TB8-11558

RAD File / Dossier de la SAR : TB8-11558 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX(a.k.aXXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 11, 2020 Date de la décision Panel Christopher G. Harrison Tribunal Counsel for the person who is the subject of the appeal Diana Gallego Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the "Appellant") is a citizen of Israel. He has appealed a decision of the Refugee Protection Division (the "RPD") dated April 12, 2018, wherein his claim for refugee protection was rejected. The Appellant asks that the Refugee Appeal Division (the "RAD") set aside the decision of the RPD and substitute its own decision that the Appellant is a Convention refugee or a person in need of protection pursuant to the Immigration and Refugee Protection Act1 (the "IRPA"). In the alternative, the Appellant asks that the matter be referred back to the RPD for re-determination by a differently constituted panel. [2] The Appellant has tendered no new evidence in support of this appeal, nor has he requested an oral hearing. DETERMINATION [3] The appeal is dismissed. Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection. BACKGROUND [4] The Appellant claims to have been involved in a series of three business ventures, all of which were, financed with funds received from loan sharks and all of which failed. As a result of the business failures, the debts allegedly owing to the underworld figures continued to accumulate interest at exorbitant rates which the Appellant was unable to meet. The Appellant claims to have attempted to avoid his creditors by moving about Israel. On several occasions, he was beaten as a warning that the debt must be repaid; one such beating resulted in the Appellant being treated in hospital. [5] Following several months' preparation, the Appellant left Israel intending to travel to the United States of America (the "USA") to visit a cousin in New Jersey with plans to travel to Mexico and, thereafter, returning to the USA with his ultimate destination being the Philippines where his girlfriend resided and where he intended for the couple to marry. In XXXX 2016, the Appellant claims to have travelled to Toronto, then taken a bus trip to Niagara Falls, Ontario; during this bus trip, he alleges that all of his money was stolen.2 Following a brief period of time spent in a hotel and a shelter, the Appellant was taken into custody and held for a detention hearing where he claims he was offered the opportunity to make a claim for refugee status. ROLE OF THE REFUGEE APPEAL DIVISION [6] The RAD reviews the decisions of the RPD on a standard of correctness after having conducted an independent analysis of the evidence.3 The exception to this rule is where the RPD enjoyed a meaningful advantage in the assessment and weighing of oral evidence heard which may, in certain cases, allow for the RAD to defer to the RPD findings. The RAD is of the view that the RPD had no such meaningful advantage, as the RAD has considered all of the evidence before the RPD, including the entire audiotape of the Appellant's testimony, as well as the documentary evidence submitted in support of the claim. ANALYSIS OF THE MERITS OF THE APPEAL [7] The RPD found as follows: (i) The Appellant had failed to establish a nexus between his fear of criminality and section 96 of the IRPA; and (ii) The Appellant was not a credible witness and had failed to establish, on a balance of probabilities, that he was a person in need of protection pursuant to section 97 of the IRPA. [8] The Appellant argues that the RPD erred in failing to properly consider the evidence contained in two psychological reports when arriving at the adverse credibility findings against the Appellant and failed to give appropriate weight to those reports. By making negative credibility findings without taking these reports into consideration, the Appellant further argues that the RPD erred in arriving at its negative determination which should be set aside. The RAD is not persuaded by the Appellant's arguments and, for reasons which follow, confirms the RPD findings and concludes that the Appellant has failed to establish that he is either a Convention refugee or a person in need of protection. RPD finding no nexus to Convention grounds uncontested [9] Though the RPD finding that there was no nexus between a Convention ground and the Appellant's allegations regarding fear of persecution is mentioned in the Appellant's Memorandum of Argument4, no specific error of law, fact or combination of law and fact is alleged regarding this finding; as a result, the RPD finding that there was no nexus between the allegations and section 96 is uncontested and shall stand. That being said, the RAD has reviewed that finding and finds no error on the part of the RPD. Had that finding been subject to appeal, the RAD would have confirmed the RPD finding that the Appellant is not a Convention refugee under section 96 of the IRPA. Thereafter, the RPD analysis was confined to section 97 of the IRPA in an attempt to determine whether the Appellant was a person in need of protection and the Appellant's appeal is based principally upon the allegation that the RPD failed to properly consider or weigh the psychological reports. Consequently, the RAD will continue its independent examination of this matter within the sole context of section 97. RPD considered psychological reports in context [10] The Appellant's principal argument is that the RPD failed to properly consider and/or engage with psychological reports which suggested that the Appellant may, as a result of his "emotional vulnerability,"5 experience certain issues or problems at his refugee hearing. In particular, one of the reports indicated that the Appellant's "attention, pressured speech, concentration and memory" were problem areas he was "likely to experience difficulty during his court hearing".6 [11] From the RPD decision, the RAD notes the following: (i) The RPD considered the notes from Dr. L.A.7 and social worker, E.T.;8 (ii) The RPD did not question the reports concerning the Appellant's psychological well-being and that he was anxious about his pending refugee claim9; (iii) The RPD noted that it had also considered the psychological report from Dr. XXXX XXXX XXXX XXXX which also was not questioned;10 (iv) Dr. XXXX XXXX XXXX XXXX XXXX report indicated that the Appellant presented with significant anxiety and symptoms of post traumatic stress disorder ("PTSD");11 (v) DrXXXX XXXX XXXX XXXX XXXX further indicated that the Appellant was in distress regarding his possible return to Israel and that his symptoms interfere with his functioning and impact his level of concentration, memory, attention and ability to relax;12 and (vi) In consideration of counsel's preliminary submissions, those submissions being based in large part upon the psychological reports, the RPD granted procedural accommodations to the Appellant in an attempt to mitigate his anxiety.13 [12] The Appellant's Memorandum of Argument places a great deal of emphasis on the argument that the RPD overlooked, disregarded or failed to heed the warnings of the psychological reports with respect to the Appellant's memory and other cognitive issues and, in so doing, came to improper negative credibility findings. The essence of the Appellant's argument is that if the psychological reports indicate the Appellant may have memory issues at the hearing, the RPD erred by making negative credibility findings based on memory. With respect to counsel, the RAD is of the view and finds that the RPD, in specifically adverting to the psychological reports and in accepting them "without question" has recognized the reports and the information they contain. What remains to be determined is the weight to be assigned to these reports, whether the RPD engaged in a meaningful way with them and whether, in the context of the RPD hearing, the Appellant's testimony exhibited any of the concerns expressed therein. [13] The RAD has listened to the entirety of the RPD hearing audio-recording and has carefully considered the Appellant's testimony and the manner in which his testimony was delivered as against the specific concerns set out in the psychological reports. In so doing, the RAD has observed that much of the Appellant's testimony belies those reports; for example, the RAD noted that the Appellant consistently testified in a manner that, for the most part, suggested that his memory was unaffected by what he claims to have experienced in Israel. On numerous occasions, the Appellant would be asked a question and, following his initial response and before any other questions were put to him, would spontaneously begin to add more detail to his original answer. This was observed frequently over the course of the hearing and resulted in testimony that was, at times, quite rich in detail but, more importantly, resulted in testimony that was not suggestive of memory lapse. Furthermore, the RAD notes that the Appellant's testimony was spontaneous, free-flowing and required little or no prompting from counsel or the RPD Member. While the Appellant argues that the RPD engaged in circular reasoning on this issue, the RAD is not persuaded by that argument and, as a result of this contextual analysis, the RAD finds that the Appellant's own testimony stands in stark contrast to the psychological reports and dispels counsel's argument that his memory is impaired by the events which he claims to have endured in Israel. [14] The weight of evidence has been described as the persuasiveness of some evidence in comparison to other evidence.14 Probative value is assessed by the likelihood of an inferred fact when the known fact has been proven to exist. The Court has held that weight is a function of credibility and probative value.15 That the psychological reports are from credible sources is without dispute and are accepted as such by the RAD. However, the fundamental underpinning of the Appellant's claim is that on a forward-looking assessment, were he to be returned to his country of origin, he would be subject to a risk to life or to risk of cruel and unusual punishment. While the psychological reports may provide evidence of underlying psychological issues, they are not in any way probative of the underlying allegation that the Appellant is at risk of harm at the hands of loan sharks or mobsters and fail to overcome the Appellant's credibility issues discussed below. In addition, the Federal Court has found that expert opinion reports should not be given "exalted status" in administrative proceedings16, particularly where the report has not undergone a validation process and that caution must be exercised in accepting them at face value.17 As such, the RAD finds that the psychological reports cannot be given the weight which the Appellant claims they are to be accorded and, in the final analysis, are given very low evidentiary weight, particularly when considered as against the Appellant's overall performance in giving his testimony which stands in contrast to the reports themselves. The Appellant was not a credible witness [15] The RPD found that the Appellant's explanations for the discrepancies, inconsistencies and omissions that arose were not reasonable.18 The Appellant argues that the RPD failed to consider the medical evidence when making its negative credibility findings and that the RPD appeared to omit entirely the psychological reports. Having already found that the RPD did, in fact, engage with the psychological reports, the RAD is not persuaded by the Appellant's arguments and, for reasons which follow, finds that the Appellant's allegations and testimony were not credible. [16] When an Appellant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there be reason to doubt their truthfulness.19 This presumption of truthfulness - sometimes referred to as the Maldonado presumption is always rebuttable and may be rebutted by an accumulation of contradictions, inconsistencies and omissions regarding crucial elements of the refugee claim.20 Inherent in the preceding RAD finding regarding the Appellant's credibility is that this presumption of truthfulness has been rebutted. Business records/failure to corroborate [17] The foundation upon which the Appellant's claim rests is that he was under threat of bodily harm, perhaps death, at the hands of loan sharks who were part of the Israeli criminal underworld. The RAD recognizes that, in certain circumstances, direct evidence of such allegations may be difficult to obtain. When "banking" with the underworld, one would not routinely expect to see loan agreements, promissory notes or any of the usual indicia of a lending transaction. Having said that, the Appellant has had a myriad of opportunities - both in the 3-4 months in Israel during which time he prepared for his departure - and, following his arrival in Canada, to obtain evidence that would have been corroborative in nature and, perhaps, helpful to his claim. [18] The Appellant claims to have funded three different enterprises via loan shark money. According to documents submitted by the Appellant, the final such commercial enterprise ended operations in July 2015, approximately three months prior to his departure from Israel.21 Presumably, this was the period in which he readied himself for departure from Israel. When questioned by the RPD Member about the availability of business records, the Appellant testified spontaneously that he had possession of business records but because of everything that happened, he did not "have time" to take them.22 [19] It is recognized in refugee law that sometimes claimants must leave their country of origin under emergent circumstances, thus are unable to gather necessary documents. However, in light of his evidence that he had prepared his departure for some 3-4 months, when the RPD sought clarification on why he claimed to have not had enough time to obtain records, the Appellant's testimony began to evolve. Initially testifying that he could not call Israel to ask the records be sent to him,23 then claimed the records had been lost,24 which clearly contradicted his previous testimony that he had the records but merely lacked the time to take them away. On further questioning, the Appellant indicated that such records were through the "Israeli IRS",25 then admitted that he did not know if he could apply from Canada to obtain such records26 which the RAD takes as an admission that no such attempt had been made since had an attempt been made, the Appellant could advise one way or the other. [20] In light of the primary argument advanced on appeal, in listening to the audiotape of the proceeding, the RAD specifically noted that at no point in this exchange did the Appellant indicate that his recollection of the availability of business records was clouded or in any way affected by memory or any other issue highlighted by the psychological reports.27 [21] While provision of business records may not have been determinative of the fundamental claim regarding the peril he claims to be in at the hands of the loan sharks, business records of any type would have been at least somewhat corroborative of the claim. The RAD finds that the fact the Appellant failed to provide business records or, indeed, records of any sort and appears to have made no effort to obtain any such records results in an adverse credibility finding against the Appellant. Other credibility concerns [22] The RPD made a negative credibility finding against the Appellant for his inability to remember the last name of his girlfriend in the Philippines who he claims to have planned on marrying following his trips to the USA, Mexico and Canada. The Appellant argues that in light of the psychological reports, the RPD erred by failing to consider or disregarding in their entirety those reports which suggested the Appellant might experience memory issues during the hearing. The RAD has previously found that, regardless of these reports, the Appellant for the most part displayed very few memory issues during the hearing and provided testimony in a spontaneous manner in which he often provided extra detail without prompting. As previously indicated, the Appellant's testimony was, for the most part, detailed and specific and not suggestive of memory issues. There were two important exceptions to this observation, both occasions occurring when the Appellant was being confronted by the RPD on a credibility issue; those instances were: (i) with respect to the Appellant's inability to remember the last name of the girlfriend he claimed to intend to marry in the Philippines; and (ii) regarding his claim that the loan shark's "goons" had located him. [23] In its independent review of this matter, the RAD notes that the Appellant's testimony regarding his girlfriend was inconsistent and conflicting; at one point, he advised the RPD that the last time he was in touch with "XXXX" was when he was in the USA and Mexico (prior to his arrival in Canada),28 then claimed he had spoken with her after he had gone to the Niagara Falls shelter in which he found himself,29 followed by testimony that he had contacted XXXX from the "XXXX residence" - a facility that he went to after being released from detention.30 No issue of faulty memory regarding this testimony was claimed by the Appellant at the time. [24] When specifically asked about his inability to remember her surname (given the fact that he claimed they were to be married) the Appellant simply referred to his psychiatric treatment and indicated there were some details he could not recall.31 The RAD has already found that the Appellant's actual performance in testimony featured the ability to provide fulsome detail with respect to most of the allegations regarding the loan sharks and what he claims to have experienced in Israel. During RPD questioning regarding his girlfriend, the Appellant disclosed certain information that had not been set out in his Basis of Claim ("BOC") narrative, namely: that he had fathered a son with a woman from Sri Lanka who he had met in Israel.32 The Appellant claimed to remember this woman's name but did not articulate it for the RPD Member as it was rather lengthy and he found it difficult to pronounce.33 [25] The Appellant's conflicting and inconsistent evidence regarding when he had last spoken to or been in touch with Julia causes the RAD concern. Furthermore, given his overall performance in testimony (which ran counter to the psychological reports) and his professed ability to remember the second girlfriend's name, the RAD finds no error with and confirms the RPD finding that it was not reasonable that the Appellant could not remember the last name of his girlfriend in the Philippines and his inability to do so results in an adverse credibility inference. [26] Similarly, the Appellant's testimony regarding allegations that the loan shark's "goons" had found him at both his sister's and his brother's cities of residence featured testimony that was inconsistent with his BOC. In the view of the RAD, the apparent inconsistency between, on the one hand, testimony that he moved from these cities, pre-emptively, in order to avoid detection and to prevent his siblings from being exposed to risk and, on the other hand, preparing and relying upon a BOC which indicated he was located in both those locations is not credibly explained by memory lapse. They are distinct and highly inconsistent versions of the same event(s) and, in the RAD's view, the Appellant's credibility is impacted even more significantly by the disparity between the testimony and the BOC by the Appellant's response to the RPD that he did not remember this period of time. If such explanation were true, that simple response to the questioning would have sufficed. Based upon the foregoing analysis, the Appellant's conflicting and inconsistent evidence is not credible and cannot be relied upon. There has been no evidence of a corroborative nature presented and the RAD finds that the Appellant has not satisfied the burden of establishing, on a balance of probabilities, that he is a person in need of protection. CONCLUSION [27] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) Christopher G. Harrison Christopher G. Harrison August 11, 2020 Date 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27) 2 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 19, para. 25. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 4 Exhibit P-2, Appellant's Record, at p. 27, para. 4. 5 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 146. 6 Ibid. 7 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 8 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 6, para. 17. 9 Ibid. 10 Ibid., at pp. 6-7, para. 18. 11 Exhibit RPD-1, , RPD record, Exhibit 7, pp. 138-147. 12 Ibid. 13 RPD Hearing audio-recording, (March 23, 2018), at 14:50-19:00; see also Exhibit RPD-1, RPD Record, RPD reasons, at p. 4, para. 2. 14 Black's Law Dictionary. 2014. Edited by Bryan A. Garner. 10th ed. St. Paul, MN: Thomson Reuters., as cited in Magonza v. Canada (Citizenship and Immigration), 2019 FC 14. 15 Magonza v. Canada (Citizenship and Immigration), 2019 FC 14 (CanLII). 16 Molefe v. Canada (Citizenship and Immigration), 2015 FC 317 (CanLII), at para. 31. 17 Czesak v. Canada (Citizenship and Immigration), 2013 FC 1149 (CanLII),at paras. 37-40. 18 Exhibit RPD-1, RPD Record, RPD reasons, at p. 5, para. 11. 19 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 20 Tovar v. Canada (Citizenship and Immigration), 2016 FC 598 (CanLII). 21 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 38. 22 RPD Hearing audio-recording, (March 23, 2018), at 2:04:00. 23 Ibid., at 2:04:20. 24 Ibid., at 2:05:00. 25 Ibid., at 2:05:00. 26 Ibid., at 2:05:00. 27 Ibid., at 2:03:20 - 2:07:15. 28 Ibid., at 1:47. 29 Ibid., at 1:48:25. 30 Ibid., at 1:49:22. 31 Ibid., at 1:51. 32 Ibid., at 1:53. 33 Ibid., at 1:55. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-11558 RAD.25.02 (January, 2020) Disponible en français 2 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