MB8-01089

RAD File / Dossier de la SAR : MB8-01089 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision October 1, 2020 Date de la décision Panel Ayanna Roberts Tribunal Counsel for the person who is the subject of the appeal Me Lisa Winter-Card 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 allow this appeal. XXXX XXXX XXXX(Appellant) is citizen of Colombia. a. The Appellant fears persecution at the hands of the Clan Usaga, a Columbian criminal organisation. The Appellant claims that the Clan Usaga learned that he worked as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX where he had access to millions of pesos. He alleges that he refused the demands of the Clan Usaga, who demanded that he pay them 35 million pesos. When the Clan Usaga threatened the Appellant and several of his family members with death, he fled to Canada. b. The Refugee Protection Division (RPD) rejected the Appellant's claim, finding that he did not establish his schooling, his employment, and the content of one of the alleged threatening calls from the Clan Usaga with credible testimony. On appeal, the Appellant submits that the RPD ignored credible documentary evidence establishing the facts related to his claim. c. The determinative issue for the Refugee Appeal Division (RAD) on appeal is the Appellant's credibility. d. The RPD's credibility assessment was incorrect. The RPD relied upon three microscopic reasons to conclude that the Appellant was not credible. Two of those reasons were peripheral to the basis of the claim. The third reason was not enough to conclude that the Appellant was not credible, particularly because there was other evidence on file to corroborate the Appellant's claims that the RPD did not address in its decision. The evidence on the record does not allow for an evaluation of the Appellant's prospective risk of harm, on appeal. DECISION [2] The appeal is allowed. I send this matter back to the RPD to be redetermined. BACKGROUND [3] The Appellant appeared before the RPD with his then common-law wife and his brother. On appeal, the files were separated. Thus, the Appellant's situation is the only one being considered here. NEW EVIDENCE AND ORAL HEARING The evidence presented by the Appellant is accepted. The request for an oral hearing is rejected. [4] The Appellant submitted a psychological report1 as new evidence. He argues that the psychological report explains why he could not recall the precise dates when he started and completed his studies and employment. [5] According to the law,2 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. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [6] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 [7] The Appellant met with the psychologist after the RPD issued its decision on October 16, 2017. I find the report to be credible since it was written by a registered clinical psychologist with the College of Psychologists of Ontario. The report concludes that the Appellant meets the criteria for XXXX XXXX XXXX XXXX XXXX resulting in difficulties with memory and concentration. I accept that this information only became available to the Appellant after the RPD issued its decision. I find this diagnosis to be relevant to the RPD's questions about inconsistencies concerning dates that arose during the hearing. [8] However, I do not find that it is necessary to hold an oral hearing in order to question the Appellant about this evidence, in relation to his credibility. It does not meet the criteria set out in the law for holding an oral hearing.4 ANALYSIS [9] My role is to look at all the evidence and decide if the RPD made the correct decision.5 Psychological Report [10] I find that the Appellant's psychological report is credible. I assign weight and probative value to the report only to explain why he had difficulty recalling dates with precision during the RPD hearing. I note that the psychological report contains a lengthy repetition of the Appellant's allegations and that the psychologist recommends that the Appellant not be returned to Colombia. Determining the credibility of the basis of the Appellant's claim, and whether his fears are well-founded, is the role of the Immigration and Refugee Board. The psychologist's report has no probative value or weight with respect to establishing the facts at the heart of the Appellant's claim on a balance of probabilities. Credibility The RPD's credibility assessment is incorrect because it focused on microscopic and peripheral inconsistencies and failed to consider the totality of the evidence before it [11] The RPD found that the Appellant was not credible for the following reasons: a. He provided inconsistent testimony about when he attended university. b. He provided inconsistent testimony about his dates of employment. c. He provided inconsistent testimony about when he found out that the Clan Usuga knew that he was a XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [12] Inconsistencies between the information in the Basis of Claim (BOC) form and the Appellant's testimony during the hearing can form the basis of a negative credibility assessment. However, in Attakora v Canada, the Federal Court of Appeal warned against conducting an overzealous search for contradictions in one's testimony: While the Board's task is a difficult one, it should not be over-vigilant in its microscopic examination of the evidence of persons who, like the present applicant, testify through an interpreter and tell tales of horror in whose objective reality there is reason to believe.6 [13] For the reasons that follow, I find that the three inconsistencies identified by the RPD are either not true inconsistencies or are peripheral to the basis of the claim. I find that the RPD did not consider or assess the credibility of documentary evidence that the Appellant submitted in support of his allegations. This documentary evidence includes letters from family members, the Appellant's employer, and other individuals, diplomas, paystubs, and a complaint to the police. The inconsistencies should have been analysed in conjunction with this evidence, as well as other aspects of the Appellant's oral testimony, before rejecting the Appellant's claim on the basis of his credibility. The Appellant's brother and then common-law wife also testified during the hearing. The RPD did not reference the credibility of their testimony in its decision. All of this evidence should have been considered and weighed against the inconsistencies that the RPD identified. The RPD's focus on inconsistencies regarding the Appellant's education and employment based on his immigration forms completed at the Port of Entry was microscopic [14] The RPD's concerns about the Appellant's dates of education and employment arose primarily from minor differences in the dates indicated on his Schedule A form, on his Temporary Resident Visa (TRV) application, and in his oral testimony. [15] During the hearing, the Appellant expressed confusion as to whether he attended university between 2012 and 2015 or from 2013 to 2016. He expressed confusion as to whether he started working for the XXXX XXXX XXXX in XXXX 2015 or XXXX 2016. [16] Listening to the hearing, I note that the Appellant's testimony was consistent with his TRV application. He testified that he attended university from 2012 until mid-2015. He explained that after completing his XXXX XXXXdegree in 2014, he completed an additional course in XXXX that lasted until mid-2015. He explained that he only indicated the dates for his university degree on his TRV.7 This means that the only outlier is what he indicated on his Schedule A.8 Similarly, the Appellant initially testified that he worked for the XXXX XXXX XXXX from XXXX 2016 until he left Colombia in 2017. This testimony is consistent with his TRV application.9 His Schedule A indicates that he worked from XXXX 2016 until his departure from Colombia. [17] The RPD found that since the Appellant completed his Schedule A form in Canada where he was safe, rather than in Colombia where he was at risk, he should have been able to complete the form clearly and correctly. The RPD repeated this error when concluding that his explanations were unreasonable because he completed the form with the assistance of counsel. The RPD erred by drawing assumptions about how the Appellant should have processed his trauma and by using those assumptions as reasons for rejecting the Appellant's explanations for the inconsistencies. This assumption not only places an expectation on the Appellant that he should have already processed the trauma allegedly experienced in Colombia by the time he arrived in Canada, but it also assumes that moving through the immigration process in Canada was trauma-free for the Appellant or that this trauma could be mitigated by the presence of counsel. [18] I acknowledge that the Appellant's testimony was confusing and that once confronted with the inconsistencies, that he adjusted his testimony. However, he also explained that he completed so many forms that it became confusing. He acknowledged that he had become confused but reiterated that his testimony had originally been correct, prior to having seen what was on Schedule A where a mistake had possibly been made. He explained that given the situation that he is in, he became nervous when he was confronted with the incorrect dates in the Schedule A but that his initial testimony had been correct. While this testimony does not enhance his credibility, his answer is reasonable and acceptable, particularly if his documentary evidence is credible and corroborates his version of the correct dates. [19] The Appellant provided evidence of his university degree10 and a letter from the ground transportation company11 to establish his education and employment. The RPD acknowledged that those documents were in the evidence before it but failed to determine the credibility of those documents when it found that the Appellant's testimony posed a credibility concern. Both of these documents support the timelines that the Appellant provided in his oral testimony. [20] The Appellant has submitted a psychological report speaking to his state of mind and in order to explain his stress and confusion. However, I find that even without the psychological report, his testimony and the corroborating documents are enough to conclude that he is credible about his education and employment, on a balance of probabilities. The RPD's reasons for concluding that a May 1, 2017 telephone call from the Clan Usaga are insufficient [21] The RPD found that the Appellant's testimony about the May 1, 2017 telephone call from Clan Usaga demanding 35 million pesos was largely consistent with his BOC narrative, except that in his narrative, the Appellant claimed that the Clan Usaga knew about his position in the XXXX XXXX XXXX at the time of that first call. He did not mention this in his oral testimony. When confronted about the inconsistency, the Appellant testified that there was an error in his BOC narrative and that the Clan Usaga mentioned knowing about his position in a second call. [22] The RPD rejected the Appellant's explanation for the inconsistency, citing the Appellant's responsibility to amend his narrative and the fact that he had confirmed the information was complete, true and correct. For this reason, the RPD found that the May 1, 2017, telephone call did not occur. I do not find that the RPD's reasons for rejecting the occurrence of the May 1, 2017 telephone call are sufficient. [23] In his BOC, the Appellant referenced several telephone calls, including a second call in May 2017 where the Clan Usaga told him that they knew a lot of information about him and his family members. The Appellant explained during the hearing that when retelling the situation to his lawyer, the error was introduced into his BOC, but he maintained throughout the hearing that it was only after the second call that the Clan Usaga made him aware that they knew about his position in the company. On its own, an inconsistency in his BOC narrative about whether or not the Appellant knew that the Clan Usaga were targeting him because they knew about his position after that first call is not enough to impugn his credibility in its entirety. The Appellant did not adjust his testimony on this point during the hearing. In this case, I find that the RPD should have gone on to evaluate the rest of the evidence before it, including testimony from the two other claimants before it and the documentary evidence on file. The RPD failed to carry out a forward-facing analysis of the Appellant's situation [24] Having limited its credibility assessment to three microscopic conclusions, the RPD failed to carry out a forward-facing analysis. Assuming the Appellant's reasons for leaving Colombia to be credible, the determinative issues in this appeal are whether the Clan Usaga are still interested in him today, whether the family members who were targeted and who are presently in Colombia (such as his brother and sister-in-law) have been threatened by the Clan Usuga, and also whether he would be targeted by the Clan Usuga if he did not return to work as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [25] During the hearing, the RPD's questions and reactions to the Appellant's testimony were almost exclusively focused on the three inconsistencies that appeared in its decision. There is not enough information on the record to reach a conclusion on appeal about whether the Appellant faces a prospective risk of harm in Colombia. CONCLUSION [26] The appeal is allowed. I send this matter back to the RPD to be redetermined. (signed) Ayanna Roberts Ayanna Roberts October 1, 2020 Date AR/dd 1 Appellant's Record. Dr. XXXX XXXX report re: XXXX XXXX XXXX. November 23, 2017. Pages 14-21. 2 Subsection 110(4) of the IRPA. 3 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 4 Subsection 110(6) of the IRPA. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 6 Attakora v. Canada (Minister of Employment and Immigration), 1989 FCJ No 444 (FCA) 7 RPD Record. Temporary Resident Visa Application for XXXX XXXX XXXX. Page 286. 8 RPD Record. Schedule A for XXXX XXXX XXXX. Question 7. Page 98. 9 Supra, at note 5. 10 RPD Record. Seminary of Investigation diploma for XXXX XXXX XXXX, Pages 309-310. Graduation Record for XXXX XXXX XXXX, Pages 336-337. 11 RPD Record. Letter from the Director of Human Resources, C.C. Cargas. Pages 334-335. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-01089 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