MB9-02241

RAD File No. / No de dossier de la SAR : MB9-02241 Private Proceeding / Huis clos Reasons and decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision December 7, 2020 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the person who is the subject of the appeal Stéphanie Valois 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, a citizen of Chad, is appealing the Refugee Protection Division (RPD) decision rejecting his refugee protection claim for lack of credibility. [2] It should be noted here that an initial RPD decision regarding the appellant was rendered on June 17, 2016. The Refugee Appeal Division (RAD) set aside that decision in 2017 and referred the case back to the RPD. This appeal concerns the subsequent decision, rendered by the RPD on January 11, 2019. a. In to his Basis of Claim Form (BOC Form), the appellant, who is of Gorane ethnicity, alleges that he is wanted by the police owing to his involvement in student demonstrations. He was arrested, detained and assaulted, but managed to be released and fled Chad in XXXX 2015. He claimed refugee protection in Canada on XXXX XXXX XXXX 2016. He fears for his life if he were to return to Chad. b. In its decision, the RPD found that the appellant's written account was not credible owing to a number of contradictions and inconsistencies in the essential elements of his refugee protection claim. c. In his memorandum, the appellant submits that the RPD erred in its assessment of his credibility because it gave precedence to an erroneous document over his sworn testimony and it rejected, without examining, documents that confirm some of his allegations in whole or in part. d. The determinative issue for the RAD is credibility. DETERMINATION [3] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD dismisses the appeal and confirms the determination of the RPD owing to significant contradictions and omissions in the evidence. ANALYSIS [4] The role of the RAD is to review RPD decisions by applying the correctness standard of review after carrying out an independent analysis of the evidence on the record.1 [5] Having applied that standard and reviewed the evidence on the record, including reading the transcript of the hearing held on November 14, 2018, I am of the opinion that the RPD did not commit the errors alleged in the assessment of the appellant's credibility. The reasons are as follows. Elements that cast doubt on the appellant's credibility Contradictions and inconsistencies [6] The RPD noted several contradictions and inconsistencies in the evidence submitted by the appellant; the most significant among them are the following. [7] In his written account,2 the appellant indicated that, following a student demonstration held on XXXX XXXX XXXX 2015, in N'Djamena, the Groupement mobile d'intervention de la police (GMIP) [mobile police intervention group] was actively looking for him. The police allegedly came to his home, but his parents had hidden him and later took him to Moundou, where he was enrolled in the XXXX XXXX high school. [8] However, this account contradicts the contents of a letter written by one of his parents, which the appellant submitted into evidence3 and which indicates that the son was arrested and tortured owing to his involvement in the demonstration of XXXX XXXX XXXX 2015. [9] Asked by the RPD about this contradiction, the appellant indicated that it was an error on the part of his parent. The RPD then asked him why he had not corrected this error, to which the appellant replied that he had not noticed it. [10] The RPD considered this explanation unreasonable and found that it undermined the appellant's credibility. [11] In his memorandum, the appellant submits that he is unable to explain the error made by his parent. He argues that the RPD could have decided not to give any probative value to this letter and could thus have prioritized his sworn testimony. [12] With all due respect, I do not agree with the appellant's argument. First, the contradictory document was submitted by the appellant himself in support of the allegations in his refugee protection claim. At the hearing, the appellant indicated on two occasions that he had not read it. He subsequently corrected himself and stated that he had read it but that his French was not good.4 He testified that he had noticed the error but that he could not change it. This contradiction between Exhibit P-12 and his written account pertains to an essential element of his refugee protection claim. His laborious and confused testimony undermines his credibility. As soon as the appellant discovered the error, he had a duty to notify the panel. Moreover, the appellant testified that he was in constant contact with his mother. He therefore had the opportunity to have the document corrected. In the circumstances, I am of the opinion that the appellant's testimony and his lack of action undermine his credibility. [13] When a claimant swears to the truth of certain allegations, there is a presumption that they are true. However, the presumption is rebuttable where the evidence is inconsistent with the testimony or where the RPD is unsatisfied with the explanation provided for the inconsistencies.5 [14] The RPD also noted inconsistencies in the evidence regarding the appellant's enrolment at the XXXX high school. I note that he testified that he had started school on XXXX XXXX XXXX 2015, even though he stated when he entered Canada that he had started classes in XXXX 2015.6 This contradiction undermines his credibility. Significant omission [15] In its decision, the RPD noted a significant omission on the part of the appellant in his written account. He testified that he had been arrested and imprisoned after the demonstration of XXXX XXXX XXXX 2015. He added that he had been beaten and whipped in prison for a week,7 after which he had fled, according to his written account. However, in his testimony, he maintained that he had been released thanks to the intervention of his uncle. When he entered Canada, he told the customs officers that he had escaped from prison. The facts regarding the conditions of his detention do not appear anywhere in his written account. They also do not appear in the interview notes8 or in the letter from his uncle.9 This is an essential element that is at the heart of his refugee protection claim. This significant omission undermines his credibility. [16] Where a refugee claimant fails to mention important facts in his BOC Form, this may legitimately be considered by the RPD to be an omission that goes to lack of credibility.10 [17] After conducting my analysis, I am of the opinion that the RPD did not err in finding that the appellant had not been a credible witness. Documents to which the RPD did not give any probative value [18] The appellant submitted several documents in support of his refugee protection claim. In his memorandum, he submits that the RPD erred in rejecting the documents supporting his claim for refugee protection without grounds and did not take into account the principle that allegations made under oath are presumed to be true. [19] Based on my own analysis of the record, the RPD did not disregard this evidence. [20] The RPD indicated its concerns and listened to the appellant's explanations. Subsequently, it explained why the very contents of these documents prompted its decision not to give them any probative value. Unexplained anomalies were noted, such as in Exhibit A-4. [21] In the case of Exhibit P-2, the document repeated facts the RPD had not found credible; consequently, it did not give any probative value to it. It is therefore false to argue that the RPD did not assess the documents submitted into evidence. [22] Probative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof.11 According to the case law, a decision-maker may determine the weight to be given to a particular document after assessing its credibility, probative value or both.12 Moreover, it is open to the RPD not to give any weight or probative value to assessments or reports based on underlying elements found not to be credible.13 Finally, evidence is not assessed in isolation from the overall claim for refugee protection. Where the claimant's personal testimony is not credible, it is reasonable for the RPD to have credibility concerns with the supporting documentary evidence, and it can give it little weight.14 [23] According to my analysis of the record, the RPD took all the evidence into account and took the trouble to explain why it did not give any probative value to the supporting documents submitted into evidence before it. Based on my analysis of the record, it was open to the RPD to grant this evidence no probative value and, in my opinion, it did not commit any error in doing so. Failure to claim [24] The evidence shows that, when he left Chad, the appellant first traveled through Paris, France, and then spent four months in the United States before coming to Canada and claiming refugee protection. He did not claim asylum in France or in the United States. Asked by the RPD why he did not claim asylum in the United States during his four-month stay, the appellant indicated that his uncle had told him to continue on to Canada. When the customs officer asked him the same question, the appellant replied that Canada helped refugees while the United States did not.15 [25] The Convention exists to help people who need protection, rather than to help people who simply prefer to claim asylum in one country over another.16 [26] The appellant had a US visa that expired on XXXX XXXX XXXX 2015.17 However, he arrived in Canada on XXXX XXXX XXXX 2016. He was therefore without status in the United States and risked deportation. Failure to seek refugee protection at the first opportunity has been consistently held to indicate a lack of subjective fear, and thus undermine the claimant's credibility. 18 [27] After reviewing all of the evidence, the RAD determines that the claimant has not established that he would face a serious possibility of persecution on one of the Convention grounds or that, on a balance of probabilities, he would be personally subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment if he were to return to Chad. CONCLUSION [28] For these reasons, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX is not a Convention refugee under section 96 or a person in need of protection under section 97 of the IRPA. [29] The appeal is dismissed. (signed) Nicole Ladouceur Nicole Ladouceur December 7, 2020 Date IRB translation Original language: French 1Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 SPR-1, Refugee Protection Division (RPD) record, appellant's written account, p. 30. 3 SPR-1, RPD record, Exhibit P-12: Letter of support from XXXX, p. 72-73. 4 Transcript of the hearing of November 14, 2018, at line 27, p. 62. 5 Lawani v. Canada (Minister of Citizenship and Immigration), 2018 FC 924, para. 21. 6 SPR-1, RPD record, Determination of Eligibility Under Safe Third Country Agreement, p. 97. 7 Transcript of the hearing of November 14, 2018, p. 49. 8 SPR-1, RPD record, Determination of Eligibility Under Safe Third Country Agreement, p. 97. 9 SPR-1, RPD record, P-2: testimonial letter from XXXX, p. 47. 10 Grinevich v. Canada (Minister of Citizenship and Immigration), 1997 CanLII 16340 (FC). 11 Magonza v. Canada (Minister of Citizenship and Immigration), 2019 FC 14, para. 21. 12 Ibid., para. 27-31. 13 Supra, endnote 5, para. 24. 14 Ogaulu v. Canada (Minister of Citizenship and Immigration), 2019 FC 547. 15 SPR-1, RPD record, Determination of Eligibility Under Safe Third Country Agreement, p. 98. 16 Célestin v. Canada (Minister of Citizenship and Immigration), 2020 FC 97, para. 42. 17 SPR-1, RPD record, appellant's passport, p. 117. 18 Chelaru v. Canada (Minister of Citizenship and Immigration), 2012 FC 1535, para. 30 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-02241 RAD.25.02 (January 2020) Disponible en français 7 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