TC0-03367

RAD File / Dossier de la SAR : TC0-03367 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 / heard at Montreal, QC Appel instruit / entendu à Date of decision June 17, 2021 Date de la décision Panel Me Tammy Tremblay Tribunal Counsel for the person who is the subject of the appeal Justo Vega Castro 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 dismiss this appeal. [2] The Appellant, XXXX XXXX XXXX XXXX XXXX XXXX, is a citizen of Mexico. In his written narrative, the Appellant indicates fearing for his life in Mexico since the Cartel Jalisco Nueva Generacion (CJNG) tried to recruit him. On XXXX XXXX XXXX 2017, the Appellant, who was driving a XXXX XXXX from Oaxaca to Mexico City, was pulled over by what appeared to be ministerial police vehicles. He was asked to provide his driver's license and voter card, and these documents were photographed. This was strange to the Appellant, who filed a complaint on XXXX XXXX XXXX 2017. The Appellant affirms that he received a threatening phone call on XXXX XXXX XXXX 2017 from members of the CJNG requesting that he work for them. The calls continued and the Appellant decided to move to the City of Tehucan to protect himself and his family. In XXXX 2018, the Appellant returned to Oaxaca thinking his life was back to normal, but on XXXX XXXX XXXX 2018, he claimed to have again started receiving threatening messages. The Appellant decided to move to XXXX in XXXX 2018, but the calls continued. The Appellant decided to leave Mexico after finding out that one of his ex-colleagues had been murdered and arrived in Canada on XXXX XXXX XXXX 2018. [3] The Refugee Protection Division (RPD) rejected the Appellant's claims because it found that he was not credible on important elements of his claims and lacks forward-looking risk in Mexico, because: - His testimony was inconstant on important aspects of his claim. - He omitted important elements from his narrative. - His testimony was contradictory. - He did not make reasonable attempts to procure supporting documentation for his claim and provided no reasonable explanation for this failure. - He was evasive or outright defiant answering some of the RPD questions. - He has not established that the risk he fears in Mexico exists on a forward-looking basis. [4] In his Factum, the Appellant submits that: - The phone call received between XXXX XXXX XXXX XXXX 2017 occurred, as it will be confirmed by the certificate from the Mexican telephone company TELCEL, which is in the process of being issued. - The RPD failed to properly assess the Appellant's credibility. Specifically, the RPD assessed the corroborative documentation first without assessing the credibility of the Appellant's testimony. [5] The determinative issue for the Refugee Appeal Division (RAD) is the credibility of the Appellant. NEW EVIDENCE [6] Section 110(4) of the Immigration and Refugee Protection Act (IRPA) sets out that an Appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection. Where evidence meets the requirements of section 110(4), the RAD will then go on to consider the factors affirmed by the Federal Court of Appeal in Singh. [7] In his submissions filed on XXXX XXXX XXXX 2020, the Appellant indicates that new evidence is forthcoming. I was assigned to the Appellant's file in XXXX 2021 and at that date, no new evidence was filed. I asked the Registry to contact the Applicant's counsel to direct that the new evidence and Rule 29 application be received by the RAD by XXXX XXXX XXXX 2021. [8] On XXXX XXXX XXXX the Appellant submitted new evidence with a rule 29 Application. [9] In his XXXX XXXX XXXX 2021 Application, the Appellant lists the new evidence as follows: - Copy of the telephone record from TELCEL showing the calls the Appellant received on XXXX XXXX XXXX XXXX 2017 and Copy of the certification of the telephone record, dated XXXX XXXX XXXX 2020. - Affidavit of the Appellant's wife dated XXXX XXXX XXXX 2021 in which she affirms being a witness of facts that occurred to him between XXXX XXXX XXXX 2017 and XXXX XXXX XXXX 2017. - Copy of a Report-Resolution submitted by the Attorney General Office of the State of Oaxaca, dated XXXX XXXX XXXX 2021. [10] In his written statement, dated XXXX XXXX 2020, the Appellant indicated that he intends to submit an affidavit from his wife as a witness of the facts that occurred to her and their children between XXXX XXXX "as up today in relation with the situation she has had to face in Mexico after her husband departed to Canada..." but this document is not included with his submissions or with his rule 29 Application. This document is not included in the list of documents listed as "enclosed" with his XXXX XXXX XXXX 2021 Application, and none of his submissions mentions what are the facts that would have occurred to the Appellant's family since his departure. The copy of the telephone record and certification from TELCEL are not admissible [11] The telephone record showing phone calls for XXXX XXXX XXXX XXXX 2017 and certification of said record dated XXXX XXXX XXXX 2020, aim to confirm events that would have occurred before the decision of the claim on XXXX XXXX XXXX 2020. [12] In his submissions, the Appellant submits that these documents are important as the main reason the RPD rejected the Appellant's claim was his lack of credibility. The Appellant also submits that it was not possible to obtain these documents until recently but provides no explanation as to why this is the case as required by RAD rule 3(3)(g). [13] In his Application, the Appellant underlined that the RDP drew a negative inference on his credibility because he did not make reasonable efforts to procure evidence in support of his claim. The Appellant argues he is submitting a copy of the telephone record and certification to provide evidence that the phone calls mentioned in his claim occurred. [14] I cannot accept these documents because an appeal before the RAD is not an opportunity for an Appellant to augment the record they have presented to the RPD or address errors or gaps in their evidence. [15] First, these documents are not pertaining to facts that arose after the rejection of the Appellant's claim. Second, the Appellant provides no explanation for why he was not able to obtain them until recently as required by RAD Rule 3(3)(g). Third, it was not demonstrated why the Appellant would not have been able to present these documents at the time of the hearing, or before the RPD decision dated January 15, 2020, especially given that the Appellant's case revolves around phone calls he would have received from cartel members. There is also no indication that these documents were not reasonably available to the Appellant before his claim was rejected. During the hearing, the Appellant testified that he made no attempt to try to get his phone records and answered this when the RDP asked him why: "the only information that you can get...is....you know...they are will to talk to you about promotion, sale, phones and all that stuff, but to get a list, you have to go in person and show your ID." 1 [16] The copy of the telephone record and certification from TELCEL are not admissible under section 110(4) of the IRPA. The copy of the affidavit of the Appellant's wife dated XXXX XXXX XXXX 2021 is not admissible [17] In her affidavit, the Appellant's wife indicates being a witness of facts that occurred to him between XXXX XXXX XXXX 2017 and XXXX XXXX XXXX 2017. The document aims to confirm events that would have occurred before the decision of the claim. I cannot accept this Affidavit for reasons already expressed in paragraphs 14 and 15. [18] I cannot accept this document because an appeal before the RAD is not an opportunity for an Appellant to augment the record they have presented to the RPD or address errors or gaps in their evidence. [19] The affidavit is not pertaining to facts that arose after the rejection of the Appellant's claim. The Appellant provides no explanation for why he was not able to obtain it until XXXX 2021 as required by RAD Rule 3(3)(g), and there was no explanation why he would not have been able to obtain it for the RDP hearing. There is also no indication that this affidavit was not reasonably available to the Appellant before his claim was rejected or that the Appellant's wife was sick or otherwise unavailable to provide it before the RDP rendered its decision. [20] The copy of the affidavit of the Appellant's wife dated XXXX XXXX XXXX 2021 is not admissible under s. 110(4) of the IRPA. The copy of a Report-Resolution submitted by the Attorney General Office of the State of Oaxaca is not admissible [21] The third document presented by the Appellant is a copy of a Report-Resolution prepared by the Attorney General Office of the State of Oaxaca, dated XXXX XXXX XXXX 2021. I understand that someone, presumably the Appellant, sent a letter to the Attorney General Office of the State of Oaxaca requesting "a protection measure and information on proceeding and control procedure" for the Appellant and his family. The document was requested on XXXX XXXX XXXX 2020, two months before the hearing but there is no explanation as to why the Appellant was not able to obtain the document until recently. The Appellant presents no submissions as to why this document is admissible. [22] The Appellant provides no explanation for why he was not able to obtain this report until XXXX 2021 as required by RAD Rule 3(3)(g). There is also no indication that this report was not reasonably available to the Appellant before his claim was rejected. Although the document postdates the rejection of the Appellant's claim, the content relates to information that predates the rejection of the claim. Essentially, the document provides further corroboration of the allegation that the Appellant complained to the police about being threaten by the CJNG. Therefore, I find that the document is not new, and I cannot accept it. [23] The copy of a Report-Resolution submitted by the Attorney General Office of the State of Oaxaca is not admissible under s. 110(4) of the IRPA. ANALYSIS [24] My role is to look at all the evidence and decide if the RPD made the correct decision.2 The RPD did not assess the corroborative documentation without first assessing the credibility of the Appellant's testimony. [25] In his submissions, the Appellant affirms that the RPD assessed the credibility of his corroborative documents "without ever assessing the credibility of his testimony itself". The Appellant submits that the RPD "never determined" whether he testified in a consistent and believable manner, instead, the RPD made a global adverse credibility finding solely based on his corroborative documents. [26] Contrary to what the Appellant and his counsel are putting forward, the RPD did assess the Appellant's testimony which it found to be inconstant on important aspects of his claim, and in particular the following paragraphs in which the member identified the material inconsistencies and omissions in his testimony that he did not adequately explain when given the opportunity to do so, and on which the RPD drew adverse inferences against his credibility: - Paragraphs 21, 23-30: Neither the complaint nor the Appellant's written narrative mentions that members of the CJNG asked him to transport cocaine and weapons. When asked why this information was not included in his narrative, the Appellant answer was that "he could not say anything that was not in the police report". When the RDP asked him why this would be the case, the Appellant response was that "Canada is a country that does not tolerate lies and I wanted to do a good job with the details, and I wanted to do it with a trusting person because in Mexico this is a difficult thing to do". I find that these responses do not explain the omission. I also find that this omission is important as it relates to the basis of the Appellant's claim that the CJNG tried to recruit him. - Paragraphs 31-49: contrary to the Appellant's submissions, the reason the RPD did not believe that the threatening phone calls had not occurred is not because the Appellant did not produce a certificate from the Mexican telephone company, but because the Appellant's testimony on this aspect of his claim was contradictory. During the hearing, the Appellant testified that he never answered any of the calls.3 He also testified that no voice mail or text messages were left4 and that his phone was not "sophisticated" enough to have the option to leave messages.5 In his written narrative, the Appellant indicated that he answered the XXXX XXXX XXXX 2017 calls and even reproduced the threats he would have received from members of the CJNG. This contradicts the Appellant's narrative where he mentions having received "threatening messages" from members of the CJNG on XXXX XXXX XXXX 2018. When the RDP asked the Appellant to explain this contradiction, he indicated that he believes that his wife deleted the messages because she was afraid that he would get upset or concerned6, him and his wife are close, don't hide anything from each other, that he takes showers, and she uses his phone and that perhaps she deleted the messages.7 This response is speculative and still does not explain the contradiction. When the RDP asked the Appellant how he would know if he had received threatening messages if his wife had deleted them8, he responded that he had a conversation with his wife, and that "nothing is clear", sometimes she would tell him "watch out". Finally, the Appellant said that he does not recall and that he did not recall his narrative.9 None of the Appellant's responses explain the contradiction that the RDP identified between his narrative and his testimony on the threatening messages. This contradiction concerns a central and important element of his claim and has not validly been explained. - Paragraphs 56-58: Leaving the sanctuary of his uncle's home and returning to the same city he fled from is inconsistent with his fear of the CJNG. - Paragraphs 59-63: The RPD noted that the Appellant's knowledge of portions of his written narrative "was shockingly poor" and that he became "agitated and evasive", "defiant" even as the hearing progressed. [27] It is clear to me that not only did the RPD assess the Appellant's testimony, but the Member also provided him an opportunity, and in some cases, many opportunities, to clarify each of the elements found problematic in his testimony. The Appellant failed to provide credible responses that would have explained these problems. [28] In addition to these shortcomings, the RPD pointed out other elements that affected the Appellant's credibility, namely that he made no effort to obtain letters or affidavits from his spouse or to confirm aspects of his testimony or the record from the telephone company and did not provide a reasonable explanation for not even trying to obtain this evidence. For example, the answer of the Appellant was that it was not "convenient" for him to ask his uncle for a letter. [29] The RPD did not make global adverse credibility finding solely based on the Appellant's corroborative documents. [30] While the Appellant says he contests the conclusions of the RPD on his credibility, he only makes a single precise argument. Having said that, I have reviewed these conclusions and found them to be correct for the same reasons as the RDP. It is clear to me that the RPD had valid reasons to discount the truthfulness of the Appellant's testimony concerning the events alleged to have occurred in Mexico. The shortcomings identified by the RPD in the testimony of the Appellant are pertaining to issues that are at the core of the claim of the Appellant and that he was unable to validly explain. CONCLUSION [31] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Tammy Tremblay Tammy Tremblay 17 June 2021 Date TT/aj 1 Recording of the RPD hearing of November 14, 2019, 0 :45:00. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Recording of the RPD hearing of November 14, 2019, 0 :43 :00. 4 Ibid. 0:55:00. 5 Ibid. 0:42:00 6 Ibid. 0:56:00. 7 Ibid. 0:56:00. 8 Ibid. 0:57:00. 9 Ibid. 0:57:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-03367 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