TB5-08028

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 : TB5-08028 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 7, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Leonardo Di Leone 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] The Appellant, XXXX XXXX XXXX, is a citizen of El Salvador and appeals a decision of the Refugee Protection Division (RPD) dated January 8, 2014, rejecting his claim for refugee protection. The Appellant did not submit any new evidence. The Appellant is requesting that the decision of the RPD be set aside and refer the matter back to the RPD or that the Refugee Appeal Division (RAD) substitute a determination that the Appellant is a Convention refugee. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee or a person in need of protection. BACKGROUND [3] The Appellant fears returning to El Salvador because he alleges that in 2006 he was a witness to a murder. The Appellant fled to the United States where he alleges that he made an asylum claim but no documentary evidence was produced that such a claim was actually made. The Appellant did not establish the actual date of his entry into Canada. ROLE OF THE RAD [4] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. 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. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an 'overriding and palpable error'. [5] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [6] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [7] The RPD found that the determinative issues in this claim are credibility and a failure to establish a well-founded fear of persecution. The RPD found that the Appellant was not a credible witness. CREDIBILITY [8] The RPD found that the Appellant's testimony was inconsistent and that there were material omissions from his Basis of Claim (BOC) form and that he provided contradictory evidence with respect to determinative aspects of his claim. Specifically, there were four areas of credibility concerns raised by the RPD: * The date of the Appellant's entry into Canada; * The question of whether the Appellant had made an asylum claim in the United States; * The question of whether the agents of persecution are still looking for the Appellant; and * Whether the alleged shooters of his uncle were arrested by authorities in El Salvador. ISSUES IN THIS APPEAL [9] The issue in this appeal is whether the Appellant was a credible witness. [10] The RPD found credibility concerns with respect to the Appellant's testimony in regards to his date of entry into Canada, as to whether the Appellant had filed a claim for asylum in the United States, whether the alleged shooters of his uncle were arrested by authorities in El Salvador, and whether the agents of persecution are still looking for the Appellant. [11] The RAD has found that the determinative issue in this appeal is whether the agents of persecution are still looking for the Appellant. [12] The Appellant alleges that he and his uncle were witnesses to a shooting in El Salvador in 2006 and that his uncle was shot and died of the wounds. The Appellant was asked by the RPD if he had been threatened by the agents of persecution since 2006 and he replied that his mother has informed him that she is still receiving threats. The RPD asked the Appellant why he had not mentioned this fact in his BOC and he replied that it had been an oversight. [13] The RAD rejects this explanation. The fact that the agents of persecution are still threatening his mother, who lives in El Salvador, is an important fact in the Appellant's allegations for it demonstrates how intent the agents of persecution are in looking for the Appellant, six years after the alleged incident. It is reasonable to expect that the Appellant would have remembered this fact when writing his BOC. This he did not do, and he provided no reasonable explanation for the omission. [14] The new information in the Appellant's oral testimony amounts to omissions regarding significant aspects that go directly to the heart of his claim.3 It is reasonable to expect the Appellant to have remembered this fact when writing his narrative in the BOC. The Appellant provided no reasonable explanation for this omission. The RAD finds, on a balance of probabilities, that the Appellant's mother has not been threatened by the agents of persecution. The Board has been upheld when rejecting major evidence which has been omitted from the Personal Information Form (PIF).4 [15] Based on the oral and written testimony of the Appellant, the RAD finds that the Appellant has not been threatened by the agents of persecution since he left El Salvador in 2006. If the Appellant was truly a person of interest to the agents of persecution, I find it implausible that the agents of persecution would not have continued to threaten him in the last eight years. If he was truly a continued target, the agents of persecution would have continued to harass him. One would think that the agents of persecution would have continued with their vendetta against the Appellant. But they did not. I find that the Appellant does not have a well-founded fear of persecution if he were to return to El Salvador. I find that it has been well over eight years since the Appellant witnessed the shooting. [16] The Appellant has not produced sufficient evidence, neither in his oral testimony nor in his written evidence, that he has been threatened by the agents of persecution since 2006, nor that he would be threatened by them were he to return to El Salvador. [17] I find that there is no persuasive evidence before me, that if the Appellant were to return to El Salvador, that he would be subjected to a serious possibility of persecution. CONCLUSION [18] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the determination of the Refugee Protection Division that the Appellant is not a Convention refugee or a person in need of protection. [19] The appeal is dismissed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino October 7, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Kroka, Miroslav v. M.C.I. (F.C., no. IMM-6199-11), Boivin, June 11, 2012; 2012 FC 728, at para.17. 4 Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013, 2013 FC 1241; Jin, Hai Long v. M.C.I. (F.C., no. IMM-6988-11), Pinard, May 24, 2012, 2012 FC 595; Wei, Kai Bin v. M.C.I. (F.C., no. IMM-8613-11), Russell, July 19, 2012, 2012 FC 911. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08028