TB9-30535

RAD File / Dossier de la SAR: TB9-30535 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 December 11, 2020 Date de la décision Panel J. Pollock Tribunal Counsel for the person who is the subject of the appeal Benjamin Allison 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] These are my reasons for dismissing the appeal of XXXX XXXX XXXX (the Appellant) and confirming the Refugee Protection Division's (RPD) decision that he is neither a Convention refugee nor a person in need of protection. [2] The Appellant is a citizen of Jamaica from St. Elizabeth parish. He alleges that he operated a XXXX store in Jamaica that was robbed on four occasions: once in 2010, once in 2012, once in 2015, and once in 2017. He alleges that he made a report to the police in XXXX 2018. As a result, he alleges that members of the Clansman Gang believe that he is a police informant. He alleges receiving two anonymous telephone calls threatening his life. [3] The RPD denied the Appellant's claim, finding him lacking in credibility. The RPD also found that his claim lacks a nexus to a Convention ground and that he faces a generalized risk upon return to Jamaica. The Appellant argues that the RPD decision is incorrect. The Minister intervened in the Appellant's claim at the RPD on the issues of credibility and program integrity.1 The Minister has not intervened in the appeal before me. The Refugee Appeal Division (RAD) identified new credibility issues on appeal and invited the Appellant to provide submissions. He has provided new evidence on appeal, which I have not admitted. [4] Having independently assessed all the evidence, I find that the RPD was correct in the majority of its negative credibility findings. In consideration of the new credibility issues I have identified on appeal, I find that the Appellant's claim fails on the issue of credibility under both section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).2 Credibility is the determinative issue on appeal. As such, I have not gone on to consider the RPD's findings on nexus and generalized risk. DECISION [5] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND The Appellant's allegations [6] The Appellant alleges that he began operating a XXXX store in Jamaica in 2006. He employed a total of two people. In XXXX 2010, he alleges that his store was robbed by three young men who he recognized as members of the Clansmen gang. He alleges that these men threatened to kill him if he went to the police. In his Basis of Claim (BOC) form, he alleges three additional robberies: once in XXXX 2012; once in XXXX 2015, and once in XXXX 2017.3 He alleges that he called the police in XXXX 2018.4 Thereafter, he alleges receiving two anonymous calls threatening his life for being an informer.5 One of these calls allegedly took place after he relocated from St. Elizabeth parish to XXXX. The Appellant's entry to Canada [7] The Appellant arrived in Canada on XXXX XXXX XXXX 2018. At the Port of Entry (POE), the Appellant was interviewed by a Canadian Border Services Agency (CBSA) officer. The Appellant insisted that he was a genuine visitor and would return to Jamaica after visiting a friend in Canada for sixteen days.6 At no point during this POE interview did the Appellant allege any fear of returning to Jamaica. The CBSA officer conducted a search of the National Criminal Information Centre (NCIC) which revealed that the Appellant had an extensive criminal history in the US.7 The Appellant was found inadmissible to Canada. He agreed to withdraw his application to enter Canada and voluntarily return to Jamaica by signing an "Allowed to leave Canada" (IMM-1282) form.8 The Appellant returned to meet with CBSA on XXXX XXXX XXXX 2018 and once again failed to disclose his fear of returning to Jamaica.9 The Appellant then failed to report for his CBSA examination on XXXX XXXX XXXX 2018. Instead, he initiated an in-land refugee claim three months later, in XXXX 2018. The Minister's intervention on credibility and program integrity grounds [8] On August 24, 2018, the Minister intervened in the Appellant's claim on credibility and program integrity grounds.10 The Minister confirmed in writing that they would not be intervening on the issue of Article 1F(b) exclusion for serious criminality.11 [9] The Minister argued that the Appellant's claim is not credible or well-founded. The Minister raised the following concerns in the Appellant's claim before the RPD: * He denied having a criminal history on his visitor visa application; * He failed to make a refugee claim at the POE, opting instead to withdraw his application to enter Canada and voluntarily return to Jamaica; * He failed to disclose his immigration history, criminal history, and US deportation; * He failed to disclose his aliases on his "Generic Application Form" (IMM 0008); and * He failed to disclose that he was refused admission to Canada in XXXX 2018, withdrew his application to enter Canada, and agreed to leave but failed to do so.12 The RPD hearing and the RPD decision [10] The Appellant's RPD hearing took place over two sittings, held on July 15, 2019 and October 7, 2019. Credibility, nexus, and generalized risk were the determinative issues. In written reasons rejecting the claim on October 22, 2017, the RPD made the following findings: * Findings related to the Appellant's credibility: o He failed to disclose his extensive criminal history in the US when he applied twice for a Canadian visitor visa in 2013 and 2015; o He failed to disclose his inadmissibility to Canada in his refugee forms; o He delayed in reporting the XXXX 2017 robbery incident to the Jamaican police; o He failed to make reasonable efforts to obtain a police report; o His supportive documentary evidence is insufficient to establish his allegations; * Nexus finding: There is no nexus to a Convention ground because he is a victim of alleged extortion and robbery and his allegations are linked to crime and criminality; and * Generalized risk finding: There is insufficient credible evidence to establish the risk is particularized and is different from the risk faced by the general population in Jamaica.13 THE RAD'S IDENTIFICATION OF NEW CREDIBILITY ISSUES [11] In conducting my independent assessment of the Record, I have identified inconsistencies in evidence which were not relied upon by the RPD in making its negative credibility finding. In Ching, the Federal Court was clear that it is within the RAD's jurisdiction to propose a new issue as long as the parties are given an opportunity to provide submissions.14 On October 22, 2020, the RAD provided the following notice to the Appellant: The RAD wishes to raise new credibility issues in the Appellant's appeal. The Appellant alleged that he was extorted on four occasions at his store: once in 2010, once in 2012, once in 2015, and once in 2017. The RAD is raising the following inconsistencies: * First alleged extortion in 2010 o At the first hearing, the Appellant alleged there were three men who extorted him with guns. When they arrived, they took him into an office, demanded he pay them money, and the Appellant provided them with money from his pocket. o At the second hearing, the Appellant alleged that there were two men, not three. He alleged that after the men demanded money, he opened a drawer and gave them the money that was located inside. * Second alleged extortion in 2012 o At the first hearing, the Appellant alleged that the armed men tied up his two workers and placed them in the bathroom. The Appellant was placed on the floor. The armed men took cash from the cash register. o At the second hearing, the Appellant alleged that his two employees were standing outside during the extortion attempt. The armed men threatened him not to report the incident to the police. * Third alleged extortion in 2015 o At the first hearing, the Appellant alleged that the men did not get anything during their visit. The armed men slashed all four of the Appellant's car tires. o At the second hearing, the Appellant alleged that an armed man entered the store and demanded that everyone lay on the ground, pulled out a gun, and declared "this is a robbery." Two other armed men came and wrapped the Appellant in duct tape. The armed men took electrical equipment before leaving. The RAD is also raising the omission of the above details about the extortion visits from the BOC. The RAD is raising the following inconsistencies with respect to the Appellant's report to the police: In his BOC, the Appellant alleged that he reported to the Jamaican police on XXXX XXXX XXXX 2018 by calling them. In testimony, the Appellant alleged that he personally visited the police office where he made his report in a separate room of detectives who took his information. He also alleged in testimony that the police personally visited his store to check the scene. The RAD is raising the following inconsistencies with respect to the Appellant's explanation for his failure to claim protection when he arrived in Canada: At the first RPD hearing, the Appellant explained that he failed to make his refugee claim when he signed the "Allowed to Leave Canada" form (IMM-1282) because he was afraid the immigration officer would not accept him. At the second hearing, the Appellant explained that he did not make a claim because he was never asked about making a refugee claim. The RAD seeks submissions on these credibility concerns to assist in determining whether the Appellant has credibly established his allegations. These submissions are due on or before November 6, 2020.15 [12] The notice was sent out on October 22, 2020 with a fourteen-day deadline, due on November 6, 2020. No response was received by the deadline. On November 9, 2020, Counsel made a late request for a six-week extension in order to "obtain documents from the Jamaican police that will corroborate his refugee narrative."16 Counsel identified the COVID-19 pandemic in Jamaica as the reason for the delay. On November 13, 2020, the RAD wrote to Counsel requesting further detail and asking how COVID-19 protocols in Jamaica will delay the Appellant's response by six weeks.17 A deadline was set for November 20, 2020. Once again, no response was received by the deadline. [13] On November 26, 2020, Counsel provided a late one-page response, indicating that a police report from Jamaica has just been received.18 Attached to this cover letter is: a copy of the RAD's correspondence; an October 16, 2020 newspaper article about the COVID-19 impact on Jamaican police; an incomplete November 19, 2020 Government of Canada travel advisory for Jamaica; and a XXXX XXXX XXXX 2020 letter from the Jamaican police. No submissions were provided about the admissibility of this new evidence. No submissions were provided about the new credibility issues identified on appeal. The RAD registry contacted Counsel by telephone and confirmed that the only submissions provided are those on Record, from November 9 and November 26, 2020. NEW EVIDENCE IS INADMISSIBLE [14] The Appellant's claim was rejected on October 22, 2019. He did not provide any new evidence in his January 2020 Appeal Record.19 After he was invited to respond to new credibility issues identified on appeal, the Appellant provided the following proposed new evidence: a. A XXXX XXXX XXXX 2020 letter from the Jamaican police; b. An October 16, 2020 newspaper article about the impact of COVID-19 on the Jamaican police force; and c. An incomplete November 19, 2020 Government of Canada travel advisory for Jamaica.20 [15] According to subsection 110(4) of the IRPA,21 I can only accept evidence that: i. Arose after the RPD decision; or ii. Was not reasonably available at the time of the decision; or iii. Could not reasonably have been expected in the circumstances to have been presented to the RPD before the decision. [16] If the evidence meets one or more of these requirements, I must decide if it is new, credible, and relevant before I can accept it.22 [17] Counsel does not advance any argument with respect to the admissibility of the proposed new evidence, as required by Rule 3(3)(g)(iii).23 The RAD Rules are clear that full and detailed submissions must set out how any proposed new evidence meets the admissibility requirements and how that evidence relates to the Appellant.24 It is not the RAD's role to supplement the weaknesses of Counsel's arguments.25 [18] I find that the evidence in item (a) is inadmissible under subsection 110(4) and the evidence in items (b) and (c) is inadmissible under Singh as it is not relevant. Having admitted no new evidence, I have no jurisdiction to hold an oral hearing.26 The evidence in item (a) is inadmissible under subsection 110(4) [19] The police letter in item (a) is dated XXXX XXXX XXXX 2020.27 The contents of the letter speak to events from XXXX 2017 and XXXX 2018, well before the October 2019 RPD decision. It does not contain any new information which post-dates the RPD's negative decision. [20] A document's newness cannot be tested solely by the date of its creation; what is important is the event sought to be proven by the evidence.28 Old evidence remains old evidence, even if it is in a new document with a recent date.29 Item (a) seeks to establish that a police report was made in XXXX 2018 based on the Appellant's allegation that he was robbed in XXXX 2017. These events occurred well before the rejection of the claim. The content of the evidence in item (a) was in existence and reasonably available at the time of the RPD decision. I find that this evidence did not arise after the Appellant's claim was rejected by the RPD. [21] I further find that the Appellant could reasonably have been expected to present item (a) before the RPD decision. It is clear from the RPD hearings on July 15, 2019 and October 7, 2019 that the Appellant's efforts to obtain evidence from the police corroborating his allegations was at issue. When asked at the July hearing, the Appellant explained that he did not make any effort to obtain a police report from Jamaica after he arrived in Canada, admitting "I should have, but I didn't."30 The Appellant had over three months from his first RPD hearing in July 2019, when these issues were first canvassed, until his second hearing on October 7, 2019. He then had nearly one additional month from his second RPD hearing until the RPD rendered its decision on October 22, 2019. The RPD did not render its decision shortly after the hearing. The Appellant has not indicated whether any efforts were made after his RPD hearings and before the RPD decision to obtain this evidence. [22] In his late application for an extension of time, Counsel submits that the police report "corroborate[s] [the Appellant's] refugee narrative."31 However, the new evidence provisions are not an Appellant's opportunity to complete a deficient record submitted to the RPD.32 It was open to the Appellant to provide a letter from the police in his RPD disclosure or in post-hearing evidence to the RPD. Claimants must put their best foot forward before the RPD.33 [23] Alongside the evidence in item (a), Counsel has provided documents in items (b) and (c) which discuss the impact of COVID-19 in Jamaica. However, I do not find that the prevalence of COVID-19 is relevant to the delay in obtaining the police letter. The COVID-19 pandemic in both Canada and Jamaica began after the Appellant's claim was heard and decided by the RPD in October 2019 and before he perfected his RAD appeal in January 2020. As such, COVID-19 does not explain his failure to obtain the police letter prior to the RPD's rejection of his claim. [24] The Appellant opted to provide item (a) after the RAD invited submissions on new credibility issues that arise from the RPD Record. However, all proposed new evidence must meet the statutory admissibility requirements in subsection 110(4). This includes evidence filed in response to new issues identified by the RAD. The Appellant and his Counsel have failed to provide any submissions on the admissibility of this new evidence. They have failed to establish that the evidence in item (a): arose after the RPD decision; or was not reasonably available at the time of the decision; or could not reasonably have been expected in the circumstances to have been presented to the RPD before the decision. Item (a) is inadmissible under subsection 110(4). The evidence in items (b) and (c) is inadmissible under Singh [25] The October 2020 report on COVID-19 and its impact on the Jamaican police force in item (b) arose after the rejection of the claim and therefore satisfies subsection 110(4). The November 19, 2020 Government of Canada travel advisory for Jamaica in item (c) also arose after the rejection of the claim and therefore satisfies subsection 110(4). I note that only three of six pages of this report have been provided. New evidence must meet the admissibility requirements outlined in Singh. The Appellant and his Counsel bear the burden of establishing the admissibility of proposed new evidence. No submissions on this issue have been provided. It is the Appellants' job to explain the relevance of the evidence adduced. This was not done in this case. I do not find the evidence in items (b) and (c) meets the jurisprudential requirements in Singh as I do not find it to be relevant to the Appellant's claim. [26] Evidence is relevant where it is capable of proving or disproving a fact that is relevant to the Appellant's claim for protection.34 The report on COVID-19 establishes that 230 members of the Jamaican police force have tested positive.35 A delay in COVID-19 testing has placed police force personnel, their family members, and their colleagues at increased risk. The evidence also establishes that the Canadian government continues to advise against all non-essential travel outside of Canada, including to Jamaica.36 However, neither piece of evidence is capable of proving or disproving a fact that is relevant to the Appellant's claim for protection. Counsel has not advanced any argument about the impact of COVID-19 on the Appellant's return to Jamaica. Instead, Counsel has submitted items (a) and (c) to explain the late submission of the evidence in item (a). However, I have found that item (a) is inadmissible under subsection 110(4). I further find that the evidence in items (b) and (c) is inadmissible under Singh. ANALYSIS [27] Counsel argues that the RPD decision "is to be reviewed on a standard of reasonableness."37 I disagree. The RAD's role is to decide if the RPD made the correct decision.38 I have conducted an independent assessment of the evidence to determine whether, as submitted by the Appellant, the RPD erred.39 The responsibility rests with the Appellant to raise any potential grounds of appeal that arise from the RPD decision.40 Many of the RPD's findings are uncontested. However, it is not the RAD's role to come up with new ideas to assist the Appellant in succeeding with his appeal.41 [28] The Appellant argues that the RPD erred, as follows: * In making credibility findings based on his failure to disclose his criminal record in his immigration forms when his criminal history was included in his "Schedule A" form; * In finding that he lacks a nexus to a Convention ground despite his testimony that he was targeted as a police informer; and * In concluding that he faces a generalized risk.42 [29] As explained above at paragraphs 11-13 of these Reasons, I have identified the following new credibility concerns on appeal: * Material inconsistencies and omissions about the alleged extortion incidents; and * Material inconsistencies regarding the alleged report to the police. [30] In assessing whether there are valid reasons to doubt the Appellant's credibility, I am mindful of the difficulties in establishing a claim. I have also considered the Appellant's high school education.43 The Appellant completed his BOC in English and testified before the RPD in English. No medical evidence was provided regarding any cognitive and/or memory impairments. In my view, credibility is the determinative issue. I have identified one error in the RPD's negative inference based on the Appellant's delayed reporting to the police. However, I have upheld the remainder of the RPD's credibility findings. After independently assessing all the evidence, including the RPD hearing audio-recording, I find that material credibility concerns were not reasonably explained, and that the presumption of truthfulness is rebutted. Even assuming, without finding, that the RPD erred in its assessment of nexus and generalized risk, I find that the Appellant's lack of credibility is determinative of the claim. In my view, the claim fails on credibility under both section 96 and subsection 97(1) of the IRPA. Failure to disclose US criminal history undermines credibility [31] The Appellant's US criminal record includes eleven charges, two conditional discharges, and three convictions based on his guilty pleas.44 He failed to disclose this criminal history in his applications for a Canadian visitor visa in 2013 and 2015.45 He explained that he did not disclose his criminality because "it had been so long" and his US lawyer advised him that after ten years his US criminal record would be clean.46 The RPD did not accept this explanation. In the RPD's view, the question posed on the visitor visa application is clear and asks whether the Appellant had ever committed, been arrested for, been charged with or convicted of any criminal offences in any country.47 With reference to the duty of candor, the RPD drew a negative credibility inference.48 Counsel argues that the RPD finding is in error because the Appellant disclosed his criminal history on his "Schedule A" form.49 I disagree. While in no way determinative on its own of the Appellant's credibility, I do not find that the RPD erred. [32] Having independently assessed the evidence, I agree with the RPD that the Appellant withheld his US criminal history when he applied twice for a Canadian visa in 2013 and 2015. I also agree with the RPD that the Appellant's explanation is not reasonable. Whether or not he believed his record was clean after ten years, the Appellant was under an obligation to complete his application honestly and disclose that he has committed, been arrested for, been charged with, and been convicted of criminal offences in the US. Contrary to Counsel's argument, the RPD's concern is not that the Appellant provided inconsistent information about his criminal history as between his refugee forms. Rather, the RPD's finding is based on the Appellant's failure to disclose his criminality on his visitor visa applications. [33] I am mindful that a refugee Claimant may need to lie to obtain a visa and escape in search of safety.50 However, the Appellant did not omit his entire criminal history on his visa applications in order to escape and claim protection. Rather, he misrepresented his criminal history, obtained two separate visas, and travelled to Canada on two prior occasions before returning to Jamaica.51 It was only on the Appellant's third trip to Canada in 2018 that he decided to initiate his in-land claim. The Appellant has not demonstrated that the misrepresentation of his criminal history was for the purposes of obtaining a visa in search of safety. In my view, his dishonesty on his visitor visa application is relevant to the assessment of his credibility. While not determinative, I find that the RPD was correct in finding that the Appellant's dishonesty on his visa application undermines his credibility. The RPD's unchallenged credibility findings [34] Many of the RPD's credibility findings are unchallenged on appeal. Counsel has not identified any error in these RPD findings, and I find that the majority are correct. The RPD's finding about the delay in reporting to the police is incorrect [35] The Appellant alleges that he made a police report in XXXX 2018. This is the first and only police report he alleges making after nearly eight years. When asked why he delayed in making his report, the Appellant explained that this is when he finally made up his mind.52 When asked why he made up his mind at this point, the Appellant explained that "my cup was overflowing" and that he tried to see if they would leave him alone but he realized this is not happening.53 The RPD did not accept this explanation as reasonable.54 The Appellant did not explain what preoccupied him and why it took so long to report the robbery. In the RPD's view, it was not reasonable for the Appellant to delay in making a report given the need to preserve the crime scene in order for the police to effectively investigate.55 Counsel has not identified any error in this RPD finding. However, in my independent assessment, I find that the RPD erred. [36] In his BOC and earlier in the hearing the Appellant alleges that he was warned that his life would be in danger if he filed a police report. The RPD failed to consider this explanation. In my view, this was an error. I set aside and do not rely on this RPD finding. Failure to disclose refused entry on refugee forms undermines credibility [37] On his immigration forms, the Appellant failed to disclose that he was refused entry to Canada in XXXX 2018. On his "Schedule A" form at question question 6(e), the Appellant was asked whether he had been refused admission to, or ordered to leave, Canada or any other country. He answered "No."56 This is incorrect. When the Appellant landed in Canada on XXXX XXXX XXXX 2018, he was informed that he was inadmissible and was denied entry.57 The Appellant withdrew his application to enter Canada and agreed to voluntarily return to Jamaica by signing an "Allowed to leave Canada" (IMM-1282) form.58 The Appellant failed to mention this in any of the documents in his in-land refugee claim.59 The Appellant explained that he omitted this information because he was under "a lot of mental pressure."60 The RPD did not accept this explanation. The RPD relied on the duty of candor and drew a negative credibility inference.61 Counsel has not identified any error in this RPD finding, and I find none in my independent assessment. While not determinative, I do not find that the RPD erred in its credibility finding. [38] I agree with the RPD that the Appellant's explanation for his failure to disclose his denial of entry is not reasonable. While the Appellant may have been under mental pressure upon arrival to Canada, the misrepresentation took place on forms completed in-land with the assistance of Counsel. After filing the incorrect information in his forms, the Appellant did not seek to correct the record before his refugee hearing. It was only after the Minister intervened in the claim that the POE admissibility concerns were on Record.62 While not determinative, I find that the Appellant's failure to disclose his refused entry undermines his credibility. Failure to make reasonable efforts to obtain police report undermines credibility [39] The Appellant testified that he did not make any effort to obtain a police report from Jamaica after he arrived in Canada, admitting "I should have, but I didn't."63 On this basis, the RPD drew a negative credibility inference.64 Counsel has not identified any error in this RPD finding, and I find none in my independent assessment. [40] It is open to the RPD to draw a negative inference where a Claimant has not presented documents that could reasonably be expected and there is no satisfactory explanation for their absence. Having already drawn adverse inferences against the Appellant's credibility, the RPD was entitled to consider his failure to make effort to provide documentation without a reasonable explanation.65 The RPD sought and rejected the Appellant's explanation. I find that the RPD did not err in arriving at its conclusion. The Appellant speaks and understands English and he was represented by Counsel at the RPD, the same Counsel at the RAD. The BOC and RPD Rules indicate that Claimants are responsible for obtaining and providing any documents that may support their claim.66 The Appellant made effort in Canada to obtain proof from the Jamaican police that he does not have a criminal record in Jamaica but he failed to make the same effort to corroborate the alleged reports he made about the robberies at the core of his claim.67 It was open to the RPD to find that the Appellant's lack of effort to obtain a police report undermines his credibility. I find that the RPD did not err. [41] After perfecting his appeal, the Appellant provided a police report. As previously set out in my Reasons at paragraphs 19-24, this proposed new evidence is inadmissible on appeal. As such, I have not considered it when examining the merits of the Appellant's claim. Supportive documentary evidence is insufficient to establish the claim [42] The RPD also examined the Appellant's supporting evidence but found it insufficient to establish the Appellant's claim.68 Counsel has not identified any error in this RPD finding, and I find none in my independent assessment. [43] The Appellant provided letters of support from the XXXX XXXX Association, Justices of the Peace in Jamaica, and a Detective from the Jamaica Constabulary Force.69 In my independent assessment, I agree with the RPD that these letters reference the Appellant's character and volunteer services. They do not corroborate his allegations. The Appellant also provided a police clearance certificate from Jamaica and a Canadian police clearance certificate.70 In my independent assessment, I agree with the RPD that these documents show that the Appellant has no criminal record in Jamaica and Canada. They do not corroborate his allegations. Considering the low probative value of this evidence, I find that the RPD was correct to assign it little weight. Material inconsistencies in the Appellant's testimony before the RPD undermine credibility [44] As explained above, I have found that the RPD did not err in the majority of its negative credibility findings. In conducting my independent assessment of the Record, I have identified further material inconsistencies in evidence which go to the heart of the Appellant's claim. In my view, when the RPD's correct credibility findings are considered alongside my independent credibility findings identified on appeal, the Appellant's claim fails on credibility as the determinative issue under both section 96 and subsection 97(1). [45] Despite being given the opportunity to provide written submissions in response to my identification of new credibility issues on appeal, the Appellant and his Counsel failed to offer any explanations in their two sets of correspondence.71 Material inconsistencies and omissions regarding the alleged extortion incidents [46] The Appellant's testimony about the alleged robbery incidents differed significantly from his first RPD hearing in XXXX 2019 and his hearing resumption in XXXX 2019. Inconsistencies in the first alleged extortion in 2010 [47] At the first hearing, the Appellant alleged there were three men who extorted him with guns.72 When they arrived, they took him into an office, demanded he pay them money, and the Appellant provided them with money from his pocket.73 At the second hearing, the Appellant alleged that there were two men, not three.74 This conflicts with his earlier testimony as well as his own BOC.75 He also alleged that the men took money from a drawer, not his pocket.76 The Appellant's evidence is inconsistent about the number of men who robbed him as well as where he located the funds to comply with their demands. While I appreciate the difficulty of recalling events from the past, I note that the inconsistencies relate to a central and material event - the first alleged robbery. It is reasonable to expect the Appellant to recall this information in a consistent fashion as between his own BOC and the two sittings of his refugee claim hearing. He has offered no explanation for these discrepancies on appeal. Having assessed the entire Record, I find none in my independent assessment. Material inconsistencies in the second alleged extortion in 2012 Second alleged extortion in 2012 Testimony at the 1st hearing Testimony at the 2nd Hearing APPELLANT: They came back in '12. And it was four of them this time. RPD: M'hm? APPELLANT: Out of the two, one of them came the first time, but one of them was a new face. RPD: M'hm? APPELLANT: And I had two workers, and they tied both of them up in the bathroom and they put me on the floor. And there's a little thing where I put my money at. They started to put me on the floor. And there's a little cash register where I keep my little cash. They took it. RPD: M'hm? APPELLANT: And I said, "Okay."77 APPELLANT: The next one was in '012. COUNSEL: Okay. What happened? APPELLANT: They came to the store. It was one afternoon when I was closing. And as soon as I was about to shut it down, they both stopped to the store and while I was about to shut, one of them took and slide in and said, "Pull the shutter down." And I said, "Why?" Because they need whatever money I made for the day. And as usually, they always carry a gun. COUNSEL: You always carry a gun? APPELLANT: They always carry a gun. COUNSEL: Oh. Okay. They always carry a gun? APPELLANT: Yeah. COUNSEL: Were you armed yourself? APPELLANT: Yeah. COUNSEL: Did you have a gun? APPELLANT: No. COUNSEL: Okay. APPELLANT: So these two guys that worked with me, they were standing outside, and one of them stood outside with the two guys and told them, "Don't." And they take what I've got and they say, you know, if I report it to the police, you know, I know what time is it.78 [48] At the first hearing, the Appellant alleged that the armed men tied up his two workers and placed them in the bathroom. The Appellant alleges that he was placed on the floor. The armed men allegedly took cash from the cash register. At the second hearing, the Appellant alleged that his two employees were standing outside during the extortion attempt. The armed men threatened him not to report the incident to the police. These two versions of events are entirely inconsistent regarding the location of the employees and whether they were outside the business or tied up and placed in the bathroom. The Appellant is clear that he had two employees.79 It is unclear how these same two employees can be in two different places at once during the alleged robbery. While I appreciate the difficulty of recalling events from the past, I note that the inconsistencies relate to a central event. It is reasonable to expect the Appellant would be able to recall this information in a consistent fashion at the two sittings of his refugee claim hearing. He has offered no explanation for these discrepancies on appeal. Having assessed the entire Record, I find none in my independent assessment. Material inconsistencies in the third alleged extortion in 2015 Third alleged extortion in 2015 Testimony at the 1st hearing Testimony at the 2nd Hearing RPD: So in 2015, when they came, what happened? APPELLANT: In 2015 when they came, they didn't get much. They didn't get anything. They, like, keep saying I'm acting like I'm (Inaudible) and they know I'm making money. And my car was parked outside and they cut the four tires. RPD: They cut what? APPELLANT: The four tires on my car. And leave.80 APPELLANT: Twenty fifteen (2015). COUNSEL: What happened then? APPELLANT: I was in there, as usual, and there was lady came into the store asking for stuff to buy. And while we were there, you know, discussing, discussing, one guy came, a very tall guy, dark skin. And he said, you know, everybody should lay on the gun. He pulled out a gun and said, "This is a robbery. Everybody should go on the ground." COUNSEL: Everybody should do what? APPELLANT: "Lay on the ground. This is a robbery." COUNSEL: Lay on the ground. Okay. APPELLANT: And then two other guys came and they duct taped us. COUNSEL: And did they take anything from you then? APPELLANT: I didn't have much that day. They took whatever I did have and there was some electrical stuff that I have just received. They took that and they leave.81 [49] At the first hearing, the Appellant alleged that the men did not get anything during their visit. The armed men slashed all four of the Appellant's car tires and left. At the second hearing, the Appellant alleged that an armed man entered the store and demanded that everyone lay on the ground, pulled out a gun, and declared "this is a robbery."82 Two other armed men came and wrapped the Appellant in duct tape. The armed men took electrical equipment before leaving. These two versions are materially inconsistent. In one version, the men simply enter his store, make a demand, leave with nothing, and slash his tires. In the second version, the Appellant alleges a violent encounter with a drawn gun where he is apprehended and wrapped in duct tape. Unlike in his first version of events, the men do not depart his store empty handed but rather with electrical equipment. These inconsistencies are significant, and they relate to a central and material event. It is reasonable to expect the Appellant would be able to recall this information in a consistent fashion at the two sittings of his refugee claim hearing. He has offered no explanation for these discrepancies on appeal. Having assessed the entire Record, I find none in my independent assessment. Material omissions from the BOC [50] In addition to the significant inconsistencies identified above, the Appellant also failed to include material information about the alleged robberies in his BOC. While the Appellant does include some detail about the alleged XXXX 2010 incident, including the number of men who robbed him, these details are inconsistent with his own testimony that there were two men, not three. Moreover, the Appellant's description of the three additional robberies in his BOC provides no information beyond the month and year of the alleged events.83 When asked at the hearing why he failed to include the slashing of his tires in his BOC, the Appellant explained that he "missed that."84 I reject the Appellant's explanation. The BOC instructs Claimants to include everything that is important for their claim. At the beginning of the hearing, the Appellant confirmed that his BOC was complete, true, and correct.85 Where the Appellant's tires were slashed, his employees were tied up, a gun was drawn, and the Appellant was wrapped in duct tape, it is reasonable to expect that this material information would appear in the BOC. These incidents are not peripheral elaborations. They relate to the severity of violence alleged during the Appellant's encounter with his agents of harm. He has offered no explanation for these omissions on appeal. Having assessed the Record, I find none in my independent assessment. Summary [51] In my view, these discrepancies and omissions are significant and relate to central events in the Appellant's claim. It is because of these alleged robberies that the Appellant alleges that he is at risk in Jamaica. His inconsistent evidence about these material incidents undermines his allegation that he was ever subject to any robberies in Jamaica. I draw a significant adverse inference against the Appellant's credibility. I find that the Appellant has failed to credibly establish, on a balance of probabilities, that the robberies took place, as alleged. Material inconsistencies regarding the alleged report to the police [52] The Appellant's testimony about how he reported the XXXX 2017 robbery to the police is also materially inconsistent. In his BOC, he alleges that he called the police.86 In testimony, he alleged that he personally visited the police office where he made his report in a separate room full of detectives who took his information.87 He also alleged in testimony that the police visited his store to check the scene.88 These two versions are materially inconsistent. If the Appellant merely placed a call to the police, it is reasonable to expect him to have stated this in testimony. Similarly, if the Appellant visited the police station, was interviewed by a group of detectives who received his report in person, and the police followed up with him through an in-person visit at his store, it is reasonable for him to have included these allegations in his BOC. The BOC instructions are clear that a Claimant should explain in detail who they approached for help, what steps they took, and what happened as a result.89 [53] While I appreciate the difficulty of recalling events from the past, I note that the inconsistencies relate to the Appellant's only alleged report to the police - a central event in his claim. Moreover, the discrepancies do not relate to minor or peripheral details. Whether the Appellant simply placed a call to the police or personally visited the office and was invited to meet with a room full of detectives is significant. It is because of the alleged police reporting that the Appellant claims to have been declared an informant - the reason for his alleged risk upon return. It is reasonable to expect the Appellant would be able to recall this information in a consistent fashion as between his own BOC and his refugee hearing. He has offered no explanation for this discrepancy on appeal. Having assessed the entire Record, I find none in my independent assessment. I draw an adverse inference against the Appellant's credibility. [54] I find that the Appellant has failed to credibly establish, on a balance of probabilities, that he made a report to the police, as alleged. Having found that the Appellant has failed to establish that he made a police report, I further find that he has failed to establish that he was threatened as a result and accused of being a police informant. Material inconsistencies with respect to the failure to claim protection at the POE [55] On appeal, I also raised the Appellant's materially inconsistent explanations for why he failed to initiate his refugee claim at the POE and instead decided to voluntarily sign the "Allowed to Leave Canada" form (IMM-1282) where he agreed to return to Jamaica.90 In view of my findings on the above material credibility concerns, I do not find it necessary to go on and make a finding on this issue. The negative credibility findings already made are sufficient to reject the Appellant's claim on credibility grounds. As such, I draw no adverse inference based on the Appellant's failure to claim at the POE. SUMMARY [56] After independently assessing the complete Record, I find that the Appellant is, on a balance of probabilities, not credible. I find that the Appellant has not credibly established, on a balance of probabilities, that he was robbed, threatened, or accused of being a police informant, as alleged. The Appellant's claim fails on the issue of credibility. He has not credibly established that he faces a serious possibility of persecution or a personal risk to life, or a personal risk of cruel and unusual treatment or punishment, or a danger of torture, upon return to Jamaica. The Appellant's claim fails under both section 96 and subsection 97(1). CONCLUSION [57] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "J. Pollock" J. Pollock December 11, 2020 Date 1 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 118-151; Exhibit 6, at pp. 156-207. 2 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 96, 97(1). 3 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 33, at para. 3. 4 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 24, question 2(c). 5 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 33, at paras. 3-4. 6 Exhibit RPD-1, RPD Record, Exhibit, at p. 150. 7 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 130-133. 8 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 134, 150-151. 9 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 150-151. 10 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 118-151; Exhibit 6, at pp. 156-207. 11 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 158, at para. 13. 12 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 118-151; Exhibit 6, at pp. 156-207. 13 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 21-66. 14 Ching v. Canada (MCI), 2015 FC 725, at paras. 71-72. 15 Exhibit RAD-1, Member's Direction, October 22, 2020, two pages sent by facsimile. 16 Exhibit P-3, Counsel's request for a six-week extension of time, November 9, 2020. 17 Exhibit RAD-2, Member's request for clarification and additional information, November 13, 2020. 18 Exhibit P-4, Appellant's response to the RAD's invitation on a new issue, November 26, 2020, at pp. 1-9. 19 Exhibit P-2, Appellant's Record, at p. 7. 20 Exhibit P-4, Appellant's response to the RAD's invitation on a new issue, November 26, 2020, at pp. 1-9. 21 IRPA, at ss. 110(4). 22 Canada (MCI) v. Singh, 2016 FCA 96; Nteta-Tshamala v. Canada (MCI), 2019 FC 1191, at para. 25. 23 Refugee Appeal Division Rules, SOR/2012-257, Rule 3(3)(g)(iii); Abdi v. Canada (MCI), 2019 FC 54, at para. 25. 24 RAD Rules, Rule 3(g); Abdi v. Canada (MCI), 2019 FC 54, at para. 25; Paz v. Canada (MCI), 2020 FC 280, at paras. 30-32. 25 Dhillon v. Canada (MCI), 2015 FC 321, at para. 20; Castro Lopez v. Canada (MCI), 2020 FC 197, at paras. 45-46; Marinaj v. Canada (MCI), 2020 FC 548, at para. 41. 26 IRPA, at ss. 110(6). 27 Exhibit P-4, Appellant's response to the RAD's invitation on a new issue, November 26, 2020, at p. 9. 28 Raza v. Canada (MCI), 2007 FCA 385, at para. 16. 29 Jadallah v. Canada (MCI), 2016 FC 1240, at para. 34; Ilias v. Canada (MCI), 2018 FC 661, at para. 35; Okonji v. Canada (MCI), 2018 FC 712, at para. 17. 30 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 56, at lines 38-49, at p. 57, at lines 1-5. 31 Exhibit P-3, Counsel's request for a six-week extension of time, November 9, 2020. 32 Canada (MCI) v. Singh, 2016 FCA 96, at para. 54; Marin v. Canada (MCI), 2016 FC 847, at paras. 27-28. 33 Marin v. Canada (MCI), 2016 FC 847, at paras. 27-28; Eshetie v. Canada (MCI), 2019 FC 036, at para. 34. 34 Canada (MCI) v. Singh, 2016 FCA 96, at paras. 38, 45; Okonji v. Canada (MCI), 2018 FC 712, at para. 23; Galamb v. Canada (MCI), 2020 FC 85, at para. 31. 35 Exhibit P-4, Appellant's response to the RAD's invitation on a new issue, November 26, 2020, at pp. 3-5. 36 Exhibit P-4, Appellant's response to the RAD's invitation on a new issue, November 26, 2020, at pp. 6-8. 37 Exhibit P-2, Appellant's Record, at p. 5. 38 Canada (MCI) v. Huruglica, 2016 FCA 93. 39 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103. 40 Ilias v. Canada (MCI), 2018 FC 661, at para. 39; Kanawati v. Canada (MCI), 2020 FC 12, at para. 23. 41 Dhillon v. Canada (MCI), 2015 FC 321, at para. 20; Castro Lopez v. Canada (MCI), 2020 FC 197, at paras. 45-46; Marinaj v. Canada (MCI), 2020 FC 548, at para. 41; Akintola v. Canada (MCI), 2020 FC 971, at para. 21. 42 Exhibit P-2, Appellant's Record, at pp. 5-6. 43 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 51, "Schedule A", at question 2. 44 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 130-131. 45 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 121-122. 46 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 8, at lines 31-43. 47 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 121, at para. 10. 48 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 28-29, 33. 49 Exhibit P-2, Appellant's Record, at p. 5. 50 Ndagire v. Canada (MCI), 2005 FC 1606, at para. 13. 51 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 62-63, Exhibit 4, at p. 150. 52 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 57, at lines 7-14. 53 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 57, at lines 16-20. 54 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 41-43. 55 Exhibit RPD-1, RPD Record, RPD Decision, at para. 42. 56 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 50, at question 6(e). 57 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 123, at para. 21, at p. 150. 58 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 134. 59 Exhibit RPD-1, RPD Record, Exhibit 1; Exhibit 2. 60 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 45, at lines 2-49. 61 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 30-31, 33. 62 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 118-151. 63 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 56, at lines 38-49, at p. 57, at lines 1-5. 64 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 44-49. 65 Ndjavera v. Canada (MCI), 2013 FC 452, at para. 7; Lawani v. Canada (MCI), 2018 FC 924, at para. 25. 66 Refugee Protection Division Rules, SOR/2012-256, Rule 11. 67 Exhibit RPD-1, RPD Record, Exhibit 9, at pp. 273, 276. 68 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 64-66. 69 Exhibit RPD-1, RPD Record, Exhibit 9, at pp. 276, 289-290. 70 Exhibit RPD-1, RPD Record, Exhibit 9, at pp. 272-273. 71 Exhibit RAD-1, Member's Direction, October 22, 2020; Exhibit P-3, Counsel's request for a six-week extension of time, November 9, 2020; Exhibit RAD-2, Member's request for clarification and additional information, November 13, 2020; Exhibit P-4, Appellant's response to the RAD's invitation on a new issue, November 26, 2020. 72 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 53, at line 10. 73 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 53, at lines 19-21. 74 Exhibit RAD-3, RPD hearing transcript, October 7, 2019, at p. 10, at lines 15-20. 75 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 33, at para. 3. 76 Exhibit RAD-3, RPD hearing transcript, October 7, 2019, at p. 5, at lines 48-49. 77 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at pp. 53-54 [emphasis added]. 78 Exhibit RAD-3, RPD hearing transcript, October 7, 2019, at p. 10, at lines 24-48 [emphasis added]. 79 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 33, at para. 3; Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 54, at line 3. 80 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 54, at lines 40-49 [emphasis added]. 81 Exhibit RAD-3, RPD hearing transcript, October 7, 2019, at p. 11, at lines 14-30 [emphasis added]. 82 Exhibit RAD-3, RPD hearing transcript, October 7, 2019, at p. 11, at lines 14-23. 83 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 33, at para. 3. 84 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 55, at lines 5-8. 85 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 9, at lines 5-7. 86 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 24, at question 2(c). 87 Exhibit RAD-3, RPD hearing transcript, October 7, 2019, at p. 14, at lines 10-21. 88 Exhibit RAD-3, RPD hearing transcript, October 7, 2019, at p. 14, at lines 20-26. 89 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 24, at question 2(c). 90 Exhibit RAD-3, RPD hearing transcript, July 15, 2019, at p. 46, at lines 1-10; 90 Exhibit RAD-3, RPD hearing transcript, October 7, 2019, at p. 9, at lines 3-4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR: TB9-30535 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