TB8-01512

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 File / Dossier de la SAR : TB8-01512 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 26, 2018 Date de la décision Panel James Sloan Tribunal Counsel for the person(s) who is(are) the subject of the appeal Adolfo Morais Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Gabriele Spina Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) claims that if returned to Ukraine, his country of nationality, he will be killed by influential individuals who seek to take control of his assets. His claim for refugee protection was heard by the Refugee Protection Division (RPD) on May 17, 2017 and refused by a decision dated September 29, 2017 on the ground that he is a person referred to in Article 1F(b) of the United Nations Convention Relating to the Status of Refugees (the Refugee Convention), that is, a person with respect to whom there are serious grounds for considering that he has committed a serious non-political crime outside of Canada prior to his refugee claim.1 He now appeals to the Refugee Appeal Division (RAD). DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND (INCLUDING FACTS AS ALLEGED OF THE APPELLENT) [3] The Appellant claims that, in 2009, Mr. XXXX-a XXXX politician, XXXX XXXX of the XXXX XXXX, and a member of the Ukrainian XXXX XXXX XXXX-offered him the opportunity to obtain a position working for the Ukrainian XXXX XXXX XXXX in return for the payment of a bribe.2 The Appellant refused. [4] The Appellant came to Canada in 20113 to study English as a second language. He travelled on a student visa that was issued for one year.4 He has resided in Canada since 2011. [5] The Appellant claims that he learned fraudulent documentation, orchestrated by Mr. XXXX and others, had been used to bring claims of fraud against him in Ukraine in XXXX 2012.5 As a result of the efforts of the Appellant's lawyer in Ukraine, the matter was ultimately dismissed.6 [6] The Appellant claims that Mr. XXXX threatened to kidnap and kill his children; attempted to kidnap his eldest son; and assaulted his lawyer, his mother, and his former common-law wife's mother. He claims further that Mr. XXXX and/or other individuals who have been attempting to take his property (he names seven in total7) took possession of his family home, his car, two stores he owned, his former common-law wife's mother's home, his former common-law wife's sister's home, and XXXX XXXX garages he owned. In addition, he claims they killed a parking lot official and took the apartment of a woman who would not sign false documents incriminating the Appellant and arranged for her to be jailed.8 [7] A "Notification of new suspicion"-described by the Appellant as a "preliminary investigation"9-was issued on XXXX XXXX, 2014 by a senior investigator working for the Ministry of Internal Affairs in the XXXX XXXX region of Ukraine. The document outlines numerous crimes the Appellant is suspected of, including fraud, embezzlement and running a Ponzi scheme.10 The Appellant claims that Mr. XXXX and his associates were behind this and that the claims are false. [8] A "red notice" identifying the Appellant as having been accused of fraud was posted on the Interpol website-apparently as a result of the "Notification of new suspicion".11 [9] On XXXX XXXX, 2015, the Canadian government issued an exclusion order against the Appellant, pursuant to subsection 44(1) of IRPA. On the same day, he was arrested by XXXX police, turned over to the Canadian Border Security Agency (CBSA), and placed in detention.12 [10] Sometime between XXXX XXXX and XXXX XXXX, 2016,13 Mr. XXXX contacted the Appellant by Skype and told him that he planned to ensure the Appellant returned to Ukraine so he could force him to sign over his properties and arrange to have him jailed and killed.14 The Appellant claims that another of his persecutors, a Mr. XXXX, also contacted him by Skype during this period and threatened him with death.15 [11] A negative decision on the Appellant's pre-removal risk assessment (PRAA) application was rendered on XXXX XXXX, 2015. On XXXX XXXX, 2016, after a judicial review, the negative PRRA decision was upheld by the Federal Court. [12] On XXXX XXXX, 2016, after a judicial review, the exclusion order was set aside by the Federal Court. [13] On July 26, 2016, the Appellant applied for refugee protection. HEARING [14] The Appellant has requested that a hearing be held in this matter. The principle under subsection 110(3) of the IRPA that the RAD must proceed without a hearing, is subject to an exception, elaborated in subsection 110(6). The latter subsection provides a hearing may be held where certain conditions in relation to new evidence the Appellant has requested the admission of are met. There has been no request for the admission of new evidence; as such, the request for a hearing is denied. DETERMINATIVE ISSUES [15] The determinative issues are the Appellant's credibility and whether he is excluded from refugee protection under section 98 of the IRPA and Article 1F(b) of the Refugee Convention. ANALYSIS [16] The RPD found the Appellant was not credible on the following bases: a) a supporting letter that he submitted was deserving of no probative weight; b) his characterization of Mr. XXXX was inconsistent with his testimony; c) his evidence that he had been the subject of fraud claims orchestrated by Mr. XXXX in 2012 was improbable; and d) a finding that the Appellant had not demonstrated that Mr. XXXX was able to have the Appellant's name fraudulently added to the Interpol database. As such, it rejected the Appellant's claim that the "Notification of new suspicion" and Interpol "red notice" were fraudulent. It found the crimes that the Appellant had been charged with met the definition of "serious non-political crimes" and, consequently, that he was excluded from refugee protection by virtue of section 98 of the IRPA and Article 1F(b) of the Convention. [17] The Appellant argues that the RPD erred in finding he lacked credibility and, as a result, in not accepting the Appellant's testimony that the "Notification of new suspicion" and Interpol "red notice" were fraudulent. In addition, he argues that the RPD erred by not assessing many of his supporting documents. Finally, he states that the RPD was insufficiently concerned with the facts showing persecution16 and that, as a result, he was not "given a chance to advance his case".17 [18] I will consider the Appellant's arguments as to why the RPD's credibility findings were in error and why the RPD erred by not assessing his supporting documents below. [19] As to the Appellant's statement that the RPD was insufficiently concerned with his persecution, this is puzzling. The Appellant does not elaborate-in accordance with RAD Rule 3(3)(g) or otherwise-on why he views the RPD to have been insufficiently concerned with the facts showing his persecution or the legal basis on which he considers this alleged lack of concern to represent an error. I note that the Appellant was represented by counsel: if his counsel had wanted to ensure he had a "chance to advance his case" or wanted to focus on facts showing his persecution, he had every opportunity to do so. To the extent that the Appellant's submissions on this point represent an argument, I reject them. [20] The RPD's finding that crimes in question are "serious non-political crimes" as per section 98 of IRPA and Article 1F(b) of the Convention is uncontested. As a result, I need not analyze it herein; I note, however, that I have reviewed it and am in agreement with it. [21] Finally, I note that the Minister of Public Safety and Emergency Preparedness intervened in the matter and requested that this appeal be dismissed. It submitted a Memorandum,18 which consists of two paragraphs and posits a quotation from the Federal Court case of Khansary.19 It does not include full and detailed submissions regarding the grounds on which the Minister is contesting the appeal, as per RAD Rule 4(3)(c); indeed, it does not include any argumentation at all. It is of no assistance. 1. Credibility Generally [22] The Appellant argues that, by virtue of the Federal Court of Appeal case of Maldonado,20 he is entitled to a presumption that his sworn testimony is true. The Appellant also argues that the "presumption of truthfulness must stand until the Panel has heard the Appellant's entire evidence and has decided, based on all evidence, whether this presumption should be displaced." [underlining in original]21 [23] Of course, the presumption that sworn testimony in a refugee hearing is true does not apply if there are material reasons to doubt the truthfulness of an Appellant's testimony. Here, as will be discussed below, such reasons exist. As such, the presumption is inapplicable in this case. Moreover, I am aware of no requirement for the RPD-or indeed the RAD-to wait until an Appellant's entire case has been decided to displace the presumption as the Appellant argues. The Federal Court of Appeal in Maldonado provides no such requirement. Its oft-quoted finding on the presumption of truthfulness-"When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness."22-makes clear when the presumption is displaced: when there is a significant reason to doubt the truthfulness of the Appellant's allegations. This is such a case. a) Letter from Mr. XXXX [24] The RPD considered a letter from a Mr. XXXX, dated May 13, 2016. In it, he states that, while his name appears in the "Notification of new suspicion" as someone from whom the Appellant illegally obtained funds, the Appellant does not owe him any money and he did not make a statement against him.23 Noting that the letter was not notarized, the RPD held that it could not "counter the numerous charges laid against the claimant"24 and did not grant it probative value. [25] The Appellant argues that there is no requirement that documents be notarized, as the RPD implied in its finding. [26] I agree that the RPD's statement implies that the letter must be notarized. This is in error as there is no such requirement. [27] I find the document to be probative and I will consider it below in assessing the Appellant's credibility. I note, however, the fact that the letter is not notarized makes it less probative than a notarized document would have been. I note further that the XXXX XXXX XXXX XXXX XXXX of which the Appellant is said to have defrauded Mr. XXXX is one of over 100 illicit transactions listed on the Notification of new suspicion; as such, even if the letter is accepted as proof that the Appellant did not owe Mr. XXXX money and Mr. XXXX did not make a statement to the effect that he had been defrauded by the Appellant, it would reflect on only one allegation among many. [28] Finally, I note that the statement of Mr. XXXX is very narrow. It does not state that the Appellant never took money from him; it merely states that "he does not owe any money to me". It is certainly conceivable that the Appellant could have repaid Mr. XXXX before the letter was written. In addition, the letter states that Mr. XXXX did not make a complaint against the Appellant. However, there is nothing in the "Notice of new suspicion" to indicate that the list of fraudulent activities said to have been committed by the Appellant were based on statements made by the individuals whose interests were harmed. Instead, the list may very well have been based on the records of the financial institution where the Appellant previously worked. b) The Appellant's characterization of Mr. XXXX [29] The RPD noted that the Appellant described Mr. XXXX as an influential, powerful, and well-connected person. It noted further that the Appellant testified his lawyer had shown that certain documents provided by Mr. XXXX were fraudulent and, as a result, the fraud claims made against Appellant in Ukraine in 2012 were dropped. The RPD found that the Appellant's evidence that the 2012 fraud claims were dropped was inconsistent with his claim that Mr. XXXX was powerful and well-connected. It drew a negative inference regarding the Appellant's credibility and his allegation that he was falsely charged in Ukraine. It also stated that it did not believe that Mr. XXXX was as powerful and well-connected as the Appellant had claimed. [30] The Appellant characterizes the RPD's finding in this regard as "an unreasonable deduction, with no support in the evidence".25 [31] I find the RPD's finding is in error. There is nothing contradictory about someone who is extremely powerful and well-connected being unable to prevail in respect of a particular case-in this case the fraud claims against the Appellant in 2012. The Appellant did not claim that Mr. XXXX was omnipotent; merely that he was very powerful. c) Veracity of the fraud allegations the Appellant claims were brought against him in 2012 [32] The RPD asked the Appellant if he had any evidence to support his claim that, in 2012, fraud claims of a similar nature to those in the "Notice of new suspicion" were brought against him or that they were subsequently dropped. The Appellant explained that he was in Canada at the time the matter arose and that his lawyer did not keep any copies of the evidence. He claimed that he could not obtain any court documents or any supporting documentation from his lawyer. The RPD found that if the Appellant's claim to have successfully defended the 2012 fraud claims was true, he would have adduced evidence in this regard and he would have made efforts to seek the same lawyer's representation in relation to the 2014 fraud claims. Based on the foregoing, the RPD drew a negative inference regarding the Appellant's credibility and held that it did not believe the fraud claims brought against the Appellant in 2012 were false (or that they were dropped) or that the fraud claims discussed in the "Notification of new suspicions" were false. [33] The Appellant, relying on the Federal Court case of Henriquez Pinedo,26 argues that the RPD erred in drawing a negative inference about the Appellant's credibility merely because he failed to produce extrinsic documents corroborating his allegations. In addition, he argues that while the RPD's finding that he could not produce corroborating documents was factually true, it "cannot be related to his credibility because there is no evidence in the record ... to contradict the Appellant's allegation."27 Finally, the Appellant argues "[c]onversely"28 that because the "Notification of new suspicion" has the word "new" in it, it is reasonable to infer that there was an "old" one.29 This, he argues, means that the facts as stated by him "are inside the realm of what could reasonably [have] happened."30 [34] Turning to the Appellant's first argument, I note that the Appellant's summary of the Federal Court's finding in the Henriquez Pinedo case left out an important aspect: that was a case where the Applicant's credibility was not in question. The Federal Court stated in relevant part: [13] A panel cannot draw a negative inference from the mere fact that a party failed to produce any extrinsic documents corroborating his or her allegations, except when the applicant's credibility is at issue (Ahortor v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 137 (FCT); Nechifor v. Canada (Minister of Citizenship and Immigration), 2003 FC 1004 (CanLII), [2003] F.C.J. No. 1278 (QL) at paragraph 6). [emphasis added] [14] Here, as the applicant's credibility was not at issue, the Court believes that the panel erred in requiring that she produce evidence to corroborate her allegations. The fact that the Appellant's credibility is at issue herein means that the case is inapposite. As discussed above, the Appellant has argued throughout his Legal Memorandum that his sworn testimony enjoys a presumption of truthfulness due to the Federal Court of Appeal's finding in the Maldonado case.31 However, as the Federal Court found in Murugesu, the presumption does not apply where an Appellant fails to produce supporting evidence that the Board reasonably expects should be available in the circumstances and does not provide a reasonable explanation for failing to produce that evidence.32 [35] As to the Appellant's argument that the lack of supporting documentation cannot impact upon his credibility because there is no evidence to contradict the Appellant's allegation, I can see no legal or logical basis on which the existence of contradictory evidence would be needed. Certainly it was not said to be a requirement in the Murugesu case discussed above. Nor is such a requirement envisaged in RPD Rule 11, which obliges a claimant to provide acceptable documents establishing his or her claim and, where he or she does not do so, to explain why such supporting documents were not provided and what steps were taken to provide them. [36] Finally, the fact that the "Notification of new suspicion" has the word "new" in it, does not, to my mind, support the Appellant's testimony that there was an "old" notification of suspicion from 2012. Even if the word "new" could be taken to suggest that there was an "old" version, there is no indication that the old version was from 2012. [37] I find that supporting documents in relation to the alleged 2012 fraud claims and the steps taken by the Appellant's lawyer should have been provided and I reject the Appellant's explanations for not having them. The fact that he lived in Canada at the time is not persuasive: the distance between Canada and Ukraine is not a reasonable basis not to obtain documents. Indeed, he has included among his supporting documents a letter from the same lawyer stating that he continues to be in touch with him (see the discussion below). Nor do I accept the explanation that his lawyer did not keep copies of such important information or that it was unavailable; I find this assertion implausible33 and, therefore, find his explanation to be unreasonable. This lack of documentation undermines the Appellant's credibility and I find, on a balance of probabilities, that there were no fraudulent claims made in 2012. d) Evidence of improper use of Interpol [38] The RPD noted that the Appellant had submitted an article, dated September 25, 2015, from The Globe and Mail newspaper indicating that Interpol was sometimes misused by corrupt governments-Russia, Venezuela and Iran were mentioned-"to harass innocent dissents, human rights activists, journalists and even business people whose dealings with the governments or well-connected local partners have gone sour."34 The RPD noted that the Appellant testified he had not had business dealings with the government of Ukraine, Mr. XXXX, or with anyone else that had gone sour. It noted further that Ukraine was not one of the countries mentioned in the newspaper article as misusing Interpol. In light of this, the RPD concluded, on a balance of probabilities, that the Appellant had not demonstrated Mr. XXXX had arranged for the Appellant's name to be fraudulently added to the Interpol database. [39] The Appellant submitted three documents dealing with the possibility of the Interpol database being misused: in addition to the article from The Globe and Mail, he submitted a printout from the FairTrials website35 and an editorial from The New York Times.36 As regards the article from The Globe and Mail, he argues that the fact Ukraine is not listed does not mean it is not affected. After all, the list was illustrative only and Ukraine is characterized as a corrupt country in the objective documentation (see below). As regards his testimony that he had not had any business deals that had gone sour, he argues that this is not the point: he was nonetheless a target of Mr. XXXX and others. [40] I agree that the list of countries said to misuse Interpol in The Globe and Mail article is not exhaustive. Nor do the other documents limit themselves to the countries mentioned. Nevertheless, the fact none of the documents mention Ukraine37 makes them less relevant to this matter-even accepting that there is significant corruption in Ukraine. I disagree with the RPD's suggestion that because the Appellant did not have any business dealings that had gone sour, The Globe and Mail article was somehow inapposite to his claim. After all, with or without a failed business deal, if the Appellant's narrative is to be believed, his dealings with Mr. XXXX-a government official and someone well-connected to the government-have certainly soured. This finding applies equally to the other two articles. [41] I find the three documents to be of probative value. However, I do not accept that the articles prove, on a balance of probabilities, that, in the Appellant's case, the Interpol notice against him was the result of abuse by high-level government officials from the Ukraine. Even accepting that such abuse occurs, there is nothing in the articles to indicate that it occurs in Ukraine or otherwise connects such abuse to the Appellant's case. 2. Assessment of documents [42] The Appellant argues that while the RPD does not have to refer to all evidence, "its burden of explanation increases with the relevance of the evidence in question to the disputed facts."38 He argues that the RPD erred by not analyzing the following documents, which he says corroborate his narrative and show that Mr. XXXX is sufficiently influential that he could arrange for documents to be fabricated and arrange for the Appellant's name to appear in the Interpol database: i) letters from the Appellant's former common-law wife; ii) a letter from his attorney in Ukraine; iii) letters from his eldest son; iv) a letter from a witness; v) a letter from his mother; and vi) a document said to reveal that one of his persecutors (Mr. XXXX) took possession of the Appellant's family home. In addition, he argues that objective evidence supporting his claim was ignored. In particular, he relies on vii) a report indicating that corruption in Ukraine was a serious problem and viii) a report that "corporate raiding" took place, whereby property was illegally seized by high government officials. [43] I agree with the Appellant that the RPD erred in not providing greater analysis of the Appellant's supporting evidence. I will do so presently. I do not agree, however, that the RPD erred in not discussing the two items of objective evidence-as elaborated upon below, those documents in no way run contrary to the RPD's findings and, as such, the RPD may be presumed to have been aware of them. i) Letters from his former common-law wife [44] A letter from the Appellant's former common-law wife39 states that Mr XXXX40 made false accusations against her, threatened to kidnap and kill her children (of whom the Appellant is the father), assaulted her mother, and assaulted the Appellant's mother. She also states that, upon the Appellant's return to Ukraine, he will be killed at once and that one of his persecutors "said he would tear off [the Appellant's] legs and arms, enjoying your cries until you die."41 I find this letter to be probative and I will consider it below in assessing the Appellant's overall credibility. I note, however, that the letter is not notarized and, as such, consider it less weighty than it would have been if it had been notarized. I note further that the author of the letter was not made available for cross-examination. As the Federal Court held in El Bouni:42 confirmatory evidence of family members and friends, which is not subject to cross-examination, is not highly probative or credible evidence. Highly probative evidence is intrinsically well-presented evidence from independent sources confirming a material fact in the matter.43 [45] In another letter, dated October 25, 2015, the Appellant's former common-law wife states that she arranged to transfer her children to other schools due to constant threats.44 I accept that the letter has probative value and will consider it below in assessing the Appellant's overall credibility. I note, however, that the letter is not notarized and, as such, consider it less weighty than it would have been if it had been notarized. Once again, I note that the fact that the author was not made available for cross-examination also makes the evidence less persuasive. ii) Letter from the Appellant's attorney in Ukraine [46] In an undated letter,45 a lawyer in Ukraine states that his firm provides legal assistance to the Appellant's former common-law wife in relation to threats to her life from people in high-level positions; states that between 2012 and 2015, his firm filed several inquiries to law enforcement officials who had not effectively investigated such matters; and states that, due to threats against the Appellant's former common-law wife, the Appellant, their children, and the Appellant's former common-law wife had to go into hiding. [47] I note that the letter does not identify the individuals who threatened the Appellant's former common-law wife or his children and, as such, the letter does not link the threats identified to the individuals the Appellant claims are his persecutors. Nor does the letter mention that the lawyer has first-hand knowledge that the Appellant himself was threatened (he only mentions that the Appellant's common-law wife's expressed fears that the Appellant would be killed). Nor does the lawyer's letter make any reference to the false claims of fraud that the Appellant testified were made against him either in 2012 or in 2014 or to threats to the Appellant himself. Finally, I note that the letter-though it features a seal-is not notarized and, as such, I consider it less weighty than it would have been if it had been notarized. Nevertheless, I rely on the letter as probative as regards the lawyer's statements that the Appellant's common-law wife and his children were threatened and, for this reason, felt the need to move with the children to another region. I will consider it below in assessing the Appellant's credibility. iii) Letters from the Appellant's eldest son [48] In a letter dated January 11, 2016, the Appellant's eldest son, who was 15 years old when he wrote the letter, attests to incidents that occurred in XXXX 2012, when he eleven years of age. He states that his father and mother were threatened by Mr. XXXX;46 that Mr. XXXX and his associates attempted to break into his grandmother's home; that he overheard conversations in which the killing of his parents was discussed; that the family home was searched in XXXX 2012 and the searchers threatened to plant drugs on his mother; that all of his father's documents and computers were taken away; that he overheard his mother telling his grandmother that Mr. XXXX wrote false statements with a view to putting his mother in jail; and that he lives in hiding and is very afraid. In addition, in a letter dated September 14, 2016,47 the Appellant's eldest son writes that, in XXXX 2014, two men accosted him; that the same men attended his school in XXXX of 2015; that, as a result, his mother made him and his siblings change schools; that his mother often receives threats over the telephone; and that he overheard his mother stating that someone wants to kill his two younger brothers, his mother and the Appellant. [49] The first letter from the son is of limited value. I note that much of the information he attests to was overheard and, as such, may have been misunderstood by someone who was only eleven or twelve years old at the time. As to his letter from September 2016, when he was16 years of age, I am of the view that he would have been more likely to have had a clearer understanding of events and find the letter to be of greater probative value. I note that neither letter is notarized and, as such, consider them less weighty than they would have been had they been notarized. Once again, I note that the fact that the son was not made available for cross-examination makes his evidence less probative. Nevertheless, I will consider these documents below in making an assessment of the Appellant's credibility. iv) Letter from a witness [50] A sworn statement, dated January 4, 2016, is included from a woman who has known the appellant and his former common-law wife since 1985. She attests that she witnessed the Appellant and his former common-law wife "receiving multiple death threats from high-ranked officials in Ukraine, for the purpose of attaining assets amd [sic] property of [the Appellant] and [the Appellant's former common-law wife]."48 She also attests that, when visiting Ukraine, she witnessed murder threats against the Appellant and the Appellant's former common-law wife. [51] I find that the letter is of limited probative value. It attests to threats against the Appellant and his wife that she happened to observe when in Ukraine; however, it does not identify who made the threats-beyond describing the individuals as high-level government officials. Nevertheless, I will consider it below in assessing the Appellant's credibility. v) Letter from the Appellant's mother [52] In a letter, dated September 15, 2016, the Appellant's mother49 writes that in the period from 2012-2013, she received visits from Mr. XXXX and Mr. XXXX; that she was told that her son had committed a fraud; that she was told to transfer the family assets to the two men; that she refused; that, as a result of her refusal, she and her family were threatened with death; that she was assaulted at work by Mr. XXXX; that the Appellant's lawyer was attacked by Mr. XXXX and forced to stop helping the family; that Mr. XXXX has taken over the Appellant's house, her apartment, and the Appellant's former common-law wife's parent's apartment; that "they"-presumably Mr. XXXX and Mr. XXXX and/or their associates-are trying to force the Appellant to return to the Ukraine and would kill her family if he did not; that they were going to go to Canada to kill the Appellant; that they took the family's travel documents; and that they continue to call asking when the Appellant is returning to Ukraine. [53] I note that the letter is not notarized and, as such, consider it less weighty than it would have been if it had been notarized. Once again, I note that the fact that the author was not made available for cross-examination makes the evidence less probative. Nevertheless, I find the letter to be probative, in particular, as it pertains to the conduct of Mr. XXXX and his associates. I will consider it when weighing the Appellant's credibility below. vi) Documents regarding ownership of the Appellant's family home [54] The Appellant argues that documents50 reveal that one of the Appellant's persecutors-Mr. XXXX-took possession of the Appellant's family home and currently lives there. Even accepting that the documents show that Mr. XXXX has taken possession of the family home, this does not indicate that he obtained possession in an illegal way or that he is one of the Appellant's oppressors. I find this supporting evidence to be of very limited probative value. vii) Report indicating that corruption in Ukraine is a serious problem [55] The Appellant relies on a US Department of State report51 that indicates there is widespread corruption and a lack of transparency in Ukraine. I can see no reason why the RPD would have commented on this report; nothing in the RPD's findings in any way suggests that corruption is not endemic in Ukraine. As such, I assume that the RPD was aware of this report in reaching its decision and aware that corruption is a widespread problem. This is in no way incompatible with the RPD's rejection of the Appellant's claim that the "Notification of new suspicion" or the Interpol "red notice" were fraudulent; the RPD did not link either finding to an absence of corruption in Ukraine. viii) Report that "corporate raiding" took place [56] The Appellant also makes reference to a document prepared by the Organized Crime Observatory52 indicating that "corporate raiding"-defined as owners of private businesses needing to pay off local organized crime groups to protect them from having their businesses and assets taken over by corrupt official or criminal groups53-takes place in Ukraine. Once again, I can see no basis for the RPD to have made mention of this phenomenon in its decision. The existence of corporate raiding is in no way incompatible with or contradictory to the RPD's findings. The RPD did not state or imply that corporate raiding was not a problem in Ukraine; instead, it held that it did not accept the Appellant's testimony that the "Notification of new suspicions" or the Interpol "red notice" were falsified. Overall assessment of Appellant's credibility [57] The Appellant argues that because he has asserted that the document that supports the Article 1F(b) finding-i.e. the "Notice of new suspicion"-is fraudulent, the mere existence of that document is not enough to support an Article 1F(b) finding if he is found credible. As such, he argues the RPD must make a determination on his credibility. [58] In what appears to be a concluding paragraph on the credibility of the Appellant's assertion that the "Notice of new suspicion" had been falsified, the RPD did so. It found that the Appellant had not adduced any evidence to establish that he was the victim of false accusations either in relation to the 2012 fraud claims or the 2014 fraud claims and found his allegations in this regard not to be credible. As such, the RPD accepted that the "Notification of new suspicion" was valid.54 [59] It falls to me to make my own assessment of the Appellant's credibility and, in particular, of his claim that the "Notification of new suspicion" and the Interpol "red alert" were the result of the misuse of the system by his enemies in Ukraine. As noted, I have disagreed with some of the RPD's findings and found certain documents that were introduced by the Appellant in support of his claim to have probative value. Based on the various findings, balanced against the supporting documentation, I do not find the Appellant's story to be credible. I find, on a balance of probabilities, that the "Notification of new suspicion" and the Interpol "red notice" are valid and, as such, that there are serious grounds for considering that the Appellant has committed serious non-political crimes outside of Canada prior to his refugee claim. Consequently, I find, pursuant to section 98 of IRPA, that Appellant's claim must be rejected on the ground that he is a person referred to in Article 1F(b) of the Refugee Convention. CONCLUSION [60] I confirm the decision of the RPD that the Appellant's claim must be rejected on the ground that he is a person referred to in Article 1F(b) of the Refugee Convention. The appeal is dismissed. "James Sloan" James Sloan November 26, 2018 Date 1 Section 98 of the Immigration and Refugee Protection Act (IRPA) provides: "A person referred to in section E or F or Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection." Article 1F(b) of the Refugee Convention provides that the provisions of that Convention "shall not apply to any person with respect to whom there are serious reasons for considering that ... he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee...". 2 Exhibit RPD-1, RPD Record, at pp. 615-621, Affidavit of the Appellant, November 9, 2015, at para 29. 3 The Appellant's BOC narrative states that he entered the country on XXXX XXXX, 2011. In his affidavit he states that his "most recent immigration history in Canada as a student dates XXXX XXXX, 2011, when I came to Canada to study English as a second language." [underlining in original] (Ibid., at para 8.) He also states that the last time he entered the country was on XXXX XXXX, 2011. (Ibid., at para 9). 4 In his Basis of Claim form (BOC) he states that his student visa was "issued beginning 2011 for approximately 1 year". (Exhibit RPD-1, RPD Record, at p. 38, Basis of Claim form, at para 7(f). In his "Generic Application Form" submitted as part of his refugee claim, he states that he has been a "Student out of status" since XXXX XXXX, 2013 (Exhibit RPD-1, RPD Record, at p. 229, Generic Application Form, at para 11.) In an affidavit, he swore he was "given status as a student until XXXX XXXX, 2012" but that it was extended until XXXX XXXX, 2013 (Exhibit RPD-1, RPD Record, at pp. 615-621, Affidavit of the Appellant, supra footnote 2, at paras 10 and 11). 5 Exhibit RPD-1, RPD Record, at pp. 335-342, Affidavit of Appellant, September 21, 2016, at paras 14 and 15. 6 In his affidavit, the Appellant stated that he "was acquitted" of the charges (ibid., at para 17). The Appellant testified that he was not sure if the fraud claims were dropped or if he was acquitted; he explained that he was not familiar with the legal terminology. 7 Ibid., at para 14. 8 Ibid., at paras 21-28. 9 Exhibit RPD-1, RPD Record, at p. 239, Schedule A, at para 6. 10 Exhibit RPD-1, RPD Record, at p. 582-599. 11 According to the Appellant's Legal Memorandum: "With [the] support of this Notification, the government of Ukraine apparently requested the Interpol to issue a warrant against the Appellant." [footnote omitted] (Exhibit P-2, Appellant's Record, at p. 34, Legal Memorandum, at para 51). 12 Affidavit of the Appellant, supra footnote 2, at paras 32-43. He was released on XXXX XXXX, 2015, but again spent time in detention between XXXX XXXX, 2015 and XXXX XXXX, 2016 and between XXXX XXXX, 2016 and XXXX 25, 2016 (Exhibit RPD-1, RPD Record, at pp. 335-342, Affidavit of Appellant, supra footnote 5, at paras 44-46). 13 Ibid., at paras 45-47. 14 Ibid., at paras 48-49. 15 Ibid., at para 50. 16 Exhibit P-2, Appellant's Record, at p. 26, Legal Memorandum, at para 21. 17 Ibid., at para 18. 18 Exhibit M-1, Minister's Notice of Intervention, dated August 7, 2018. 19 Khansary, Seyed Mustafa Moosavy v. M.P.S.E.P and M.C.I. (F.C., no. IMM-1636-17), Annis, December 14, 2017; 2017 FC 1146. 20 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 21 Exhibit P-2, Appellant's Record, at p. 36, Legal Memorandum, at para 63. 22 Ibid., at para 5. 23 Exhibit RPD-1, RPD Record, at p. 450, Letter from A. R. XXXX, May 13, 2016. 24 Exhibit P-2, Appellant's Record, at p. 7, Reasons and Decision, at para 32. 25 Exhibit P-2, Appellant's Record, at p. 35, Legal Memorandum, at para 55. 26 Pinedo, Valentina Esther Henriquez v. M.C.I. (F.C., no. IMM-277-09), Beaudry, November 2, 2009, 2009 FC 1118. 27 Exhibit P-2, Appellant's Record, at p. 39, Legal Memorandum, at para 69. 28 Ibid. 29 This argument, or a variation thereof, appears at para 59 of the Appellant's Legal Memorandum (Exhibit P-2, Appellant's Record, at p. 36). 30 Exhibit P-2, Appellant's Record, at p. 38, Legal Memorandum, at para 69, relying on Cortes, Myriam v. M.C.I. (F.C., no. IMM-2613-13), Strickland, June 23, 2014; 2014 FC 598, at para 19. 31 Maldonado, supra, footnote 20. 32 Murugesu, Leeladevi v. M.C.I. (F.C., no. IMM-5724-15), Fothergill, July 19, 2016, 2016 FC 819, at para 30. 33 I find that the facts, as presented, are outside the realm of what could reasonably be expected (Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001. I note that the Appellant argues that plausibility findings must be in accordance with Federal Court jurisprudence, including, inter alia, the test in Valtchev. (Exhibit P-2, Appellant's Record, at p. 31, Legal Memorandum, at paras 39 and 40). 34 Exhibit RPD-1, RPD Record, at p. 326-334, Globe and Mail, "Interpol faces scrutiny over its global arrest alerts" September 25, 2015. 35 "Interpol," FairTrials.org, undated (Exhibit RPD-1, RPD Record, at pp. 320-322. 36 "The Misuse of Interpol's Database," nytimes.com, November 11, 2015 (Exhibit RPD-1, RPD Record, at pp. 233-325. 37 The extract from the FairTrials website speaks of the misuse of Interpol in Russia, Belarus, Turkey, Venezuela, Sri Lanka and Indonesia. The New York Times editorial makes reference to individuals from Uzbekistan and Venezuela who had been wrongly made the subject of "red notices". 38 Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998. 39 Exhibit RPD-1, RPD Record, at p. 409-413, Letter from Ms. XXXX XXXX, undated. 40 Note the name is spelt "XXXX" in the letter. (Ibid.) 41 Ibid., at p. 409. 42 El Bouni v. Canada (Citizenship and Immigration), 2015 FC 700 (CanLII). 43 Ibid., at para 25. 44 Exhibit RPD-1, RPD Record, at p. 433. In addition, three documents were submitted indicating where the children attended school (Exhibit RPD-1, RPD Record, at pp. 435, 437 and 439). 45 Exhibit RPD-1, RPD Record, at p. 406. 46 Exhibit RPD-1, RPD Record, at p. 446 (Spelt "XXXX"). 47 Exhibit RPD-1, RPD Record, at p. 456-457. 48 Exhibit RPD-1, RPD Record, at p. 441. 49 Exhibit RPD-1, RPD Record, at pp. 460-461. 50 He refers to Exhibits C-17 and C-18 (Exhibit RPD-1, RPD Record, at pp. 484-488 and pp. 489-494). 51 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Ukraine (31 March 2017), item 2.1, United States. Department of State., Ukraine. Country Reports on Human Rights Practices for 2016., 3 March 2017. 52 Ibid, item 7.5, Organized Crime Observatory, Ukraine and the EU: Overcoming Criminal Exploitation Toward a Modern Democracy? Final Report., April 2015. 53 Ibid., at p. 43. 54 Exhibit RPD-1, RPD Record, at p. 582-599, "Notification of new suspicion", December 31, 2014. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-01512 RAD.25.02 (September 18, 2018) Disponible en français 21 RAD.25.02 (September 18, 2018) Disponible en français