TB6-04460

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 : TB6-04460 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Date(s) of hearing N/A Date(s) de l'audience Appeal heard at Toronto, Ontario Appel instruit à Appeal considered at Toronto, Ontario Appel instruit à Date of decision July 7, 2017 Date de la décision Panel Pasquale Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jack Davis (Davis & Grice) Conseil(s) de la (des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX, is a citizen of Hungary and appeals a decision of the Refugee Protection Division (RPD) dated May 10, 2016, rejecting his claim for refugee protection. The Appellant is not requesting a new hearing, but is submitting new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find that the Appellant is either Convention refugee or a person in need of protection; or that the RAD refer the matter back to the RPD for reconsideration. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant is a member of the Roma community. He alleges that he has been harassed by the police. By a decision dated June 8, 2016, the RAD upheld the decision of the RPD. By a decision dated December 6, 2016, the Federal Court allowed the appeal. ROLE OF THE RAD [4] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica. In assessing issues involving credibility of oral testimony, I may apply the RAD's modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage in making as per the decision in X (Re), 2017 CanLII 33034 (CA IRB)." [5] Accordingly, the RAD will conduct its own analysis of the Record to determine if the RPD erred. NEW EVIDENCE [6] The Appellant has submitted new evidence in the form of a copy of the National Documentation Package (NDP) for Hungary dated August 31, 2016,1 and a copy of the Fourth Opinion on Hungary dated September 12, 2016.2 [7] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in section 110(4) which states: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] With respect to the first test, the dates of the documents are all after the RPD rendered its decision, therefore, the RAD will allow both documents as new evidence. The RAD will consider the documents in its analysis of state protection. ANALYSIS ON THE MERITS OF THE APPEAL [9] The RPD concluded that the Appellant was not a credible witness, and that he had not established a risk of persecution if he were to return to Hungary. Credibility [10] The Appellant alleges that, due to his Roma ethnicity: he could not find employment; he had been threatened in XXXX of 2015; and that the police in 2014 had assaulted him. Employment [11] In his oral testimony, the Appellant testified that he had completed high school in the XXXX of 2014, and that he had not been able to find employment for the next few months until his departure for Canada. The RPD pointed out to him that in his Port of Entry (POE) notes, he had stated that he had completed his schooling just prior to his departure for Canada in XXXX of 2015, and, therefore, he could not have been unemployed for ten months - as he claimed - in his oral testimony. The RPD asked the Appellant to explain the contradiction between his oral and written testimony. [12] At first the Appellant replied that he had made a mistake and that, in fact, he had completed his schooling just prior to his departure for Canada. However, he later changed his testimony and stated that he had been unemployed for ten months. The RAD cannot accept the explanation provided by the Appellant. [13] It is reasonable to expect that the Appellant would have remembered when he had completed his high school education. The Appellant arrived in Canada in XXXX of 2015, and the evidence is that he completed his education either immediately prior to his arrival in Canada or, at most, ten months prior to his arrival in Canada. It is reasonable to expect that when providing his testimony, the Appellant would have remembered when he had actually completed high school. In fact, he provided three different statements: in his Port of Entry Notes, he stated that he had completed his high school in 2015; in his oral testimony, he stated that he had completed high school in 2014; and then changed his answer again to 2015. [14] The RPD also asked the Appellant if he would be able to provide any documentary evidence as to when he had actually completed his high school and he replied that he could not. The RAD does not accept the evidence of the Appellant. This is not a case where the Appellant attempted to obtain documentation from Hungary with respect to the years of his education. Rather this is a case where the Appellant stated that he could not provide any documentation. If the Appellant has completed high school, it is reasonable to expect that there would be some record of his attendance and completion of high school, and that such record would be available to the Appellant. However, the Appellant simply stated that he could not provide such documents. [15] As the Federal Court has stated on a number of occasions: "It is trite law that the panel may make adverse findings based on the fact that applicants failed to produce evidence corroborating their testimony or make any efforts to obtain such corroborating documentation."3 [16] The fact that the Appellant's oral testimony contradicted his evidence in the Port of Entry Notes is a credibility concern for the RAD. The Appellant submits that the RPD has erred in relying on this contradiction to arrive at a credibility finding.4 The RAD cannot agree with this submission. The Federal Court has stated that: "It is well established by the jurisprudence that declarations to immigration authorities at the POE may be considered by the Board in order to evaluate a claimant's credibility"5 and that: 'It is trite law that statements to immigration authorities at the POE may be considered by the Board in order to evaluate a claimant's credibility and that a person's first story is usually the most genuine, and therefore the one to be believed."6 [17] The Federal Court has provided a detailed analysis of the issue of omissions from the Port of Entry Notes in the Seenivasan decision.7 The Court concluded that the purpose of the Port of Entry Notes is not to provide a detailed account of the Appellant's story but only to summarize the reasons and allegations as to why the Appellants are seeking refugee protection in Canada.8 But the issue for the RAD is not that the Appellant's evidence in the Port of Entry Notes contradicts his oral evidence at the RPD hearing. As stated previously, it is reasonable to expect that the Appellant would have been consistent in his testimony as to when he had completed his high school education. [18] Given the above credibility concerns, the RAD finds that the Appellant was not unemployed for ten months after completing high school. Incident in 2015 [19] The Appellant alleges that one month prior to his arrival in Canada, he and a friend were threatened by individuals who were driving a black jeep. The Appellant and his friend called the police who provided no assistance. [20] The RPD rejected the Appellant's testimony because he had not mentioned this incident in his Basis of Claim (BOC). In his submissions, the Appellant states that the omission from the BOC was a peripheral or elaborative detail.9 The RAD cannot agree with this submission. The RAD notes that in his submission, the Appellant does not indicate where he mentioned this incident in his BOC. He merely points to the decision of the RPD. The RAD has read the Appellant's BOC, and has listened to the recording of the RPD hearing. At the hearing, the Appellant stated that someone driving a black car made threats to him and his friend. When they called the police for assistance, they were refused to be given any help. There is no specific reference in his BOC to the Appellant and a friend being personally threatened by someone driving a black car. The only reference in his BOC to a black car is at paragraph six, where he describes the car driving through the village and making racist threats.10 There is no reference in his BOC that the threats were directed at the Appellant and his friend, nor that the police were called and they were refused any assistance. [21] 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 [Personal Information Form], and oral testimony."11 [22] The new information in his oral testimony amounts to omissions regarding significant aspects that go directly to the heart of the Appellant's claim.12 The fact that the threats were made to the Appellant personally, and that the police were called and refused to provide assistance, are major omissions from the Appellant's written evidence. It is reasonable to expect that the Appellant would have remembered when writing his BOC, that the threats by the individuals in the black car were directed at him and his friend, and that the police had been contacted but had refused to provide assistance. [23] The Appellant provided no reasonable explanation for this omission. The RAD finds on a balance of probabilities that the Appellant was not threatened by individuals in a black car, nor that the police refused to provide any assistance to him. The Board has been upheld when rejecting major evidence which has been omitted from the BOC.13 [24] The Appellant stated that in 2015, while playing soccer with friends, he was physically assaulted by one of the officers. The RPD pointed out to the Appellant that he had failed to mention this incident in his Port of Entry Notes and the Appellant replied that he had not thought of mentioning this incident to the Immigration Officer. [25] The RAD cannot accept this explanation. Being assaulted by a police officer because of his Roma ethnicity is a very serious allegation. The Appellant alleges that this incident occurred just prior to his arrival in Canada. It is reasonable to expect that he would have at least mention that he had been assaulted by a police officer in his Port of Entry Notes, even if he did not provide details to the officer. [26] With respect to this particular allegation, the RAD once again relies on the decision of the Federal Court in Seenivasan14 as discussed above. Furthermore, in the Seenivasan decision, relying on a number of other Federal Court decisions, the court concluded that the Board may draw a negative inference from omissions in the POE that are central to the allegations of the Appellants. [27] More recently,15 the Court noted: "While minor discrepancies between POE declarations and oral testimony are not sufficient to support a finding that an applicant lacks credibility, the Board may draw a negative inference from the omission of an element that is central to the claim."16 [28] The Board noted that both the POE notes and applicant's PIF omitted the key incidents that he later raised at the hearing. This was not a situation of omissions of minor details, nor was the Board microscopic in its examination.17 [29] The Appellant was aware of the information in the POE prior to the RPD hearing, and that the POE did not mention that he had been assaulted by a police officer. The Appellant had adequate time before the hearing to produce evidence at the hearing which would have explained the omission from the POE. "If the POE notes contain errors, the applicant has adequate time before the hearing to marshal evidence for the purpose of explaining and correcting the errors."18 [30] Given the credibility concerns listed above, the RAD concludes that the Appellant was not assaulted by a police officer when playing soccer in 2015. [31] The Appellant submits that: "...it is not the Appellant's onus to demonstrate that 'all' Roma in Hungary face persecution; all that the Appellant has to demonstrate is a well-founded fear of persecution on his part i.e. whether there is a serious possibility that he would face persecution if he returned."19 [32] The question is then: did the Appellant demonstrate a well-founded fear of persecution on his part? Given the credibility concerns listed above, the RAD concludes that the Appellant is not a reliable witness. It is the responsibility of the Appellant to establish a link between the general documentary evidence and the applicant's specific circumstances.20 As the Federal Court has stated: "...the assessment of the applicant's potential risk of being persecuted if he were sent back to his country must be individualized. The fact that the documentary evidence shows that the human rights situation in a country is problematic does not necessarily mean there is a risk to a given individual."21 In this particular appeal, given the credibility concerns discussed above, the RAD concludes that the Appellant has not established such a link. [33] Would the Appellant face persecution or a risk to his life if he were to return to Hungary simply because he is a Roma? A refugee claim must be specific to the experience(s) of the Appellant. Simply being a member of the Roma community does not, in and of itself, establish that the Appellant would face persecution if he were to return to Hungary. [34] The RAD acknowledges and considers that there is information in the Board's own documentation; in the documents submitted as new evidence; and the arguments submitted by the Appellant;22 to indicate that there is widespread reporting of incidents of intolerance, discrimination, and persecution of Romani individuals in Hungary. [35] As the Federal Court has pointed out on numerous occasions: While the documentary evidence of general country conditions of Roma in Hungary raises human rights concerns, the mere fact of being of Roma ethnicity in Hungary is not, in and of itself, sufficient to establish that an applicant faces more than a mere possibility of persecution upon return Both subjective fear and objective fear are components in respect of a valid claim for refugee status. The applicant has a burden of establishing a link between the general documentary evidence and the applicant's specific circumstances. 23 [36] In the Kanto decision, the Federal Court stated: The Applicants only presented evidence of a general nature in support of their allegations of a general climate of intolerance and discrimination against Romani individuals. This is not enough to conclude that the Applicants are Convention refugees or persons in need of protection.24 [37] The RAD applies these same principals to this appeal. [38] There is no persuasive evidence before the RAD that the Appellant would face persecution or, on a balance of probabilities, face a risk to life, or to cruel and unusual treatment or punishment or a danger of torture, if he returned to Hungary. For all these reasons, the RAD agrees with the finding of the RPD that the Appellant is not a Convention refugee or a person in need of protection, whether under section 96 or section 97 of the IRPA. DECISION [39] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. [40] The appeal is dismissed. (signed) "Pasquale Fiorino" Pasquale Fiorino July 7, 2017 Date 1 Exhibit P-2, Appellant's Record, at item 1. 2 Exhibit P-2, Appellant's Record, at item 2. 3 Castrañeda v. Canada (Citizenship and Immigration), 2010 FC 393, at para 18. Cf. Muthiyansa v. Canada (M.C.I.), 2001 FCT 17, 103 A.C.W.S. (3d) 809; Sinnathamby v. Canada (M.C.I.), 2001 FCT 473, 105 A.C.W.S. (3d) 725. 4 Exhibit P-2, Appellant's Record, at p. 109. 5 Navaratnam v. Canada (Citizenship and Immigration), 2011 FC 856, at para 12. 6 Ibid., at para 15; Cf. (Mongu v. Canada (Minister of Citizenship and Immigration) (1994), 86 FTR 59, 52 ACWS (3d) 391 (TD)). 7 Seenivasan v. Canada (Citizenship and Immigration), 2015 FC 1410, at para 22. 8 Ibid., at para 22; Cf. Samarakkodige v. Canada (Minister of Citizenship and Immigration), 2005 FC 301, [2005] FCJ No 371 (QL). 9 Exhibit P-2, Appellant's Record, at p. 110, at para 15. 10 Exhibit P-2, Appellant's Record, at p. 27. 11 Abiodun Napoleon v. Canada (Citizenship and Immigration), 2011 FC 822, at para 30. 12 Kroka v. Canada (Citizenship and Immigration), 2012 FC 728, at para 17. 13 Gebetas v. Canada (Citizenship and Immigration), 2013 FC 1241; Jin v. Canada (Citizenship and Immigration), 2012 FC 595; Wei v. Canada (Citizenship and Immigration), 2012 FC 911. 14 Supra, footnote 8. 15 Fahim v. Canada (Citizenship and Immigration), 2015 FC 406. 16 (Jamil v. Canada (Minister of Citizenship and Immigration), 2006 FC 792 at para 25; Alekozai v. Canada (Citizenship and Immigration), 2015 FC 158 at para 8). 17 Supra, footnote 8, at paras 24-25. 18 Navaratnam v. Canada (Citizenship and Immigration), 2011 FC 856, at para 13. 19 Exhibit P-2, Appellant's Record at p. 113, at para 22. 20 Balogh v. Canada (Citizenship and Immigration), 2016 FC 426, at para 18; Cf. Prophète, Ralph v. M.C.I. (F.C., no. IMM-3077-07), Tremblay-Lamer, March 12, 2008, 2008 FC 331, at para 17; Jarada, Alaa v. M.C.I. (F.C., no. IMM-4638-04), de Montigny, March 24, 2005, 2005 FC 409, at para 28; Ahmad, Hasib v. M.C.I. (F.C., no. IMM-9188-03), Rouleau, June 4, 2004, 2004 FC 808, at para 22. 21 Jarada v. Canada (Minister of Citizenship and Immigration), 2005 FC 409; Cf. Ahmad v. M.C.I., [2004] F.C.J. No. 995 (F.C.); Gonulcan v. M.C.I., [2004] F.C.J. No. 486 (F.C.); Rahim v. M.C.I., [2005] F.C.J. No. 18 (F.C.). 22 Exhibit P-2, Appellant's Record, at pp. 47-57. 23 Balog v. M.C.I. 2016 FC 426, at para 19; see also (Csonka v. Canada (Citizenship and Immigration), 2012 FC 1056, at paras 67-70 [Csonka]; Ahmad v Canada (Minister of Citizenship and Immigration), 2004 FC 808, at para 22 [Ahmad]; Prophète v Canada (Citizenship & Immigration), 2008 FC 331, at para 17; Jarada v Canada (Minster of Citizenship and Immigration), 2005 FC 409, at para 28; Ahmad, at para 22). 24 Kanto v. Canada (Citizenship and Immigration), 2012 FC 1049. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June, 2015) RAD.28.07 (June 2, 2015) RAD File No. / N° de dossier de la SAR :