MB8-06391

RAD File / Dossier de la SAR : MB8-06391 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 August 9, 2019 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Me Serban Mihai Tismanariu 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] XXXX XXXX XXXX XXXX is a citizen of Guatemala who has appealed a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] Mr. XXXX XXXX fears that, if he returns to Guatemala, he will be killed by members of a family with whom his own family had a dispute over a piece of land. In his Basis of Claim form (BoC), Mr. XXXX XXXX alleged that the other family kidnapped and killed members of his own family and have continued to make threatening calls to his family ever since. Mr. XXXX XXXX had a work visa to work in Canada until XXXX 2017. He alleged that, in a call in XXXX 2017, the family that had been threatening his own family told his mother they would kill Mr. XXXX XXXX if he returned to Guatemala. Mr. XXXX XXXX claimed asylum a few months later, in April 2017. [3] The RPD found that Mr. XXXX XXXX was not credible because of his addition, without reasonable explanation, of a great many allegations during his testimony at the hearing that he had omitted from his BoC, well as various inconsistencies and contradictions in his evidence for which he failed to provide a satisfactory explanation. In addition, the RPD found that Mr. XXXX XXXX's credibility was negatively affected by improvisations and adjustments in his testimony at the hearing and his two returns to Guatemala after some of his family members allegedly had been kidnapped and killed. Finally, the RPD drew a negative inference from the coincidence in timing between the end date of his work visa in Canada and the timing of the first alleged threat being made against his life by the family who had caused problems for his family since at least 2015. [4] Mr. XXXX XXXX does not challenge any of the RPD's findings about the existence of omissions, inconsistencies and contradictions in his evidence and conduct in returning to Guatemala that was incompatible with his allegations. Instead, Mr. XXXX XXXX argues that these problems in his evidence can be explained by his stress, emotion and confusion at the hearing. He also argues that the RPD did not adequately take into account the documentary evidence about the country conditions in Guatemala. [5] For the reasons that follow, the appeal is denied. I am not persuaded that the RPD erred in failing to adequately take into account any stress, emotion, confusion or intimidation that Mr. XXXX XXXX may have experienced at the hearing. In addition, I am not convinced that the problems with Mr. XXXX XXXX's evidence were likely caused by the stress etc. of the hearing. Finally, I do not agree that the RPD erred by failing to take into account the documentary evidence about country conditions in Guatemala. The general context of crime and corruption in Guatemala does not resolve the problems with the credibility of Mr. XXXX XXXX's account of events in this case. ROLE OF THE RAD [6] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.2 I have conducted my own independent assessment of all of the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. ANALYSIS Uncontested issues [7] Mr. XXXX XXXX concedes that he probably made contradictory declarations in his testimony and that there were omissions and inconsistencies in his evidence. I agree with the RPD's analysis regarding the existence of all of the omissions, inconsistencies, contradictions in Mr. XXXX XXXX's evidence and I agree that they were not satisfactorily explained. I also agree that Mr. XXXX XXXX's two returns to Guatemala represented conduct that was incompatible with the allegations he made. Since Mr. XXXX XXXX does not contest these problems with his evidence, I simply note my complete agreement with the existence of these problems with Mr. XXXX XXXX's evidence for the reasons given by the RPD which I adopt as my own. Alleged stress, emotion, confusion and intimidation due to hearing context [8] I am not persuaded that the RPD erred in failing to adequately take into account the stress, etc. in the hearing context when making its credibility findings in this case. [9] Mr. XXXX XXXX argues that it is normal for a person to be stressed, emotional and confused when testifying before the RPD due to the intimidating nature of such an experience. He argues that the RPD did not adequately take into account the research on this issue before finding him not credible. [10] I agree with Mr. XXXX XXXX that the RPD and the RAD must remain conscious of the stress and emotions that claimants may feel when testifying. However, I am not convinced that any stress, emotion, confusion or intimidation that Mr. XXXX XXXX may have experienced at the hearing would satisfactorily explain the omissions, inconsistencies and contradictions in his evidence. The RPD took care to allow Mr. XXXX XXXX to tell his story, and the member also provided him with ample opportunity to explain the various problems with his evidence. Neither Mr. XXXX XXXX nor his counsel raised any issues about stress, emotion, confusion or intimidation at the hearing. Mr. XXXX XXXX did not sound unduly stress, emotional or intimidated at the hearing. The only mention he made of confusion was when the RPD pointed out inconsistencies and contradictions in his evidence. At one point, he stated that his spirit was full and that he did not expect so many questions from the RPD.3 He provided no other indication that he was feeling unduly stressed, emotional or confused or intimidated. It is well accepted that the RPD is an inquisitorial tribunal and that it must test the evidence in cases before it. The RPD's questioning was appropriate and necessitated by the sheer number of problems with Mr. XXXX XXXX's evidence. [11] As noted by the RPD, Mr. XXXX XXXX's BoC was extremely vague. This would not have anything to do with any stress, etc. related to the hearing. Mr. XXXX XXXX then added many allegations during his testimony which were omitted from his BoC. Again, I am not persuaded that the stress of the hearing would explain the addition of such allegations throughout his testimony. This is especially the case since the PRD specifically asked him at the outset of the hearing whether he had any new allegations to add or changes to make to his BoC and he said he did not expect to say that his family was continuing to receive threatening calls. The stress, etc. of the hearing would also not explain Mr. XXXX XXXX's incompatible actions in returning to Guatemala even after members of his family allegedly had been kidnapped and killed by the family that was threatening his own. Finally, I am not convinced that the stress, etc. of the hearing would explain the inconsistencies and contradictions in his evidence given the sheer number of them and the fact that the RPD member gave Mr. XXXX XXXX ample opportunity to clarify his evidence and provide explanations for the problems in his evidence. [12] For these reasons, I am not persuaded that the RPD erred in failing to adequately taken into account the stress, etc. of the hearing in making its credibility findings. In addition, I am not convinced that the problems in Mr. XXXX XXXX's evidence can be explained by the stress, emotion, confusion or intimidation of the hearing context. Documentary evidence [13] I am not persuaded that the RPD erred in failing to adequately take into account the documentary evidence of country conditions in Guatemala. [14] Mr. XXXX XXXX argues that the RPD erred in failing to evaluate the general situation in Guatemala in its assessment of the plausibility of his account of the risk to his life that he alleged in Guatemala. In particular, he seeks to rely on a portion of the NDP for Guatemala that indicates that many attacks against human rights defenders have related to land disputes and the exploitation of natural resources and that there is widespread corruption in Guatemala. He also seeks to rely upon a portion of a UNHCR document that discusses the prevalence of gang-related extortion in Guatemala.4 [15] I am not persuaded that the RPD erred by failing to take into account any of the documentary evidence before it. The RPD noted that it took into account the documentary evidence on the difficulties that Guatemala is experiencing with crime and corruption. However, it correctly noted that this documentation did not suffice to justify a different conclusion in the circumstances of this case. I agree with the RPD that the general context of crime and corruption in Guatemala does not resolve the problems with the credibility of Mr. XXXX XXXX's account of events which related not to the plausibility of such incidents occurring in Guatemala but instead to the credibility of his claim that they had occurred to him or likely would occur to him if he were to return to Guatemala. CONCLUSION [16] For these reasons, the RAD dismisses the appeal. In accordance with s. 111(1)(a) of the IRPA, I confirm the decision of the RPD that XXXX XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) Jo-Anne Pickel Me Jo-Anne Pickel August 9, 2019 Date JP/tm 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Audio-recording of hearing 2:08:10. 4 Tab 1.4, NDP for Guatemala (April 30, 2019). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-06391 RAD.25.02 (April 04, 2019) Disponible en français 6 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 (April 04, 2019) Disponible en français