellant alleges that he was arrested at. The Appellant argues that this should not be held against him. I find that the RPD could have explained its reasons about the YLZ documentary evidence in more detail, but, on an independent review of the record, I find the documentary evidence undermines the claim. [21] As the RPD noted, the research directorate prepared a memorandum on the YLZ and found that there was no objective evidence to support the existence of the group. The memorandum also establishes that all of the material on the YLZ website is plagiarized, in large part, from other news articles and sources including Amnesty International and then changed to include the Appellant (and others') names.18 The Appellant was asked about this extensively at the hearing and generally said he had no comment and did not know who made the website.19 In this context, I see no error in the RPD's finding that there is a credibility concern that there is no objective documentation establishing the existence of the YLZ. This is because the documents which exist about the YLZ are largely plagiarized and, on a balance of probabilities, are not genuine. [22] Given the above, I also find the RPD was correct in discounting documents from the YLZ including their press (from the website described above) and the letter from the YLZ. In this regard, I also note that the Appellant was also asked about the YLZ letter and membership card and stated he had originals but did not bring them to the hearing. I find this further reason to give the documents no weight, as neither the RPD nor the RAD had the opportunity to examine originals which were in the Appellant's possession. Having looked at the copy of the membership card, it is not even clear that it is the Appellant. Perhaps this could have been resolved by the original, but the Appellant chose not to present this. Moreover, with regard to the YLZ letter, as discussed above, the Appellant had no knowledge of who the leadership of the organization was, and he stated that he did not know who the writer of the letter was, despite the person being described as the Vice-Chairman of the YLZ.20 I find this further supports the RPD's conclusion that this document deserves no weight. [23] Finally, regarding the letter from the Appellant's father, I find that the other concerns raised above are sufficient reason to give no weight to this document. Moreover, I note that the letter is not accompanied by any identification document or envelope or anything to establish its provenance. Therefore, I see no error in the RPD giving this document no weight. [24] I find that the RPD correctly gave no weight to the documentary evidence set out by the Appellant and correctly considered the lack of corroboration of the YLZ. On an independent review of the record, I find that the documentary evidence undermines the Appellant's claim. The RPD did not need to consider the objective basis [25] The Appellant argues that "the findings of a lack of candour does not necessarily negate" the need for protection and that government opponents continue to be at risk.21 I do not find these arguments persuasive. [26] The Appellant is correct that there can be circumstances where an individual can be in need of protection despite a lack of credibility, but this is not such a case. The entirety of the Appellant's claim was based on his involvement with YLZ and related detention. Given that these allegations were correctly found not to be credible, there is no basis against which to consider whether the Appellant is at risk. He has no residual profile, nor has he alleged anything outside of these issues which would put him at risk in Zimbabwe. [27] Similarly, the argument that the objective evidence shows that political opponents cannot get protection is not relevant because the Appellant has not established, on a balance of probabilities, that he is a political opponent or would be perceived as such. CONCLUSION [28] 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. (signed) Erin Bobkin E. Bobkin February 11, 2021 Date 1 Maldonado v. M.E.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979; [1980] 2 F.C. 302 (C.A.). 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 3 Exhibit RPD-1, RPD Record, at p. 6, RPD's Reasons and Decision, para. 14. 4 I considered whether to give notice of this issue to the Appellant, but given that it arises from his own documents and given that this merely supports the RPD's findings and does not provide new reasoning, I find that, purusant to Bouchra v. M.C.I. (F.C., no. IMM-7563-19), Roy, November 17, 2020, 2020 FC 1063, notice is not required. 5 Transcript of the RPD Hearing (May 14, 2018), at p. 17. 6 Exhibit RPD-1, RPD Record, at p. 184. 7 Exhibit RPD-1, RPD Record, at pp. 5-6. 8 Exhibit P-2, Appellant's Record, at p. 11. 9 Exhibit RPD-1, RPD Record, at pp. 21-22. 10 Transcript of the RPD Hearing (May 14, 2018), at p. 24. 11 Exhibit RPD-1, RPD Record, at p. 151. 12 Transcript of the RPD Hearing (May 14, 2018), at pp. 25-26. 13 Exhibit RPD-1, RPD Record, at p. 5, RPD's Reasons. 14 Exhibit P-2, Appellant's Record, at p. 11. 15 Exhibit P-2, Appellant's Record, at p. 11. 16 Exhibit RPD-1, RPD Record, at p. 6, RPD's Reasons. 17 Exhibit RPD-1, RPD Record, at p. 6, RPD's Reasons. 18 Exhibit RPD-1, RPD Record, at pp. 79, 85, 87-90, 102-106, 108, 184-185, 186-187. 19 Transcript of the RPD Hearing (May 14, 2018), at pp. 12-16. 20 Exhibit RPD-1, RPD Record, at p. 149. 21 Exhibit P-2, Appellant's Record, at p. 12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-14241 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français