MB5-01839

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 File No. / No de dossier de la SAR : MB5-01839 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision October 28, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Anthony Karkar Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Peru, is appealing against the decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim by determining that he is not a "refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is asking the Refugee Appeal Division (RAD) [translation] "to allow the appeal, set aside the RPD's determination and grant him the status of a person in need of protection." Alternatively, he is asking that his case be referred to the RPD for re-determination by a differently constituted panel.1 [3] The appellant is not presenting any new evidence in support of his appeal under subsection 110(4) of the IRPA. He is asking that a hearing be held as set out under subsection 110(6) of the IRPA. [4] The Minister did not intervene in this appeal. DETERMINATION OF THE APPEAL [5] Under subsection 111(1) of the IRPA, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA, or a "person in need of protection" under section 97 of the IRPA. [6] The appeal is dismissed. FACTUAL BACKGROUND [7] The appellant is originally from Peru. In question 8 of the IMM-5669 form, he indicates that from XXXX 2005 to XXXX2012, he worked for XXXX as an assistant. He submitted Exhibit P-2 to attest to his job as an operator for XXXX XXXX, a [translation] "XXXX XXXX" company. [8] In his Basis of Claim Form (BOC Form), he alleges that he had problems with Peruvian managers who wanted him to tamper with the meters so that they could receive a financial return by increasing the price invoiced to the company's customers. The claimant refused to collaborate in this scheme, hence the problems that he alleges. [9] The appellant states that he reported the situation to his immediate supervisor, who advised him to say nothing if he wanted to [translation] "save his skin because a number of influential people were involved."2 He states that he [translation] "contacted a journalist at the XXXX XXXX newspaper and filed a complaint on the condition that it remain anonymous. In the end, they found out my identity, and I received a death threat."3 He also alleges that he was harassed incessantly and threatened with retaliation. [10] Fearing for his safety, the refugee protection claimant decided to come to Canada using false documents. He alleges that he left his country on July 1, 2012. He allegedly entered Canada illegally. He claimed refugee protection on or around January 14, 2015. Impugned decision [11] On April 9, 2015, the RPD rejected the refugee protection claim on the ground that credibility was the determinative issue. The RPD noted the following: [translation] Inconsistencies and omissions in the appellant's testimony; His behaviour is not consistent with that of someone who fears for his safety; According to the RPD, the BOC Form was vague. The claimant did not follow the instructions that were provided therein. He failed to include a number of important facts, namely, dates, the names of his assailants, places where the events took place and the name of the journalist. He also failed to state that he filed a complaint with the police and that the journalist accompanied him. Nor did he mention that he is still wanted in his country. The RPD drew a negative inference from the fact that the claimant did not try to find out whether the journalist had written an article following his report. The RPD took into account the delay in claiming refugee protection and the absence of evidence corroborating his allegations. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's allegations [12] Relying on the decision in Maldonado,4 the appellant points out that sworn testimony is presumed truthful unless there are serious reasons to doubt it. He also submits that the RPD cannot [translation] "reject the claimant's evidence simply because he did not present any documentary or other evidence corroborating his oral testimony."5 [13] Regarding the delay in filing his claim, the appellant points out that the RPD did not take his explanations into consideration.6 Notice to appear for a hearing [14] The appellant is asking to be heard before the RAD. The appeal proceeding before the RAD is a paper-based process and a hearing can be held only if the factors listed in subsection 110(6) are satisfied. A hearing can be held only if there is new evidence that, if accepted, raises a serious issue with respect to the credibility of the person who is the subject of the appeal and would justify rejecting the RPD decision. In this case, the appellant did not file any new evidence. Consequently, the RAD cannot hold a hearing. RAD'S ROLE AND FUNCTIONS [15] In his memorandum, the appellant does not propose any standard of intervention to apply in this appeal. [16] Since an appeal before the RAD is a statutory remedy, its mandate and powers are defined in its home statute, the IRPA. [17] The statutory provisions indicate precisely the allowable grounds for appeal,7 as well as its "remedial powers." In this regard, Parliament allows the RAD to confirm the determination of the RPD, set it aside and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.8 [18] The Federal Court, in being called on to determine the appropriate type of review to be undertaken by the RAD of decisions rendered by the RPD, recognizes its "expertise" on refugee-related matters. The Court is of the opinion that broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of appeals,"9 and states that "[t]he idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA."10 Although these opinions are shared by a number of judges, the Federal Court is faced with two key lines of case law. [19] According to the proponents of the first line of case law put forth by Justice Shore: [27] ... the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts....11 [20] Justice Roy and Justice Leblanc also concur that an error must be "palpable and overriding to succeed on appeal."12 Justice Roy notes that appeals before the RAD are meant to be generous but adds that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety."13 Justice Roy also states that "[i]t will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4)."14 [21] Justice Phelan proposes a different approach in Huruglica.15 He states that the "RAD is required to conduct a hybrid appeal." [22] It must "review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a 'Convention refugee' or a 'person in need of protection.' Where its assessment departs from that of the RPD, the RAD must substitute its own decision."16 [23] Justice Phelan, when writing about the deference that the RAD owes to findings of the RPD, states that it may be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [24] Having reviewed the decisions rendered by the Court thus far, it appears to me that the RAD, as a tribunal specialized in refugee protection matters, must examine all of the evidence to determine whether the decision is well-founded in light of the evidence before the RPD and any additional evidence accepted by the RAD as new evidence under subsection 110(4) of the IRPA. [25] In reviewing the evidence, the RAD may show a measure of deference when the credibility of the refugee protection claimant is at the heart of the decision, or when the RPD is in an advantageous position compared to that of the RAD. Nevertheless, when findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, the RAD must intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [26] Regarding errors in law, Justice Shore states that "the RAD must be able to correct any error in law."17 MERITS OF THE APPEAL [27] Because of the inconsistencies in the evidence, the omission of important information in the BOC Form and the behaviour found to be inconsistent with the alleged fear of persecution, the RPD determined that credibility was the determinative issue. Credibility [28] Credibility is a question of fact for which the RPD has an advantage over the RAD because it sees and hears the refugee protection claimants and witnesses. In this case, the RAD cannot hold a hearing given that no new evidence was presented. [29] I reviewed the evidence on the record, and I listened to the recording of the hearing to determine whether the RPD's findings are founded. Even if I do not share each and every finding made by the RPD, I am of the opinion that it rendered the right decision. Given the inconsistencies in the evidence, the appellant failed to meet his burden of establishing a [translation] "serious possibility of persecution" or that he would likely be subjected to one of the risks set out in section 97 of the IRPA. [30] The first factor taken into account by the RPD raising doubt as to the refugee protection claimant's testimony has to do with the fact it found that the answers he provided in his BOC Form are vague and incomplete. More specifically, according to the RPD, the claimant failed to follow the instructions that were given therein, which read as follows: ... When you answer the questions in this section, please explain .... Include everything that is important for your claim. Include dates, names and places wherever possible.18 ... Have you or your family ever been harmed, mistreated or threatened by any person or group? If "yes" explain in detail: what happened to you and your family; when the harm or mistreatment or threats occurred; who do you think caused the harm or mistreatment or threats; ....19 [31] Moreover, regarding recourse to the authorities, such as the police to ask for protection, the claimant is required to explain in detail: ... Whom you approached for help; what steps you took; and what happened as a result. He is asked to indicate dates, names and places, wherever possible.20 [32] However, because the BOC Form was devoid of details as to the names of his aggressors or of the journalist contacted, as well as the fact that he filed a complaint and that the journalist went with him to the police station, the RPD drew a negative inference. [33] Even though the BOC Form is missing details regarding the complaint filed and the fact that the journalist went with him, I find that the information in questions 2(b) and 2(c) shows that a complaint was filed with the police. Consequently, I find that this conclusion is not based on the evidence. [34] Furthermore, all important facts should appear in one's Personal Information Form (PIF).21 Also, the Federal Court states that the Board is entitled to draw negative inferences about credibility if matters it considered important were omitted from the document or are only added after the hearing has commenced.22 [35] These statements from the Court must not be applied to the letter, and the omission of certain facts in the BOC Form must not always be held against the refugee protection claimant. It is necessary to consider their importance, the explanations provided at the hearing to justify their omission and the claimant's testimony at the time of the hearing. [36] The RPD found that the other omitted facts are significant. In this case, I find that the RPD was justified in having serious doubts because of the inconsistencies in the evidence. [37] First, the appellant starts his account by stating in his BOC Form: [translation] "After my return from the United States, I had a lot of problems ...."23 At the hearing, he stated that he did not live in the United States except in transit on his way to Canada. Yet, his BOC Form is clear; the alleged problems took place after he returned from the United States. Given that there is no trace of his journey to Canada, that the documents used to travel were not submitted and that there is no trace of his arrival in Canada, doubt is planted in the decision-maker's mind. [38] Then, at the hearing, the testimony of the appellant was initially imprecise as to the dates on which the events took place, and at the end of the hearing, his testimony was contradictory. I will explain. [39] The appellant testified at the outset of the hearing that he had informed his supervisor in March or April (without specifying the date) that he refused to take part in a scheme aimed at defrauding poor people by increasing their water consumption, and by extension, their bill. According to his testimony, a week later, he reported this matter to a journalist, and the same day they went to the police to report the situation. [40] Asked when he obtained the employment certificate dated May 25, 2012, filed under P-1,24 he stated that he asked for it before he made the report.25 Then, he stated that he asked for it because he had received a death threat and was going to leave the country,26 so after he reported the situation. This inconsistency in his testimony, along with the fact that he stated that he had to change his Peruvian passport because it was damaged when he illegally crossed the Canadian border, even though the evidence revealed that the letter filed under P-1 is intact, raises doubts as to when this letter was issued. [41] I am of the opinion that other inconsistencies not raised by the RPD seriously undermine his credibility. The appellant stated that for his safety, he moved after resigning from his job in XXXX 2012. However, neither in the forms completed nor in the BOC Form did he mention that he moved. In addition, he states that he resigned from his job in XXXX 2012, but in his IMM-5669 form, he states that he worked for the company XXXX until XXXX 2012. When confronted with these discrepancies, he failed to explain them. [42] These inconsistencies in the evidence combined with a vague BOC Form as to when the incidents allegedly took place and testimony providing few details seriously undermine his credibility. [43] In this case, although the delay in claiming refugee protection is not a determinative factor in itself, it remains a relevant factor that the RPD can consider when assessing the statements and actions of the claimant. It undermines the credibility of his allegations that he would be subjected to a risk to his life in the event of a return. In this case, a two-and-a-half year delay is substantial. [44] Doubting his credibility, the RPD drew a negative inference from the statements of the appellant, who testified that he did not try to obtain a copy of the complaint that he states he filed, nor did he attempt to contact the journalist to see if she had written an article following the facts that he reported to her. Given all the evidence, I am of the opinion that the RPD's findings in this matter are not erroneous. [45] After reviewing all the evidence, I am of the opinion that the appellant failed to establish that the RPD's decision in its entirety is flawed. In my opinion, despite my disagreement regarding the omission of the complaint in the BOC Form, I find that the RPD rendered the proper decision. It is based on the principles set out in the case law. CONCLUSION [46] For these reasons, I confirm the RPD's determination to the effect that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [47] The appeal is dismissed. Maria De Andrade Maria De Andrade October 28, 2015 Date IRB translation Original language: French 1 Appellant's memorandum, page 17. 2 RPD record, page 15, question 2b) of the BOC Form. 3 Idem. 4 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 5 Appellant's memorandum, page 15. 6 Idem. 7 Subsection 110(1) of the IRPA: Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. 8 Subsection 111(1) of the IRPA. 9 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 10 Idem. 11 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 12 Spasoja v. Canada (Minister of Citizenship and Immigration), Justice Roy, 2014 FC 913, Lamia Aloulou v. Canada (Minister of Citizenship and Immigration), Justice Leblanc, 2014 FC 1236. 13 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 14 Idem. 15 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 16 Idem. 17 Supra, footnote 11. 18 RPD record, page 14, section of the BOC Form entitled, Why you are claiming refugee protection. 19 RPD record, page 14, question 2(a) of the BOC Form. 20 RPD record, page 15, question 2(c) of the BOC Form 21 Basseghi v. Canada (Minister of Citizenship and Immigration), (1994), 52 A.C.W.S. (3d) 165, [1994] F.C.J. No. 1867 (F.C.T.D.), Grinevich v. Canada (Minister of Citizenship and Immigration), 1997?04-11, No. IMM-1773-96. 22 Kutuk v. Canada (Minister of Citizenship and Immigration) No. IMM-2484-94. 23 RPD record, page 14, question 2(a). 24 RPD record, pages 25 to 27. 25 CD of hearing, 2:09. 26 CD of hearing, 2:11 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No / No de dossier de la SAR : MB5-01839 2 RAD.25.02 (2014.09.11) Disponible en français