MB9-30230

RAD File No. / Nº de dossier de la SAR : MB9-30230 MB9-30231 / MB9-30232 / MB9-30233 MB9-30234 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 24, 2020 Date de la décision Panel Me Isabelle Parizeau Tribunal Counsel for the persons who are the subject of the appeal Me Myriam Roy-L'Écuyer Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the female appellant); her son, XXXX XXXX XXXX; his son, XXXX XXXX XXXX; and his wife, XXXX XXXX XXXX; and their minor son, XXXX XXXX XXXX (the appellants), citizens of Mexico, are appealing against a Refugee Protection Division (RPD) decision rejecting their refugee protection claim. [2] The appellants state that they fear being killed by members of the Los Zetas cartel who extorted them. [3] The RPD noted contradictions between the appellants' testimonies and their accounts and found that they lack credibility. [4] The appellants argue that the RPD erred by ignoring their documentary evidence and by concluding that the gaps in their testimonies were sufficient to reject their allegations. In support of their memorandum, the appellants submitted a very detailed1 affidavit from the female appellant without presenting new facts. [5] The Refugee Appeal Division (RAD) is of the opinion that the RPD failed to analyze some evidence and erred in its credibility analysis. [6] The RAD sets aside the RPD determination, allows the appeal, and refers the matter to the RPD. BACKGROUND [7] Being the subject of extortion by the cartel, the female appellant's husband allegedly left Mexico on XXXX XXXX XXXX 2017, and filed a refugee protection claim in Canada. [8] Approximately two months after he left, the female appellant allegedly began receiving threatening telephone calls demanding that she continue to pay the monthly fee that her husband was paying until his departure. On September 15, 2017 (the account states September 16; however, at the hearing, it was established that it was September 15), one of the appellants was allegedly accosted and threatened by members of the cartel. The female appellant allegedly received other telephone calls from the cartel and made two payments. Subsequently, she allegedly negotiated that, after she had sold her harvest, she would make one payment in May or in June. After consulting her husband, she allegedly chose to leave instead. The appellants allegedly left Mexico for Canada on XXXX XXXX XXXX 2018. [9] One of the female appellant's sons, who lived in a different city than the appellants, allegedly moved into the family home after they left Mexico. Allegedly, on August 4, 2018, he was severely beaten. His aggressors allegedly told him that he was paying for what his parents did not pay. ANALYSIS [10] The RAD conducted an independent analysis of all of the evidence, which included listening to the recording of the hearing before the RPD, and it applied the correctness standard.2 The Refugee Protection Division failed to conduct an analysis of significant evidence submitted by the appellants [11] The appellants argue that the only mention that the RPD had reviewed all of the evidence was in paragraph 39 of its reasons, which is insufficient to be satisfied that the evidence had indeed been reasonably analyzed. [12] According to the appellants, the main pieces of evidence were the amended account, the evidence submitted by the female appellant's husband in support of his refugee protection claim (including the RPD and RAD decisions on his record), the documents regarding the attack on the female appellant's son who stayed in Mexico, and the proof of ownership of a truck that was allegedly sold in order for the family to travel to Canada. [13] The RPD should have explained why the evidence of the attack on the female appellant's son and the fact that her husband's subjective fear was recognized before the RPD and the RAD were not sufficient to counterbalance the gaps that it identified in the appellants' testimonies. [14] In accordance with the well-established case law, in its reasons, the RPD was not obligated to acknowledge every piece of evidence. However, it was obligated to specifically analyze the most relevant and significant pieces and to assess their probative value. The RAD is of the opinion that the RPD failed to analyze one relevant piece. Amended account [15] Contrary to what the appellants claim, the RPD did consider the amended account. It acknowledges this in paragraph 13 of its reasons and draws a negative inference from the contradictions with the initial account. Attack on the female appellant's son who stayed in Mexico [16] However, the RPD makes no reference to the documentation regarding the alleged attack on the female appellant's son on August 4, 2018. According to the RAD, this incident is significant and relevant to the refugee protection claim. The RPD should have assessed the documentation submitted, consisting of an (unsigned) letter from the female appellant's son, a medical report establishing the diagnosis and the treatment that was received,3 as well as photographs of the injuries.4 Ownership of the truck [17] The RAD is of the opinion that the RPD did not err when it did not specifically acknowledge the document that established the ownership of the truck. This information was not one of the most relevant details. Refugee protection claim file of the female appellant's husband [18] There is no reference to the RPD and the RAD decisions examining the refugee protection claim of the female appellant's husband because the information is different. [19] The RPD and the RAD assessed information that arose while the female appellant's husband was in Mexico.5 Their conclusions cannot be applied as such to events that occurred after the female appellant's husband left; however, their relevance could be considered. [20] In paragraph 15 of their memorandum, the appellants argue that it was not reasonable for the RPD to ignore the positive credibility finding for the female appellant's husband, who faced the same risk. Although the RPD is not bound by this decision, it could have considered it and explained why it did not give it any weight. [21] The appellants' argument in paragraph 12 of their memorandum, that the procedural safeguards require an appropriate analysis before diametrically diverting from a decision rendered by a colleague, is not exact. Furthermore, regardless, this could not be applied in this case since the information that was reviewed was not identical. The Refugee Protection Division's analyzed details that were peripheral to the refugee protection claim [22] In their memorandum, the appellants argue that the RPD erred when it concluded that the omissions or contradictions between the initial account, the amended account, and their testimonies were sufficient to reject all of their allegations. The majority of the RPD's doubts arose from the lack of details and specifics in the initial account. The RPD did not consider the explanations provided by the appellants at the hearing with respect to the reasons for the different versions of their account. It was erroneous to require an allophone refugee protection claimant to intervene with their counsel in order to fill in the omissions in their account. [23] According to the appellants, the RPD's assessment focused solely on what it considered to be omissions or contradictions and ones that, moreover, touched on peripheral elements of the appellants' fear. A refugee protection claimant's credibility must be assessed in light of their testimony and all of the evidence. [24] The RPD did not believe that the incident on September 15, 2018, took place. It drew a negative interference concerning the female appellant's credibility from the contradictions between the initial account and the amended account, regarding the discussions that were had with the cartel about the deferral of the payment to May or June 2018. [25] The RAD is of the opinion that the RPD raised contradictions or inaccuracies involving the details of the incident on September 15, 2018. It erroneously concluded that there were contradictions regarding how the agreement between the female appellant and the cartel was reported in the initial account and in the amended account. The RPD conducted a microscopic analysis of a small part of the evidence, and it failed to demonstrate that it proceeded with a complete analysis of the appellants' story. Incident on September 15, 2018 [26] At the hearing, the female appellant explained that her son allegedly reported that the aggressors forced him and his friend to spread out on the hood of a car. This is not included in the amended account. The RPD was of the opinion that this was not a peripheral detail and that it should have appeared in the account. It did not accept the female appellant's explanation that she had forgotten to mention it. [27] According to the account and to the female appellant's testimony at the hearing, the aggressors allegedly threatened to recruit her son. He testified that this threat was made later during a threatening telephone call. According to the RPD, the female appellant failed to provide a reasonable answer to explain this difference. [28] In response to a question from the RPD, the female appellant's son argued that his aggressors clearly stated that they were a part of the cartel. The amended account does not report those same words. The female appellant stated that she had failed to mention them. The RPD was of the opinion that the female appellant failed to provide a reasonable explanation for this omission. [29] According to the RAD, the two omissions and this apparent contradiction regarding peripheral details do not necessarily raise doubts about whether this incident took place. For example, the fact that the account did not indicate that the aggressors clearly stated that they were a part of the cartel should not constitute a reproach, because the information in the son's account leaves no doubt about the fact that the aggressors were acting in the name of the cartel. Offer made to the cartel [30] The RPD drew a negative interference regarding the female appellant's credibility due to the fact that, according to the amended account, the female appellant allegedly made an offer to the cartel to pay the fee after she sold her harvest, but in the initial account, it was the cartel's proposition. [31] Paragraph 18 of the initial account indicates the following: [translation] "They proposed that I pay all of the fees (from January 2018 until May 2018, the approximate date of the harvest) in one sum at the beginning of June 2018 and that they would contact me once again to indicate how and when to pay them." [32] The female appellant testified that she made an offer to the cartel and not the other way around. [33] The RPD did not accept the female appellant's explanation that there was a translation error in the initial account. It also noted that the female appellant confirmed at the beginning of the hearing that the documents had been translated for her from French into Spanish and that her Basis of Claim Form (BOC Form) was true, complete, and correct. [34] According to the RAD, the RPD erred in finding that this contradiction seriously undermined the female appellant's credibility. [35] The excerpt above from the initial account is conflated and not easy to understand. The RAD is of the view that it is not appropriate to use it to conclude that there is a contradiction. [36] Furthermore, the RPD was wrong to not consider the female appellant's explanation that there must have been a translation error. At the beginning of the hearing, the female appellant's lawyer stated that she had taken over another lawyer's case and made changes to the account.6 Then, one of the female appellant's sons explained that their first lawyer had asked them to write their story and told them he would summarize it and the most significant information. They signed the BOC Form without seeing the translation of their account written by the lawyer and without really knowing what they were signing. The female appellant confirmed that the first time she saw the Spanish translation of their account was with the new lawyer. With her, an amended account was written.7 [37] The fact that at the beginning of the hearing the appellants confirmed that the BOC Form was true, complete, and correct and that the documents had been translated for them into Spanish does not contradict that appellants' version regarding the way that the initial account was written. [38] The RAD is of the opinion that the issues raised by the appellants' refugee protection claim were not assessed correctly. The RPD failed to demonstrate that it analyzed the key elements of the refugee protection claim. [39] The RAD concludes that the RPD's credibility finding is incorrect. [40] The appellants' credibility must be reassessed, and if necessary, the internal flight alternative and state protection as well. [41] The RAD concludes that the RPD decision is erroneous. CONCLUSION [42] The RPD cannot confirm or set aside the RPD determination and substitute the determination that should have been made without holding a new hearing to re-examine the evidence that was presented before the RPD. [43] Under subsection 110(6) of the Immigration and Refugee Protection Act (IRPA), the RAD may not hold a hearing, given that there is no new evidence. [44] In accordance with subsection 111(2) of the IRPA, the RAD must, therefore, refer the matter to the RPD. [45] Under paragraph 111(2)(c) of the IRPA, the RAD allows the appeal, sets aside the RPD determination, and refers the matter to the RPD to be heard by a different member from the one who rendered the determination in question. Isabelle Parizeau Me Isabelle Parizeau February 24, 2020 Date IRB translation Original language: French 1 Appellant's record, pp. 1 to 4. 2 Canada v. Huruglica, 2016 FCA 93. 3 Refugee Protection Division (RPD) record, pp. 60 to 164. 4 Ibid., pp. 220 and 221. 5 Ibid., pp. 203 and 219. 6 Recording of the hearing before the RPD, see between minute 0:05:46 and minute 0:14:09. 7 Ibid., see approximately between minute 1:47:19 and 1:58:58 minute. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / Nº de dossier de la SAR : MB9-30230 MB9-30231 / MB9-30232 / MB9-30233 MB9-30234 RAD.25.02 (January 2020) Disponible en français 8 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