MC0-09312

RAD File No. / No de dossier de la SAR : MC0-09312 MC0-09313 / MC0-09314 / MC0-09315 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 18, 2021 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subject of the appeal Carlos Hoyos-Tello Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the female appellant) and her three children, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX XXXX XXXX citizens of Mexico, are appealing the decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. [2] The female appellant, XXXX XXXX XXXX, was appointed as the designated representative for her two minor children, XXXX XXXXandXXXX XXXX XXXX. [3] In making its decision, the panel considered the Chairperson's Guideline on Women Refugee Claimants Fearing Gender-Related Persecution. [4] For the reasons set out below the appeal is dismissed. BACKGOUND [5] In her Basis of Claim Form (BOC Form), the female appellant alleges that, in Mexico, she fears her former spouse, XXXX, who is the biological father of her eldest son, male appellant XXXX XXXX. She alleges that she lived with XXXX from 1998 to 2002 in the city of Tijuana, in the state of Baja California. [6] The female appellant alleges that she left XXXX in XXXX 2002 because he was violent and returned with her son to her place of origin, the state of Chiapas. There she met her new spouse, XXXX XXXX with whom she had the other two children (the appellants) and who adopted her eldest son. [7] The female appellant alleges that on XXXX XXXX XXXX 2019, some men tried to kidnap her eldest son. She alleges that she then received a telephone call telling her that her eldest son would be kidnapped and recruited by his biological father, who would draw him into his criminal activities, and she and her new spouse would be killed. [8] After taking refuge in a neighbouring town (XXXX) for about 10 months, the appellants left Mexico for Canada on XXXX XXXX XXXX 2019, where they claimed refugee protection. XXXX XXXX the female appellant's spouse, stayed in Mexico as he had not obtained the authorization required to travel to Canada. [9] The female appellant alleges that on XXXX XXXX XXXX 2020, her spouse in Mexico received a threatening call from XXXX and filed a complaint against him. [10] Following a hearing held on March 6, 2020, and in its reasons dated June 22, 2020, the RPD rejected the claim for refugee protection on the grounds that the appellants' central allegations were not credible. [11] Before the Refugee Appeal Division (RAD), the appellants submit that the RPD erred in its assessment of their credibility, for reasons that will be set out later in the "Analysis" section, if necessary. [12] For these reasons, the appellants are asking the RAD to set aside the determination of the RPD and grant them refugee protection or, alternatively, refer the matter to the RPD for re-determination by a differently constituted panel. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [13] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting its own analysis of the record to determine whether, as submitted by the appellants, the RPD erred. NEW EVIDENCE [14] The appellants presented five documents before the RAD that they claim is new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), which states the following: 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. [15] In addition to the explicit conditions set out in subsection 110(4) of the IRPA, the RAD must also consider the implicit conditions pertaining to the admissibility of new evidence as established by the Federal Court of Appeal in Singh (M.C.I. v. Parminder Singh, 2016 FCA 96) and, in particular, the criteria of credibility and relevance of new evidence. [16] The first document is an excerpt from Wikipedia Maps showing the location of the town of XXXX, in Chiapas, in relation to the town of XXXX XXXX where the appellants lived. [17] I accept this document into evidence. It is relevant to one of the RPD's conclusions, which will be addressed later on. Although it predates the RPD's decision, I am of the opinion that the appellants could not reasonably have been expected in the circumstances to have presented it at the time of the rejection. [18] The second document is a letter from XXXX XXXX XXXX XXXX, dated XXXX XXXX XXXX 2020, confirming that the appellants took refuge at her home in XXXX, on XXXX XXXX XXXX 2019. [19] I do not accept this document into evidence. Although it postdates the rejection of the claim, the information contained therein predates the rejection and the appellants do not explain in their memorandum why they did not present such a document before the RPD. [20] The third document is the birth certificate of male appellant XXXX XXXX, dated XXXX XXXX XXXX XXXX. [21] I do not accept this document into evidence. It predates the rejection of the claim, and the RPD had given the appellants a time limit for submitting it before it, following the hearing, which they did not do. The appellants do not explain in their memorandum why they did not submit this document before the RPD, as requested, when the female appellant had stated that she was in possession of it, or how or why they subsequently obtained it, [translation] "with great difficulty," as mentioned in paragraph 19 of their memorandum. [22] The fourth document is a letter from XXXX XXXX XXXX, dated XXXX XXXX XXXX 2020, confirming that she helped the female appellant in 2001 and 2002 in Tijuana because of problems she was having with her spouse, XXXX. [23] I do not accept this document into evidence. Although it postdates the rejection of the claim, the information contained therein predates the rejection and the appellants do not explain in their memorandum why they did not present this document before the RPD. In addition, this document does not meet the criterion of relevance mentioned above, in that the facts reported therein were deemed credible by the RPD. The RPD believes the female appellant with respect to her relationship with XXXX from 1998 to 2002. As will be detailed later, what the RPD does not believe are the alleged events in 2019 and 2020. [24] The fifth document is a copy of written exchanges on Facebook between the female appellant and the author of the letter referred to in the preceding paragraph. [25] I do not accept this document into evidence because it does not meet the criterion of relevance mentioned above. HEARING BEFORE THE REFUGEE APPEAL DIVISION [26] Subsection 110(6) of the IRPA states the following: The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [27] Although new evidence has been admitted before the RAD, I am of the opinion that there is no cause to hold an oral hearing in this case as this document, as will be addressed later on, does not meet criteria (a), (b) and (c) of subsection 110(6) of the IRPA, referred to above. ANALYSIS [28] The issue in this case is whether the RPD erred in its assessment of the appellants' credibility, particularly that of the female appellant, who was the principal witness in this case. [29] I am of the opinion that the answer to that question is no, for the following reasons. [30] The RPD's finding is based on a number of contradictions, omissions and implausibilities that, in its opinion, undermine the appellants' credibility. In analyzing the evidence presented, I reach the same conclusion as the RPD. [31] The elements noted by the RPD are as follows: A. There is a contradiction between the testimony of male appellant XXXX XXXX, according to which he did not have help in escaping the alleged attempted kidnapping on XXXX XXXX XXXX 2019, and the information in the complaint filed by the female appellant's spouse on XXXX XXXX XXXX 2020, according to which some people intervened to help male appellant XXXX XXXX at the time of that incident. B. There is a contradiction in the female appellant's testimony regarding the location where the appellants took refuge following the alleged attempted kidnapping, either in another neighbourhood of the city or in another city. Furthermore, the female appellant's testimony that the appellants had walked for three to four hours to get there is implausible. C. There is an omission in the BOC Form regarding the fact that the appellants were provided with free accommodation for 10 months by unknown individuals in the town of XXXX. D. The appellants did not submit, before the RPD, male appellant XXXX XXXX birth certificate, dated XXXX2018, whose obtention in Tijuana would have resulted in XXXX being informed of their place of residence. E. The appellants contacted the Civil Registry Office in Tijuana, in 2010, for the procedures to adopt male appellant XXXX XXXX and were not tracked down by XXXX at that time. F. It is implausible that XXXX, who is allegedly a member of a cartel, was never able to track down the female appellant in Chiapas, when she was living with her family before 2019. [32] In their memorandum, the appellants only specifically challenge finding "B" referred to above. [33] And I agree with them regarding the fact that there was a misunderstanding on the RPD's part, due to the interpretation from Spanish to French of the terms that were used: colonia and quartier [neighbourhood]. The Spanish word colonia can also refer to another city, not just another neighbourhood of the city. In addition, because of the new evidence admitted before the RAD, it seems to me that it is not implausible that the appellants may have walked three to four hours to get to the neighbourhood in the town of XXXX where they allege they went. [34] However, even though this determination of the RPD is erroneous, this error is not sufficient to alter the RPD's decision as a whole. [35] There are still other contradictions, omissions and implausibilities that were not explained, which have not been challenged by the appellants and which, in my opinion, are sufficient to undermine the credibility of the appellants' central allegations. [36] Like the RPD, I am of the opinion that important elements of the claim were not established; namely, that a request to obtain the birth certificate issued in XXXX XXXX could have led XXXX to suddenly track down the appellants when XXXX had not been able to do so before, considering his alleged profile and the fact that the appellants had previously contacted the Civil Registry Office in Tijuana. In addition, the evidence surrounding the alleged attempted kidnapping in XXXX 2019 is contradictory with respect to whether male appellant XXXX XXXX received help or not. [37] Consequently, in light of the foregoing, I conclude that the appellants have failed to demonstrate that the RPD committed errors that would justify the RAD's intervention. REMEDY [38] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [39] The appeal is dismissed. (signed) Normand Leduc Normand Leduc January 18, 2021 Date IRB translation Original language: French RAD File No. / No de dossier de la SAR : MC0-09312 MC0-09313 / MC0-09314 / MC0-09315 RAD.25.02 (January 2020) Disponible en français 3 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