MB6-02831

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 No. / N° de dossier de la SAR : MB6-02831 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision June 7, 2017 Date de la décision Panel Me Marie-Louise Coté Tribunal Counsel for the appellant(s) Me Vincent Desbiens Conseil(s) du (de la/des) Appelant(e)(s) Designated representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] The appellant, XXXX XXXX XXXX, is appealing the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim and determining that he is not a "Convention refugee" under section 96 of the Immigration and Refugee Protection Act (IRPA) or a "person in need of protection" within the meaning of subsection 97(1) of the IRPA. [2] The appellant is asking the Refugee Appeal Division (RAD) to set aside the RPD's determination and either allow his claim for refugee protection or refer the matter to the RPD for re-determination by a different member, and to issue any other order deemed necessary. [3] The appellant did not present any new evidence within the meaning of subsection 110(4) of the IRPA. He is not requesting a hearing before the RAD. [4] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [5] In accordance with subsection 111(1) of the IRPA, the RAD confirms the RPD's determination that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of subsection 97(1) of the IRPA. The appeal is dismissed. FACTUAL BACKGROUND [6] The appellant is from the Republic of Mauritius. As a Catholic, he fears his former spouse's brothers because he and his children refuse to convert to the Tamil religion. He alleged that his brothers-in-law beat him on a number of occasions. They allegedly threatened to kill him while he was in his country and also after he arrived in Canada. IMPUGNED DECISION [7] The RPD rejected the appellant's refugee protection claim on April 20, 2016. It found that the appellant was not a credible witness in light of multiple contradictions and omissions arising from the evidence. APPELLANT'S ARGUMENTS [8] The appellant argues that the RPD erred in its analysis of his credibility with regard to the incidents he allegedly experienced in the Republic of Mauritius. He argues that the fact that he was visibly distressed during his testimony regarding those incidents suggests that his statements were sincere. SCOPE OF THE APPEAL [9] The RAD's role in an appeal is defined by the Federal Court of Appeal in Minister of Citizenship and Immigration v. Huruglica1 and by the three-member RAD panel in X (Re), 2017 CanLII 33034 (CA IRB),2 which has precedential value for this panel under paragraph 171(c) of the IRPA. [10] As established in Huruglica, cited above, the RAD must conduct an extensive, thorough, comprehensive, and independent review of the evidence presented and, in general, apply the correctness standard to all of the RPD's findings. [11] However, with regard to RPD findings that are based on the credibility of oral testimony, the RAD must determine, in each case, whether it owes deference to the RPD by determining whether the RPD truly benefited from an advantageous position. Where the RAD finds that deference is warranted, it is obligated to explain how the RPD enjoyed a meaningful advantage with respect to the credibility finding in question. When applicable, the RAD may review the finding on a standard of reasonableness, modified to apply to the RAD context, as set out in the decision in X (Re), 2017 CanLII 33034 (CA IRB). [12] In this case, I will grant a certain measure of deference to the RPD's findings if I am of the opinion that it enjoyed a meaningful advantage in assessing the appellant's testimony. I will nevertheless review the overall credibility finding on a standard of correctness. ANALYSIS [13] The RAD must determine whether the RPD erred in its analysis of the appellant's credibility. [14] The RPD found that the appellant was not credible because of major contradictions between his testimony and his Basis of Claim Form (BOC Form) with regard to his requests for police protection, the pressure to convert to the Tamil religion, the threats received and the problems involving his brothers-in-law following his arrival in Canada, and the individuals involved in the incident that occurred on XXXX XXXX, 2009. The RPD concluded that the lengthy delay in claiming refugee protection in Canada was not consistent with the behaviour of a person who fears for their life and safety in their country. The RPD drew a negative inference from the appellant's failure to declare his arrest and conviction in Canada. Moreover, the RPD raised a further contradiction in the appellant's testimony regarding the identity of the people who reportedly beat him during the alleged incident on XXXX XXXX, 2010. [15] Having taken into account the record as a whole, including the audio recording of the hearing, and considered the appellant's memorandum, I will not afford any deference to the RPD's findings because I am of the opinion that it did not enjoy a meaningful advantage in assessing his testimony. [16] I do not accept the appellant's arguments. I am of the opinion that the RPD's finding regarding his overall credibility is correct for the reasons set out below. Requests for police protection [17] The RPD noted that the appellant stated at the hearing that he went to ask the police for help on numerous occasions, in particular following the assaults on XXXX XXXX, 2001, XXXX XXXX, 2009, and XXXX XXXX XXXX 2010. He even testified that, after the assault on XXXX XXXX, 2009, he contacted the police at least ten times to follow up on the complaint he had filed. However, the appellant made no mention of the police or his complaints to the police in his BOC Form. [18] The appellant argues that his credibility should not be undermined by the contradiction between his testimony, in which he stated that he asked the police for help on a number of occasions, and his BOC Form, which makes no mention of this. He states that his explanation is acceptable and reasonable, that is, that his form was filled out very quickly with his former counsel, and that he met him only twice. Consequently, because of how quickly everything was done, he did not include everything that he wanted to in his form. Although he is educated and signed the declaration that all the information in his BOC Form is complete and correct, it is very possible that he believed that the information provided was sufficient. Moreover, he trusted his former counsel and, as a result, he did not pay attention to all the details. [19] It is important to note that the contradiction pertains to a central aspect of the claim, that is, whether the appellant sought protection or help from the authorities in his country. That question is stated explicitly and clearly in the BOC Form at question 2c) and reads as follows: "Did you ask any authorities such as the police, or any other organization, in your country to protect or assist you?" The appellant checked the response "No" and wrote: [translation] "Please see appendix." There is also no indication in his narrative that he asked the police for help. This is a major omission because the issue of state protection is inherent to all refugee protection claims. [20] In my opinion, the trust placed in his counsel and the speed with which he did his work do not justify the appellant's conduct after signing his BOC Form on December 24, 2015. The appellant is an educated man who speaks and understands French very well, as can be seen throughout his testimony before the RPD. The appellant was fully capable of reading and understanding the content of his BOC Form without any assistance from an interpreter. He had time to review his written answers and make note of any errors in his form, as the RPD hearing did not take place until April 20, 2016. It was his responsibility to report the omission of any material facts to the RPD at the first opportunity. Instead, the appellant confirmed at the start of the hearing that he had read his BOC Form and understood all the questions asked and the answers provided. He stated under oath that the content was complete, true and correct. Moreover, the member confirmed that he understood French and that he was able to fully understand his form.3 [21] In these circumstances, the appellant's explanation is not reasonable and his failure to mention his many requests for police protection in his BOC Form leads me to draw a negative inference regarding his credibility. Consequently, I do not believe that he requested protection from the authorities before leaving his country. Pressure to convert to the Tamil religion [22] The RPD raised a major contradiction between the appellant's testimony and his BOC Form with regard to the issue of the pressure he allegedly faced from his in-laws to join their religion or to go to the temple. [23] The RPD noted that, at the hearing, the appellant stated that all of his problems began on XXXX XXXX XXXX 2001, when his brothers-in-law beat him because he refused to allow an animal sacrifice in his home. All of his problems began that day, including the physical assaults and other threats. Moreover, starting in 2006, his spouse began bringing their children to the Tamil temple, and her family wanted to convert them. The appellant never went to the temple and was not subjected to pressure from his in-laws to convert to the Tamil religion, aside from the pressure exerted when they were married in 2001. [24] The RPD was of the opinion that this testimony squarely contradicts his BOC Form, in which the appellant stated that, when his children began to grow up and reach the age of reason, their mother, along with her brothers, sisters and parents, began bringing them to the Tamil temple. His spouse's family began asking, even demanding, that the appellant go with them to their temple, and even forced him to do so. The arguments evolved into disputes, and then into verbal and physical fights, until their relationship as a couple came to an end. [25] The appellant submits that his account must be read as a whole and that there is no contradiction in his testimony regarding the cause of the problem with his in-laws, that is, his refusal to convert to the Tamil religion. In his testimony, he stated that he stood up to his in-laws by refusing to go to the temple and that, afterwards, they stopped insisting. In his BOC Form, he explains that his refusal to go to the temple or to convert ended in a dispute and a physical and verbal fight, which is not inconsistent with his testimony. [26] The appellant argues that it goes without saying that his initial refusal to convert severely fractured his relationship with his in-laws, to the point that it led to animosity. From there came the physical assaults. Therefore, the debate did indeed end in disputes and physical assaults. The appellant argues that, at the same time, it is true that he testified that his problems began following his refusal allow an animal sacrifice to take place in his house, but that still falls within the context of his opposition to converting. By refusing to allow the sacrifice, the appellant confirmed his refusal to convert. According to him, that was the catalyst for the physical assaults in the overall context of the existing tension with his in-laws. [27] I find that the appellant's credibility is undermined with regard to the very heart of his refugee protection claim for the reasons that follow. [28] First, the appellant clearly contradicted himself regarding the pressure he allegedly faced from his in-laws to go to the temple. His written account clearly indicates that his in-laws asked, even demanded and forced him to go to the temple with them when his spouse began bringing the children to the Tamil temple. However, his testimony reveals that he no longer felt any pressure from his in-laws to convert following his wedding in 2001, and that it was his children whom they wanted to convert and bring to the temple. [29] I find that his explanation on this point is not reasonable, that is, that his in-laws wanted to force him and do everything possible to get him to go to the religious temple, but that he held firm and told them no. [30] Moreover, according to his BOC Form, the appellant's problems began when his spouse started bringing their children to the Tamil temple. The appellant testified that this occurred following his father's death in 2006. [31] It should be noted that the BOC Form makes no mention of the catalyst for the physical assaults described in his testimony, namely, the incident that occurred on XXXX XXXX XXXX 2001, when his brothers-in-law allegedly beat him because he refused to allow an animal sacrifice in his home. The appellant testified that he filed a complaint with the police and that he moved to another city to avoid his brothers-in-law. He also stated that, on XXXX XXXX, 2006, his brothers-in-law came to his home and criticized him for moving without telling them. I find that his failure to include an entire section of his factual allegations in his BOC Form undermines the appellant's credibility. [32] I find that the appellant's allegation that he was pressured and assaulted by his brothers-in-law is not credible. Threats received after he arrived in Canada [33] The RPD did not believe the appellant's allegations that he has been pressured or received threats since he has been in Canada, because he changed his oral testimony and contradicted himself as he was being questioned. [34] The appellant argues that the threats were progressive in their content and in their delivery. As a result, it may be difficult to describe them, and the appellant's testimony may seem confused, but that is actually a result of that progressive nature. [35] In my opinion, the RPD's conclusions are well founded, based on all the evidence presented. For example, I note the appellant's contradictory testimony with regard to the identities of the people who allegedly threatened him by telephone. The appellant initially stated that he received threats only from his brother-in-law XXXX. He then testified that he received threats on his home telephone from unknown callers. His explanation for this major contradiction is not at all satisfactory, that is, that, at first, the initial communications were by Skype, but that when the problems began, things changed. Incident on May 1, 2009 [36] The RPD found that the appellant's credibility was undermined with regard to the alleged incident on XXXX XXXX, 2009, when he was beaten at the beach by his brothers-in-law and unknown men. He changed his responses regarding the identities of his brothers-in-law and the number of people involved over the course of his testimony, and he also made a slight change to the name of one of his three brothers-in-law. [37] The appellant argues that he should be given the benefit of the doubt because it can be nerve-racking to testify, and that this situation may be the result of nervousness and poor pronunciation. [38] I am of the opinion that the appellant did not demonstrate that the RPD's conclusions are incorrect. I note that he cannot reasonably explain his contradictory statements with regard to a number of determinative aspects of his story. [39] With regard to the identities of his alleged agents of persecution, he first confirmed that his three brothers-in-law are named XXXX, XXXX and XXXX (or XXXX), and then added the name XXXX. When confronted with this contradiction, he responded that his three brothers-in-law are named XXXX, XXXX and XXXX XXXX. I find that the appellant is not credible in changing XXXX name to XXXX, to XXXX, and then to XXXX XXXX. [40] The appellant contradicted himself about the number of people who followed him and beat him on XXXX XXXX, 2009. He testified that he was followed and beaten in the beach washroom by his brothers-in-law XXXX and XXXX, as well as by two men he did not know. Then, he stated that it was actually his brothers-in-law XXXX and XXXX and three other unknown individuals. The explanation that he provided to the RPD does not seem reasonable to me, that is, that he was followed by his three brothers-in-law, including XXXX, but that XXXX did not enter the washrooms, and that it was only XXXX, XXXX and the two others. [41] Consequently, the RPD did not err in drawing a negative inference regarding the appellant's credibility in relation to the alleged incident. Delay in claiming refugee protection [42] The appellant arrived in Canada on XXXX XXXX, 2011, with a valid work permit that he later renewed twice. Following the refusal of his third work permit application in XXXX 2015, and of his application to restore his visitor status in XXXX 2016, the appellant claimed refugee protection on January 12, 2016. [43] The RPD noted that the appellant did not claim refugee protection until nearly five years after he arrived in Canada, that is, after his work permit and visitor status applications were refused. The RPD was not satisfied with his explanations and found that his actions were inconsistent with those of a person claiming to fear persecution. [44] The appellant argues that he provided an acceptable response in the circumstances, that is, that he did not file a claim at the first opportunity because he felt safe in Canada. He only made a claim as a last resort. [45] It has been established that, in general, a claimant's delay in claiming refugee protection may be an important factor in assessing their credibility. However, there are cases where a negative finding cannot be made, such as when the person has found a safe place to stay and work or study, such that they do not feel the need to apply for refugee status as they are safe for the time being.4 [46] In this case, having considered the circumstances and the appellant's explanations, I find that his delay in filing a claim for refugee protection undermines his credibility with regard to his subjective fear. The alleged incidents that led to his fear of his brothers-in-law reportedly occurred before he left his country, particularly the alleged assaults in XXXX 2001, XXXX 2006, XXXX 2009 and XXXX 2010. The appellant stated that he considers himself lucky to have been able to leave his country before his brothers-in-law caused him irreparable harm. Moreover, he alleged that he has received death threats during the four years he has been in Canada. However, it was not until XXXX 2016 that the appellant claimed refugee protection following the refusal of his application to renew his work permit and to restore his visitor status. [47] I do not accept the appellant's explanations. Certainly, his work permit authorized him to stay in Canada temporarily, although it did not grant him residence or protect him from being returned to his country. What really undermines the appellant's credibility, apart from the considerable delay of nearly five years before he claimed refugee protection, is his statement that he told his family that he was getting ready to return to his country when his work contract ended on XXXX XXXX, 2014. This statement seems irreconcilable with his allegations of having a fear of returning to his country. The appellant had no reason to plan a return to his country in XXXX 2014 if the alleged incidents occurred before he left, and if he truly received death threats while he was staying in Canada. In this context, the considerable delay undermines his credibility and justifies a finding of a lack of subjective fear. [48] For all these reasons, I am of the opinion that there are valid reasons to doubt the veracity of the appellant's allegations in his sworn testimony and in his BOC Form. The presumption of truthfulness set out by the Federal Court of Appeal in Maldonado5 has been rebutted. [49] I find that the appellant is not credible with regard to the basis of his refugee protection claim and that he has failed to establish the facts on which his refugee protection claim is based on a balance of probabilities. The RPD's decision is correct. CONCLUSION [50] For these reasons, the RAD confirms the RPD's determination that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of subsection 97(1) of the IRPA. The appeal is dismissed. Marie-Louise Côté Me Marie-Louise Côté June 7, 2017 Date IRB translation Original language: French 1 Minister of Citizenship and Immigration v. Huruglica, March 29, 2016; 2016 FCA 93. 2 RAD decision rendered on May 17, 2017, and amended on May 23, 2017, in file TB6-03419. 3 Electronic recording of the RPD hearing, from 00:07:28 to 00:08:34. 4 Gyawali v. Minister of Citizenship and Immigration, 2003 FC 1122. 5 Maldonado v. Canada (Minister of Employment and Immigration), (1980) 2 F.C. 302 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-02831 12 RAD.25.02 (April 9, 2013) Disponible en français