TC0-03681

RAD File / Dossier de la SAR : TC0-03681 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, ON Appel instruit / entendu à Date of decision March 24 2021 Date de la décision Panel Pamela Arnott Tribunal Counsel for the person who is the subject of the appeal Alfonso Mejia-Arias 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 is a citizen of Mexico. He witnessed people dumping bodies at the XXXX where he worked. When he tried twice to report the incidents to the police, he was rebuffed. After men came to his home to threaten him, he sent his family to live with relatives in another town and came to Canada. The Refugee Protection Division (RPD) denied his claim on the basis of credibility. I agree that credibility is the determinative issue. DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE The evidence presented by the Appellant is rejected [3] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [4] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 [5] The Appellant has provided an article from Harvard University from May 2018. This document pre-dates the RPD decision of January 2020. The Appellant asserts that this document could not have been reasonably expected to be provided before the decision as they could not have anticipated that the Appellant would be stressed at the RPD hearing. I do not agree - tribunal proceedings are often stressful for claimants, despite the best efforts of adjudicators to make the process simple and clear. I also have no medical evidence that the Appellant's stress was anything other than the stress common to all claimants. The article is not admitted. [6] The Appellant is requesting an oral hearing. Subsection 110(6) of the Act3 provides that the Refugee Appeal Division (RAD) may hold a hearing if, in its opinion, there is new evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; that is central to the decision with respect to the refugee protection claim; and that, if accepted, would justify allowing or rejecting the refugee protection claim. This subsection is discretionary given the term "may". This subsection is also conjunctive: all three elements must be present before a hearing may be held. In this case, I have not found that there is admissible new evidence which relates to the credibility of the Principal Appellant. In addition, this evidence would not, in itself, justify the determination of the claim. I find that there is no jurisdiction for the RAD to hold an oral hearing. ANALYSIS [7] My role is to look at all the evidence and decide if the RPD made the correct decision.4 The Appellant argues that the RPD erred in determining the claim solely on credibility, in making implausibility findings, in failing to apply the presumption of truth to his claim and in failing to consider the evidence in its totality. In assessing this claim, I have been mindful of XXXX XXXX XXXX XXXX age, education and background. In addition, I am cognizant of the many difficulties faced by a claimant in establishing a claim including cultural factors, the milieu of the hearing room, the use of an interpreter, and the stress inherent in responding to oral questions. [8] The Appellant argues that the RPD erred in making implausibility findings. The RPD decision refers to adverse credibility findings but doesn't use the term implausibility. The Appellant correctly cites the caselaw about implausibility which is normally reserved for incontrovertible findings. [9] The Appellants argue that the RPD failed to consider the totality of the evidence. I agree but find that I can remedy that error in my independent analysis below. [10] The Appellant argues that the RPD failed to apply the Maldonado principle. In Maldonado, the Federal Court of Appeal held that when an applicant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there is reason to doubt their truthfulness.5 This presumption applies to the totality of the evidence. However, as the Federal Court has noted, "the presumption is rebuttable where the evidence on the record is inconsistent with a claimant's sworn testimony"6 Maldonado does not eliminate the need for producing trustworthy evidence.7 [11] The RPD found that the Appellant was not credible due to inconsistencies between his oral testimony, his written testimony and his port of entry interview. I am mindful that the Federal Court has indicated that port of entry interviews must be taken with some reticence given the circumstances in which the interviews are made, for example as claimants are without counsel and may be physically or mentally exhausted from their travel.8 On the other hand, the Federal Court has also found that port of entry notes can be relied on due to the officer's lack of interest in the outcome and the contemporaneous nature of the notes.9 The RPD noted that the Appellant had the benefit of a Spanish interpreter for his interviews, that all his other answers were consistent with his Basis of Claim and that the Appellant signed his statement to the effect that it was accurate and correct. The Appellant was confronted with the differences between his port of entry interview and his other evidence and given the opportunity to explain.10 I find that the border interview can be used to assess this claim. However, I disagree with the RPD that the claim can be decided solely based on the difference between XXXX XXXX XXXX XXXX testimony at the port of entry and his testimony at the RPD. I find that the difference between these two sources of testimony is only one factor in this claim. [12] The RPD also questioned the Appellant about several other inconsistencies in his testimony. In my view, it is the cumulative effect of these inconsistencies which are determinative of the claim. XXXX XXXX XXXX XXXX was asked if he tried to take any security measures at his workplace after he was threatened. He responded that he had not, but his written evidence was that he had asked his co-workers to help to make a security patrol or to hire a security guard at work. XXXX XXXX XXXX XXXX was unable to explain this inconsistency. XXXX XXXX XXXX XXXX was asked whether he told his wife that he had been threatened. He responded initially that he had told his wife and then adds that it was the armed men who went to his house who first told his wife that they would kill him. The wife's letter says that it was the Appellant who told his wife about the death threats after he had moved his family out of the family home. There are two differences to note: who told the wife about the death threats and when the wife was told. XXXX XXXX XXXX XXXX was unable to explain these inconsistencies. Finally, there is the difference noted by the RPD that the Appellant indicated in his port of entry interview that he had not contacted the police while his written evidence (repeated in oral testimony) revealed that he had made two unsuccessful complaints. I find that this is an important distinction which XXXX XXXX XXXX XXXX was unable to explain. I also agree with the RPD that the Appellant made several claims11 in regards to the police in this claim which are all negatively affected by this inconsistency in this testimony. None of these issues are determinative on its own, but taken together, detract from the Appellant's credibility. [13] Finally, the Appellant testified that his wife had not been contacted by the armed men since his departure from Mexico in XXXX 2018. His written evidence was that the armed men had many resources and connections and were motivated to find him and his family. As a refugee claim is a forward-looking assessment of risk, the fact that the Appellant's family have not had any problems for the past 2.5 years is relevant to assessing XXXX XXXX XXXX XXXX future risk. I find that there is insufficient evidence to show that XXXX XXXX XXXX XXXX has a forward-looking risk in Mexico. [14] I find that the Appellant has not established that he faces a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, he would be personally subjected to a risk to their lives, a risk of cruel and unusual treatment or punishment or a danger of torture if he returned to Mexico. CONCLUSION [15] 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 Act.12 (signed) Pamela Arnott Pamela Arnott March 24 2021 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (IRPA) at subsection 110(4). 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FC 385. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (IRPA) at subsection 110(6). 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 6 Lunda v. Canada (Citizenship and Immigration) 2020 FC 704 at para. 29. See also Su v. Canada (Citizenship and Immigration) 2015 FC 666 at para. 11, Adu v. Canada (Minister of Employment and Immigration), [1995] FCA No 114. 7 Garcia v. Canada (Citizenship and Immigration), 2020 FC 16. 8 Horvath v. Canada (Citizenship and Immigration) 2018 FC 147; Yasun v. Canada (Citizenship and Immigration) 2019 FC 342. 9 Waked v. Canada (Citizenship and Immigration) 2019 FC 885; Singh v. Canada (Citizenship and Immigration) 2020 FC 687; Toth v. Canada (Citizenship and Immigration) 2020 FC 431; Seenivasan v. Canada (Citizenship and Immigration), 2015 FC 1410. 10 RPD-1, Transcript of hearing before RPD on January 20, 2020 at p. 9, lines 40-50. 11 XXXX XXXX XXXX claimed that the police refused to take his complaint twice, that the police would not help him with the death threats and that the police were colluding with the armed men to create a present and future danger to him and his family. See RPD-1, Narrative of Appellant. 12 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (IRPA) at section 111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-03681 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