TB8-26582

RAD File / Dossier de la SAR : TB8-26582 TB8-26583 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX(a.k.a XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX(a.k.a XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision February 27, 2020 Date de la décision Panel John Helis Tribunal Counsel for the persons who are the subject of the appeal Marcos Ortiz 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 XXXX (a.k.a XXXX XXXX) (the principal Appellant), and XXXX XXXX XXXX (a.k.a XXXX XXXX) (the associate Appellant) citizens of Brazil, appeal a decision of the Refugee Protection Division (RPD), dated October 3, 2018, rejecting their claims for refugee protection. [2] The Appellants ask that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that they are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be referred back to a different panel of the RPD for redetermination.1 DETERMINATION [3] The appeal is dismissed. I confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection.2 SUMMARY OF THE FACTS [4] The principal Appellant is a 60-year-old man from Brazil, and the associate Appellant is his 55-year-old wife. [5] The Appellants owned a shop in Brazil where they XXXX XXXX XXXX XXXX XXXX XXXX. The Appellants claim in their Basis of Claim form (BOC) that they were robbed several times, and that they fear the prospect of being robbed and threatened again. In testimony, the Appellants added that their business was being extorted on a weekly basis since 2005 by a criminal gang called Seguranca de Barra de Jangada. They further claim the owner of a neigbouring business was killed. THE RPD DECISION [6] The RPD determined that the Appellants were not credible and denied their claims on the basis of omissions and inconsistencies between their testimony and the evidence in their BOCs. [7] The RPD limited it analysis to the question of whether the Appellants were persons in need of protection because there is no nexus between their allegations that they were victims of criminality and a ground of persecution in the Refugee Convention. THE ISSUES [8] The issue on appeal is whether the RPD erred in its credibility assessment. NEW EVIDENCE [9] The Appellants submit a January 9, 2012, article from the New York Times entitled "In Brazil, Officers of Law, Outside the Law," as new evidence in their appeal. [10] New evidence is only admissible before the RAD if it arose after the rejection of the claim, if it was not reasonably available, or if the Appellants could not have reasonably been expected in the circumstances to have presented the evidence at the time of the rejection of the claims.3 In addition to these legislative requirements, under the Federal Court of Appeal decisions in Singh and Raza, admissibility is limited to evidence that is relevant, new, and credible.4 [11] The new evidence is inadmissible because it does not meet the legislative requirements. The evidence did not arise after the rejection of the claim, as it was published almost six years before the Appellants' hearing. The article is publicly available in a well-known newspaper with a high volume circulation, and was therefore reasonably available to the Appellants. Lastly, the Appellants could have reasonably expected to present this evidence at the time of the rejection of their claims given their testimony that they did not report the extortion from the Seguranca de Barra de Jangada to the police because the gang includes former police officers as members. [12] The Appellants' request for a hearing before the RAD is denied because the new evidence is inadmissible. Hearings before the RAD are limited to circumstances when the new evidence on appeal is admissible and raises a serious issue with respect to the Appellants' credibility that is central to the decision, and if accepted, would justify allowing or rejecting the refugee protection claim.5 STANDARD OF REVIEW [13] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Huruglica.6 This requires an independent assessment of the refugee claims to determine whether the RPD was correct in its findings and determinations.7 While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case. ANALYSIS [14] After considering the Appellants' arguments and conducting an independent review of the entire record, including listening to the recording of the hearing before the RPD, I find that the RPD was correct in its determination that the Appellants are not credible. The inconsistencies between the Appellants' BOCs and their testimony, and the omission of any reference to extortion and threats from the Seguranca de Barra de Jangada gang in the BOCs are significant, as they concern elements that are central to the Appellants' claims. [15] The basis of the Appellants' claims according to their BOCs is limited to the allegation that they were robbed at work several times, and that they fear the possibility that this could happen again. The Appellants provided inconsistent evidence on the number of times they were robbed. They indicate in their BOCs that this occurred on three occasions, but they only list two incidents -in 2009 and 2010. The principal Appellant testified that robberies occurred "maybe 3 to 4 times," and were committed by different people each time. The associate Appellant testified that they were robbed "about six times." [16] In contrast to the BOCs, the focus of the Appellants' testimony concerned the allegation that their business was being extorted for several years by the Seguranca de Barra de Jangada gang, which forced them to pay a protection fee on a weekly basis. The Appellants allege that they feared this gang and its leader, but were powerless to report them to the police because several gang members were retired police officers. There is no mention of this gang or its leader in the BOCs, despite the long-standing nature of the extortion and threats that the Appellants allegedly endured. Nor was the associate Appellant's testimony that she was directly threatened with death by the leader of Seguranca de Barra de Jangada after her neighbour's murder mentioned in the BOCs.The omission is significant because according to the Appellant's testimony and the arguments in their memorandum to the RAD, "they were mostly concerned by the gang who extorted them," over the individual instances of robbery. [17] I do not accept the Appellants' explanation that the inconsistencies between their two accounts and the omission of the alleged extortion and threats from the gang in their BOC is due to nervousness because they were detained. The inconsistencies and omissions are more than details that may be inadvertently forgotten by claimants under pressure; they concern elements that form the basis of their claims, including their alleged fears in Brazil and the identity of the agents of harm. In the BOC, the Appellants claim to have been robbed on three occasions and fear that this can happen again. According to their testimony, their real concern is that they were extorted and threatened by a gang for years that murdered their neighbour. Such significant inconsistencies in the evidence and omission of any reference to threats and extortion from a gang in the BOCs cannot be attributed to mere nervousness. [18] Moreover, as the RPD correctly pointed out, the Appellants did not amend their BOCs to include the alleged extortion and threats they faced from the Seguranca de Barra de Jangada gang. The Appellants were represented by counsel and had close to three years to amend their BOCs prior to the hearing. The Appellants are not compelled to amend their BOCs, although they are required to satisfy the RPD and the RAD of their claim. Given that the omission concerns elements that are central to the Appellants' claims, the RPD was correct to draw a negative inference.8 [19] The Appellants argue that regardless of the omission, their evidence about this gang was consistent. I do not agree. The associate Appellant indicates in her BOC that her neighbour "was killed by a thief" in 2013. In contrast, according to her testimony he was killed by the Seguranca de Barra de Jangada gang because he refused to pay them protection money. This inconsistency is also reflected in the documentary evidence. The letter from the Appellants' son-in-law indicates that the neighbour was murdered after an attempted assault, and does not mention a gang. A letter from a neighbour that allegedly witnessed the murder only notes the murder, and does not refer to gang involvement. Another neighbour writes the following about the alleged murder: "he was robbed and killed at the door of his trade," without mentioning a gang. Lastly, the letter and the legal opinion from the Brazilian lawyer indicate that the Appellants' neighbour was murdered in an attempted robbery, but do not refer to a gang. This evidence is entirely inconsistent regarding the nature of the incident and whether a gang was involved. [20] The documentary evidence does not resolve the credibility concerns identified above or independently establish the Appellants' claims. Credibility findings based on inconsistencies between the BOC narrative and the oral testimony are dispositive of a claim unless they are resolved by the documentary evidence.9 As noted above, rather than helping resolve the inconsistencies, the supporting letters provide varying accounts of the alleged murder of the Appellants' neighbour, and do not mention a gang. The legal opinion analyzes reports and news articles on police corrpution and violence in Brazil, and does not help resolve the credibility concerns outlined above. [21] There is no merit to the argument that the inconsistencies in the Appellants' evidence or the omission of the extortion and threats from the Seguranca de Barra de Jangada gang in the BOC can be attributed to the "complexity of the case," or because "the claimants were exposed to several gangs." The evidence does not support a finding that the Appellants were threatened or extorted from more than one gang, or that the individual instances of robbery by different individuals demonstrate that other gangs were involved. [22] While the Appellants argue that they lack effective state protection in Brazil, the issue of state protection is moot since the credibility concerns outlined above are a sufficient basis to impugn their overall credibility. Since the Appellants did not credibly establish that they face a serious possibility of persecution, or, on a balance of probabilities, a danger of torture, a risk to their lives, or cruel and unusual treatment or punishment, there is no need to consider whether the state can protect them. CONCLUSION [23] For the reasons outlined above, I agree with the RPD that the Appellants were not credible. The Federal Court has held that it is well-established that inconsistent accounts between the BOC and testimony may form the basis of a negative credibility finding.10 These credibility concerns rebut the presumption of the Appellants' truthfulness, and are not adequately addressed or rebutted by the Appellants' explanations or the documentary evidence.11 [24] The Appellants have consequently not established a serious possibility that they would be persecuted in Brazil, nor that, on balance of probabilities, that they would be in danger of torture, face a risk to their lives, or a risk of cruel and unusual treatment or punishment. DECISION [25] The appeal is dismissed. I confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection.12 (signed) "John Helis" John Helis February 27, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 111(1)(b) & 111(1)(c) [IRPA]. 2 IRPA s 111(1)(a). 3 IRPA s. 110(4). 4 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 at para. 13; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 5 IRPA s. 110(6). 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 7 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 at paras. 122-126. 8 Husyn v. Canada (Citzenship and Immigration), 2016 FC 1386 at paras. 26, citing Hamidi v. Canada (Citizenship and Immigration), 2015 FC 243 at para. 28; Esteban Zeferino v. Canada (Citizenship and Immigration), 2011 FC 456 at paras. 31 - 32; Aragon v. Canada (Citizenship and Immigration), 2008 FC 144 at para. 21. 9 Gougoushvili v. Canada (Citizenship and Immigration), 2013 FC 1214 at paras. 28-29. 10 Gutierrez Olmo v. Canada (Citizenship and Immigration), 2008 FC 809 at para. 32, citing Mostajelin v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 28; Eustace v. Canada (Minister of Citizenship and Immigration), 2005 FC 1553. 11 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para. 6, citing Maldonado v. M.E.I., [1980] 2 FC 302 (CA) at 305. 12 IRPA s. 111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-26582 TB8-26583 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