MB5-03788

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 : MB5-03788 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 April 26, 2016 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal Me Anthony Karkar 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Chile, is appealing against the decision of the Refugee Protection Division (RPD) that rejected his claim for refugee protection. [2] He is not presenting any new evidence before the Refugee Appeal Division (RAD) but is requesting that a hearing be held before it. DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] The appellant, who is from Santiago, fears Lieutenant XXXX XXXX, a police officer and his wife's ex-husband (who lives in Santiago, Chile), because he allegedly never accepted the separation and the appellant is raising his son. [5] XXXX XXXX allegedly started harassing the appellant in XXXX 2013, showing up at his work and picking up his son (who is the son of his wife) at school with no warning. The appellant and his wife apparently moved to XXXX XXXX in XXXX 2014, but the threats and harassment reportedly continued there. [6] The appellants allegedly then moved to XXXX in XXXX 2015. [7] There, in XXXX 2015, the appellant was allegedly shot at by XXXX XXXX, who alleged that he had mistaken the appellant for a criminal he was tracking. The appellant supposedly filed a complaint but nothing came of it. [8] XXXX XXXX allegedly sent a threatening message to the appellant in XXXX 2015. [9] The appellant alleged filing a second complaint with the police that was not pursued because the authorities stated that the appellant had no evidence. [10] The appellant left Chile on XXXX XXXX, 2015. He arrived in Canada on May 4, 2015, and claimed refugee protection on or around May 22, 2015. RPD DECISION [11] The RPD rendered a negative decision, finding that the appellant was not credible for the following reasons. [12] The appellant failed to establish that he had gone to live in XXXX from XXXX 2015 until his departure in XXXX 2015. It was there that the appellant alleges having experienced most of his problems: the shot fired at him and the death threats from XXXX XXXX. - The two complaints that the appellant allegedly filed in XXXX (when he was threatened and when he was shot at) bear ink stamps for the city of Santiago, not XXXX. The complaints suggest that they were filed in Santiago and not in XXXX. The appellant explained that the complaints were actually file numbers through which the real complaint could be retrieved in the city where it had been filed (in this case, XXXX). The appellant never tried to obtain the complaints in question. The RPD drew a negative inference from this. Furthermore, the fact that they were issued in Santiago and not XXXX undermines the appellant's credibility. - The appellant testified that his wife's child had been taken out of school in Santiago in XXXX 2014 for five months, after his biological father, XXXX XXXX, had picked him up without permission. In the RPD's opinion, this is not credible since the appellant, his wife and the child supposedly went to XXXX XXXX, then XXXX, until at least XXXX 2015, which is a year. The RPD drew a negative inference from this. - At the hearing, the appellant stated that a certificate had been issued to the appellant by the child's school allowing him to pick him up after school in XXXX 2015. The RPD drew a negative inference from the fact that the appellant had stated that the family took the child out of school in XXXX 2014 and that they had left Santiago as of then. - These points led the RPD not to believe that the appellant had lived in XXXX XXXX and XXXX, and it instead believes that he never left Santiago. [13] In addition, the RPD drew a negative inference from the fact that the appellant did not attempt to obtain copies of the complaints filed with the police by the child's school (two in total). [14] Finally, the RPD drew a negative inference from the fact that the appellant stated that he had never intended to leave his country prior to XXXX XXXX, 2015, when his airplane ticket was issued on XXXX XXXX XXXX 2015. The RPD did not accept the appellant's explanations. [15] The RPD did not give probative value to the police complaint documents P-3 and P-4 (see RPD record, pages 67 to 71), concluding that they contained few details and did not bear the stamp of the place where the incidents had occurred. GROUNDS OF APPEAL [16] According to the appellant, the RPD erred in its assessment of the following facts: - The complaint made by the school concerning his wife's child: the appellant cannot file documents that are not under his control or in his possession. The RPD cannot draw a negative inference from that. - The fact that the airplane ticket was issued prior to when the appellant stated he had decided to leave the country. The RPD erred by not accepting the appellant's explanations that it was his mother who had purchased them. - The RPD erred by finding it implausible that a complaint filed in XXXX, Chile, would indicate the city of Santiago on the complaint document. The RPD relied on its personal perception and not on trustworthy evidence. [17] Minor and peripheral inconsistencies should not lead to a finding of a general lack of credibility. THE RAD'S ROLE [18] The RAD is an appeal tribunal for RPD decisions. [19] Federal Court decisions have established that the RAD is a "specialized (if not overspecialized) tribunal" (see Alvarez)1 and that Parliament conferred "a true appellate function on the RAD...which sits on appeal of the decisions of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [20] The Federal Court of Appeal recently determined in Huruglica (2016 FCA 93) (paragraph 70) that the RPD, having heard the testimony, may have an advantage with regard to credibility. ...there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [21] It is up to the RAD to determine in its analysis whether the RPD had an advantage owing to the fact that it heard the testimony, and in doing so, to see what degree of deference the RPD should be afforded in that regard. [22] Paragraph 103 of Huruglica (2016 FCA 93) specifies the standard of review to be applied by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [23] Accordingly, the standard of review that the RAD should apply is that of correctness, except when the finding reviewed deals with an issue of credibility with regard to which the RAD believes it should show deference. [24] The RAD will consider in its analysis all the evidence, including the testimony. It will determine whether the RPD's decision contains errors of law, of fact, or of mixed fact and law, and whether these are determinative with respect to the outcome of the case and mean that the decision cannot be upheld using the correctness standard of review. In this case, the RAD will defer to the RPD's analysis on matters of credibility, as it had the advantage of hearing the testimony and seeing the appellant. [25] The RAD will intervene by applying the correctness standard of review in accordance with subsections 111(1) and 111(2) of the IRPA. HOLDING A HEARING [26] The appellant is requesting that a hearing be held before the RAD under subsection 110(6) of the IRPA. [27] The RAD cannot allow this request since no new evidence was accepted by the RAD. [28] Accordingly, the request does not meet the requirements of subsection 110(6) of the IRPA, which sets out specific criteria for holding a hearing, including the admissibility of new evidence. [29] The request for a hearing before the RAD is refused. ANALYSIS [30] In its analysis, the RAD considered the evidence in its entirety. [31] The RAD is of the opinion that the RPD rendered the correct decision based on the standard of review established in Huruglica (2016 FCA 93). [32] One of the elements that the RPD gave weight to in assessing the appellant's credibility was the fact that he had failed to establish that he lived in XXXX XXXX and XXXX between XXXX 2014 and his departure on XXXX XXXX, 2015. It was in XXXX that the appellant was allegedly shot at and received death threats from XXXX XXXX. It was following these two incidents that the appellant reportedly filed two complaints with the police. [33] The RPD drew a negative inference from the fact that the documents presented by the appellant in this respect (the two complaints, RPD record, pages 67 to 71) bear ink stamps for the city of Santiago, the capital. The RAD adds that the letterhead also states [translation] "district of XXXX XXXX XXXX." [34] This is a contradiction in the evidence presented. The appellant explained that, automatically, based on the appellant's identification number, it was the city where he is from that came up in the computer. [35] The RAD is of the opinion that the RPD was right to reject the appellant's explanations, which it considered implausible. [36] The appellant submits that the RPD relied on its personal perception instead of on trustworthy evidence in this regard. [37] The RAD takes issue with that argument. [38] It is a contradiction, and the RPD was right to reject the appellant's explanations. [39] The RAD is of the opinion that these explanations seem inconsistent, if for no other reason than because the ink stamps also indicate the city of Santiago. The appellant explained that the computer automatically generated the stamp. [40] That explanation seems implausible, and the RAD rejects it. There remains a contradiction as to the place where the appellant supposedly filed these complaints. His credibility is seriously undermined, since these aspects are central to his refugee protection claim. [41] The appellant also contradicted himself when he testified more than once that his wife's son had been taken out of school in Santiago for a period of five months starting in XXXX 2014. There is a contradiction with the fact that the child presumably did not return to school the following year, since the whole family reportedly moved to XXXX XXXX and then to XXXX, until the appellant's departure in XXXX 2015 at least. That is, rather, a period of one year. [42] The RAD is of the opinion that this is a contradiction that undermines the appellant's allegations that he supposedly went to live in XXXX XXXX and then XXXX. [43] His explanation that it was because the child returned to Santiago to see a psychologist is unsatisfactory, because it does not explain the contradiction raised at all. [44] The RPD did not err on this point. [45] The appellant submits that the RPD should have accepted his explanation regarding his airplane ticket having been issued on XXXX XXXX, 2015, even though he testified that he had not wanted to leave his country until XXXX XXXX, 2015, when he allegedly received death threats from XXXX XXXX. [46] This is a contradiction in itself that the RAD considers to be significant, since it calls into question the truth of the events that supposedly occurred in XXXX. Both incidents-the shot fired at the appellant on XXXX XXXX, 2015, and the death threats on XXXX XXXX, 2015-took place after the airplane ticket had been issued, even though the appellant testified that he made the decision to leave his country after they occurred. [47] The RAD is of the opinion that the RPD was right to reject the appellant's explanations, particularly that it was his mother who had purchased the ticket. [48] These explanations do not clarify the contradiction at all. [49] The RAD rejects them. The appellant's credibility is undermined. The RPD did not err on this point. [50] Finally, the appellant submits that the RPD erred by drawing a negative inference from the fact that he made no effort to obtain the two complaints made by the school concerning the disappearance of his wife's child at the school. [51] The appellant argues that he cannot submit documents that are not under his control or in his possession. [52] The RAD takes issue with that argument: the appellant testified that he took no steps in that regard because it was the school that was responsible for the matter. [53] The cornerstone of this non-credibility finding is that he made no effort to obtain them, particularly since there is nothing in the evidence that indicates that he could not have done so or that these documents were not available. [54] The RAD is of the opinion that if these documents had truly existed, the appellant would have done everything possible to obtain them, since they would have corroborated his allegations in Santiago, specifically that XXXX XXXX went to pick up his wife's child without permission on two occasions. The appellant's credibility is further undermined. [55] All these elements combined destroy the appellant's general credibility concerning his allegations. The RPD did not err on this point, nor did it commit an error that requires the RAD's intervention. [56] The RPD rendered the correct decision, and the RAD agrees with its findings. REMEDY [57] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX 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] His appeal is dismissed. Roxane Cyr Roxane Cyr April 26, 2016 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-03788 10 RAD.25.02 (2014.09.11) Disponible en français