MB6-02811

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 : MB6-02811 MB6-02812 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision June 28, 2017 Date de la décision Panel Paule Robitaille Tribunal Counsel for the appellant(s) Me Gisela G Barraza Conseil(s) du (de la/des) Appelant(e)(s) Designated representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION [1] The principal appellant, XXXX XXXX XXXX XXXX, and her adult daughter, XXXX XXXX XXXX, citizens of Mexico, are appealing the Refugee Protection Division (RPD) decision rejecting their refugee protection claims and determining that they are not "Convention refugees" under section 96 of the Immigration and Refugee Protection Act (IRPA) or "persons in need of protection" within the meaning of section 97 of the same act. [2] The appellants did not file any new evidence before the Refugee Appeal Division (RAD), nor are they requesting a hearing before the RAD. ALLEGATIONS [3] The appellants stated that they are being sought by a group of criminals who want to harm the principal appellant's husband. [4] The principal appellant's husband and XXXX's father, XXXX XXXX XXXX, has been targeted by criminals since 2008. The first time was in spring 2008, in XXXX, Guanajuato, when he was a XXXX XXXX XXXX (XXXX XXXX XXXX XXXX XXXX XXXX XXXX). And then again starting in 2010. At that time, he was XXXX XXXX XXXX XXXX. A criminal gang ransacked businesses in XXXX and Mr. XXXX XXXX was also a victim. They wanted to extort large sums of money from him. He felt trapped so he paid the money for several months. But, after a while, he no longer had money to pay them and they began threatening him. [5] In December 2010, unknown individuals tried to kidnap one of the principal appellant's daughters, XXXX. Paralyzed with fear, the family left the city of XXXX and moved to XXXX, Guanajuato. They built a house there and started their life over. In addition to XXXX XXXX, he started XXXX XXXX XXXX and opened a storefront. [6] Towards the end of 2013, the criminals from XXXXfound Mr. XXXX in XXXX, but it is not clear how they found him. They threatened him, showing him photographs of his family and stating that they would find him no matter where he went. He fled to the United States, leaving the principal appellant and their children behind. [7] In May 2014, in the middle of the night, the principal appellant was visited by two men. They knocked on the door but she did not answer. She called the police, but they did not come to the rescue. The men, realizing that no one was answering, left without knocking again. Nevertheless, the principal appellant was very scared. [8] On June 18, 2014, she sent her two youngest children, who are American citizens, to join her husband in the United States. She and her daughter, XXXX, tried to illegally cross the border on two occasions. Unable to cross into the United States, they moved to Guadalajara, Jalisco. On September 15, 2014, the two youngest children returned to Mexico because their father, who was alone, could not take care of them. [9] At the start of January 2016, the principal appellant's mother, who was living in XXXX, received a visit from the criminals. They were looking for Mr. XXXX XXXX. They threatened to harm the entire family, including the appellants. That incident incited the appellants to leave Mexico as quickly as possible. They took the steps to obtain a Canadian visa. [10] The appellants arrived in Canada on XXXX XXXX, 2016. They claimed refugee protection on March 10, 2016. RPD DECISION [11] The RPD rejected the appellants' refugee protection claim because they did not establish the credibility of their allegations. APPELLANT'S ARGUMENTS [12] The appellants stated that the RPD erred in its assessment of their credibility. [13] The principal appellant stated that she sometimes has difficulty expressing herself because she is a housewife from a modest background. The RPD should have taken that into consideration. [14] The appellant is of the opinion that the omissions described in paragraph 20 of the RPD decision should not have undermined her credibility. The principal appellant failed to note in her written account what efforts had been made with the police after her daughter XXXX was kidnapped in December 2010. That omission can be explained by the fact that her efforts yielded no results and by the fact that the people have lost their faith in the Mexican authorities, who are particularly corrupt, she stated. The appellants are supposedly hesitant about going to the police in their country. Therefore, explained their lawyer, it was not imperative in their eyes to specify that they had eventually decided not to file a complaint. [15] The appellants argued that the RPD erred when it states, at paragraph 23 of its decision, that it would not be credible or plausible that the criminals would still be going after them in 2016, two years after the last incident in 2014. At paragraph 25 of its decision, the RPD indicates, for one, that the appellants had lived in Guadalajara from August 2014 to January 2016, without being harassed or inconvenienced. However, the appellants argued that is untrue because, in January 2016, the principal appellant's mother, who was living in XXXX, received a visit from two men who were looking for Mr. XXXX XXXX. They argued that this demonstrates that the risk still existed in 2016. [16] The appellants argued that the RPD erred again, at paragraph 26 of its decision, when it finds that it was inconsistent, implausible even, that the principal appellant brought her two young children, American citizens, back to Mexico in September 2014 because the principal appellant was always the one who had taken care of the children. Mr. XXXX XXXX was in a precarious situation in the United States, alone, and he was unable to take care of them. Therefore, despite the serious risk, she had no other choice but to bring her children back to Mexico. [17] For all those reasons, the appellants are of the opinion that the RPD's credibility findings are abusive, arbitrary and in disregard of well-established principles of case law. They are asking that the RAD allow their appeal and set aside the RPD's determination. SCOPE OF THE APPEAL [18] It must be noted that the RAD is to intervene when it has concluded that the RPD committed an error in fact, in law, or in mixed fact and law.1 It must establish whether the RPD decision is correct,2 that is to say, that it is not erroneous. [19] With respect to the credibility of oral testimony, a major issue here is whether the RAD must show deference to the RPD analysis when it had a meaningful advantage in making a particular finding.3 In this case, the RAD will assess each finding using the standard of reasonableness. It will then assess overall credibility to determine whether the RPD's assessment is correct. [20] After thoroughly analyzing the RPD decision, I conducted my own analysis and considered all the evidence on the record,4 and did so in light of everything disclosed by the appellant in her memorandum.5 RAD DETERMINATION [21] I dismiss the appeal and confirm the RPD determination. ANALYSIS [22] Having listened closely to the recording of the RPD hearing and having assessed the evidence, I am able to state that the RPD decision is the result of a comprehensible reasoning process and, consequently, I am of the opinion that it is correct. The principal appellant-a housewife from a modest background [23] In light of the recording of the hearing, I am of the opinion that the panel considered the principal appellant's status as a housewife and someone from a modest background. The panel was tactful when asking the questions, ensuring that the appellants understood her, and she repeated the questions when she felt that the principal appellant or her daughter did not fully understand. In that context, lack of education does not justify the sometimes contradictory, confused or implausible explanations provided by the principal appellant or her daughter. The unsatisfactory explanations led the panel to find that the allegations lacked credibility. I therefore showed deference to the RPD and its assessment of the appellants' oral testimony, and I am of the opinion that each of the RPD's findings concerning the credibility of that testimony is reasonable. A major omission [24] The principal appellant's failure to indicate in her Basis of Claim Form (BOC Form) what steps were taken with the police after the attempted kidnapping of her daughter XXXX is a major omission. And on that point, I agree with the panel. The principal appellant allegedly telephoned the police and when she did not get a response, she went to the police station. After being questioned by the police, she purportedly decided not to file a complaint. That is not a periphery detail. The principal appellant explained that she failed to include those facts because her efforts yielded no results and because she does not trust the police anyway. That explanation is unsatisfactory. It is reasonable to believe that, in such circumstance, if she had truly asked for help from the police and if she had made the effort to go to the police station, she would have mentioned it in her BOC Form, particularly given that the wording of question 2(c) clearly indicates that the BOC Form should include any and all requests for protection from police in her country. During this entire process, the principal appellant has had a lawyer who has experience with refugees. She stated that she had read the BOC Form before signing it and that she understood the contents. If she had asked for help from the authorities, it is reasonable to believe, in this context, that she would have mentioned it. [25] Simply because her efforts did not yield any results does not mean that she should not have mentioned it in her BOC Form. Those are insufficient reasons. [26] In addition, I would add that the principal appellant's explanations on this point are inconsistent and contradictory. On the one hand, she stated that she wished to go to the police to report the attempted kidnapping, to get help (when she did not get a response to her telephone call, she made the effort to go into the police station); on the other hand, she stated that she does not trust the authorities in her country and she did not want to file a complaint because she feared that if the criminals who were searching for her husband realized what she had done, they would be furious and would retaliate as they have contacts within the police force. If that were the case, why would she have made the effort to contact the police, going so far as to go into the police station? She supposedly became scared all of a sudden. I do not believe her. It is reasonable to believe that if she had really made the effort to go into the police station, it was because she was hoping for some sort of help. That is contradictory and leads me to conclude that she did not go to the police station because there was no attempted kidnapping of her daughter that day in December. All of that undermines the appellant's credibility. [27] Therefore, having considered all of the evidence, I agree with the RPD's findings, and I am of the opinion that the RPD member's findings regarding this major omissions are reasonable. Two years of peace and then the aggressors resurfaced [28] The appellants argued that the RPD erred in finding that it was not credible that the criminals would be going after them since it had been two years since anything had happened (2014 to 2016). It allegedly also erred by failing to consider the fact that the criminals visited the principal appellant's mother in January 2016, which demonstrates that they are still trying to track down the family. [29] If the allegation regarding the visit from the criminals in January 2016 were credible, I would agree with the appellant. However, in light of the recording from the hearing, that allegation is not credible. In fact, I am of the opinion that the allegation is implausible. It is difficult to understand why, suddenly, the criminals disappear for two years and then, out of the blue, they visit the principal appellant's mother for no obvious reason. The principal appellant first stated that the criminals visited her mother to tell her that [translation] "they already knew where my husband was and they were about to find us." I find it implausible that the criminals would go to the principal claimant's mother's home to announce to her that they are on the cusp of finding her family. If they wished to harm the principal appellant, why would they publicize it? Why talk to her mother about it when she will tell her of their intentions? That makes no sense. If they wanted to harm Mr. XXXX XXXX's family or interrogate them, they would cut to the chase. That allegation is simply not credible. [30] Perhaps the member did not feel it was necessary to analyze this allegation because, in light of her reasoning, it is implausible in the context described by the appellants that these criminals would resurface all of a sudden, two years after the last incident, for no particular reason. In my opinion, the reasoning of the RPD member is reasonable. Allow me to explain. [31] The appellants testified that the criminals were targeting Mr. XXXX XXXX because of his business activities. He allegedly gave up those activities in 2014 and went to live in the United States. What is more, he never reported them to the police. He does not even know the name of their organization. The RPD tried to determine why the criminals would threaten the appellants' lives two years after the last incident. The principal appellant stated that it was because her husband had refused to collaborate with them. That is not a satisfactory explanation. Why would they spend the time and energy chasing down Mr. XXXX XXXX and his family for zero profit and without any interest? Do they not have other things to do? It is reasonable to believe that after all that time, they would have moved on to something else. [32] In addition to that, there is the lack of credibility of the allegation that the criminals visited the principal appellant's mother in January 2016. The principal appellant's two youngest children returned to Mexico despite the danger [33] Considering the principal appellant's statements about her alleged fear, it is difficult to believe, having sent her two youngest children to the United States in XXXX 2014 following threats from criminals, that Mr. XXXX XXXX would send them back to Mexico three months later. That is not the behaviour of a mother who fears that her family is being exploited by dangerous Mexican criminals. From that, like the RPD, I find that the appellants' fears in 2014 are not credible. Here is why. [34] In late 2013, Mr. XXXX XXXX was threatened. In May 2014, unknown individuals knocked on the principal appellant's door in the middle of the night. Her daughter XXXX was allegedly the victim of an attempted kidnapping in 2010. The appellants were very afraid. The principal appellant successfully sent XXXX and XXXX to the United States, with her husband, in XXXX 2014. They are American citizens. They are eligible for all of the benefits and protection that the United States offers its citizens. They are safe. It is also a country that the principal appellant knows-she lived there before 2003. She has family there, and likely has friends there as well. And yet, despite that, in September 2014, the children came back home to Mexico. Why? She explained to the RPD member that she could not cross the border, that she wanted them to be with her: [translation] "We wanted to be together." Her husband, alone there, could not take care of them. She added that her brothers and sisters did not want to take responsibility for caring for her children. [35] The RPD member considered those explanations to be unreasonable. The RPD [translation] "is of the opinion that it is inconsistent, even implausible, that the principal claimant would have them come back to live in Mexico given the seriousness of the alleged risk for them in that country. In fact, in the panel's opinion, it defies belief and demonstrates that the principal claimant has absolutely no fear for their safety and life in Mexico. Her credibility is seriously undermined."6 Perhaps instead of inconsistent or implausible, I would simply state that this behaviour is inconsistent with that of a mother who wishes to protect her children at all costs. And like the RPD, I would state that it demonstrates that the appellant did not fear for her children's safety in 2014. Therefore, I also find that the appellants' credibility is seriously undermined by that behaviour and by the lack of a satisfactory explanation. Unable to identify the aggressors [36] In addition, the female appellant repeated several times at the hearing that she did not know who the criminals were, that she was unable to identify the supposed network. Her husband also did not know who they were. I do not believe that neither the principal appellant nor her husband were able to identify the criminals or the supposed network that had harassed the vendors in XXXX and XXXX for years, despite the fact that these criminals have been on Mr. XXXX XXXX's heels for at least eight years. The principal appellant had no explanation for that. It is reasonable to believe that, if the principal appellant had been targeted and threatened by the same people for eight years, she would have some idea of who they were. She has no idea. That again leads me to find that these two refugee protection claims, on the whole, are not credible. [37] Consequently, having conducted an independent analysis of the key evidence on the record, as demonstrated earlier, I have reached the same finding as the RPD. I find that the appellants have not established the credibility of their allegations. The RPD's finding with respect to the credibility of the oral testimony is correct; the appellants did not establish the credibility of their testimony. Nor did they establish the credibility of their allegations. This claim is not credible. As such, I conclude that the RPD decision is correct. CONCLUSION [38] Pursuant to subsection 111(1) of the RPD, the RAD confirms the RPD decision, namely that XXXX XXXX XXXX XXXX and XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 7 of the same act. [39] Therefore, the appeal is dismissed. Paule Robitaille Paule Robitaille June 28, 2017 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 103. 2 Idem. At paragraphs 59, 64, 78 and 103, the Honourable Justice Gauthier explains her understanding of the "reasonableness standard." 3 RAD: No. TB6-03419, May 17, 2017. The three-member panel analyzes the deference that the RAD must show to RPD findings concerning the credibility of oral testimony. See paragraphs 72 and 116, among others. 4 Idem, paragraph 103. 5 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 103. 6 See paragraph 27 of the RPD decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-02811 MB6-02812 10 RAD.25.02 (April 9, 2013) Disponible en français