MB5-02557

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / No de dossier de la SAR : MB5-02557 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision February 3, 2016 Date de la décision Panel Me Louis Cousineau Tribunal Counsel for the person who is the subject of the appeal Me Farchid Mochirian 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 [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Honduras, is appealing against the May 21, 2015, decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. He is asking the Refugee Appeal Division (RAD) to set aside the determination of the RPD and refer the matter to another member of the RPD for re-determination. [2] The appellant did not submit any new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and is not requesting that a hearing be held before the RAD. [3] The Minister did not intervene on appeal, but filed documents before the RPD. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that the appellant is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [5] The appeal is dismissed. BACKGROUND [6] The appellant was born in Tula, Honduras, and a few years later he left to join up with his parents in the United States, where he acquired permanent residence. In 2006, he was arrested and brought up on criminal charges. He was sentenced to XXXX days in prison, XXXX years' probation and a fine for possession of child pornography and marijuana in the United States. Once his green card expired, he was deported to Honduras. [7] The appellant is alleging that he had a door business and a XXXX studio in Tula, his hometown. In XXXX 2011, a member of a criminal gang allegedly came to his house, questioned him about his business operations, and asked him if he was in a rival gang and whether he was a drug dealer. Shortly thereafter, he consulted his cousin "XXXX" about this visit. Later on, the appellant realized that the truck driver working for him was armed, that he was always accompanied by two armed men and that he belonged to a criminal gang. [8] Subsequently, the appellant noticed the presence of bikers and felt watched. He was afraid and went to stay with his paternal grandmother in Santiago. Two days later he left Honduras for Guatemala, where he claims to have been followed by members of a criminal gang. Shortly thereafter he returned to Santiago, Honduras, and then to Tela, where he supposedly met with "XXXX" about his difficulties. After leaving his cousin's house, the appellant was allegedly attacked and injured by about 10 criminal gang members. He was reportedly taken somewhere and threatened with death because upon seeing a partially removed tattoo, the gang members thought he was in a rival gang. He escaped and left for Santiago. Subsequently, he was apparently taken to a medical clinic for treatment. [9] The appellant left Honduras in August 2011 and arrived in the United States in January 2012, where he stayed for over two years without applying for asylum. On May 5, 2014, the appellant entered Canada illegally and, after being caught by the Canadian authorities, claimed refugee protection. The appellant is alleging that he fears the MS-13 criminal gang because they want to kill him, since they suspect him of belonging to a rival gang (Barrio 18). IMPUGNED DECISION [10] In its decision of May 21, 2015, the RPD found that the exclusion clause in Article 1Fb) of the Geneva Refugee Convention did not apply to the appellant, a conclusion that was not challenged on appeal. In addition, the RPD rejected the refugee protection claim, finding that the appellant was not credible. Its findings can be summarized as follows: - There is a significant contradiction between the appellant's testimony and his port-of-entry statement as to his cousin "XXXX" membership in the MS. The RPD was not satisfied by the appellant's explanations for this contradiction. - There is another significant contradiction between the Basis of Claim Form (BOC Form) and his testimony at the hearing regarding a tattoo appearing on the appellant that made some MS gang members, in August 2011, think that the appellant belonged to a rival gang. The appellant testified that when he had been attacked in Honduras in 2011 by MS members, his tattoo was complete, and that he had tried to remove it in the United States in 2013, whereas in his BOC Form, his tattoo was partially gone. The RPD was not satisfied by the appellant's explanations for this contradiction. - The appellant testified that he did not know which medical clinic, or which city, he went to for treatment after being injured in 2011. Also, he was confronted with the medical document1 issued in Tula, where there is no indication that it was issued by a clinic and no mention of the treatment location. The appellant's vague testimony undermines his credibility, and no probative value is given to the medical document. - The appellant stayed in the United States illegally for two and a half years before entering Canada illegally. He claimed refugee protection after being intercepted by the Canadian authorities. The RPD found that this delay in seeking protection is inconsistent with the behaviour of someone fearing for his life should he return to his country. - Given all the credibility problems, the RPD found that it did not believe that the appellant had been threatened and attacked in Honduras and that he feared for his life in Honduras for the reasons alleged. - Also, the letters from his former girlfriend2 and his brother,3 submitted by the appellant to support his refugee protection claim, are vague and general and do not make up for the aforementioned credibility shortcomings. APPELLANT'S ARGUMENTS [11] In his memorandum, counsel for the appellant asserts that the RPD committed errors that can be summed up as follows: - The RPD did not consider the expert report4 filed that indicates that the appellant has cognitive problems, which are of fundamental importance when assessing credibility. - As for the apparent contradiction with his port-of-entry statements, including the one about his cousin "XXXX" MS gang membership, "XXXX" role was secondary, and the RPD did not take account of the appellant's explanation that the officer had not written everything down. - No conclusion can be drawn concerning the quality and visibility of the appellant's tattoo, because it was the appellant himself who had tattooed himself in amateur fashion. - In its findings about the hospitalization and the medical report filed, the RPD ignored the psychological shock in which the appellant found himself when he was assaulted, which would explain his memory loss. - Failure to apply for asylum in the United States and the fact that the appellant claimed refugee protection in Canada after entering the country illegally are not determinative factors, and the RPD did not take the appellant's explanations into consideration. SCOPE OF THE APPEAL [12] In his memorandum, counsel for the appellant argues that the question of whether a decision-maker erred in his or her treatment of the evidence should be reviewed on the standard of reasonableness. [13] I am of the opinion that the scope of the appeal before the RAD must be examined in light of the IRPA and the case law on this subject. [14] First, the RPD does not expressly set out the standard of intervention that the RAD should apply when reviewing RPD decisions. The introductory wording of subsection 110(1) of the IRPA is as follows: Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. [15] Furthermore, with regard to the RAD's decisions, subsection 111(1) of the IRPA provides that the RAD shall confirm the determination of the RPD, set aside the determination and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate. [16] In addition, I interpret the provisions of subsection 111(2) of the IRPA as indicating that Parliament's intent is to favour the finality of these decisions. It is provided that the RAD may refer the matter to the RPD only if its decision is wrong in law, in fact or in mixed law and fact and it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD. [17] The Federal Court has rendered several decisions to date regarding the standard of review or intervention that the RAD should apply and its role when RPD decisions are appealed to it. [18] Thus, the appeal before the RAD is not in the nature of a judicial review. The RAD errs in applying the reasonableness standard of review, and the RAD must perform its own assessment of all the evidence.5 [19] Two lines of case law have emerged from the decisions rendered to date by the Federal Court regarding the standard of review or intervention applicable to the RAD. [20] To begin, certain decisions 6 state that the RAD must be able to correct any error of law in an RPD decision or any palpable or overriding error in the findings of fact or the application of the law to these facts. [21] Also, in Huruglica,7 the Honourable Justice Phelan states that "[u]nlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which 'in its opinion, should have been made'", and the RAD must conduct an independent assessment of the application in order to arrive at its own opinion.8 In order to do that, the RAD must conduct a hybrid appeal and must review all aspects of the RPD's decision.9 [22] As for the deference that the RAD owes to the RPD's findings, the Honourable Justice Phelan indicates that it may be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative".10 Nevertheless, when it comes to interpreting the documentary evidence on country conditions, the Honourable Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment."11 [23] In my analysis, as to my role and functions as a decision-maker of the RAD, I have considered the provisions of the IRPA and all the Federal Court decisions concerning the RAD, Huruglica in particular. Thus, it is my opinion that the RAD is a specialized tribunal and that I must assess all the evidence to determine whether the appellant is a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA and, therefore, whether the RPD's decision is well founded in light of the evidence presented to the RPD, the appeal records, as well as any new evidence within the meaning of subsection 110(4) of the IRPA or any evidence gathered during a hearing under subsection 110(6) of the IRPA, if applicable. In the case at hand, it should be noted that the appellant did not present any new evidence and that there was no hearing. [24] Also, in reviewing this case, I will show deference to the RPD's credibility findings. Furthermore, if there are errors on questions of law or if there are erroneous findings or findings that are not supported by the evidence on questions of fact or of mixed law and fact that are central to the claim for refugee protection, I will intervene in accordance with the provisions of subsections 111(1) and 111(2) of the IRPA. ANALYSIS [25] The determinative issue is whether the RPD erred in its findings that the appellant was not credible. To this end, I have reviewed the RPD's reasons for decision and I have listened to the recording of the hearings held on July 4 and August 5, 2014, hereinafter referred to as "the hearing." In addition, I have read and analyzed all the evidence in this case, including the psychosexual report12 filed and the appellant's memorandum. [26] I will make some preliminary remarks about the aforementioned psychosexual assessment report while taking account of the arguments made by counsel for the appellant, and then I will discuss the RPD's findings, including the delay in claiming refugee protection, while taking the appellant's arguments into consideration. Preliminary remarks [27] Counsel for the appellant submits that the RPD did not take into account the psychosexual assessment report that was filed (hereinafter referred to as "the report"). I do not concur, and here is why. [28] First, it is trite law13 that the RPD is presumed to have considered all the evidence that was before it and that it does not have to comment on every piece of evidence. [29] Second, it should be pointed out that "the report," in its introductory remarks, mentions that [translation] "the present evaluation seeks to help the authorities make an informed decision on the risk of recidivism posed by the subject.... As part of our mandate, we will profile Mr. XXXX personality and assess his sexual dynamic. We will also measure the risk of sexual recidivism and the danger that he poses. In addition, Lawyer Thibault has asked us for a professional opinion on the credibility of the statements made by the subject." As regards the credibility of the appellant's account, "the report" mentions that [translation] "the subject's cognitive style, marked by mental impulsiveness reflected in sudden topic shifts, imprecise discourse, emotive accentuations, and disorganized-and occasionally contradictory-sounding-speech, may very well do him harm and make him seem less credible.... The subject struck us as credible in his narrative...." [30] From my analysis of "the report," it seems clear to me that the main topic addressed was the question of [translation] "recidivism" on the part of the appellant, since the issue of a possible exclusion by the appellant had been raised by the RPD member. It should also be pointed out that the RPD found that the exclusion clause under Article 1Fb) of the Geneva Convention14 does not apply to the appellant, a finding that, as mentioned above, had to do with the main topic, "the report." [31] It emerged from my recording of the hearing on August 5, 2014, that the RPD had exchanges with the appellant's then lawyer on "the report" received the day before by the RPD and that it was admitted into evidence. Also, referring to several passages in "the report," the RPD asked the appellant about the content of "the report" and his understanding, since "the report" was prepared in French and the appellant communicates in English. The RPD noted the explanations provided by the appellant, who testified that he had no trouble understanding "the report." The RPD member asked clear questions, enabling the appellant to testify in great detail about all aspects of his refugee protection claim. And so, for example, the appellant was able to go into detail about his door business, his recording studio, his interactions with various individuals in Honduras, including "XXXX," and so on. Also, not only did the RPD always make sure that the appellant understood the questions, but occasionally it reprised the appellant's remarks so that he could flesh out the explanations he wanted to provide. [32] Not only do I find that the RPD took "the report" into consideration, but I also find that the existence of a psychological report cannot in itself establish the credibility of allegations made by someone claiming refugee protection.15 What is more, the RPD did not believe the facts underlying the refugee protection claim. [33] For all these reasons, it is my opinion that the arguments to the effect that the RPD did not take "the report" into consideration are baseless. RPD's findings of non-credibility a) Allegations concerning "XXXX" [34] The RPD found there to be a significant contradiction regarding the appellant's cousin, named "XXXX," and his membership in the MS criminal gang, which undermined the appellant's credibility. Counsel for the appellant argues that the RPD did not consider that "XXXX" role was secondary, that the appellant explained that he doubted "XXXX" membership in the MS gang, and that the port-of-entry statement was incomplete and inaccurate. [35] I do not concur, and here is why. [36] From my analysis of the recording of the hearing held before the RPD, it seems clear that the allegations dealing with "XXXX" did not support a secondary role, since on several occasions the appellant alleged having consulted him to learn more about his situation. The appellant allegedly consulted him after a visit by a man whom the appellant suspects of belonging to a criminal gang and who allegedly asked him about him and his business activities in late July 2011 or early August 2011. Also, the appellant testified that he consulted "XXXX" after he returned to Honduras after spending three days in Guatemala, because he sensed that he was being followed by bikers. In addition, the appellant testified that he suspected "XXXX" of having snitched on him to members of a criminal gang that allegedly mistreated him the same day as his meeting with him. [37] Like the RPD, it is clear to me as well that there is a significant contradiction as to whether or not "XXXX" is an MS, for the following reasons. The RPD asked the appellant if he knew anyone in MS and the appellant stated no. The RPD then asked if he knew anyone who was in a rival criminal gang, and the appellant stated no. The appellant was then asked if any members of his family were in MS or some other criminal gang, and he answered in the negative. The appellant was then confronted with the interview notes16 submitted by the Minister. During the interview, he allegedly specifically stated that "XXXX" was in MS, and this contradicted his testimony. He then stated that he had doubts that "XXXX" was in MS and that in fact, the Border Services Agency officer who had questioned him had not written everything down. Also, when the RPD confronted the appellant about the omission concerning "Chino's" membership in MS, the appellant reiterated his doubts about "XXXX." [38] I have analyzed the aforementioned interview notes. They indicate the questions asked and answers given, and there is no indication that the notes are incomplete or inaccurate, nor is there any indication of specific difficulties that the appellant may have had during this interview. It should also be noted that the interview document differs from another text, which is a summary prepared by the officer that was filed as a separate exhibit.17 [39] For all these reasons, and having analyzed all the evidence, I find that the appellant's explanations do not satisfactorily explain this major contradiction and that, like the RPD, this undermines the appellant's credibility. b) Tattoo [40] The RPD found that there was a significant contradiction having to do with his tattoo, which undermined the appellant's credibility. Counsel for the appellant asserts that the RPD erred in its finding because the tattoo was complete in Honduras, but that it became illegible because it was the appellant who did the tattoo. [41] It is my opinion that the RPD did not err in its finding regarding this significant contradiction, and here is why. [42] Having analyzed all the evidence, I, like the RPD, find that in his BOC Form the appellant mentions that he was caught by some MS gang members in August 2011, that they thought that he was in the rival criminal gang 18 because his "XXXX XXXX XXXX" tattoo was only half there, and that the J looked like an 8. According to my analysis of the recording of the hearing, the appellant testified that his tattoo was complete in Honduras and that it was later, in 2013, while he was living in the United States, that he tried to remove it. Also, as mentioned by the RPD, it seems clear to me that the lawyer representing the appellant at the time asked a leading question and the appellant replied that the tattoo was half off in Honduras. In addition, when confronted with this contradiction regarding the tattoo, the appellant hesitantly stated that it had never been complete. He also reiterated that he had tried to remove it in the United States but that he had not succeeded. [43] In my opinion, the RPD's non-credibility finding is well founded in light of the appellant's testimony, and it took account of the appellant's explanations, which it found to be unsatisfactory. In my opinion, the RPD did not err in its finding, and this contradiction involving an important aspect of his allegations further undermines the appellant's credibility. c) Medical care and medical report [44] The RPD found that the appellant testified in a vague manner, since he recalled neither the city nor the location where he had been treated following the alleged assault committed against him by MS gang members, and that this undermined his credibility. Furthermore, the medical document18 issued in Tela contains an illegible signature and does not indicate that it was issued by a clinic, nor where the appellant was treated. Consequently, given the appellant's vague testimony, the RPD attached no probative value to the medical document. Counsel for the appellant maintains that the RPD did not consider the state of psychological shock in which the appellant found himself during his assault, which explains the memory loss. [45] It is my opinion that the RPD did not err in its findings, and here is why. [46] From my analysis of the recording of the hearing, it seems clear that the appellant testified that he did not know which clinic, or which city, he had been treated in. Also, he testified that he had obtained the medical document through one of his aunts recently. From my analysis of the medical document issued in Tela, it appears to me-as it did to the RPD-that the writing is illegible, and that there is no indication that it was issued by a medical clinic, nor where the appellant supposedly received treatments. [47] As for the arguments made by counsel for the appellant to explain the appellant's [translation] "memory loss," it is my opinion that they do not hold, since several months had gone by since the alleged treatment and in the meantime, the appellant contacted one of his aunts to obtain the said document, without being able to testify where she obtained it. [48] For all these reasons, it is my opinion that the RPD did not err in its findings. Delay in claiming refugee protection [49] The appellant lived illegally in the United States for two and a half years before illegally entering Canada, and after he was intercepted by the Canadian authorities he claimed refugee protection. The RPD found that his delay in seeking protection is not consistent with that of someone who fears for his life should he return to his country, and that this further undermined his credibility. Counsel for the appellant submits that the delay in claiming refugee protection is not a determining factor and that the RPD had not taken account of the steps he took to consult lawyers to regularize his status in the United States, of his parents' support while he was in this country or of the appellant's explanations regarding his refugee protection claim, following his arrest. [50] I share the RPD's findings, and here is why. [51] First, like counsel for the appellant, I agree that in keeping with the case law,19 a delay in making a refugee protection claim is not generally a determining factor in and of itself, but that it is a factor that the panel may consider in its analysis. [52] Second, from my analysis of the recording of the hearing, the appellant testified that he arrived illegally in the United States in early January 2012 and that he remained there until he illegally entered Canada in May 2014. During his time in the United States, it is alleged that he worked with his father and made inquiries to ascertain the steps to take to regularize his status, only to be informed that his steps would be in vain. Asked by the RPD why he had entered Canada illegally and why he had not claimed refugee protection directly by going through a port of entry, the appellant testified that he thought that the port of entry was under American control, that he feared being returned to his country and that he wanted to work illegally to pay a lawyer to help him regularize his situation in Canada. [53] Thus, I find that even if the appellant made inquiries in an attempt to regularize his status in the United States during his time there from January 2012, no steps were taken with the American authorities. And if the appellant knew that his steps would be in vain and if he was working with his father, the fact remains that for over months he lived illegally in the United States, risking removal by the American authorities. I find it reasonable to believe that in the circumstances, if the appellant was afraid of returning to Honduras as he asserts and if he knew that the steps he could take in the United States would be in vain, he would not have waited until May 2014 to leave the Unites States and come to Canada to claim refugee protection here. [54] And while I consider, in the circumstances of this case and considering all the evidence, including the appellant's explanations, that this delay in claiming refugee protection is not determinative, the RPD may take this delay into consideration. It should also be noted that this conclusion was not drawn in isolation, but is on top of all the other reasons cited to support the rejection of the refugee protection claim. [55] For all these reasons, I agree with the RPD's conclusions that the appellant's behaviour is not that of someone who fears returning to his country for the reasons he cites. [56] Furthermore, having analyzed all the evidence, including the letters20 from the appellant's brother and ex-girlfriend with regard to which counsel for the appellant submitted no arguments on appeal, and for the reasons I have cited above, I concur with the RPD's conclusion that the appellant failed to credibly establish his assertions that he had been threatened and attacked in Honduras and that he feared for his life for the reasons alleged. CONCLUSION [57] Having considered all the oral and documentary evidence, given the aforementioned reasons and pursuant to subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that the appellant is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [58] The appeal filed by XXXX XXXX XXXX XXXX is dismissed. Louis Cousineau Me Louis Cousineau February 3, 2016 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) record: (pages 364 and 365): Exhibit P-4: Claimant's medical file, Honduras, 2011. 2 RPD record: (page 352): Exhibit 14: Letter from Denis Mendez. 3 RPD record: (page 347): Exhibit 14.1: Letter from Walter Salgado. 4 RPD record: (pages 321 to 337): Exhibit P-26: psychosexual assessment report, August 3, 2014. 5 In particular, Eng v. M.C.I., 2014 FC 711; Alvarez v. M.C.I., 2014 FC 702; Spasoja v. M.C.I., 2014 FC 913; Huruglica v. M.C.I., 2014 FC 799. 6 Ibidem, the first three decisions cited in footnote 5. 7 Supra, footnote 5, Huruglica. 8 Ibidem, paragraph 47. 9 Ibidem, paragraph 54. 10 Ibidem, paragraph 37. 11 Ibidem, paragraph 38. 12 Supra, see footnote 4. 13 In particular, Celaj v. M.C.I., 2014 FC 761, where the Honourable Justice Locke cites, at paragraph 26, the decision in Cepeda-Gutierrez v. M.C.I., 157 FTR 35 [1998] FCJ 1425. 14 RPD record: (pages 3 to 6): RPD reasons for decision: paragraph 5. 15 Solomon v. M.C.I., 2004 FC 1252, paragraph 13. 16 RPD record: (pages 154 to 157): Exhibit M-2: Copy of CBSA Officer Plourde's interview notes, dated May 5, 2014. 17 RPD record: (page 158): Exhibit M-3: copy of CBSA Officer Plourde's case summary, dated May 5, 2014. 18 Supra, see footnote 1. 19 In particular, Huerta v. Canada (Minister of Employment and Immigration (1993)), 157 N.R. 225, [1993] F.C.J. 271. 20 Supra, see footnotes 2 and 3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-02557 2 RAD.25.02 (2014.09.11) Disponible en français