MB9-29755

RAD File / Dossier de la SAR : MB9-29755 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 Montreal, QC Appel instruit / entendu à Date of decision December 24, 2020 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Juan Cabrillana 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] I dismiss this appeal for the reasons that follow. [2] XXXX XXXX XXXX is a citizen of Colombia. He fears that, if he returns to Colombia, he would be killed or seriously harmed by individuals who tried to recruit him to collect extortion payments in 2016. Mr. XXXX XXXX alleged that, in XXXX 2016, three armed men came to his family home to offer him a job collecting extortion payments. He went to live with his uncle, in Medellín, from that time until he returned to his parents' house in XXXX 2018. In XXXX 2018, the same men returned to tell him the offer was still on the table. He then went to live with friends and, when he returned to his family home in XXXX 2018 to tell his mother he was leaving the country, two men tried to attack him, but he got away. He left Colombia for the United States at the end of XXXX 2018 and crossed the border into Canada to claim refugee protection. [3] The Refugee Protection Division (RPD) found that Mr. XXXX XXXX was generally lacking in credibility due to inconsistencies and omissions in his evidence. In particular, it found that his omission of his address and work history in Medellín on his immigration forms undermined the overall credibility of his account of events, as he alleged he had moved there after the threats he received by the men who visited his home in XXXX 2016. The RPD also found that the credibility of Mr. XXXX XXXX's account of events was further undermined by inconsistencies and omissions in his evidence relating to a complaint he made to the police regarding the incidents involving the men who tried to recruit him. In addition, the RPD drew negative inferences, as to credibility, from Mr. XXXX XXXX's omission, from his written narrative, of a threatening call documented in the police complaint he had made and his omission to mention a second cousin who was killed in similar circumstances, as those he was alleging. [4] Mr. XXXX XXXX challenges the RPD's findings on appeal. DECISION [5] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The RPD was correct to find that Mr. XXXX XXXX is neither a Convention refugee nor a person in need of protection. For the reasons set out below, I agree with the RPD that Mr. XXXX XXXX's account of the events that led him to leave Colombia was not credible. He has failed to credibly establish that, if he returns to Colombia, he would face either a serious possibility of persecution or a likelihood that he would be subjected personally to any of the forms of serious harm that would make him a person in need of protection. ANALYSIS No error in failing to apply analysis under s. 97 of the IRPA [6] I do not agree with Mr. XXXX XXXX's counsel that the RPD erred in not specifically applying the test set out in section 97 of the Immigration and Refugee Protection Act (IRPA). The RPD did not need to engage in an analysis of the various steps under section 97 of the IRPA because it did not find Mr. XXXX XXXX's account of events credible. It is only if the RPD had found that Mr. XXXX XXXX credibly established that the incidents he alleged had occurred that it would then have to determine whether these incidents met the test under section 97 of the IRPA for him to be considered a person in need of protection. No error in finding Mr. XXXX XXXX not credible Inconsistencies in evidence in relation to living and working in Medellín [7] I do not agree with Counsel that the RPD violated Mr. XXXX XXXX's procedural fairness rights or erred in any way in finding that his credibility was adversely affected by inconsistencies between his immigration forms, on one hand, and his written narrative and testimony on the other. [8] In his written narrative and testimony, Mr. XXXX XXXX stated that he fled his hometown after the first incident with the men who tried to recruit him in XXXX 2016. He said that he went to live with his uncle in Medellín and worked in that city for a year and a half from XXXX 2016 until XXXX 2018. However, the immigration form that Mr. XXXX XXXX signed when he arrived in Canada indicates that Mr. XXXX XXXX lived in the same hometown where his family lives from XXXX 2013 until XXXX 2018 and that he was XXXX in his hometown from XXXX 2016 until XXXX 2017 and then worked as a XXXX in his hometown from XXXX 2017 until XXXX 2018. When the RPD asked Mr. XXXX XXXX about this inconsistency, he replied that he did not know why his immigration form said what it did.2 He said that he gave all of the information to the person who completed the form. I agree with the RPD that this was not a satisfactory explanation as the form is otherwise very detailed and Mr. XXXX XXXX signed the form. [9] On appeal, Counsel provides a different explanation than Mr. XXXX XXXX provided at the hearing. Counsel argues that the form was filled out by a border agent after Mr. XXXX XXXX had completed a long trip to Canada. Counsel argues that Mr. XXXX XXXX was tired, nervous and afraid, and that he did not understand either the English or French language, and the form was not interpreted for him. I note that this was not the explanation provided by Mr. XXXX XXXX when asked about the inconsistency on his forms by the RPD. I also note that Mr. XXXX XXXX's former counsel indicated, at the hearing, that Mr. XXXX XXXX signed Declaration A on his initial Basis of Claim form because he did understand some English but that he signed Declaration B on his amended Basis of Claim form because, by that time, it became clear that he did not understand everything in English. Whether Mr. XXXX XXXX's English was perfect or not, he would have seen that there was no entry for Medellín on the form if, in fact, he had provided that info to the border agent since all of the entries in the questions that ask about addresses and employment list the name of his hometown of Villaviciencio. It is important to note that this is not a situation in which a claimant alleges that they told a border agent one thing, but it simply does not appear on their immigration form. In this case, the border agent would have had to fabricate the information about Mr. XXXX XXXX's first being XXXX and then working as a XXXX in Villaviciencio during the period of time he claimed to have fled that town to live and work in Medellín. I do not find it credible, on a balance of probabilities, that this would have occurred, either due to translation problems or for any other reason. [10] I also do not accept Counsel's argument that Mr. XXXX XXXX's previous counsel made an error in not correcting the form since Mr. XXXX XXXX's new counsel has not followed the process to allege inadequate representation by Mr. XXXX XXXX's previous counsel. This would have required the new counsel to provide the previous counsel of notice of the argument and an opportunity to respond to it. [11] In general, the RPD and the RAD must be careful in assigning importance to forms like the immigration form which are signed at the port of entry. In this case, the address and employment information contained on Mr. XXXX XXXX's form is very clear and detailed, and indicates that Mr. XXXX XXXX lived and worked in his hometown of Villaviciencio. While the RPD referred to the discrepancy as an "omission" of the information regarding Medellín, I find that it is more appropriately referred to as an inconsistency as Mr. XXXX XXXX indicated he was living and working in Villaviciencio on his immigration forms whereas, in his written narrative and testimony, he claimed to have been living and working in Medellín during the relevant period. In any event, I find that the RPD was correct to find that the discrepancy between this information and Mr. XXXX XXXX's later claim that he fled to Medellín for a year undermined the credibility of his account of events in this case. Inconsistent evidence relating to prosecutor's complaint [12] Counsel argues that the RPD erred in drawing adverse inferences as to credibility from inconsistencies relating to his evidence surrounding a prosecutor's complaint that he had filed just before leaving Colombia in relation to his attempted recruitment in 2016. I disagree. [13] At the hearing, the RPD asked Mr. XXXX XXXX when he returned to his mother's house after having stayed with friends and he replied that he returned on XXXX XXXX, 2018.3 When the RPD noted that his Basis of Claim form said that he returned on XXXX XXXX, 2018, Mr. XXXX XXXX said an incident in which he was attacked by the men who were trying to recruit him occurred on XXXX XXXX, 2018 but that he had returned to his mother's place to say goodbye on XXXX XXXX, 2018, and then corrected himself to say that it was XXXX XXXX, 2018, since he left Colombia on XXXX XXXX, 2018. When the RPD noted that he said, in his written narrative, that he went to say goodbye to his mother a week before leaving Colombia, on XXXX XXXX, 2018, Mr. XXXX XXXX replied that XXXX XXXX, 2018 was when he went to tell his mother he made a report to the prosecutor's and gave her a copy of it for safekeeping. The RPD then asked him why he had not mentioned going to file a complaint with the prosecutor and leaving a copy with his mother in his written narrative. Mr. XXXX XXXX replied that he omitted it. The RPD then asked Mr. XXXX XXXX to explain the inconsistency between his testimony that he provided his mother with a copy of the prosecutor's report on XXXX XXXX, 2018 and the fact that the report is dated the next day - XXXX XXXX, 2018. Mr. XXXX XXXX replied that the report was only signed the following day because that is the process for such complaints in Colombia. When the RPD pressed him further about how he could provide his mother a copy of the complaint if it was only signed the next day, he repeated that he left the copy with his mother on XXXX XXXX, 2018. [14] The RPD drew a negative inference based on the inconsistencies between his testimony and his written narrative regarding the date on which he went to say goodbye to his mother and his omission of any mention in his written narrative of filing a prosecutor's complaint or leaving a copy of the prosecutor's report with his mother on XXXX XXXX, 2018. It also drew a negative inference, as to credibility, due to the inconsistency, in Mr. XXXX XXXX's testimony, that he gave a copy of the prosecutor's report to his mother on XXXX XXXX, 2018, whereas it was signed and dated XXXX XXXX, 2018,4 the following day. [15] On appeal, counsel argues that the RPD erred in finding that Mr. XXXX XXXX's omitted to mention of his filing of a prosecutor's complaint and leaving it with his mother in his written narrative since he mentioned, at paragraph 14 of his narrative, that the police told him to file a complaint with the prosecutor. I do not accept this argument. Saying the police told you to file a prosecutor's complaint is different from saying that you filed one and went to leave it at your mother's place for safekeeping. [16] However, in my view, nothing turns on this distinction because the real problem, with Mr. XXXX XXXX's testimony, is that his adjustments, in his testimony, caused inconsistencies with other parts of his written narrative, which then caused him to have to further adjust his testimony. As described in paragraph 13 above, all of the inconsistencies in Mr. XXXX XXXX's evidence had their root in his testimony that he went to say goodbye to his mother the day before he left Colombia, XXXX XXXX, 2018, when he indicated, in his narrative, that he went to say goodbye to her a week before he left Colombia - that is, on XXXX XXXX, 2018. [17] I do not agree with Mr. XXXX XXXX's counsel that it was a minor error for Mr. XXXX XXXX to omit a mention of leaving the prosecutor's complaint with his mother. I would agree with Counsel if that was the only omission in Mr. XXXX XXXX's evidence. However, that was not the case. The omission arose as a result of Mr. XXXX XXXX's attempt to explain the inconsistency in his evidence regarding the date on which he went to say goodbye to his mother. One cannot pull out one of the RPD's findings regarding the omission without addressing the context of that finding and associated findings, which all relate to cascading inconsistencies created by Mr. XXXX XXXX's attempts to explain the initial inconsistency in his testimony about when he went to say goodbye to his mother before leaving Colombia. [18] I disagree with Counsel that any of the inconsistencies, relied upon by the RPD, were simply minor or peripheral inconsistencies. The inconsistencies instead related to the final period of time Mr. XXXX XXXX spent in Colombia as well as the credibility of the prosecutor's report he made shortly before leaving. His provision of explanations for the inconsistencies which only generated further inconsistencies adversely affected the credibility of his account of the events that led to his departure from the country. Omission of threats [19] The RPD drew an adverse inference, as to credibility, due to Mr. XXXX XXXX's failure to mention, in his evidence, a threatening call mentioned in the police complaint he had filed. Counsel does not contest this finding by the RPD. Therefore, I will limit myself to stating that I agree with this adverse inference for the reasons set out in paragraph 21 of the RPD's decision. Summary on credibility [20] I do not disagree with any of the caselaw, cited by Counsel in the appeal memorandum, which, among other things, stands for the proposition that the RPD must not engage in a microscopic analysis of the evidence and must take into account all of the evidence. However, I do not agree with Counsel that the RPD engaged in such a microscopic analysis in this case nor did it misconstrued evidence or fail to engage with the evidence as a whole. I also disagree with Counsel that the RPD based its general finding of non-credibility on simply one minor omission. As described above, there were, in fact, several inconsistencies which gave rise to this general finding of non-credibility, including the further inconsistencies generated by Mr. XXXX XXXX's attempts to explain initial inconsistencies. [21] I agree with the RPD that the inconsistencies and omissions, described above, are sufficient to rebut the presumption of truthfulness that applies to his testimony. Therefore, I do not have to address the RPD's additional finding regarding the inconsistency in Mr. XXXX XXXX's evidence relating to whether he had one or two cousins killed in circumstances similar to those he described in his claim. [22] In summary, I agree with the RPD that Mr. XXXX XXXX's account of the events that led him to leave Colombia are not credible, on a balance of probabilities. Therefore, he has failed to credibly establish that, if he returns to Colombia, he likely would be subjected personally to a risk to his life or to a risk of any of the kinds of serious harm that would make him a person in need of protection. He has also not established that there is a serious possibility that he would be persecuted on a Convention ground. CONCLUSION [23] For the above reasons, I dismiss the appeal and confirm the decision of the RPD that XXXX XXXX XXXX is neither a Convention refugees nor a person in need of protection. (signed) Jo-Anne Pickel Me Jo-Anne Pickel December 24, 2020 Date JP/cl 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Recording of the hearing before th RPD on March 26, 2019, at 29:00. 3 Recording of the hearing before th RPD on March 26, 2019, at 48:00. 4 I note that there is a typographical error in the RPD's decision at paragraph 16, as it stated the complaint was dated XXXX XXXX, 2019. However, it is clear from the context that the RPD meant 2018. It used the correct date in paragraphs 17 and 18 of its decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-29755 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