TB9-23600

RAD File / Dossier de la SAR : TB9-23600 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 Toronto, ON Appel instruit / entendu à Date of decision November 19, 2019 Date de la décision Panel C. Anderson Tribunal Counsel for the person who is the subject of the appeal John Savaglio 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 INTRODUCTION [1] Mr. XXXX XXXX XXXX, a citizen of Pakistan, appeals a decision of the Refugee Protection Division (RPD), dated August 8, 2019, which rejected his claim for refugee protection. Mr. XXXX has asked that, pursuant to the Immigration and Refugee Protection Act (IRPA) s. 111, I substitute a decision finding that he is a Convention refugee pursuant to IRPA s. 96 or a person in need of protection pursuant to IRPA s. 97. In the alternative, he has asked that his claim be referred back to the RPD for redetermination by a differently-constituted panel.1 DETERMINATION [2] The appeal is dismissed. Pursuant to IRPA paragraph 111(1)(a), I confirm the decision of the RPD that Mr. XXXX is not a Convention refugee nor a person in need of protection. BACKGROUND [3] Mr. XXXX has written in his Basis of Claim (BOC) form and testified at the RPD hearing as follows: * That he has worked as a XXXX and as XXXX XXXX with XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the XXXX XXXX XXXX, and has "...XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX."2 * That he fears both agents of the Pakistani military/government and religious extremists involved with Sipah-i-Sahaba Pakistan (SSP), because his XXXX has drawn the ire of both groups. * That he has received many threatening phone calls and on XXXX XXXX, 2016, was physically attacked by members of the SSP. * That following further threats, he fled to the United States of America and then made his way to Canada. [4] The RPD found that Mr. XXXX claim lacked credibility for the following reasons: * Mr. XXXX lacks a XXXX education and it is therefore implausible that he has ever worked as a XXXX.3 * Mr. XXXX testimony was evolving with regard to his XXXX and XXXX activities between 1997-2007.4 * The RPD identified numerous omissions of knowledge and omissions of reasonably available evidence, including a lack of knowledge with regard to when he XXXX XXXX XXXX XXXX,5 an omission of evidence corroborating his having been XXXX in a XXXX despite testifying that the organization would have these records,6 an omission of evidence that he XXXX XXXX XXXX from 2007-2014 as he claimed,7 an inability to find any evidence of his XXXX activities online when presented the opportunity to search his name and the website of the organizations he claimed to have worked for at the RPD hearing,8 a lack of knowledge in that he could only name three former colleagues despite testifying that he was the XXXX XXXX and in offering only vague testimony with regard to the size of his former employer and its structure,9 a lack of knowledge with regard to his daily duties and his XXXX process,10 and an omission of evidence corroborating his salary and employment with XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.11 * The RPD identified numerous inconsistencies in Mr. XXXX evidence, including a visa application for the United States of America filed in 2016 in which he claimed not to be a XXXX but a XXXX,12 three separate visa applications for Canada including one in 2016 in which he claimed not to be a XXXX but rather self-employed in XXXX sales,13 and an inconsistency between the affidavit of Mr. XXXX father and the timeline of events presented in Mr. XXXX BOC and testimony.14 [5] Mr. XXXX argues on appeal that the RPD erred as follows: * By conducting an unduly onerous and microscopic assessment of his testimony.15 * By placing undue emphasis on XXXX and XXXX XXXX that predate his problems in Pakistan.16 * By deciding that certain findings with respect to his credibility tainted separate and more relevant areas of his testimony.17 * By failing to assign due weight to various pieces of evidence.18 PRELIMINARY MATTERS No New Evidence and No Oral Hearing [6] Mr. XXXX has not requested the admission of any new evidence in consideration of this appeal, and has not requested an oral hearing.19 As no new evidence was admitted in this appeal, no oral hearing is permitted pursuant to IRPA s. 110(6). The Role of the Refugee Appeal Division (RAD) [7] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law.20 I may defer to the RPD's credibility assessment of oral testimony, if I find that the RPD had a meaningful advantage in the circumstances. I have listened to the entirety of the hearing audio, and have reviewed the evidence and RPD record on file. I have determined that, in this case, no meaningful advantage existed and have therefore undertaken a review of the correctness of the RPD decision throughout. Credibility as the Determinative Issue [8] As I will explain below, I find that the RPD was correct in determining that this claim lacks credibility on core issues. Because a refugee claim cannot succeed when it is not credible, I have not considered other issues. CREDIBILITY ANALYSIS [9] This claim revolves around allegations that Mr. XXXX was a XXXX employed with an organization called XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He alleges that he started his career as a XXXX in 2007 and continued until XXXX 2016. He alleges that he was employed since 2013 as a XXXX XXXX. From 2007-2016, he alleged that he was XXXX XXXX approximately two times per month. It is his profile as a XXXX XXXX XXXX XXXX that allegedly led to his persecution. Inconsistencies in Previous Visa Applications Undermine the Claim [10] Mr. XXXX applied for a visa to enter the United States of America in 2013. On the visa application, he at no time wrote that he had ever been employed as a XXXX. Instead, he wrote that he was employed as a XXXX. The RPD confronted Mr. XXXX with this inconsistency at the RPD hearing. Mr. XXXX explained that he had employed a visa agent to help with the application, and that he had lied about his profession on the visa application at the suggestion of the agent. [11] Mr. XXXX applied for visas to enter Canada on three separate occasions. In 1999, he applied twice for a study permit to pursue an XXXX program at XXXX College. In 2016, he applied for a traveller's visa to visit family. On that application, he made no mention of his career in XXXX. Instead, he listed his occupation as self-employed in XXXX sales. Again, the RPD confronted Mr. XXXX on this inconsistency, and again it was explained that the visa agent had convinced him to lie. [12] The RPD found that the explanations for these inconsistencies were unreasonable because there was no reason for Mr. XXXX to lie at that time. The RPD further found that Mr. XXXX was a professional, independent man capable of arranging his own affairs and it was therefore unreasonable that he would have taken this advice from a visa agent. In my independent analysis, I find that I agree with the RPD. These visa applications were all filed before the alleged persecution happened in Pakistan. There is no evidence before the Board that American or Canadian government officials would have higher regard for a person employed as a XXXX, or a person self-employed in XXXX sales, than a professional XXXX or a XXXX XXXX. There is also no evidence before the Board that Mr. XXXX would have had to lie during these applications in order to escape any situation in Pakistan. [13] If Mr. XXXX testimony and explanation on this issue is to be believed, he lied to American and Canadian government officials about his occupation when there was no motivation to do so and he was merely applying for visas to take vacations. These inconsistencies, combined with the concerns that follow, indicate to me that he has not worked in XXXX as he has testified. Omission of Online Evidence of XXXX Activity Undermines the Claim [14] Mr. XXXX specifically testified at the RPD hearing that XXXX is an online XXXX and that he was a successful and well-regarded XXXX in Pakistan. He further testified that his profile as a XXXX and XXXX would appear online if searched for at the present time. [15] The RPD member allowed Mr. XXXX to conduct a lengthy Google search for information corroborating his employment as a XXXX at the RPD hearing. The search returned no results. The RPD member then allowed Mr. XXXX to search the website of XXXX for any evidence of his XXXX having been XXXX. Again, this search returned no results. [16] Mr. XXXX has argued that the lack of XXXX evidence corroborating his claims that he has worked as a XXXX is the result of XXXX only archiving XXXX XXXX for two weeks. The RPD found the "two weeks" explanation implausible. I agree with this finding of the RPD because Mr. XXXX has submitted in evidence documents which purport to be print-outs of several of his XXXX on the XXXX back-end of the XXXX website.21 If one looks at the date at the bottom right of the screenshot, one will note that the image of this XXXX purportedly XXXX on the site was taken on "XXXX XXXX XXXX/2017." The date at the bottom of the XXXX is XXXX XXXX, 2015.22 If Mr. XXXX evidence is to be believed, this indicates two things. First, it indicates that an online record of the XXXX has persisted despite the two-week limit Mr. XXXX claimed in the RPD hearing. Second, it indicates that Mr. XXXX apparently had access (either directly or through a colleague) to the back-end of the XXXX website while he was preparing his refugee claim. It is therefore a meaningful omission for him not to have been able to re-access that same information when asked to do so live in the hearing room. When asked to explain the failure to find any record of his successful online XXXX career spanning almost a decade, he did not indicate that he could do so if given the chance to contact an associate at XXXX. Instead, he claimed, despite his own evidence to the contrary, that XXXX must have destroyed all traces of his XXXX. [17] As a result of Mr. XXXX failure to adduce any trace of his successful and long-standing online XXXX career electronically, I find that the RPD was correct in determining that this undermines his claim that he has worked as a XXXX. Omission of Meaningful XXXX Salary Evidence Undermines the Claim [18] Mr. XXXX testified at the RPD hearing that he was employed for almost a decade as a XXXX and that, from 2013 to 2016, he was promoted to XXXX XXXX. He further testified that he was paid by XXXX via direct deposit to his bank account at Meezan Bank. Mr. XXXX has submitted in evidence a "salary certificate" letter purporting to be from XXXX that inconsistently claims he worked at XXXX as a XXXX XXXX starting in XXXX 2007.23 [19] The RPD asked Mr. XXXX if he could produce any pay stubs or banking records showing that he had received payments from any XXXX XXXX in Pakistan. In response, he replied that Meezan Bank did not offer online access and that they would not release any records to his relatives or associates in Pakistan without him being present. [20] Meezan Bank maintains a website at www.meezanbank.com.24 The Meezan Bank website claims that they are Pakistan's first and largest Islamic bank. The website further advertises their free online banking feature as a "...simple, hassle-free way to bank, anytime, anywhere..." and that mobile banking is now available "at the touch of a button." The RAD disclosed this website to Mr. XXXX on October 8, 2019. In the disclosure, I specifically noted that online banking did indeed appear to be available and invited submissions or new evidence arising from this information. The RAD received the following response on November 1, 2019, "I have no access to bank because I am here and its not possible for me to get the bank statement because in Pakistan I am not using online banking. I already gave the letter of XXXX XXXX XXXX and in this letter my pay is mentioned."25 [21] I find this to be problematic for two reasons. First, Mr. XXXX testimony is evolving, at first explaining that he could not provide definitive evidence of his receiving payments because his bank did not offer online access. When presented with clear evidence that his bank does indeed provide online access, his explanation was modified to say that he does not use online banking despite it being available. Second, the evidence on www.meezanbank.com is clear that Meezan Bank is a sophisticated, modern banking organization and that online access to accounts is readily available from "anywhere." Evidence of his receiving payments is so highly probative in this case that it is completely unreasonable that Mr. XXXX would not be willing to make any efforts to access definitive banking information online. [22] I find that, on a balance of probabilities, clear evidence of Mr. XXXX salary payments from XXXX organizations has not been produced for the Board because it does not exist. The RPD Was Correct in Denying Other Evidence Weight [23] The RPD specifically addressed all the supporting evidence adduced by Mr. XXXX, and gave numerous pieces of evidence zero weight. [24] The Federal Court has given clear guidance on the issue of weight, and has recently formulated it in mathematical terms as a function of both credibility and probative value.26 Put simply, a piece of evidence is worth zero weight if it is found to completely lack credibility (it is fraudulent) or it completely lacks probative value, or both. [25] In Osikoya,27 the Federal Court gives further guidance on findings of credibility: Justice Anne Mactavish has observed that "[i]f a decision-maker is not convinced of the authenticity of a document, then they should say so and give the document no weight whatsoever. Decision-makers should not cast aspersions on the authenticity of a document, and then endeavour to hedge their bets by giving the document 'little weight'" (Sitnikova v Canada (Citizenship and Immigration), 2017 FC 1082 (CanLII) at para 20). Building on this, Justice Shirzad Ahmed stated recently: "Fact finders must have the courage to find facts. They cannot mask authenticity findings by simply deeming evidence to be of 'little probative value'" (Oranye v Canada (Citizenship and Immigration), 2018 FC 390 (CanLII) at para 27). [26] Mr. XXXX has argued on appeal that the RPD's findings were based on microscopic analysis of his testimony and evidence. I disagree. The RPD made numerous findings that go to the core of the claim that he has ever worked as a XXXX, and the findings I have discussed so far have all been clear incidents of inconsistency or omission on material issues. Mr. XXXX Maldonado presumption of truthfulness28 has therefore been rebutted. [27] The RPD made the following findings with respect to the evidence: * The RPD gave the set of printed XXXX XXXX29 purported to have been XXXX by Mr. XXXX zero weight. I agree that these deserve zero weight, because this evidence suggested it could be corroborated online and yet was nowhere to be found during the search at the RPD hearing with no reasonable explanation. I agree with the RPD that these XXXX are, on a balance of probabilities, not authentic given their inability to be found online and in the context of the other credibility concerns already discussed. * The RPD gave the salary certificate letter30 little weight because it had "limited probative value." I disagree with this finding. In light of the letter's inconsistency with regard to Mr. XXXX start date as a XXXX XXXX, and in the context of his unwillingness to provide readily accessible online banking records that would corroborate this evidence, I find this letter to be, on a balance of probabilities, not authentic and therefore deserving of zero weight. * The RPD gave various XXXX XXXX documents31 zero weight. Given the fact that these XXXX XXXX are at odds with the other inconsistencies identified already, I find that I agree with the RPD that the XXXX XXXX are not authentic. * The RPD gave a letter purported to be from XXXX32 zero weight because it contained several grammatical errors, including spelling Mr. XXXX name wrong. I find that I agree with the RPD on this matter and note that this letter does not overcome the inconsistencies already identified. * The RPD gave letters from the XXXX and XXXX XXXX XXXX33 no weight. Again, I agree with the RPD because these letters contained grammatical and spelling mistakes and their claims were at odds with the inconsistencies already identified. * The RPD gave an affidavit of XXXX XXXX34 zero weight, because it had no way to verify that XXXX XXXX worked at XXXX and there were no professional credentials attached to the affidavit. I agree with the RPD that this affidavit does not overcome the credibility concerns already discussed and that, on a balance of probabilities, the affidavit is not trustworthy. * The RPD gave a police FIR report35 zero weight, because the dispatch time it listed was inconsistent with the time and date that Mr. XXXX testified the police arrived following an alleged attack, and because it lists cognizable offences that are inconsistent with the way in which Mr. XXXX has alleged he was attacked. I agree with the RPD's assessment, and note that this document is also at odds with the other inconsistencies already discussed. As a result, it is, on a balance of probabilities, not authentic. * The RPD gave another police report,36 dealing with a threatening phone call, zero weight because it had no probative value. I disagree with this assessment, and find that the report deserved zero weight because it is not credible. I find that it is not credible for two reasons. First, the report lists not only Mr. XXXX current purported job as a XXXX, but his previous purported XXXX job as well. Such specific details are extremely relevant to a refugee claim, but would not be particularly relevant in a police report and it is therefore curious that they appear there. Second, this report characterizes the caller as completely unknown, whereas in his BOC he specifically claimed that "the unknown caller introduced himself as a soldier of the Sipah-i-Sahaba Pakistan (aka, SSP)."37 It makes no sense to me that Mr. XXXX would not provide this information to the police in his report, if that report were authentic. * The RPD gave a medical report38 zero weight because it was, on a balance of probabilities, fraudulent. I agree that this medical report does not overcome the other credibility issues already identified, and note that this medical report is closely related to the police documents that were found to contain irregularities. * The RPD gave affidavits of Mr. XXXX father39 zero weight because they appeared to indicate that he began his career in XXXX immediately after finishing school. This is inconsistent with Mr. XXXX testimony that he worked with his father for approximately 10 years before allegedly changing careers to XXXX. I agree and find that these affidavits do not overcome the other credibility concerns. On a balance of probabilties, they are fraudulent and deserving of zero weight. * The RPD gave documents on the XXXX XXXX XXXX in Pakistan, the plight of American Muslims, and the terrorism situation in Pakistan40 no weight. I agree, and note that, because Mr. XXXX was, on a balance of probabilities, never a XXXX, they are not probative of any issues in this case. Some RPD Findings Are Not Sustainable [28] The RPD's strong findings aside, some of what the RPD found is not sustainable because it is either not based on material issues in this case or it was not correct. I will briefly describe each below. * The RPD made a number of findings with regard to Mr. XXXX XXXX of XXXX XXXX before he allegedly became a XXXX. The alleged persecution Mr. XXXX suffered had nothing to do with his XXXX XXXX and I therefore find that, regardless of whether he is credible on this issue or not, findings on Mr. XXXX XXXX XXXX are not relevant to his refugee claim. * The RPD made findings with regard to Mr. XXXX lack of a formal XXXX education. While evidence of a formal education in XXXX would certainly support his claims that he worked in XXXX, I find there to be no evidence that the field of XXXX is limited only to those with a specific education in Pakistan. I am therefore setting this particular finding aside. * The RPD made findings with regard to the recency of the XXXX that Mr. XXXX submitted as evidence of his XXXX activities. I do not find this to be a meaningful finding. Mr. XXXX did not necessarily need to submit all his XXXX over all the years he claimed to have worked in XXXX. I have agreed with the RPD that Mr. XXXX has not been credible with regard to his career as a XXXX, but I do not find it meaningful that he did not submit XXXX dating back before 2015. Had Mr. XXXX produced only a few recent XXXX XXXX in evidence along with reliable salary evidence, his profile as a XXXX would have been adequately established. CONCLUSION [29] While I have outlined several instances in which I have disagreed with the RPD's specific findings and I have set some findings aside, the RPD was correct in its overall conclusion that Mr. XXXX lacks credibility on core issues relating to his profile as a XXXX and the alleged attacks he suffered as a result. [30] Pursuant to IRPA paragraph 111(1)(a), I confirm the decision of the RPD that Mr. XXXX is not a Convention refugee nor a person in need of protection. [31] This appeal is dismissed. (signed) "Colin Anderson" Colin Anderson November 19, 2019 Date 1 Exhibit P-2, Appellant's Record, Appellant's memorandum, p. 30, at paras 22-23. 2 Exhibit RPD-1, RPD Record, Exhibit 2, BOC narrative, p. 21, at para 3. 3Exhibit RPD-1, RPD Record, Reasons for decision, p. 5, at para 14. 4 Exhibit RPD-1, RPD Record, Reasons for decision, p.6, at para 19. 5 Exhibit RPD-1, RPD Record, Reasons for decision, p.6, at para 20. 6 Exhibit RPD-1, RPD Record, Reasons for decision, p.7, at paras 22-23. 7 Exhibit RPD-1, RPD Record, Reasons for decision, p.8, at paras 26-28. 8 Exhibit RPD-1, RPD Record, Reasons for decision, p.9, at paras 32-33. 9 Exhibit RPD-1, RPD Record, Reasons for decision, p.10, at para 35. 10 Exhibit RPD-1, RPD Record, Reasons for decision, p.10, at para 36.. 11 Exhibit RPD-1, RPD Record, Reasons for decision, p.11, at paras 38-40. 12 Exhibit RPD-1, RPD Record, Reasons for decision, p.12, at paras 42-46. 13 Exhibit RPD-1, RPD Record, Reasons for decision, p.13, at paras 50-51. 14 Exhibit RPD-1, RPD Record, Reasons for decision, pp.16-17, at paras 64-65. 15 Exhibit P-2, Appellant's Record, Appellant's memorandum, p. 24, at para 7. 16 Exhibit P-2, Appellant's Record, Appellant's memorandum, p. 25, at para 10. 17 Exhibit P-2, Appellant's Record, Appellant's memorandum, pp.25-27. 18 Exhibit P-2, Appellant's Record, Appellant's memorandum, p. 27, at paras 17-20. 19 Exhibit P-2, Appellant's Record, Appellant's written statement, p. 20. 20 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 21 Exhibit RPD-1,RPD Record, Exhibit 8, at p. 260. 22 Exhibit RPD-1, RPD Record, Exhibit 8, at p. 259. 23 Exhibit RPD-1, RPD Record, Exhibit 9, p. 268. 24 http://www.meezanbank.com accessed on November 1, 2019. 25 Exhibit P-3, RAD Post perfection submissions, page 3. 26 Magonza v. Canada (Citizenship and Immigration), 2019 FC 14 27 Osikoya v. Canada (Citizenship and Immigration), 2018 FC 720 28 Maldonado v Canada (Minister of Employment and Immigration), (1980) 2 F.C. 302 (C.A.) 29 Exhibit RPD-1,RPD Record, Exhibit 8, p. 249. 30 Exhibit RPD-1, RPD Record, Exhibit 9, p. 268. 31 Exhibit RPD-1, RPD Record, Exhibit 7, p. 214. 32 Exhibit RPD-1, RPD Record, Exhibit 7, p. 213. 33 Exhibit RPD-1, RPD Record, Exhibit 7, p. 217. 34 Exhibit RPD-1, RPD Record, Exhibit 7, p. 240. 35 Exhibit RPD-1, RPD Record, Exhsssibit 7, p. 231. 36 Exhibit RPD-1, RPD Record, Exhibit 7, p. 234. 37 Exhibit RPD-1, RPD Record, Exhibit 2, BOC narrative, p.22, at para 8. 38Exhibit RPD-1, RPD Record, Exhibit 7, p. 208. 39 Exhibit RPD-1, RPD Record, Exhibit 7, p. 237. 40 Exhibit RPD-1, RPD Record, Exhibit 6, p. 119. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-23600 RAD.25.02 (April 04, 2019) Disponible en français 14 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 (April 04, 2019) Disponible en français