MB9-13777

RAD File / Dossier de la SAR : MB9-13777 MB9-13778 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 15, 2020 Date de la décision Panel Maureen Carter-Whitney Tribunal Counsel for the persons who are the subject of the appeal Melissa Singer Conseil des personnes 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 (Principal Appellant) and XXXX XXXX (Associate Appellant) are citizens of Pakistan. They appealed a decision of the Refugee Protection Division (RPD), dated June 17, 2019, rejecting their claim for refugee protection. The Appellants argue that the RPD erred in assessing their claim and ask the Refugee Appeal Division (RAD) to allow their appeal and determine that they are Convention Refugees. DECISION [2] I dismiss the appeal, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. BACKGROUND [3] The Appellants allege that they fear persecution by the Panchayat (village council) in Pakistan because they are married but belong to different castes.1 [4] The RPD found that the Appellants' evidence was not credible due to significant omissions, inconsistencies, and contradictions between their testimony at the hearing, and their Basis of Claim (BOC) narrative and point of entry (POE) forms. [5] On appeal, the Appellants submit that the RPD erred in its credibility analysis by focusing on microscopic and immaterial discrepancies, and not considering their documentary evidence. The Appellants further submit that the RPD did not consider their claim under s. 97(1) of the IRPA. NEW EVIDENCE The affidavit tendered by the Appellants is inadmissible [6] On January 3, 2020, the Appellant tendered an affidavit from XXXX XXXX, a friend of the Principal Appellant.2 The Appellants submit that XXXX XXXX XXXX affidavit states that he was a witness to certain events that would confirm the Principal Appellant's evidence about alleged events in his village. The Appellants further submit that the affidavit constitutes new evidence, is relevant and probative, and could not have been provided at the time of the hearing. The Appellants' RPD hearing took place on May 14, 2019 and their claim was rejected in a decision dated June 17, 2019. The Appellants' appeal was perfected on July 26, 2019. XXXX XXXX XXXX affidavit is dated XXXX XXXX XXXX 2019. [7] In deciding whether to admit new evidence after the perfection of an appeal, Rule 29(4) of the RAD Rules requires me to first consider any relevant factors, including: the document's relevance and probative value; any new evidence the document brings to the appeal; and whether the Appellants, with reasonable effort, could have provided the document with their appeal record.3 If the evidence meets the Rule 29 application factors, I can only accept the evidence if it meets one or more of the statutory requirements in s. 110(4) of the IRPA: that it arose after the RPD decision; that it was not reasonably available at the time of the decision; or that the Appellants could not reasonably have been expected in the circumstances to bring it to the RPD before the decision.4 If so, I must decide if the evidence is new, credible, and relevant before I can accept it as new evidence.5 [8] Having considered each of the factors set out in Rule 29(4), I find the proposed evidence to be relevant and of probative value as it is from an alleged witness of events involving the Appellants' persecutors. However, while the Appellants state that they could not have provided this evidence at the time of the hearing, they offer no explanation or reason as to why they could not, with reasonable effort, have provided the affidavit with their appeal record. Having balanced their failure to meet this factor with the relevance and probative value of the proposed evidence, I have gone on to consider whether it meets one or more of the requirements in s. 110(4). I find that it does not. The evidence provided in the affidavit did not arise after the rejection of their claim by the RPD; it concerns events that are alleged to have occurred when the Appellants were still in Pakistan. The Appellants have made no submissions to address why XXXX XXXX XXXX affidavit evidence was not reasonably available at the time of the rejection, or why they could not reasonably have been expected in the circumstances to bring it to the RPD before the rejection. The affidavit evidence speaks to allegations about which the RPD confronted and questioned the Appellants during the hearing, and they have not provided reasons why they could not have brought this evidence to the RPD before its decision was issued. Given my finding that none of the statutory criteria in s. 110(4) are met, I find that XXXX XXXX XXXX affidavit evidence is inadmissible. [9] The Appellants did not request an oral hearing and having admitted no new evidence, I did not have jurisdiction to convene an oral hearing.6 DETERMINATIVE ISSUE [10] The determinative issue is credibility. ROLE OF THE RAD [11] My role is to look at all the evidence and decide if the RPD made the correct decision.7 I have carried out my own independent analysis of the evidence to determine whether the RPD erred. ANALYSIS [12] For the following reasons, I find that the RPD's credibility findings were correct, and the Appellants are neither Convention refugees nor persons in need of protection. The RPD was correct in finding that there were significant omissions, inconsistencies, and contradictions in the Appellants' evidence [13] The RPD found that there were three areas of the Appellants' evidence in which there were significant omissions, inconsistencies, and contradictions relating to central allegations that went to the heart of their claim. These related to their evidence concerning the cause of the Principal Appellant's father's death, the allegation that armed men came to his home while he was present, and the time that the Appellants spent in hiding in Pakistan. [14] Regarding the Principal Appellant's father's death, the Appellants submit that the RPD's finding was overzealous and unintelligible, and attached undue importance to the nature of the death. They also submit that the RPD erred in relying on discrepancies that were not material and in finding that the Principal Appellant's answers did not explain the contradictions, given that this was a threatening and difficult time for him. The Appellants argue that the hearing should not be transformed into a memory test. Events at the time of the Principal Appellant's parents' deaths [15] The Principal Appellant stated that he and the Associate Appellant secretly married in 2014;8 after he told his parents, who accepted the relationship in 2018, the Appellants planned to have a formal wedding in Pakistan.9 In his BOC narrative, the Principal Appellant described the events that occurred at that time as follows: when his father told his cousin (the Principal Appellant's ex-fiancee's father, XXXX XXXX) about the relationship, he was angry and threatened the Principal Appellant and his parents; after a week, his father passed away due to a heart attack; and two days later his mother, who was in ICU at the hospital, also passed away. The Principal Appellant then stated that the Associate Appellant stayed with her brother and avoided coming to his village out of fear they would both be killed because they married secretly.10 [16] At the hearing, the Principal Appellant testified that his father's death was suspicious, and that he had been murdered, and that it was not a natural death or a heart attack.11 The RPD asked him why he stated in his BOC that his father died of a heart attack and not that the death was suspicious, and possibly murder. In response, the Principal Appellant said that the hospital record said it was a heart attack, and he did not have proof that it was a murder. He stated that he was going through a nightmare at that time and mentioned as much as he could in the BOC.12 [17] The Principal Appellant also gave oral evidence that, after his mother died, some people came after him when he was alone at his family's home. He gave a detailed description of how four to five people who were armed and who knew where his bedroom was, came into the house, and he testified that he went to the roof and jumped off to escape them.13 When the RPD asked the Principal Appellant why he made no mention in his BOC form of four or five armed men coming to his home to search for him at night, he said he tried to summarize the story to make it smaller. The RPD replied that the BOC narrative was several pages long and did not mention this incident, and the Principal Appellant responded that he was sorry and added that he was going through a nightmare.14 [18] The RPD asked the Appellants why they had not made amendments or changes to their BOC forms and narrative prior to the RPD hearing to address the omissions, inconsistencies, and contradictions in their evidence. The Associate Appellant responded that they did modify their BOC narrative to include a summary at the end.15 [19] I find that there are serious omissions in the Appellants' BOC forms regarding the allegations that the Principal Appellant's father's death was suspicious, and that four to five men came after him at his family's home after his mother's death. These are omissions of important and crucial details of events that are central to the Appellants' claim and significant in relation to their fear of the alleged persecutors. I am not satisfied by the Principal Appellant's explanations concerning these omissions. Regardless of what the hospital record said and whether he had proof that his father's death was a murder, it is reasonable to expect that he would have mentioned his suspicion in his BOC narrative instead of, or at least along with, his statement that his father died of a heart attack. Similarly, I do not accept that the Principal Appellant would neglect to mention in his BOC narrative that four or five armed men came after him at his home simply to make his story shorter. [20] I have considered the Principal Appellant's evidence that he was going through a very difficult time dealing with the deaths of his parents and that it felt like a nightmare. While I acknowledge that the experience of trauma may have an adverse impact on one's ability to remember details, I find that, in this case, it does not explain the omission of such crucial details in a written statement intended to focus on the reasons why the Appellants feared their alleged persecutors and were seeking refugee protection. The BOC form specifically asks if a claimant or their family has ever been harmed, mistreated or threatened by any person or group and, if the answer is yes, goes on to ask what happened to them and their family. I further find that, even if they felt stressed while filling out the BOC forms, the Appellants, who were represented by legal counsel, had the opportunity to amend their BOC forms and narrative before the hearing, or at the beginning of the hearing when the RPD member asked if them to confirm that everything in their statements was true, complete and correct. [21] The Appellants cite Federal Court case law stating that the hearing should not be transformed into a memory test. I observe, however, that the Court warns against faulting a claimant for not testifying at the first instance to details which they could not have known would be critical.16 In the Appellants' case, I find that the omissions, inconsistencies, and contradictions in their evidence concerning the Principal Appellant's father's death and the men who came after him at his family's home are significant and critical to their allegations. Addresses in Pakistan after the Principal Appellant's parents' deaths [22] The Principal Appellant stated in the BOC that when he left Pakistan, he was hiding from his persecutors.17 In their Schedule A forms, completed at the POE, the Appellants were instructed to list all addresses where they had lived for the past ten years. The Principal Appellant provided an address in Rawalpindi, Pakistan for the period from XXXX 2017 to XXXX 2018,18 and the Associate Appellant gave an address in England where she was a student for the period from XXXX 2017 to XXXX 2018.19 Both Appellants further testified at the hearing that they hid at hotels, a friend's house, and shrines for about a month before leaving Pakistan.20 [23] The RPD asked the Appellants why they did not mention in their BOC that they had moved around to different locations while running from their persecutors or include addresses in their Schedule A forms to reflect these locations. The Principal Appellant responded that they were not aware that they should have mentioned these places, that they were not permanent addresses, and the shrines and hotels only had names and not addresses. He said he had no idea why he didn't mention running around and trying to hide in his story and apologized.21 The Associate Appellant answered by saying that they mentioned they were hiding but didn't know that they had to mention all of these places.22 When asked why they did not mention in their BOC form that people were looking for them, the Associate Appellant testified that they thought it was enough to write that they were hiding, and that this would explain the situation.23 [24] While the Principal Appellant did state in his BOC narrative that he was in hiding before leaving Pakistan, there is an inconsistency between the Appellants' oral evidence at the hearing that they stayed in a number of different locations in Pakistan for about one month before leaving in the XXXX of 2018, and the information they gave in their Schedule A forms. Regarding their explanation that they did not know they had to mention all of the places where they stayed and that they included permanent addresses, I note that the Schedule A form instructions state that all addresses where an individual has lived since their 18th birthday or the past 10 years, whichever is most recent, are to be listed. While it could be reasonable to interpret this as referring only to permanent addresses, I note that the Appellants both included in their Schedule A forms the information that they stayed at an apartment in Texas from XXXXtoXXXX XXXX 2018, and at a friend's place in New Jersey for a period of time during the month of XXXX 2018. I find that neither of these would be considered permanent addresses. With respect to the Principal Appellant's explanation that the shrines and hotels where they stayed only had names and not addresses, I observe that the Appellants noted in their Schedule A forms, with reference to the friend's place in New Jersey, that they could not remember the address. They have not explained why they could not have made a similar notation in relation to locations in Pakistan. [25] Therefore, I find that the Appellants did not provide a reasonable explanation for omitting from their Schedule A forms any reference to the addresses where they stayed in the last month they spent in Pakistan. The RPD correctly assessed the documentary evidence [26] The RPD stated that it considered the documents provided by the Appellants, including the witness statement of the Associate Appellant's brother. The RPD noted that the witness statement repeated the Appellants' allegations, which it had determined not to be credible. [27] The Appellants submit that, after making adverse credibility findings, the RPD did not consider all the extrinsic evidence they provided and did not attach any probative value to the witness statement. The Appellants also argue that the RPD failed to examine the objective evidence in the National Documentation Package (NDP) on Pakistan regarding honour killings. [28] The Appellants submitted the following documentary evidence in support of their claim: their marriage registration certificate;24 a witness statement by the Associate Appellant's brother who resides in the United Kingdom, along with his identification document;25 and documentary evidence about honour killing crimes.26 [29] In its decision, the RPD assessed the documentary evidence provided by the Appellants. Regarding their marriage certificate, the RPD noted that their marriage was not in question. The RPD member considered the witness statement from the Associate Appellant's brother and provided reasons why she found that it had no probative value, stating that the witness simply repeated the Appellants' allegations without indicating how he came to know the information put forward in his statement. I have independently assessed these documents and find, for the same reasons, that the RPD's findings are correct. The Appellants' marriage is not at issue, so their marriage certificate is not relevant. Also, given that the Associate Appellant's brother lives in the UK and there is no evidence that he was a firsthand witness to any of the alleged events, the repetition in his witness statement of the Appellants' claims has no probative value and I give it little weight. [30] In its decision, the RPD cited Federal Court jurisprudence stating that if the RPD dismisses evidence that merely repeats a version of the facts considered not to be credible, it is not an error or breach of the general rule that all evidence must be considered before ruling on the credibility of an applicant's account.27 I note, however, that in this case the RPD did, in fact, consider the personal documents the Appellants provided and made a determination on their relevance and probative value. Having assessed these documents, the RPD concluded that they were not capable of countering its negative credibility findings. [31] Regarding the Appellants' submission that the RPD did not consider the objective evidence in the NDP regarding honour killings, I find that it was not necessary in this case for the RPD to analyze the objective country condition evidence due to its finding that the Appellants' allegations were not credible. The Appellants' allegations are not credible [32] As noted above, the RPD focused on three central areas of omissions, inconsistencies, and contradictions in the Appellants' evidence and found, overall, that the Appellants' allegations were not credible. The RPD noted that there were numerous inconsistencies, omissions, and contradictions in the evidence but stated that, rather than identify all of these credibility concerns, it would highlight in its reasons the most important credibility issues with respect to the Appellants' allegations. [33] The Appellants submit that the RPD erred by not considering all the evidence because it did not address in its decision all the credibility issues it identified, and by making negative credibility findings because they did not mention all incidents in their BOC. They argue that the RPD should not have relied on POE notes in finding a lack of credibility, and further submit that they should be accorded the benefit of the doubt. [34] In its reasons, the RPD expressly stated that it considered all the Appellants' evidence, referring to their BOC forms and narrative, POE forms, oral evidence, and supporting evidence. I find that the fact that the RPD chose not to address in its decision all of the contradictions and inconsistencies that it identified in their evidence does not mean that the RPD did not consider all the evidence, noting that the RPD clearly stated that it would not address all credibility issues but would instead highlight the most significant issues. [35] When refugee claimants swear to the truth of their allegations, they are presumed to tell the truth.28 However, this presumption of truthfulness is challengeable and a claimant's lack of credibility may be sufficient to rebut the presumption where there are inconsistencies in their evidence,29 or where the decision-maker is not satisfied with the claimant's explanation for those inconsistencies.30 [36] Having independently analyzed the evidence, I draw significant negative inferences regarding the Appellants' credibility as a result of the omissions, inconsistencies, and contradictions in their evidence concerning the Principal Appellant's father's death and the men who came after him at his family's home, and I find that these credibility concerns go to the heart of the Appellants' claims. [37] I also draw a negative inference about the Appellants' credibility from the omission of addresses where they allegedly stayed in the last month before they left Pakistan. I note the Appellants' submission that the Federal Court warns against using POE notes in finding a lack of credibility. With respect to making credibility findings based on POE forms and notes, the jurisprudence does caution against relying on inconsistencies in testimony between POE notes signed at the airport on arrival in Canada and later testimony and documents as the sole basis for negative credibility findings, unless those inconsistencies are about crucial elements of the claim.31 In the Appellants' case, I find that this finding is not the sole basis for my negative credibility findings concerning their evidence, nor is it my most significant credibility concern with their evidence. [38] Regarding the Appellants' submission that they should be accorded the benefit of the doubt, I note that, while it is a general legal principle that the burden of proof lies on the person submitting a claim, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status refers to a "benefit of the doubt" doctrine that applies in a limited number of circumstances where a claimant's testimony is consistent with the documentary evidence but there is little extrinsic evidence to back up their story. The jurisprudence states that the benefit of the doubt should be given only when all available evidence has been obtained and checked, and when the decision-maker is satisfied as to the claimant's general credibility, which assumes that the claimant's statements are coherent and plausible.32 In the Appellants' case, I am not satisfied that their allegations are generally credible and, therefore, that these are not circumstances where they should be given the benefit of the doubt. [39] Therefore, I find that the presumption of truthfulness has been rebutted and find, on a balance of probabilities, that the Appellants' allegations are not credible. Given my credibility findings, the evidence does not support the Appellants' s. 97 claim [40] The Appellants submit that the RPD failed to examine their claim under s. 97 of the IRPA. [41] I find that the conclusion that the Appellants' evidence is not credible in relation to their Convention refugee claim under s. 96 of the IRPA also negates their claim under s. 97. CONCLUSION [42] I dismiss the appeal, pursuant to section 111(1)(a) of the IRPA, and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Maureen Carter-Whitney Maureen Carter-Whitney December 15, 2020 Date 1 Exhibit RPD-1, RPD Record, Exhibits 2.1 and 2.2, Basis of Claim (BOC) forms and narrative, pgs. 14-39. 2 Exhibit P-3, Application to file document not previously provided, January 3, 2020, pg. 3. 3 RAD Rule 29(4), Refugee Appeal Division Rules (SOR/2012-257). 4 Subsection 110(4) of the IRPA. 5 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, 2007 FCA 385. 6 Subsection 110(6), IRPA, S.C.2001, c.27. 7 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 8 Exhibit RPD-1, RPD Record, Exhibit 2.1, BOC narrative, pg. 24. 9 RPD audio recording of the hearing, May 14, 2019, at 15:55, 30:13; Exhibit RPD-1, RPD Record, Exhibit 2.1, BOC narrative, pgs. 24-25. 10 Exhibit RPD-1, RPD Record, Exhibit 2.1, BOC narrative, pg. 25. 11 RPD audio recording of the hearing, May 14, 2019, at 19:58, 22:50, 1:30:30. 12 RPD audio recording of the hearing, May 14, 2019, at 1:31:06. 13 RPD audio recording of the hearing, May 14, 2019, at 38:17, 40:25. 14 RPD audio recording of the hearing, May 14, 2019, at 1:21:58. 15 RPD audio recording of the hearing, May 14, 2019, at 1:26:53. 16 Ali v. Canada (Citizenship and Immigration), 2018 FC 688 (CanLII), para. 23. 17 Exhibit RPD-1, RPD Record, Exhibit 2.1, BOC narrative, pg. 27. 18 Exhibit RPD-1, RPD Record, Exhibit 1, pg. 54. 19 Exhibit RPD-1, RPD Record, Exhibit 1, pg. 59. 20 RPD audio recording of the hearing, May 14, 2019, at 48:18, 1:09:51. 21 RPD audio recording of the hearing, May 14, 2019, at 1:23:38. 22 RPD audio recording of the hearing, May 14, 2019, at 1:25:00. 23 RPD audio recording of the hearing, May 14, 2019, at 1:27:23 24 Exhibit RPD-1, RPD Record, Exhibit 4, pg. 109. 25 Exhibit RPD-1, RPD Record, Exhibit 4, pg. 110 and Exhibit 5, pg. 105. 26 Exhibit RPD-1, RPD Record, Exhibit 4, pgs. 111-114. 27 Nijjer v. Canada (Citizenship and Immigration), 2009 FC 1259, para. 26. 28 Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (FCA), para. 5. 29 Su v. Canada (Citizenship and Immigration), 2015 FC 666, para. 11, citing Adu v Canada (Minister of Employment and Immigration), [1995] FCJ No. 114 (FCA). 30 Lin v. Canada (Citizenship and Immigration), 2010 FC 183, para. 19. 31 Chikadze v. Canada (Citizenship and Immigration), 2020 FC 306 (CanLII), para. 21, citing Guven v. Canada (Citizenship and Immigration), 2018 FC 38 (CanLII), paras. 39-42. 32 Canada (Public Safety and Emergency Preparedness) v. Gebrewold, 2018 FC 374 (CanLII), para. 28, citing Noga v. Canada (Minister of Citizenship and Immigration), 2003 FCT 454, paras. 10-12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-13777 MB9-13778 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