TB8-16504

RAD File / Dossier de la SAR : TB8-16504 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 March 2, 2020 Date de la décision Panel Colin Anderson Tribunal Counsel for the person who is the subject of the appeal Tyler Goettl 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 INTRODUCTION [1] The following reasons explain why I am dismissing the appeal of XXXX XXXX XXXX XXXX. XXXX XXXX XXXX has appealed the Refugee Protection Division's (RPD) June 8, 2018 decision that denied his claim for refugee protection. XXXX XXXX XXXX has asked that I either find him to be a Convention refugee or person in need of protection, or send his claim back to the RPD for redetermination by a different panel. I agree with the RPD that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. BACKGROUND [2] XXXX XXXX XXXX has made the following key allegations in his Basis of Claim form and at the RPD hearing: * That the Islamic extremist group Lashkar-e-Taiba (LeT) has attempted to forcibly recruit XXXX XXXX XXXX on numerous occasions; * That LeT agents have continued to search for XXXX XXXX XXXX and threaten to harm him if he does not join their ranks; and * That XXXX XXXX XXXX fled to the United States of America, and then on to Canada, to make a refugee claim. [3] The RPD found that XXXX XXXX XXXX claim lacked credibility for the following reasons: * Omission of a previous rejected visa application from his Schedule A; * Omission of certain threats from LeT from his Basis of Claim form; * A delay in leaving Pakistan in 2011; * A failure to claim asylum in the United Kingdom; and * A voluntary return to Pakistan; [4] The RPD also found that XXXX XXXX XXXX claim lacked an objective basis, because objective evidence shows no record that LeT uses forcible recruitment tactics. [5] XXXX XXXX XXXX has argued that the RPD erred as follows: * By making various erroneous credibility findings and inferences; * By mischaracterizing a finding of implausibility as objective basis; and * By failing to consider all of the evidence. PRELIMINARY MATTERS No new evidence and no oral hearing [6] XXXX XXXX XXXX has not requested the admission of any new evidence in this appeal and has not requested an oral hearing. As no new evidence was admitted no oral hearing is permitted. The role of the Refugee Appeal Division [7] I have reviewed the entirety of the written record and have listened to the audio recording of the RPD hearing. The RPD had no meaningful advantage over me in assessing the credibility of oral testimony. I have therefore undertaken a review of the correctness of the RPD decision throughout. Credibility is the determinative issue [8] As I will explain below, I agree with the RPD that XXXX XXXX XXXX is not credible with respect to the threat he has alleged in Pakistan. As this is the determinative issue in this appeal, I have not considered other issues. ANALYSIS XXXX XXXX XXXX return to Pakistan undermines the credibility of his allegations [9] The RPD was correct in finding that XXXX XXXX XXXX voluntary return to Pakistan undermined his allegations of subjective fear. While XXXX XXXX XXXX has alleged that during his time in the United Kingdom he thought that perhaps the LeT had forgot about him, this is directly contradicted in his own evidence. The letter from XXXX XXXX XXXX XXXX XXXX XXXX brother, states that, "he spent 3 years in England during this period many unknown people came into our house to ask about him. Lashker e taiba was searching for him."1 When asked in the RPD hearing if he knew anyone else who had ever avoided joining LeT simply by letting time pass, XXXX XXXX XXXX said, "No... they don't forget... they never forget... they have a copy of my identity card and they can find me anywhere in the country." When asked, "when in the UK, were they still trying to find you back home?" XXXX XXXX XXXX said, "they were asking my father where is your son?"2 [10] XXXX XXXX XXXX has argued on appeal that his return to Pakistan should not be held against him because much of the more serious harm took place after his return. I disagree, because this argument is directly contradictory to XXXX XXXX XXXX own evidence presented earlier. XXXX XXXX letter specifies that as early as his Pakistani college days, XXXX XXXX XXXX was being accosted by men in public markets, "was frightened and was shivering," that he was receiving threats, told not to go to the police, that he started crying, that the situation persisted for a whole year, and that during his time in England LeT was consistently searching for him.3 As I will explain below, I do not think that XXXX XXXX letter is credible. However, the fact that XXXX XXXX XXXX has adduced this evidence is in clear contradiction to his argument on this matter. In addition, XXXX XXXX XXXX testimony at the RPD was that he was afraid during his time in the United Kingdom based on information that he was receiving from friends and relatives back in Pakistan. [11] XXXX XXXX XXXX was not in hiding on his return to Pakistan. He returned to see family and to get married. [12] Given XXXX XXXX XXXX voluntary return to Pakistan to see his family and get married, and given that there is clear evidence that he could not reasonably have thought that country conditions had changed (since he was allegedly told that the agents were consistently searching for him), I find that XXXX XXXX XXXX return to Pakistan in 2015 undermines his allegations of subjective fear, and undermines his allegations that he was threatened or harmed by LeT. Delay in leaving Pakistan undermines allegations [13] The RPD correctly found that XXXX XXXX XXXX remained in Pakistan for approximately one year after first being allegedly targeted by the LeT, and that this delay in leaving Pakistan undermined his allegations of subjective fear. [14] XXXX XXXX XXXX has argued on appeal that he had a reasonable explanation for his delay in leaving - that he had successfully mollified the LeT recruiters by promising to join the LeT after he had finished the school year. I do not accept this explanation as sufficient. I do not accept it because XXXX XXXX XXXX specified that he became afraid of LeT in 2011. The letter from XXXX XXXX specifies that during his time at school in Pakistan, XXXX XXXX XXXX was so scared he "couldn't tell anything just because of fear," he was accosted in the market, threatened that "they will create trouble for me" and "warned me to not to contact with police otherwise the consequences will be worse." At the same time, however, XXXX XXXX XXXX was apparently not in hiding for approximately another year- he continued to attend the same school that LeT was allegedly forcibly recruiting from and finished his studies. XXXX XXXX XXXX relies upon the letter from XXXX to illustrate that he was harassed during his time in school - which is inconsistent with his testimony that he had managed to put off the recruiters during that same time period. As a result, neither XXXX XXXX XXXX testimony nor the content of the letter is reliable or credible. [15] XXXX XXXX XXXX delay in leaving Pakistan and his failure to go into hiding undermines the credibility of the fear he has alleged. The RPD's finding on objective basis was correct [16] XXXX XXXX XXXX has argued that the RPD's finding on objective basis was in fact a masked finding of implausibility. I disagree. I disagree because, in my reading of the RPD's reasons, I note that the RPD clearly assessed the documentary evidence and came to the conclusion, on a balance of probabilities, that XXXX XXXX XXXX does not have a profile of one that would be recruited by LeT (he is much older than the age of their documented teenage recruits and there is no record of LeT using forcible recruitment strategies despite the organization being very well-studied). In my independent review of the documentary evidence, I find none that contradicts the RPD's findings on this issue. This finding is bolstered by the fact that XXXX XXXX XXXX has not adduced any further country condition evidence that LeT has, in fact, engaged in forced recruitment in his appeal. Even if it were properly viewed as a finding of implausibility, I find that it would meet the test prescribed by the Federal Court because it clearly references the documentary evidence available, which gives no indication that LeT operates in the way that has been alleged. The RPD erred in not considering all the evidence [17] XXXX XXXX XXXX has pointed to three letters of support that seek to corroborate his allegations of harm. Indeed, the RPD did not substantively deal with the letters, which was an error. It was an error because the letters directly contradict the RPD's overall finding of fact, that XXXX XXXX XXXX was not credible with respect to his allegations. [18] As a result of this error, I will assess and weigh these letters in the following section. The letters of support are not reliable in overcoming the other credibility problems [19] In my independent review of these letters, I note that each has been accompanied by copies of their purported authors' identification cards. I have several concerns with respect to these letters. [20] My first concern is that they are all very vague in their description of the events in question. The letter from XXXX XXXX states only that "some unknown people are coming at my shop to asked about XXXX XXXX."4 There is no indication that any threats were made in this letter, no timeline of when the incident(s) occurred, and no description of the people involved. The letter from XXXX XXXX states only that "...many strange people comes to my shop, they always ask about XXXX..."5 Again, there is no indication that threats were made, no timeline, and no description of the people involved. [21] My second concern is that the letter from XXXX XXXX is inconsistent with XXXX XXXX XXXX testimony in terms of the incidents in question.6 The letter specifically states that, while XXXX XXXX XXXX was in college in Pakistan, he was so afraid of LeT that he "...couldn't tell anything just because of fear...", "...two men with big stature and large beard came near us and carried him away...", "...they are giving me threats that they will create trouble for me and they had warned me to not contact police otherwise the consequences will be worse..." By contrast, in XXXX XXXX XXXX testimony, he detailed that while he was scared of joining LeT, he was kind to their recruiters, smiled at them, told them that he would join them once he was done with his school, and generally dealt with them by delaying his joining but letting the LeT think he was interested in them. At 00:40:30, XXXX XXXX XXXX stated that, "...actually I was just telling them, I was giving them hope, because I did not want to have problem with them, I was scared of them... but I was making excuses and telling them to wait for me..." The RPD asked, "did you ever tell them, or give them any indication of any kind that you did not want to join them?" XXXX XXXX XXXX responded, "no, it would have been big trouble for me." Given XXXX XXXX XXXX testimony regarding his direct interactions with LeT, which he was apparently keeping positive, it makes little sense to me that XXXX XXXX letter details threats and negative interactions. [22] As a result of my concerns above, I find that these letters of support are individually and collectively insufficient to overcome the credibility concerns already discussed. I consider them unreliable in substantiating XXXX XXXX XXXX allegations. XXXX XXXX XXXX Maldonado presumption of truthfulness has been rebutted [23] When a refugee claimant swears to certain facts, this creates a presumption that they are true unless there are valid reasons to doubt their truthfulness.7 In this case, XXXX XXXX XXXX delay in leaving Pakistan, his voluntary return to Pakistan, his failure to go into hiding in Pakistan at any point, and the inconsistent information in his letters of support undermine his presumption of truthfulness with regard to the core allegations of harm. [24] Because of these findings, I need not explore the RPD's more peripheral and non-determinative findings, including XXXX XXXX XXXX omission of an earlier visa application, the omissions of some specific information from his Basis of Claim form, and his failure to claim asylum in the United Kingdom. [25] I find that, on a balance of probabilities, XXXX XXXX XXXX is not credible with regard to the core facts of his claim and with regard to his subjective fear. CONCLUSION [26] The RPD made an error in failing to assess XXXX XXXX XXXX letters of support. However, this error did not overcome the RPD's overall correct finding that XXXX XXXX XXXX lacks credibility with regard to the core allegations of fear and harm at the hands of LeT. [27] XXXX XXXX XXXX would face no serious possibility of persecution or, on a balance of probabilities, a risk to life or risk of cruel and unusual treatment or punishment or danger of torture if he were to return to Pakistan. [28] XXXX XXXX XXXX is not a Convention refugee and not a person in need of protection. The appeal is dismissed. (signed) "Colin Anderson" Colin Anderson March 2, 2020 Date 1 Exhibit RPD-1, RPD Record, p. 95. 2 RPD hearing audio recording at 00:49:40. 3 Exhibit RPD-1, RPD Record, p. 95. 4 Exhibit RPD-1, RPD Record, p. 94. 5 Exhibit RPD-1, RPD Record, p. 97. 6 Exhibit RPD-1, RPD Record, p. 95. 7 Maldonado v Canada (Minister of Employment and Immigration), (1980) 2 F.C. 302 (C.A.). --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-16504 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