TB7-17369

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 : TB7-17369 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 28, 2018 Date de la décision Panel Pasquale Fiorino Tribunal Counsel for the person(s) who is(are) the subject of the appeal Rodney L. Woolf Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX XXXX, a citizen of Afghanistan, fears the Taliban in his country. The Refugee Protection Division (RPD) rejected his claim as it concluded that the Appellant was not a credible witness. The Appellant is requesting a new hearing and is submitting new evidence in support of his appeal. After an analysis of the facts and submissions of the Appellant, the RAD does not allow the appeal. ROLE OF THE RAD [2] For questions of fact, mixed fact and law, and law, the RAD has applied the standard of correctness as per Huruglica.1 [3] Accordingly, the RAD will conduct its own analysis of the Record to determine if the RPD erred. ANALYSIS ON THE MERITS OF THE APPEAL [4] The RPD concluded that the Appellant was not a credible witness. The Appellant alleges that he was abducted by the Taliban and was released after his father paid a ransom of $50,000. The Appellant submits that the RPD erred in its credibility analysis and that he was denied natural justice. Issue of Natural Justice [5] The Appellant submits that there were a number of interpretation issues during the various sittings of the RPD hearing. In his submissions, he outlines a number of incidents where he alleges that there was a problem of interpretation. The RAD notes that the RPD member asked the Appellant about the interpretation concerns. In his submissions to the RAD, the Appellant states: 21. The Member noted at the end of the witness' testimony, that there had been a failure to provide any interpretation of the evidence to the Appellant and asked the Appellant's counsel to take a break and speak with the Appellant about this. The Appellant's counsel can be heard confirming that he discussed this omission with the Appellant at the break, and that the Appellant stated that he understood (Audio, July 24, 2017 at 58:38). 22. The Appellant in his eagerness to please the Member may well have stated that he understood without interpretation, however, the fact remains that he requested and used a Pashto interpreter for his document preparation and his hearing for a necessary and good reason, and he was entitled to understand fully the testimony of his brother in order to clarify evidence in further questioning.2 [6] The Appellant was thus afforded an opportunity to comment on the quality of the interpretation during the RPD hearing. Having agreed to proceed with the RPD hearing, despite the RPD member raising concerns with respect to the interpretation, the Appellant cannot raise poor interpretation as a ground of appeal before the RAD. This is not a matter where the Appellant later learned that the interpretation was faulty. As the Federal Court has observed, "Counsel and their clients cannot hedge their bets by ignoring the issue [of poor interpretation] and then raising it in the event of an unfavourable result."3 The RAD concludes that the Appellant was not denied natural justice as a result of any interpretation concerns. CREDIBILITY [7] The issue of credibility centers on the question of whether the Appellant suffered physical injuries during his alleged 11-month abduction. In his oral testimony, the Appellant alleged that he had suffered physical injuries during his alleged abduction. The RAD notes that the Appellant's written narrative is a seven page, type-written document. Three pages of the narrative describe the alleged abduction in great detail.4 However, nowhere in this lengthy description does the Appellant state that he suffered physical injuries during the abduction. It is reasonable to expect that the Appellant would have recalled that he had suffered physical injuries during his alleged abduction when he wrote his narrative. [8] As the Federal Court has stated: "... the contradictions in the applicant's evidence were not peripheral, but were directed to important aspects of the applicant's narrative ... It is common and completely proper for the Board to compare a claimant's evidence from the Port of Entry, PIF, and oral testimony".5 The new information in his oral testimony amounts to omissions regarding significant aspects that go directly to the heart of the Appellant's claim.6 It is reasonable to expect the Appellant to have remembered this fact when writing his narrative in the Basis of Claim (BOC) form, especially since he had submitted a letter from a physician outlining the alleged injuries. [9] The RAD notes that the Appellant did not challenge this particular aspect of the RPD's credibility finding in his submissions to the RAD. It is reasonable to expect the Appellant would have provided submissions to the RAD explaining his omissions in his BOC of the physical injuries. However, no such explanations were provided. [10] Paragraph 3(3)(g) of the RAD Rules directs the composition of the appellant's record, and subparagraphs 3(3)(g)(i) and (ii) are particularly relevant in this case: (3) The appellant's record must contain the following documents, on consecutively numbered pages, in the following order: (g) a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, [11] The RAD Rules are clear that the Appellant has a responsibility to include full and detailed submissions regarding the errors that are the grounds of appeal in the memorandum. [12] The RPD reached its conclusion by analyzing and referring to specific written and oral testimony of the Appellant, and by referring to documents provided by the Appellant. In his submissions, the Appellant does not directly challenge any of these findings by the RPD. He does not provide any explanation which might have clarified the oral or written testimony which he provided to the RPD. [13] In his submissions to the RAD, the Appellant relied on the written documentation. In particular, he alleges that the RPD erred in not giving the letter from Dr. Richmond7 any evidentiary weight. The letter is dated June 22, 2017 and describes a number of physical injuries on the Appellant's body. The letter states that these injuries are consistent with the trauma suffered by the Appellant. The RAD does not dispute the fact that the Appellant has the injuries outlined in the report. However, the medical report cannot independently verify how the injuries were sustained as the physician relied on the story provided to him by the Appellant. [14] As the Federal Court has stated: "...the "facts" on which the report is based are those told to Dr. Devins by the principal applicant, and thus are not facts until found to be so by the tribunal".8 [15] The RAD also notes that Dr. Richmond's report is dated four years after the alleged abduction. The RPD questioned the Appellant if had sought medical assistance after he was released and he replied that he only sought assistance to treat his depression. The Appellant submits that, as a result of his depression, it was reasonable for him not seek medical assistance for his physical injuries.9 [16] The RAD cannot agree with this submission. The allegations of the Appellant are very extensive and serious. He alleges that he was held in captivity for nearly a year, during which he was assaulted, had weapons pointed at him, threatened with death, and was injected with an unknown chemical on at least two occasions. It is reasonable to expect that the Appellant would have sought medical assistance to treat not only his psychological state but also to determine if he had suffered any physical injuries. This the Appellant did not do. He merely relies on a medical report from a Canadian doctor issued four years after the alleged event. [17] Furthermore, the RAD notes that the written and oral testimony of members of the Appellant's family fail to indicate that he had received physical injuries during his abduction. It is reasonable to expect that either the Appellant's father or his brother would have mentioned he had suffered physical injuries during his abduction. [18] Given all of these credibility concerns, the RAD agrees with the RPD that the Appellant was not abducted and is not a credible witness with respect to his central allegations. NEW EVIDENCE [19] To remedy the credibility concern, the Appellant submitted a new letter from his father.10 [20] The RPD rendered its decision on August 10, 2017. The RAD's analysis of the admissibility of the proposed new evidence will be carried out pursuant to the test set out in subsection 110(4) and in accordance with the Federal Court of Appeal Decision in Singh.11 [21] The RAD notes that the letter is not dated and therefore cannot determine when it was written. Without a date, the RAD cannot ascertain if it meets the requirements of subsection 110(4). The RAD will therefore not allow the letter as new evidence. [22] As there is no new evidence admitted, the RAD will not hold an oral hearing. Future Risk [23] The Appellant alleges that his family has been threatened because they own a business. However, the Appellant did not produce any evidence that any of his family members had suffered any harm at the hands of the Taliban. The only allegations were that he was the only individual in his family to have suffered at the hands of the Taliban. However, the RAD has concluded that the Appellant is not a credible witness with respect to this allegation. Psychological Report and Report from Centre of Victims of Torture [24] The Psychological Report states that the Appellant is suffering from PSTD. However, the report is based on the allegations of the Appellant which the RPD has found not to be credible. The letter from the Centre for Victims of Torture simply states that he has attended counselling and workshops through the Centre. The RAD gives both of these documents no evidentiary weight. DECISION [25] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. [26] The Appeal is dismissed. (signed) "Pasquale Fiorino" Pasquale Fiorino November 28, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, at p. 20. 3Ahamat Djalabi, Mahamat Khalit v. M.C.I. (F.C., no. IMM-6174-06), Harrington, June 27, 2007, 2007 FC 684, at para. 15, citing the decision in Mohammadian by Justice Pelletier. 4 Exhibit RPD-1, RPD's Record, at pp. 17-19. 5 Napoleon, Christiana Abiodun v. M.C.I. (F.C., no. IMM-6502-10), Zinn, July 5, 2011, 2011 FC 822, at para. 30. 6 Kroka, Miroslav v. M.C.I. (F.C., no. IMM-6199-11), Boivin, June 11, 2012, 2012 FC 728, at para. 17. 7 Exhibit RPD-1, RPD's Record, exhibit 9, at pp. 178-185. 8 Egbesola v. M.C.I., IMM- 3058-15 2016, FC 204, at para. 12. 9 Exhibit P-2, Appellant's Record, at p. 22. 10 Exhibit P-2, Appellant's Record, at pp. 12-16. 11 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 44. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-17369 RAD.25.02 (September 18, 2018) Disponible en français 2 RAD.25.02 (September 18, 2018) Disponible en français