TB4-04858

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. / N° de dossier de la SAR : TB4-04858 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 29, 2014 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ryan Hardy Barrister & Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Honduras, has appealed a negative determination of the Refugee Protection Division (RPD) issued on May 8, 2014. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection. BACKGROUND [3] The Appellant alleges that he fears members of the Zetas gang who have tried to extort him and his family members since XXXX 2010. The Appellant refused to pay the protection money. On XXXX XXXX, 2011 the Appellant alleges that he and his younger brother were attacked by members of the gang who beat the Appellant, hit him with a machete, and shot him. The Appellant alleges that his brother was attacked with a machete and succumbed to his injuries. The Appellant and his daughters and grandmother fled their home for another house in a neighboring community. The Appellant alleges that he went to the United States (US) on XXXX XXXX, 2011. During the time that he was in the US, the Appellant alleges that there were no problems at his house; however, his mother experienced two incidents during which they tried to burn the house down. In XXXX 2012 the Appellant returned to Honduras as his great-grandmother was sick with cancer. The Appellant alleges that he decided to establish a XXXX XXXX XXXX in XXXX 2013. The Appellant was approached by the same men and asked for protection money. When he refused, the Appellant was beaten and robbed. The Appellant reported to police, however, the police did nothing but take the report. In XXXX of 2013 the Appellant paid a smuggler to leave Honduras. He traveled through Central America to Canada. [4] The Appellant crossed into Canada illegally in XXXX, Quebec on XXXX XXXX, 2013. He made his claim for refugee protection at the inland office in XXXX on December 2, 2013. [5] The Minister Intervened1 based on a concern with the credibility of the Appellant. An exact fingerprint match was provided by US Homeland Security which indicated that the Appellant was XXXX XXXX who had provided two dates of birth (XXXX XXXX and XXXX XXXX, 1983) to US officials and who indicated that his nationality was Salvadoran. The Appellant indicated in Question 12 of his IMM-5669 that he had lived in XXXX XXXX between XXXX 2003 and XXXX 2010. The Appellant indicated that he had never been arrested or detained by the police, military or any other authorities in any country. He also declared that he had never been ordered to leave any country in the past. The Appellant then clarified that had been removed by authorities in Mexico in 2008. [6] The US Homeland Security document indicates that a person with the same fingerprints going by the name of XXXX XXXX born XXXX XXXX or XXXX XXXX, 1983 was detained by the border security patrol on XXXX XXXX, 2001 in XXXX, Texas. This man was released from detention after being served with a notice to appear for an immigration proceeding. The US Homeland Security document indicates that the same person was encountered by US Homeland Security on XXXX XXXX, 2004 and was removed to El Salvador on XXXX XXXX, 2004. The Minister argued that the Appellant presented statements which differ substantially from the biometric results in regards to his detention history, his removal history, his physical location on XXXX XXXX, 2001, and his physical location between XXXX XXXX, 2004 and XXXX XXXX, 2004. The Appellant denied having made entry into the US prior to 2011, and denied any history of arrest or detention in the US. The Minister also noted that the Appellant did not make a claim for refugee protection until January 23, 2014 which was approximately XXXX months after his arrival in Canada. These actions did not establish a subjective fear. [7] The Appellant had a refugee determination hearing on March 20, 2014. The Appellant indicated that he was unwilling to go forward as there were items in his Basis of Claim (BoC) narrative which were inaccurate as the BoC narrative was not translated to him, and as his counsel was unavailable to represent him at the hearing. The Appellant was referred to a Change of Date and Time Proceeding (CDT) and his request was denied (see below). [8] Written reasons were issued on May 9, 2014. The RPD found that the Appellant was not a credible witness overall and that his allegations were not credible. The RPD made the following individual findings: 1. The RPD found that the Appellant had established his personal identity and nationality as a citizen of Honduras. 2. The Appellant was found not to be a credible witness based on contradictions and omissions and the Appellant's failure to provide a reasonable explanation for these contradictions and omissions. 3. The Appellant admitted omitting from his BoC narrative any mention that he had been targeted for robbery by police in Honduras some time in 2009 or 2011. When asked about the omission, the Appellant indicated that his lawyer did not ask about this. The RPD drew a negative inference to the omission. 4. The RPD drew a negative inference to the Appellant's inconsistent testimony as to when he opened his tire repair business, and for his failure to provide any evidence to support his claim of opening the business. 5. The RPD drew a negative credibility inference from the lack of evidence related to his assault in XXXX 2011. 6. The RPD drew a negative inference to the failure of the Appellant to mention in his BoC ongoing threats against his children. The Appellant claimed the omission on details being omitted in his BoC narrative or on items in his narrative which were badly explained. 7. The RPD found that the allegations that the Appellant experienced problems with the person who helped him in completing his BoC narrative, were not credible given that the Appellant did not file a complaint alleging incompetence by the interpreter or legal counsel. 8. The RPD drew a negative inference to the police report made by the Appellant on XXXX XXXX, 2013 based on several concerns. Firstly, the report indicated that the allegations occurred five months before the report was issued. The Appellant was assaulted and his brother was killed on in XXXX 2011. When asked why he filed the denunciation in 2013 the Appellant indicated that he had been targeted twice and that is why he filed the report. The RPD found that this explanation conflicted with the Appellant's earlier testimony that the police were corrupt and had connections with criminals and therefore he could not get protection from them. The police report also did not make reference to the Appellant's being assaulted in XXXX 2013. The RPD found that it was not credible that the Appellant would not file a denunciation when he was shot and beaten rather than filing it years later. 9. The RPD drew a negative inference to the omission from the XXXX XXXX, 2013 police report of the alleged attack on XXXX XXXX, 2013. 10. The RPD found that the denunciation was lacking in details such as the last names or nicknames of those who harmed the Appellant. The RPD found that in failing to provide the names of the persons who had harmed him which the Appellant knew, and not reporting the incident in 2011 when it occurred, the Appellant did not provide police adequate tools in order to investigate the crime. 11. The RPD disagreed with the medical report which indicated that the Appellant was a credible historian given the number of credibility concerns which led the RPD to determine that the Appellant was not a credible and trustworthy witness. 12. The RPD drew a negative inference regarding the Red Cross letter based on several concerns. The letter was issued on XXXX XXXX, 2013; however, the Appellant testified that he received the letter the same day as the assault. The letter indicated that the Appellant was kept in the hospital for several days; however, this did not conform to the Appellant's oral testimony that he was kept overnight and released the next day. The Appellant explained that to the letter was kept on file and it was provided to him upon his request. When the RPD pointed out to the Appellant that the letter had been issued after the Appellant had left Honduras the Appellant maintained that there was a mistake in the letter. 13. The RPD drew a negative inference to the Appellant's oral testimony at the hearing in denying that he was the person cited in the US documents. The RPD found that after a break in the hearing, the Appellant stated that he was in fact in the US between 2001 and 2004. When asked why he continued to deny his sojourn in the US, the Appellant indicated that he was afraid that if he told the RPD that he was deported to El Salvador, it would ruin the process in Canada. 14. The RPD found the Appellant's failure to seek refugee protection in the US and his return to the same neighborhood in Honduras where he had been threatened undermined the Appellant's subjective fear. The RPD drew a negative inference to the behaviors which did not support the Appellant's subjective fear. 15. The Appellant was found not to be a credible witness overall and that the lack of credibility extended to the totality of his evidence. 16. The RPD found that the Appellant's claim under section 96 failed as the Appellant feared crime, corruption or vendetta which did not establish a link to a Convention ground. 17. The Appellant feared extortion and harm which was prevalent throughout Honduras and the Appellant could therefore not establish a personalized risk. [9] Appeal pleadings were received on June 20, 2014. The pleadings included a request for extension of time which was approved by the RAD Acting Assistant Deputy Chairperson. In the appeal counsel argued that the RPD breached the Appellant's right to a fair hearing by denying him the postponement and denying him the opportunity to be represented by counsel. Specific errors included: 1. The RPD erred in law (breached right to a fair hearing) by denying the Appellant his request for a CDT so that he could have counsel represent him. The RPD did not take into consideration that the Appellant failed to take sufficient efforts to secure counsel. 2. The RPD erred in law by failing to consider the Appellant's request for a postponement based on concerns with the translation of his BoC narrative. 3. The RPD erred in law by failing to recognize that the Appellant required a counsel in order to address concerns presented by the Minister's intervention. The RPD erred in failing to acknowledge the vulnerable condition of the Appellant and other factors into account in deciding to deny the request for postponement. 4. The RPD erred in its findings of fact by failing to consider the Appellant's allegations that there were difficulties or problems in the translation of his BoC narrative which required the assistance of counsel to rectify. The RPD ignored these concerns which resulted in the RPD finding omissions and errors in the Appellant's testimony when compared to the BoC narrative. The RPD erred in ignoring the medical evidence regarding the Appellant's memory and the effect that this might have on the Appellant's ability to testify consistently at the hearing. 5. The RPD erred in its findings of fact by failing to take into consideration the Appellant's explanation for his failure to claim in the US. 6. The RPD erred in its finding of mixed fact and law on its assessment that the Appellant was victim to a generalized risk and did not take into consideration the fact that the Appellant had been personally targeted. [10] The Appellant requested that the appeal be referred back to the RPD for re-determination. ADMISSIBLITY OF NEW EVIDENCE [11] The Appellant submitted several documents along with the pleadings; however, failed to include a statement as to how the documents conform to the requirements of s. 110 (4) of IRPA. The RAD accepted the section of the transcript as this was part of the record. The RAD also accepted into evidence the five letters from the Appellant's former counsels,2 as these letters were referred both in the RPD hearing as well as the CDT proceedings. [12] The RAD did not accept the article regarding acceptance rates of members given that this article did not meet the relevance and materiality tests of Raza.3 The panel notes that the Federal Court has dealt with acceptance rates of RPD Members a number of times.4 In general, the Federal Court has ruled that acceptance rates, in and of themselves, cannot found a bias argument. A recent decision has indicated that an allegation of bias cannot be done lightly: "It cannot also rest on the statistics of the number of cases won by a counsel before a particular decider, since every case has its own particularities and the facts are never the same and depend, especially in this type of case, on the situation of each individual claimant."5 Another decision indicated that: The numbers alone as presented by the applicants are meaningless without an informed analysis as to what they mean and whether a reasonable conclusion can, as a result be drawn from therm. Here there was no attempt to provide an analysis as to what lay behind the numbers and what specific reasonable inferences and conclusions can be drawn. It would be reasonable to expect, especially upon judicial review, to find expert evidence to be filed in this regard.6 [13] In Zupko Justice Snider concludes that: "Statistics alone cannot establish a reasonable apprehension of bias." 7 There could be other factors that have affected the decline in acceptance rates. The Zrig decision indicates that: [E]ach claim stands on its own merits and members of the Refugee Division have to assess each case based on the evidence and applicable law. Such an assertion reflects directly on the integrity of the members in question and cannot be accepted unless there is good evidence. Mere suspicion based on "rates" does not meet the applicable standard of the well-informed individual considering the matter in depth in a realistic and practical way. 8 [14] The RAD did not accept the article regarding the Zetas as this article was produced in August of 2013 and could have been provided to the RPD by either of the Appellant's counsels before the hearing. In addition, no reasonable explanation was provided as to why this article would not have been reasonably available to the Appellant, or could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. The RAD accepted and considered the Appellant's Affidavit.9 ANALYTICAL APPROACH [15] Counsel provided submissions10 regarding the standard of review, and argued that the RPD erred in law by denying the Appellant the right to a fair hearing when it denied the Appellant an adjournment to obtain counsel. Counsel argued that the RAD should be guided by the reasoning in Huruglica,11 perform a hybrid appeal and go beyond simply determining whether the decision was reasonable or correct. [16] In assessing the appeal, the RAD is guided by the recent Huruglica12 decision, which outlines the approach that the RAD should take as an appellate body in reviewing the first level decisions of the RPD. Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD determination that, in its opinion, should have been made as per s. 111(1)(b) of IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country condition evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. ANALYSIS [17] The RAD focused on four issues in assessing this appeal: 1. Did the denial of a change of date and time amount to a breach in the Appellant's right to a fair hearing? 2. Did the Appellant's allegations that his BoC narrative was not translated to him amount to a breach of his right to a fair hearing? 3. Was the Appellant a credible witness overall? 4. Were the Appellant's allegations of harm credible? Change of Date and Time (CDT) [18] The Appellant requested a CDT at the hearing following the RPD's denial of two previous requests by his counsel. The Appellant explained that his counsel was unavailable and that his BoC narrative was not translated to him and contained errors. In the Appeal, counsel argued that the RPD erred in law (breached right to a fair hearing) by denying the Appellant his request for a CDT so that he could have counsel represent him. Counsel also indicated that the RPD erred in failing to recognize that the Appellant required a counsel in order to address concerns presented by the Minister's intervention. The RPD erred in failing to acknowledge the vulnerable condition of the Appellant and other factors into account in deciding to deny the request for postponement. Finally, counsel alleged that the RPD did not take into consideration that the Appellant failed to take sufficient efforts to secure counsel. [19] In the pleadings, counsel indicated that no audio recording of the CDT proceedings was provided to counsel. The RAD noted that the RPD record contained two recordings on the same compact disc. One recording was of the RPD hearing, and the other recording, identified as Mar2014a was the recording of the CDT proceedings. The RAD also noted that counsel, at any time, could have requested that the RPD Registry provide him with a copy of the recording of the CDT proceedings. [20] The RAD considered the evidence on the record concerning counsel's and the Appellant's request to support a CDT. RPD Rule 54 deals with applications for CDT of the proceeding. The Appellant had the right to make an application orally, at the time of the hearing, as per subsection 3. The RPD Rule 54(4) indicates that the Division must not allow the application unless there are exceptional circumstances, such as: a) the changes required accommodating a vulnerable person; or b) an emergency or other development outside the parties control and the party has acted diligently. [21] The RAD noted that both appeal counsel and XXXX XXXX alluded to the Appellant's vulnerability in their communication with the Board. The RAD noted that the RPD and the RAD did not have any documents before them to attest to this claim. Firstly, neither original counsel nor Ms. XXXX made an application to have the Appellant deemed a vulnerable person under the Chairperson's Guidelines. The RPD was provided a letter from a doctor13 which indicates that the Appellant told the two doctors assessing him that he had XXXX XXXX. The letter does not indicate that the Appellant has any current psychological or mental health concerns that would impact on his ability to testify, his memory, or would denote an inability to testify at the hearing. In fact, the doctor concludes that the Appellant is "a wholly credible historian." Given the lack of an application regarding the Appellant's alleged vulnerability, and given the failure of the Appellant's own evidence to indicate any mental, cognitive or memory concerns, the RAD finds that there is no merit to counsel's claims that the Appellant is vulnerable. [22] In addition, given the lack of evidence, the RAD finds that the Appellant's statements at the hearing regarding his poor memory were not demonstrated throughout the Appellant's claim and hearing process, and therefore were not credible. The RAD also finds that the Appellant was able to provide detailed oral testimony, as well as to provide significant detail in his BoC narrative (five single-spaced, typed pages), which did not support his claim of memory deficits. Given these findings, the RAD finds that the provisions of subsection 4 (a) of RPD Rule 3 did not apply to the Appellant. [23] The RAD considered whether the Appellant provided evidence of any exceptional circumstances beyond his control that would justify a CDT. The RAD noted that the Appellant was put on notice on December 23, 2013 by his first counsel that he could no longer represent the Appellant. The Appellant was aware that his hearing was scheduled for March 20, 2014. It is the duty of the claimant to find counsel that is available to proceed on the date set for the hearing. While the Appellant was able to find a pro bono lawyer, she was not available on the date set for the hearing. The Appellant had the responsibility to find counsel who was available to attend the hearing on March 20, 2014, and he had approximately 3 months in which to do this. Counsel took on the Appellant as a client knowing full well that she was unavailable to attend the hearing on March 20, 2014. Counsel's two written requests to postpone the proceedings were denied, one as early as February 25, 2014. The Appellant therefore had approximately one month to find counsel or make other arrangements and did not make any. [24] The RAD noted that the Appellant testified that he received the letter from his counsel three days before the hearing indicating that she was withdrawing as his counsel; however, he did not know what it said. The RAD finds this statement not to be credible given that the Appellant testified that Ms. XXXX never was his counsel per se but that she wanted to be his counsel. Later on in the CDT proceeding, the Appellant indicated that that he was told by counsel to go to court and, depending on what they said, to call them. If a postponement is allowed, they can go to Legal Aid another time. Based on this explanation, and based on the fact that the Appellant came to the hearing and was able to indicate that his counsel was unable to attend the proceedings as she was on vacation, the RAD finds that the Appellant was aware that Ms. XXXX removed herself as counsel of record and the reason for counsel's withdrawal. [25] The Appellant testified at the CDT proceedings that he had made no additional arrangements since his counsel withdrew, and that he did not know how much time he required before he would be ready to proceed as he had to sell some things in Honduras to pay for counsel. The Appellant then testified that he would be willing to proceed on the dates provided by counsel. [26] The Appellant's oral CDT application was refused as the Appellant did not provide evidence regarding any exceptional circumstances. In addition, the Member found that, even though the Appellant's counsel withdrew; there was no evidence that the Appellant had attempted to seek out any other counsel, or to apply for Legal Aid to obtain counsel. It was not evident to the Member that the Appellant would be able to arrange for counsel within the RPD's strict timelines. [27] The RAD noted that s. 167 (2) of IRPA indicates that a person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel. The right to counsel is not absolute and it is the duty of a refugee claimant to arrange for counsel who is available on the date set for the hearing. As such, having the representation of counsel is not a requirement for a hearing. [28] From the record, it seems as though the Appellant and his counsel put all of their eggs in the postponement basket, rather than acting diligently to find counsel who was available to attend on the date set for his hearing. For the reasons highlighted above, the RAD finds that the Appellant has failed to comply with RPD Rule 54(4) and therefore continuing with the hearing did not amount to a breach of the Appellant's right to a fair hearing. BoC Narrative Translation [29] Counsel argued that the RPD erred in failing to consider the Appellant's request for a postponement based on concerns with the translation of his narrative and by failing to consider the Appellant's allegations that there were difficulties or problems in the translation of his narrative which required the assistance of counsel to rectify. Counsel argued that the RPD ignored these concerns which resulted in the RPD finding omissions and errors in the Appellant's testimony when compared to the BoC narrative. Finally, the RPD erred in ignoring the medical evidence regarding the Appellant's memory and the effect that this might have on the Appellant's ability to testify consistently at the hearing. This last issue was dismissed in the section above. The RPD found that the allegations that the Appellant experienced problems with the person who helped him in completing his BoC narrative were not credible given that the Appellant did not file a complaint alleging incompetence by the interpreter. [30] The RAD considered the evidence on the record regarding the alleged errors in the narrative. At the CDT proceedings, the Appellant indicated that his counsel requested a postponement so that she could take the time to make amendments to the Appellant's BoC narrative. The RAD considered the correspondence included in the pleadings from XXXX XXXX. In the letter dated XXXX XXXX, 2014, Ms. XXXX does not mention any concerns with the Appellant's BoC narrative. The request for postponement was based on the fact that the Appellant was in the process of seeking Legal Aid, and obtaining a referral of the Appellant to a psychiatrist or psychologist for further evaluation, and due to the fact that the Ms. XXXX would be on vacation at the time of the hearing. Ms. XXXX letter of XXXX XXXX XXXX 2014 indicated that no one had interpreted the Appellant's BoC to him prior to signing it. When the BoC narrative was reviewed with the Appellant, he was surprised that some of the things recorded in the BoC narrative were not accurate. The RAD noted that this statement provides evidence that the Appellant's BoC narrative was reviewed with him in conjunction with his current counsel, XXXX XXXX. The Appellant also testified that someone else had translated portions of the BoC narrative with him. The RAD therefore finds that, while the Appellant alleged that his narrative was not translated for him by the FCJ Refugee Centre, it had been translated for him after the fact. [31] The RAD noted that Ms. XXXX letter did not identify the particular concerns regarding the Appellant's BoC narrative in her letter of XXXX XXXX XXXX 2014, and she did not submit a BoC narrative amendment between XXXX XXXX XXXX 2014 and the time she withdrew as counsel on XXXX XXXX, 2014. The vacation plans of Ms. XXXX are not sufficient to explain why a BoC narrative amendment was not provided, especially given that counsel was aware of concerns with the BoC narrative as early as XXXX XXXX, 2014. Counsel could have taken the time to submit a BoC narrative amendment on XXXX XXXX, 2014 rather than making two requests for postponement. The RAD noted that RPD Rule 34 (3)(a) indicates that the document should be provided up to 10 days before the date fixed for a hearing. As such the Appellant was required to provide documents, including BoC amendments if he deemed necessary, to the RPD by March 10, 2014, which was before the Appellant's counsel withdrew on XXXX XXXX, 2014. The RAD finds that the Appellant's counsel had sufficient time to provide BoC amendments to the RPD before the hearing of March 20, 2014 even if she was unavailable at the time of the hearing. [32] At the CDT hearing, the Appellant was informed that he could make amendments to his narrative orally at the hearing and that he would be asked by the RPD for his explanations for any concerns. At the RPD hearing, the Appellant was asked to indicate what changes needed to be made to his BoC narrative. The Appellant took out his story that he wrote and it was translated. The Appellant was asked to identify the changes and indicated: "I am not sure where, when it talks about XXXX when they came to my house, I said that they attacked me, it doesn't specify well, that's not true." The Appellant claimed that they just came and made a verbal threat to pay rent for protection and after the refusal the gang members said that they would see him again. The BoC narrative does not indicate that the Appellant was attacked in XXXX 2010, therefore there did not appear to be an inconsistency in the BoC narrative as the Appellant alleged. The Appellant was asked what was the next change he needed to make in his BoC narrative and he indicated: "I don't remember which...based on what you ask me I will tell you this is the way or it isn't." Given that the Appellant was only able to identify one inconsistency in his BoC narrative (which was not an inconsistency as highlighted above), the RAD finds that the Appellant's allegations that there were concerns with the content of his BoC narrative were not credible. [33] The Appellant's narrative was translated by the FCJ Refugee Centre. The Appellant explained that the person who had informed him of the concerns with his BoC narrative also told him that she had heard of many problems with BoC narratives produced in cooperation with the FCJ Refugee Centre and that this had resulted in many people losing their claims. The Appellant did not provide any evidence such as a letter or affidavit from the person who informed him of these problems to attest to this allegation. Furthermore, as noted in the RPD decision, the Appellant did not make a formal complaint to the FCJ Refugee Centre or any official body regarding the alleged incompetence of staff at the FCJ Refugee Centre, despite his being represented by counsel until just days before the hearing. The RAD finds that it is very easy to cast aspersions on others when they are unaware and unable to defend themselves. The RAD notes that the FCJ Refugee Centre has an exemplary record of service to the refugee community, and is a leader in the area of refugee advocacy nationally. In fact, one of the FCJ Refugee Centre's Co-Directors was the President of the Canadian Council for Refugees. Given the following findings: that the Appellant was not a credible witness (outlined below); the Appellant's inability to identify more than one concern with his BoC narrative despite being represented by counsel until six days before his hearing; that the Appellant did not submit a BoC narrative amendment; that the Appellant signed his BoC indicating that his BoC narrative had been translated to him; that the Appellant did not provide evidence from his contact to support the claim that the FCJ Refugee Centre had produced many faulty BoC narratives; that the Appellant has failed to make any official complaints regarding the alleged impropriety by FCJ Refugee Centre staff; and that the FCJ Refugee Centre has a long track record of leadership supporting both represented and unrepresented refugee claimants and its reputation nationally, the RAD finds that the Appellant's allegations of concerns with the failure to translate his BoC narrative were unsubstantiated. The RAD finds that it was more likely than not that the Appellant raised these concerns as a further delay tactic in the proceedings. [34] Upon consideration of the totality of the evidence, the RAD finds that the claim does not turn on any omissions or concerns with the Appellant's BoC narrative. The claim turns on the very serious credibility concerns with the Appellant's veracity as a witness and in relation to his core allegations. As such, the RAD finds that the Appellant could not establish that his rights to a fair hearing were breached by the RPD's decision to continue with the hearing. Overall Credibility [35] The RPD found that the Appellant was not a credible witness based on contradictions and omissions and the Appellant's failure to provide a reasonable explanation for these contradictions and omissions. The Appellant was also found not to be a credible witness overall and that the lack of credibility extended to the totality of his evidence. [36] The RAD finds that the Appellant's credibility as a witness turns on his admitted pattern of deceiving US, Salvadoran, and Canadian officials regarding his whereabouts, his travel history, and his nationality. As cited above, the Minister intervened with evidence that the Appellant had been in the US between 2001 and 2004. The Appellant was asked by the RPD if he was the same person as in the Minister's documents and he responded no. At the end of the hearing the Appellant was asked if he had anything additional he would like to add. The Appellant then testified that the person in the Minister's intervention was indeed him. The Appellant testified that he was in US between 2001 and 2004. The Appellant also testified that he provided authorities with a false nationality given that people from El Salvador were being granted permits to come to the US as a result of an earthquake. The Appellant testified that he maintained his false nationality to the Salvadoran consul who interviewed him in Texas and he was removed to El Salvador and then returned to Honduras. [37] The RPD drew a negative inference to the Appellant's oral testimony at the hearing in denying that he was the person cited in the US documents. When asked why he continued to deny his sojourn in the US, the Appellant indicated that he was afraid that if he told the RPD he was deported to El Salvador it would ruin the process in Canada. This explanation is not reasonable. The Appellant was provided with several opportunities to provide Canadian officials the truth about his time in the US and his past claim to be a citizen of El Salvador. In fact, the Appellant lied to the RPD during the hearing when he was questioned regarding the Minister's intervention. The RAD finds that the Appellant's behavior is evidence that he is willing to deceive government officials in order to obtain the results he desires. The RAD finds that the Appellant's deception regarding his nationality, his interaction with US authorities and Canada Border Services Agency, and at the hearing, was sufficient to cast doubt on the truthfulness of the entirety of the Appellant's testimony and allegations. The RAD concurs with the RPD in its finding that the Appellant was not a truthful witness overall as per Sheikh14 and Dan-Ash15. Credibility of ALLEGATIONS [38] The RAD considered the credibility of the Appellant's allegations of harm by the gang. Despite the fact that the RAD found that the Appellant claims that there were concerns with the content of the BoC narrative, the RAD focused on credibility issues that did not relate to the Appellant's BoC narrative. The RAD found that there were sufficient credibility concerns regarding the documentary evidence provided by the Appellant to undermine his allegations that he was pursued and harmed by the gang members. [39] For example, The RPD drew a negative inference to the police report made by the Appellant on XXXX XXXX, 2013 based on several concerns. Firstly, the report indicated that the Appellant's brother had been killed five months before the report was issued. The Appellant was assaulted and his brother was killed on XXXX 2011 which was two years before the police report was filed. This inconsistency undermined the credibility of the Appellant's allegations that he was beaten and shot in XXXX 2011 along with his brother. The RAD noted that there was evidence on record that the Appellant's brother had been killed with a machete. Nowhere in the medical report for the death certificate did it indicate that the Appellant's brother was killed in the presence of the Appellant or that the Appellant had been attacked by a group of individuals. As such the RAD finds that the death certificates do not attest to the fact that the Appellant was attacked at the same time as his brother. In addition, the Appellant did not provide a police report that was issued on or around the death of his brother, which, if his brother had been the victim of a murder, might have been accessible to the Appellant. [40] The RPD was also concerned that the police report provided by the Appellant was made in XXXX XXXX XXXX 2013 which was well after the alleged attack in XXXX 2011. When asked why he filed the denunciation in 2013, the Appellant indicated that he had been targeted twice and that is why he filed the report. The RAD concurs with the RPD that this explanation was not reasonable given that the police report does not make reference to the Appellant being assaulted for the second time in XXXX of 2013. The omission of any reference to the Appellant's final assault in XXXX of 2013 from the police report, an assault which caused the Appellant to decide to leave Honduras, undermined the credibility of the Appellant's allegations. The RAD noted that the police report was made around the time that the Appellant left Honduras for Canada. The Appellant did not provide any evidence that the police had followed up the denunciation, or that any of his relatives had followed up the denunciation. [41] Given that the police report: does not coincide with the dates that the Appellant's brother was killed; does not make reference to the Appellant being attacked in XXXX 2013; and was made just prior to the Appellant leaving Honduras to come to Canada, the RAD finds that it was more likely than not that the Appellant made the denunciation in order to bolster a fraudulent refugee claim. This undermined the credibility of the Appellant as well as his allegations and his overall credibility as a witness. [42] The Appellant was asked if he filed a report to police in regards to the shooting and he responded that he went that same day. When asked where the denunciation was, the Appellant then changed his testimony to indicate that his mother went to the police to report. The changing testimony regarding a very simple aspect of his claim undermined the Appellant's credibility and the credibility of the allegation. [43] The RPD drew a negative inference regarding the Red Cross letter16 based on several concerns. First, the letter was issued on XXXX XXXX, 2013 however the Appellant testified that he received the letter the same day as the assault on XXXX XXXX, 2011. Second, the letter indicated that the Appellant was kept in the hospital for several days; however, the Appellant testified that he was kept overnight and release the next day. Finally, the Appellant explained that the letter was kept on file and it was provided to him upon his request. When the RPD pointed out to the Appellant that the letterhead indicates that the letter was issued after the Appellant had left Honduras, the Appellant maintained that there was a mistake on the letter. Given that: the Appellant was unable to provide consistent oral testimony regarding the length of his medical care; the Appellant was unable to provide consistent testimony as to when he received the Red Cross document; the letter was dated after the Appellant had left Honduras; the letter did not specify the name and title of the person issuing the letter; the letter is of little probative value in supporting the Appellant's allegations; and it was more likely than not that the letter was not genuine and was produced and tendered to support a fraudulent claim. [44] The RPD drew a negative inference to the Appellant's inconsistent testimony as to when he opened his tire repair business, and for his failure to provide any evidence to support his claim of opening the business. The RAD concurs with the RPD given that the Appellant was aware of the need to provide documents in support of his claim prior to leaving his country. The final assault took place after the Appellant refused to pay protection money to open his shop. The assault was not included in the police report. It was not reasonable for the Appellant not to be able to provide consistent evidence as to when he opened his shop given that it was approximately a year before the Appellant's hearing, and given that the Appellant did not support his claim of having difficulties with his memory. For these reasons the Appellant did not provide sufficient credible or trustworthy evidence in support that he owned a shop and that he was threatened and beaten because he refused to pay protection money. The allegation was not credible. [45] The RAD is aware that the Appellant provided medical evidence17 in support of his claim. Given the credibility concerns with the Appellant as well as his lack of overall credibility, the RAD finds that the injuries documented in the medical report cannot be attributed to the allegations. For example, the Appellant testified that he was shot in the back at point blank range. He indicated that the medical personnel explained to him that if he had been shot from farther away the bullet would have had more force, and therefore the Appellant was lucky that the bullet stopped where it did. A bullet is not the only substance to exit a gun when it is shot. There is also gun powder, a bullet casing, and wadding. These things also cause damage if the target is shot at point blank range as the Appellant alleges. The medical evidence indicates that the findings on the Appellant's back: "are consistent with an entry gunshot wound, caused by a low calibre weapon such as a 22 calibre rifle or pistol." 18 The report does not comment on whether or not the wound is consistent with being shot at point blank range. As such, the medical report has little probative value in supporting the Appellant's allegations. [46] Based on the analysis above, the Appellant has failed to provide sufficient credible or trustworthy evidence regarding his core allegations that: he was attacked in XXXX of 2011; he received medical treatment as a result of his attack; he was beaten and assaulted in XXXX 2013; and he was threatened as a result of opening a tire repair shop. In addition, for the reasons cited above, the RAD concurs with the RPD that the Appellant was not a credible witness overall, and that his allegations of harm were not credible. [47] Given these findings, the RAD finds that this is a case in which the RPD should have considered making a finding under s. 107 of IRPA that the there is no credible basis for the claim. The RAD finds that making a finding under s. 107 is not discretionary. The section is clear that: "if the RPD is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis of the claim." Making a finding under s. 107 ensures the integrity of the refugee determination system. [48] Given that the RAD has the authority under s. 111(1)(b) to set aside the determination and substitute a determination that, in its opinion, should have been made; and given that the Huruglica19 decision directs the RAD to come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection; and given the credibility concerns with the Appellant as a witness and with the allegations that went to the core of his claim, the RAD finds that there was no credible basis for the claim. DISPOSITION [49] The RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection, and finds that there is no credible basis for the claim. [50] The Appeal is dismissed. (signed) "Daniel McSweeney" Daniel McSweeney October 29, 2014 Date 1 RPD's Record, Exhibit 5, Notice of Intervention and Supporting Documents, pp. 101 - 118. 2 Appellant's Record, Appeal Pleadings, Letters from XXXX XXXX XXXX XXXX XXXX, pp. 35 - 42. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 4 Hernandez Victoria, Jose Salvador v. M.C.I. (F.C. no. IMM-3667-08) Lagacé, April 17, 2009; 2009 FC 388; Fenanir, Mohamed Hosni v. M.C.I. (F.C. no. IMM-2182-04), Beaudry, February 7, 2005; 2005 FC 150; Zrig, Mohamed v. M.C.I. (F.C.T.D., no. IMM-601-00), Tremblay-Lamer, September 24, 2001; affirmed 2003 FCA 178; Syed, Nezam Uddin v. M.C.I. (F.C.T.D., no. IMM-5686-99), Lutfy, October 27, 2000; Dunova, Zaneta, v. M.C.I., (F.C., no. IMM-4050-09), Crampton, April 22, 2010; 2010 FC 438; Sahil, Nahid v. M.C.I. (F.C., no. IMM-5106-07), Teitelbaum, June 24, 2008; 2008 FC 772; Zupko, Robert v. M.C.I. (F.C., no. IMM-2091-10), Snider, December 22, 2010, 2010 FC 1319; Cervenakova, Ivana v. M.C.I. (F.C., no. IMM-1798-10), Crampton, December 13, 2010, 2010 FC 1281; Gabor, Lucas v. M.C.I. (F.C., no. IMM-988-10), Zinn, November 19, 2010, 2010 FC 1162. 5 Hernandez Victoria, Jose Salvador v. M.C.I. (F.C. no. IMM-3667-08) Lagacé, April 17, 2009; 2009 FC 388. 6 Sahil, Nahid v. M.C.I. (F.C., no. IMM-5106-07), Teitelbaum, June 24, 2008; 2008 FC 772. 7 Zupko, Robert v. M.C.I. (F.C., no. IMM-2091-10), Snider, December 22, 2010, 2010 FC 1319. 8 Zrig, Mohamed v. M.C.I. (F.C.T.D., no. IMM-601-00), Tremblay-Lamer, September 24, 2001; affirmed 2003 FCA 178. 9 Appellant's Record, Appeal Pleadings, Affidavit of XXXX XXXX XXXX XXXX, pp. 3 - 5. 10 Appellant's Record, Exhibit P-4, Submissions dated August 29, 2014. 11 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799 [Huruglica]. 12 Ibid. 13 RPD's Record, Exhibit 6, Letter from Dr XXXX, pp. 119 - 120. 14 Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.). 15 Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 (F.C.A.). 16 RPD's Record, Exhibit 1, Letter from Red Cross, pp. 64 - 65. 17 RPD's Record, Exhibit 6, Report by Dr.XXXX XXXX XXXX, 2013. pp. 119-120. 18 RPD's Record, Exhibit 6, Report by Dr. XXXX XXXX XXXX, 2013. pp. 119-120. 19 Huruglica. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04858