MB9-12585

RAD File No. / No de dossier de la SAR : MB9-12585 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 Montréal, QC Appel instruit / entendu à Date of decision July 31, 2020 Date de la décision Panel Me Toni Jedid Tribunal Counsel for the person who is the subject of the appeal N/A 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 the appeal. XXXX XXXX XXXX (the appellant), a citizen of Senegal, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection for lack of credibility. [2] The appellant alleges that his former employer falsely accused him of stealing items from his home and raping his wife. He alleges that he was arrested, detained and abused by police officers. [3] The appellant submits that the allegations in his refugee protection claim are true despite the fact that he produced fraudulent documents in support of his application for a visitor visa for Canada. The RPD noted contradictions and found that the appellant was not credible. [4] The determinative issue is whether the RPD erred in its assessment of the appellant's credibility. [5] I find that the appellant is not credible and that the RPD's decision is correct. DETERMINATION [6] I dismiss the appeal. The RPD did not err in determining that the appellant is neither a Convention "refugee" nor a "person in need of protection." FACTUAL BACKGROUND [7] In his Basis of Claim Form (BOC Form), the appellant alleges that, in 2016, a childhood friend had asked him to go to Canada with him because he did not want to travel alone. This friend allegedly offered to pay for the visa and the airline tickets. The appellant then reportedly obtained a passport. The friend then apparently helped him complete the visa application by providing him with fraudulent documents. A visa was issued in XXXX 2016. The trip, scheduled for late XXXX 2016, did not take place because this friend allegedly refused to pay for the airline tickets in the end. The appellant alleges that he was XXXX XXXX for the president and chief executive officer (CEO) of XXXX XXXX XXXX in Senegal, and that he was accused of concealing rendezvous between the CEO's wife and her lover in XXXX 2017. He alleges that he was arrested by police officers, and detained and abused for five days at the police station at the CEO's request. He was allegedly released after his spouse's uncle paid a bribe. He left Senegal on XXXX XXXX XXXX 2017, and arrived in Canada the following day, thinking that he would stay for a few months and return once the situation had settled down. He alleges that in XXXX 2017, his wife called him because police officers had gone to his home, accusing him of raping the CEO's spouse, and they searched their house. He claimed refugee protection shortly thereafter. ANALYSIS [8] My role is to review all of the evidence and determine whether the RPD's decision is correct.1 In accordance with Huruglica and Rozas del Solar, I carried out my own analysis of all of the evidence, including the audio recording of the hearing, and I applied the correctness standard. [9] I would like to note that, due to the COVID-19 pandemic, the Refugee Appeal Division (RAD) sent a generic letter to the appellant requesting that he make submissions, if applicable. The RAD had not received any additional submissions on the date of the signing of this decision. Claim for protection in Canada [10] The appellant arrived in Canada on XXXX XXXX XXXX 2017. He stated at the hearing that his original intention was to spend three months in Canada and then return to Senegal to see his wife and daughter.2 When asked about the fact that his return ticket to Senegal was for XXXX XXXX XXXX 2017, the appellant stated that his uncle had told him to stay until things calmed down. He stated that he was unable to purchase an open ticket, and that if he had to return, his wife would send him money. He then changed his testimony and stated that he had planned to stay in Canada for one month.3 After the hearing, he submitted his airline booking for a return on XXXX XXXX XXXX 2017.4 When asked why he had changed his plans, the appellant responded that it was because of his spouse's call informing him that police officers had come looking for him in XXXX 2017. [11] The RPD was of the opinion that the appellant's explanations regarding his stay in Canada were contradictory and unclear. His credibility is undermined. When asked why he did not seek Canada's protection sooner, he responded that he did not plan on staying here and that he originally wanted to return to his country.5 As he alleges that he was severely beaten and detained for five days, that he would be sought after, and that he had paid a bribe to be released from custody and to get through the airport, the RPD rejected the appellant's explanations as being unreasonable. It found that his credibility was undermined because his behaviour was inconsistent with the allegations of fear. [12] In his appeal memorandum, and with regard to the application for protection in Canada, the appellant submits that he did not know what to do because he was paralyzed by fear. He did not know where to start or who to turn to for help. [13] Although the delay in making a claim for refugee protection is not in itself a determinative factor, in Heer,6 it was nevertheless held that a delay in claiming refugee status "is an important factor which the RPD is entitled to consider in weighing a claim for refugee status." The case law shows that a delay can point to a lack of subjective fear of persecution, the reason being that someone who was truly fearful would claim refugee status at the first opportunity. [14] I note that the initial immigration forms7 relating to the refugee protection claim were signed by the appellant a few days after he was informed by his spouse that police officers had allegedly raided her home in XXXX 2017. When asked whether the police officers had conducted an investigation on him since his escape from prison, the appellant replied in the negative. When asked why the police officers had gone looking for him a few months after he had escaped from prison, the appellant responded that he did not know and that perhaps his former employer had given up with respect to him, but that ultimately the threats were serious.8 I am of the opinion that the appellant's explanation justifying his delay in claiming protection in Canada was not satisfactory. He stated at the hearing that he had come to Canada to stay for three months until the situation settled down. He changed his story and stated that he had come to stay for one month. The airline booking submitted shows that the appellant was scheduled to stay for about 12 days. I am of the opinion that the contradictions in the appellant's responses are not persuasive to justify the delay in claiming refugee status. Furthermore, the appellant did not explain that he had made any effort to claim protection or at least inquire about the protection available to him since he claims that he was paralyzed by fear. I am of the opinion that the RPD did not err in its conclusion, which I consider to be correct. Appellant's occupations in Senegal [15] Considering the fraudulent documents presented in support of the appellant's visa application, including the marriage certificate and the false cover letter indicating that he was an XXXX XXXX, the RPD was of the opinion that the marriage certificate was fabricated and rejected the appellant's explanations in this regard. The submission of this document and the appellant's contradictory testimony undermined his credibility. [16] In his appeal memorandum, the appellant does not specifically challenge this conclusion. He acknowledges that his visa application was presented with fraudulent documents. He claims that he got married in 2009 and that his relationship with his spouse began to deteriorate in XXXX 2018. She has asked for a divorce and he is waiting on a document that would make his divorce official. [17] I note that when he was asked about his occupation in Senegal, the appellant responded that he worked at the XXXX XXXX XXXX and as XXXX XXXX in two different locations. He stated that the certificate of employment as an XXXX XXXX, provided in support of his visitor visa application, was fraudulent. He stated that his life had not been in danger when he made his visa application. When questioned about the marriage certificate9 issued in 2009 and provided as evidence in support of his refugee protection claim, and which indicates that he was an XXXX XXXX, the appellant stated that the friend whom he was supposed to accompany to Canada was the one who had prepared the documents.10 When asked whether the marriage certificate was real, he replied in the affirmative. When asked why the marriage certificate indicates that he was an XXXX XXXX, the appellant then stated that he had held this position when he was working at the familyXXXX XXXX XXXX. When asked why he did not report this occupation in his immigration form11 associated with his refugee protection claim, he responded [translation] "it was just for the family XXXX XXXX." He also stated that he should have mentioned it, but he did not think to do so.12 I note that in the same immigration form, the appellant indicated his other occupations as a XXXX, but did not mention the fact that he was an XXXX XXXX at the family XXXX XXXX. I am of the opinion that the appellant's explanations are not satisfactory because he kept adjusting his testimony to sidestep the contradictions brought to his attention. I am of the opinion that the RPD's conclusion is correct. Employment contracts [18] The appellant stated that he got married in XXXX 2009. When confronted with the fact that his employment contract dated 2015 and that one dated 2016 indicate that he is single, he responded that when he had signed the contract, he was not asked whether he was married or single, and that his sister had helped him get the position through an agency. [19] The RPD dismissed the appellant's explanation as unreasonable since he would have already been married for several years, and it found that his credibility was undermined because of this contradiction in the evidence. [20] In his appeal memorandum, the appellant states that he had signed the employment contracts without verifying the information therein. He submits that these documents are genuine. [21] In support of his refugee protection claim, the appellant presented two employment contracts which indicate that he was [translation] "single." When confronted with this contradiction, the appellant stated that when he was hired, he was not asked whether he was married or single. I consider the appellant's explanations to be unsatisfactory. These documents were filed by the appellant in support of his refugee protection claim and they also include erroneous information regarding his family status. The appellant did not mention to the RPD that these documents contained errors. Although this contradiction is not determinative, it nevertheless remains a factor to consider in assessing the appellant's credibility. In light of all these considerations, I am of the opinion that the RPD's conclusion is correct in that regard. Appellant's nervousness [22] In his appeal memorandum, the appellant submits that he was confused about certain dates. He submits that his testimony had likely been affected by his nervousness at the hearing. [23] I considered the challenges that a refugee protection claimant must overcome, including nervousness in having to answer the RPD's questions and the setting of the hearing room; however, after listening to the audio recording of the hearing, I could not perceive that the appellant had difficulty giving his testimony on account of his nervousness or emotions. I find that the appellant failed to establish, on a balance of probabilities, that the alleged nervousness affected his testimony. I am of the opinion that the appellant cannot blame his nervousness for the contradictions noted between his testimony and the evidence on the record. Evidence presented in support of the refugee protection claim [24] The RPD considered all of the evidence and concluded that it did not corroborate the appellant's allegations. The RPD found that the appellant had a general lack of credibility. [25] Although uncontested by the appellant, I consider that the RPD examined all of the evidence and rightly found that the appellant had a general lack of credibility. Its finding is correct. [26] In that regard, I am of the opinion that the RPD did not err in making a negative finding regarding the appellant's credibility based on the accumulation of contradictions that were not satisfactorily explained regarding elements central to his refugee protection claim. CONCLUSION [27] I dismiss the appeal and confirm the determination of the RPD that the appellant is neither a Convention "refugee" nor a "person in need of protection." (signed) Toni Jedid Toni Jedid July 31, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Audio recording of the hearing on November 6, 2018, 00:17:48. 3 Ibid., 00:44:11. 4 SPR-1, Refugee Protection Division (RPD) record, refugee protection claimant's list of documents, Exhibit P-7: airline booking. 5 Supra, endnote 2, 00:47:36. 6 Heer, Karnail Singh v. M.E.I. (F.C.A., No. A-474-87), Heald, Marceau, Lacombe, April 13, 1988. 7 SPR-1, RPD record, Consolidated List of Documents, Document 1, information package provided by the Canada Border Services Agency and/or Immigration, Refugees and Citizenship Canada, immigration forms. 8 Supra, endnote 2, 00:17:48. 9 Supra, endnote 4, Exhibit P-2: marriage certificate. 10 Supra, endnote 2, 00:08:19 and 00:23:16. 11 Supra, endnote 7, IMM 5669 form, Q. 8 "Personal history." 12 Supra, endnote 2, 00:30:32. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-12585 RAD.25.02 (January 2020) Disponible en français 5 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