MB9-19267

RAD File No. / No de dossier de la SAR : MB9-19267 MB9-19268 / MB9-19269 / MB9-19270 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision January 7, 2020 Date de la décision Panel Me Love Saint-Fleur Tribunal Counsel for the persons who are the subject of the appeal Carlos Hoyos-Tello Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The principal appellant, XXXX XXXX XXXX XXXX, his wife, XXXX XXXX XXXX XXXX, and their minor children, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, are citizens of Mexico. They allege that they fear being killed in Mexico by a man named XXXX XXXX, known as "XXXX," and the Jalisco New Generation (JNG) cartel, because of a debt incurred by the principal appellant in the course of his employment in the XXXX XXXX XXXX XXXX XXXX. [2] On July 17, 2019, the Refugee Protection Division (RPD) rejected the appellants' claims for refugee protection for lack of credibility due to numerous problems in their written account, including omissions and contradictions. The appellants are appealing from the RPD's decision, arguing that it erred in its assessment of their credibility. [3] In this appeal, I consider that the determinative issue is whether the RPD erred in its assessment of the appellants' credibility. After a full and independent analysis of the evidence presented, I am of the opinion that the RPD's decision was correct. DETERMINATION OF THE APPEAL [4] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the determination of the RPD that the appellants are neither Convention refugees nor persons in need of protection. I dismiss the appeal. ROLE OF THE REFUGEE APPEAL DIVISION [5] With respect to questions of fact, questions of law, and questions of mixed fact and law, I applied the standard of correctness, in accordance with the decision of the Federal Court of Appeal in Huruglica.1 I will therefore complete my own analysis of the record, including listening to the recording of the hearing, to establish whether the RPD erred. ANALYSIS OF THE MERITS OF THE APPEAL Credibility of the appellants Efforts by the agent of harm to find the appellants [6] The RPD drew a negative inference from the fact that the adult associate appellant failed to mention in her Basis of Claim Form (BOC Form) and at the outset of the hearing that a few days after she and the other appellants left their home in Michoacán on XXXX XXXX, 2018, "XXXX" went to her father's home to locate the principal appellant and seek reimbursement, and did the same in XXXX and XXXX 2018. The RPD did not find that the associate appellant's explanations for the omissions raised-that she simply forgot to mention these incidents-were satisfactory. [7] The appellants argue that the adult associate appellant's explanation was instead that she did not mention these incidents in her BOC Form and account because they occurred after she had filed them before the RPD, that she acknowledged that she failed to mention them at the outset of the hearing and that it was an involuntary omission. In my opinion, these explanations are not satisfactory for the reasons below. [8] A review of the recording of the hearing reveals that the adult associate appellant testified that the first time XXXX went to her father's home to locate the principal appellant in an attempt to seek reimbursement was on XXXX XXXX, 2018,2 namely, before the appellants left Mexico, and before their BOC Forms were submitted to the RPD in September 2018. The appellants had both signed their BOC Forms, indicating that the information they contained was complete, true and correct, which they confirmed at the start of the hearing. They were represented by counsel when they submitted their BOC Forms. They did not submit any additions or make changes to their BOC Forms before the hearing. When the RPD asked at the outset of the hearing whether there were new facts to bring to the panel's attention, being careful to specify that these were facts that occurred after they signed their BOC Forms, the appellants did not mention that XXXX searched for the principal appellant in XXXX, XXXX and XXXX 2018.3 The appellants took the time before the hearing to submit4 changes to their IMM 0008 - Schedule A forms, taking care to change the name of the hotel where they allegedly stayed,5 information that is much less important than the fact that their agent of harm, the man they still allegedly fear today, sought them out three times at the home of the adult associate appellant's father. In these circumstances, I do not find that the answers provided to explain the omissions raised are satisfactory. In my opinion, the fact that their alleged agent of harm actively sought them out three times is important information regarding their alleged risk of returning. In this context, the omissions noted undermine the appellants' credibility. I consider that the RPD did not err. Incident of XXXX XXXX, 2017 [9] The RPD drew a negative inference from an omission concerning the circumstances in which the principal appellant was allegedly beaten by XXXX accomplices in XXXX 2017. While his BOC Form states that he was beaten and threatened, he testified at the hearing that he had been abducted, confined and beaten. He explained that he failed to mention the abduction in his BOC Form because it was necessary to read between the lines, and that he did not include everything in his BOC Form and provided a summary. The appellants acknowledge the omission, but state that it was involuntary, and that the principal appellant had indicated at paragraph 14 of his account that he reserved the right to complete this account during his testimony at the hearing. In my opinion, this explanation, like the one provided at the hearing, is not satisfactory to explain what is more of a contradiction than an omission, given that abduction is a serious crime in itself, different from threatening and beating someone. The appellant signed his BOC Form, indicating that the information it contained was true, complete and correct. I consider that the contradiction relates to an important element of his claim for refugee protection, namely, an alleged personal experience of assault by the henchmen of his agent of harm. The principal appellant's credibility is undermined, as is that of his allegation that he was assaulted on XXXX XXXX, 2019. The RPD did not err. Refuge in other states [10] The RPD considered that the principal appellant contradicted himself when he stated at the hearing that he had never lived in any state other than Michoacán, and that he lived in Michoacán until his departure for Canada, since he indicates in his BOC Form that he had found refuge in XXXX XXXX, Nayarit, Mexico City and XXXX. The RPD did not find that his explanation that he had made a mistake was sufficient to explain why his spontaneous answer at the hearing was inconsistent with his written testimony. The appellants argue that the RPD ignored his explanation that the word [translation] "reside" in Spanish means where a person has a residence and not where the person travels to visit or even hide. In my view, this is not what is understood from his answer at the hearing. A careful listening to the recording of the hearing first reveals that the RPD confronted him with the fact that he had previously testified that he had never [translation] "lived" in any state other than Michoacán and that the RPD did not use the word "reside."6 The recording then reveals that the principal appellant's explanation is not the one provided on appeal because he instead explained the contradiction by the fact that he is from Michoacán and that his family is there. The RPD specified by asking him to state whether he had lived in any other state, and he answered that he had not. The principal appellant stated that he understood the question to mean whether he had lived in one state his whole life and not just after the problem, and then explained that he made a mistake, which makes little sense. In these circumstances, I consider that the RPD was justified in finding that the principal appellant provided contradictory testimony and that his explanation that he had made a mistake is insufficient to explain why his spontaneous answer at the hearing contradicts his written testimony. The RPD did not err. [11] Referring to paragraph 25 of the RPD's decision, the appellants argue that, although they submitted evidence regarding hotel reservations in XXXX XXXX and XXXX for a few nights in XXXX and XXXX 2018, the RPD ignored that evidence for no valid reason.7 With all due respect to the appellants, I am of the view that it did not. Rather, the RPD gave them probative value in showing that the appellants stayed at the XXXX XXXX from XXXX XXXX XXXX 2018, to XXXX XXXX XXXX 2018, at the XXXX XXXX XXXX XXXX from XXXX XXXX to XXXX, 2018, and at the XXXX XXXX XXXX in XXXX from XXXX XXXX to XXXX, 2018, but concluded that these documents do not demonstrate that they visited these cities in the alleged circumstances. Given the numerous credibility issues observed in the appellants' account and discussed above, as well as the other problems identified by the RPD and not disputed by the appellants, I find that these documents do not demonstrate that the appellants resided in these locations to flee from a man named XXXX. The RPD did not err. [12] The RPD noted and analyzed other credibility issues in the appellants' account, including the principal appellant's employment in XXXX XXXX XXXX XXXX, an activity that is reportedly at the root of his problems with the alleged agent of harm, and the evidence submitted by the appellants. However, the appellants do not dispute the RPD's findings in this regard. I have analyzed those findings, and I do not see any errors. [13] Therefore, in light of the above, I find that the appellants have not demonstrated, on a balance of probabilities, that their allegations are credible. CONCLUSION [14] The RAD dismisses the appeal and confirms the RPD's determination that the appellants, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, are neither Convention refugees nor persons in need of protection under paragraph 111(1)(a) of the IRPA. (Signed) Love Saint-Fleur Me Love Saint-Fleur January 7, 2020 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 At 02:32:08 et seq. of the recording of the hearing before the RPD. 3 At 00:17:35 et seq. of the recording of the hearing before the RPD. 4 Refugee Protection Division (RPD) record. Document 4: Exhibit P-1: Amended forms submitted on June 13, 2019. 5 At 00:16:29 et seq. of the recording of the hearing before the RPD. 6 At 02:47:54 et seq. of the recording of the hearing before the RPD. 7 RPD record. Document 4: Exhibits P-8, P-9, P-13 and P-14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-19267 MB9-19268 / MB9-19269 / MB9-19270 RAD.25.02 (April 4, 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 4, 2019) Disponible en français