MB8-27460

RAD File / Dossier de la SAR : MB8-27460 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 July 30 2020 Date de la décision Panel Pamela Arnott Tribunal Counsel for the person who is the subject of the appeal Mabel E. Fraser Conseil de la|des 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] I dismiss this appeal. XXXX XXXX XXXX (Principal Appellant) is citizen of Mexico who alleges that he is at risk of harm from the Los Zetos or Michoacana cartels should he return to Mexico. The Refugee Protection Division (RPD) found that his allegations were not credible in regard to the extortion attempts against himself and his family as well as his subsequent relocations in the United States of America (USA) and Mexico. The Appellant argues that the RPD failed to consider the documentary evidence, was microscopic in its assessment of the inconsistencies in his evidence, didn't appreciate the effect of trauma on his memory and created a procedural error in the quality of the translation. I find that the RPD did not err and find that the Appellant is not a Convention refugee nor a person in need of protection. NEW EVIDENCE The evidence presented by the Appellants is accepted [2] 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 the Appellants could not reasonably have been expected in the circumstances to have presented at the time of the RPD decision. [3] 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 The Federal Court of Appeal has also indicated that new evidence provisions under the Act do not allow an Appellant to correct a deficient record or relitigate a question.3 [4] The Appellant has provided one piece of new evidence: an affidavit about the interpretation of his evidence in his Basis of Claim (BOC) form which explains, in his submission, the inconsistencies noted by the RPD about his movements in Mexico after the extortion. I accept that this evidence arose after the RPD decision and could not reasonably have been expected in the circumstances to have been presented at time of the RPD decision. In considering whether this evidence is new, credible and relevant, I find that it is new as this issue was not raised during the hearing. It is a sworn affidavit and benefits from a presumption of credibility. Finally, I find that the content of this affidavit is relevant to a key issue in this appeal, being the inconsistent testimony of the Appellant. The affidavit is admissible. [5] The Appellants are not requesting an oral hearing. ANALYSIS [6] My role is to look at all the evidence and decide if the RPD made the correct decision.4 The RPD found that there was no evidence that would link this claim to a risk under a Convention ground5. I agree. I have accordingly assessed this claim under section 97 of the Act: is it more likely than not that the Appellant faces a risk of torture, or a risk to life, or a risk of cruel and unusual treatment in Mexico? [7] The RPD found that the Appellant was not credible in several elements of his claim: a. the extortion by the cartel of the Appellant; b. the extortion of the Appellant's family; c. his addresses and movements in Mexico and the USA; Extortion [8] The RPD found that the Appellant was not credible when his testimony changed on two points: how many payments he made to the cartel, and whether he returned to the town of XXXX after being extorted. The Appellant argues that these are peripheral issues which the RPD used as a memory test of the Appellant. In my view, whether there were multiple payments is significant because the Appellant ties the number of payments to his plan to flee the cartel after making a small initial payment, and to his fear for his family as he stayed on the ranch to sell cattle.6 While I accept the Appellant's explanation that the cartel forced him to make an additional payment due to the time that it took him to pay, the important issue for this claim is that the Appellant wrote in his narrative that he paid twice, and then gave oral testimony to say that he paid once.7 I find that is not a peripheral issue as it relates to the depth of his subjective fear. I find that this change in his testimony undermines the credibility of the Appellant's subjective fear. [9] The RPD found that the Appellant was not credible when he omitted to mention in his narrative, and initial testimony that the cartel had continued to extort his father following the Appellant's departure from Mexico. The Appellant responded that he understood that the focus was on his personal story, and not that of his family. It appears to me that a mention of extortion attempts against the Appellant's family would serve to emphasize the seriousness of the Appellant's case: the mention of these additional and later extortions would have been a logical addition to the account. Further, as the RPD pointed out, the instructions in the BOC ask for all events that happened "to you and your family", and the Appellant was asked multiple times whether he had anything to add or amend in his claim. I find that this omission undermines the credibility of the Appellant's subjective fear. Addresses, Residences and Relocations [10] The RPD found that the Appellant was not credible when his oral and documentary evidence was inconsistent on his relocations. The Appellant argues that "the panel ought to have considered the human characteristics of the claimant, his background, social position, education, in short, everything that makes up his psychological being...". It is not clear how the Appellant's human characteristics explain the large inconsistencies in his testimony. For example, he clearly says that he was in Mexico for one answer and then says that he was in USA for the same period in a separate answer in the BOC.8 He also testified that he went to different cities looking for work, which is not shown in the BOC9. Finally, he says that he was looking for work in Mexico City and tried four different places.10 He was in Mexico City for some time, and says that he fled there and stayed with family.11 This period is missing from the BOC. I find that the RPD was correct that there are important inconsistencies in his Basis of Claim narrative as well as between his Basis of Claim narrative and his oral evidence: these inconsistencies undermine his claim of a subjective fear and of the alleged risks to him. Documentary Evidence [11] The Appellant allege that the RPD erred in not giving any weight to the documentary evidence regarding his land ownership and his cattle. The RPD found that these documents "do not establish the claimant's story regarding the alleged threats and risks". I agree. Even accepting the photos and land transfer documents, these documents do not establish that the Appellant was extorted, threatened and pursued in multiple towns in Mexico. I find, on a balance of probabilities, that the documentary evidence does not overcome the credibility concerns identified in the Appellant's claim. [12] In considering the totality of the evidence, I find, on a balance of probabilities, that there is insufficient evidence to establish that it is more likely than not, that the Appellant would be subjected personally to a danger of torture, or to a risk to life or a risk of cruel and unusual treatment or punishment upon return to Mexico. Procedural Justice [13] The Appellant alleges that his evidence reflected an error in translation by the interpreter at the airport when he completed his narrative. In the affidavit provided with his appeal, he indicates that he was asked about his residence, meaning his home12, and about the addresses of places where he had lived. [14] The Jurisprudence Guide requires that there be serious, non-trivial, problems with a translation in order to find a breach of procedural fairness.13 Having reviewed the audio hearing and the Appellant's affidavit, I find that there was no breach of procedural fairness through inadequate interpretation. The applicant did not raise interpretation concerns at the hearing, either about the interpretation of his narrative, which he had more than 1 year to review14, nor about the interpretation at the hearing. Instead the Appellant confirmed early in the hearing that he had no changes to make to his narrative, and confirmed that he understood the interpreter provided for the hearing15. The hearing, heard in its entirety, reveals that the applicant was able to convey his allegations, provided answers to all questions, including in response to probing questions of the Board member and his counsel arising from his inconsistent testimony, omissions in his BOC, and inconsistencies in his Basis of Claim. I also find that the changes and omissions in the Appellant's testimony cannot be explained by errors in translation. As noted above, his Basis of Claim doesn't mention that he was in detention in Florida, but mentions other detentions.16 He also testified that he went to different cities looking for work, which is not shown in the Basis of Claim17. Finally, he says that he was in Mexico City for four different jobs, and says that he fled there and stayed with family.18 This period is missing from the Basis of Claim. When he was asked about the gaps by his Counsel, the Appellant has no response and his Counsel suggests that this was an oversight.19 Having reviewed the totality of the evidence, I find that there was no breach of procedural justice in relation to the translation of the Appellant's evidence. DECISION [15] 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. (signed) Pamela Arnott Pamela Arnott July 30 2020 Date 1 Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, FC 385. 3 M.C.I. v. Singh, Parminder 2016 FCA 96 (CanLII) at para 38 (Singh). 4Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 See section 96, IRPA. 6 RPD-1, RPD record, Basis of Claim narrative, at p. 19. 7 Audio recording of hearing before the RPD, 05 November 2018, at 0 :51. 8 Ibid., at 1:00. 9 Ibid., at 0:32 and 0:52. 10 Ibid., at 0:52. 11 Ibid., at 0:47 and 0:52. 12 P-2, Appellant's record, Appellant's Memorandum, at para 15. 13 Siddiqui v. Canada (Minister of Citizenship and Immigration), 2007 FC 6; Amin, v. Canada (Minister of Citizenship and Immigration), 2015 FC 1028; Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191. 14 The Basis of Claim was signed in September 2017 and the RPD hearing was held in November 2018. 15 Audio recording of hearing before the RPD, 05 November 2018, at 3:40. 16 Ibid., at 1:00-1:04. 17 Ibid., at 0:32and 0:52 18 Ibid., at 0:47 and 0:52 19 Ibid., at 1 :01. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-27460 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