TC3-25718

RAD File / Dossier de la SAR : TC3-25718 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 Date of decision September 19, 2023 Date de la décision Panel David Morris Tribunal Counsel for the person who is the subject of the appeal David Orman 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] I dismiss this appeal. The Appellant, XXXX XXXX XXXX XXXX (the Appellant) is a citizen of Colombia. He fears being harmed or killed by the National Liberation Army (ELN). [2] The Appellant's father ran a successful XXXX business in Barrancabermeja, Colombia. As a result, the father was extorted by different criminal groups - among them, the ELN. The father found it more difficult to meet the demands for extortion money during the Covid-19 pandemic. At the beginning of 2022, the father was unable to pay the ELN. In XXXX 2022, the Appellant was kidnapped while in Bogota. He was held and abused by his kidnappers for about 36 hours. When his father paid the demanded money, the Appellant was freed. The captors told the Appellant they would kill him the next time they saw him. [3] The Appellant did not report the matter to the police since he feared this would only endanger his family. Instead, the family decided that it would be best if the Appellant went to Canada. He came to Canada on a study permit on XXXX XXXX 2022 and submitted a claim for refugee protection on 22 July 2022. [4] The Minister intervened at the Appellant's Refugee Protection Division (RPD) hearing based on credibility issues, which I find are not determinative of this appeal. The Minister has not intervened in this appeal. No new evidence or oral hearing [5] The Appellant does not seek to admit any new evidence. The requirements for holding an oral hearing pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA) are therefore not met. ANALYSIS [6] The Refugee Appeal Division (RAD) reviews the RPD's decision, including its credibility findings, on a standard of correctness unless the RPD enjoyed a meaningful advantage in its assessment.1 The Federal Court has found that, where, as here, audio recordings of testimony are available in addition to the written record and the RPD's conclusions, it is reasonable for the RAD to find the RPD had no meaningful advantage.2 In this case, the RPD did not have access to any information that was not available to me. I therefore find I owe the RPD no deference and have considered all the evidence to determine if the RPD made the correct decision. The Appellant has failed to establish his core allegations on a balance of probabilities [7] At the heart of the RPD's decision was its finding, on a balance of probabilities, that the kidnapping and threats against the Appellant by the ELN did not occur as alleged. The RPD found that there were significant discrepancies between the Appellant's testimony, his Basis of Claim (BOC) narrative and his documentary evidence. The Appellant provided inconsistent evidence regarding the date of his alleged kidnapping [8] The Appellant stated in his BOC narrative that he had been kidnapped on XXXX XXXX 2022.3 In testimony, however, he indicated that he had been kidnapped on XXXX XXXX 2022.4 When asked to explain this discrepancy, the Appellant at first testified that he did not remember the exact date, then, that he did remember, and that it was on the afternoon of XXXX XXXX and not XXXX XXXX.5 The RPD found that the Appellant's explanation was unreasonable and that his testimony had changed to conform with his BOC only when he was confronted with the inconsistency. [9] The Appellant argues that the RPD's finding was based on a microscopic examination of the evidence. He argues that he mistakenly identified XXXX XXXX as the date he was kidnapped due to stress and anxiety. I do not find the RPD's examination was microscopic. Rather, it noted the discrepancy in the dates and provided the Appellant an opportunity to explain. The Appellant's original testimony was that he had been kidnapped on XXXX XXXX 2022. His testimony then changed: first, to that he did not remember, then, to that he did remember, and that he had been kidnapped on XXXX XXXX 2022. [10] The Appellant argues that the RPD "admitted" that the date the Appellant was kidnapped was not material. He therefore argues that it was an error to rely on this single inconsistency to find the entire claim lacked credibility. However, as I explain below, this was not the only inconsistency in the Appellant's evidence. Further, while I agree that whether the alleged kidnapping occurred on XXXX XXXXor XXXX XXXX is immaterial, the issue is that the Appellant provided inconsistent testimony as to the date the kidnapping occurred and failed to provide a reasonable explanation for why his testimony was inconsistent with his BOC. The RPD did not err in drawing a negative inference. The supporting letters from the Appellant's family are given no weight [11] The RPD went on to find that the Appellant's testimony also conflicts with his supporting documentation as to the date of the kidnapping. Both his sister and his grandmother provided letters indicating the Appellant had been kidnapped on XXXX XXXX 2022.6 The grandmother's letter further indicates this is, "... a date I will never forget, due to the anxiety and anguish it caused me ...".7 [12] When confronted with this inconsistency and asked to explain, the Appellant changed his testimony again - first to indicate that the kidnapping had actually occurred on XXXX XXXX, then to indicate that he did not remember the date.8 Again, the issue is not whether the kidnapping occurred on XXXX XXXX, XXXX XXXXor XXXX XXXX 2022. Rather, it is the fact that the Appellant 's testimony shifted and changed without any reasonable explanation. [13] The Appellant asserts that more than a year had passed between the kidnapping and writing of the letters and that, aside from the discrepancy in the dates, the family's evidence was consistent. He argues that the discrepancy between the letters is minor and immaterial. However, I find that the inconsistencies between the letters and the various dates provided by the Appellant relate to the main event upon which the Appellant's claim is based. The inconsistencies are therefore material. I find the Appellant's testimony shifted and changed each time he was asked to explain an inconsistency. The RPD did not err in assigning the letters no weight. The threats received following Appellant's kidnapping were not included in his BOC [14] The Appellant testified that he had received direct threats by telephone and social media following his release by the kidnappers. The RPD asked why these threats were not mentioned in his BOC narrative. The Appellant's response was that he had written that he had received the threats and that the kidnappers would be following him. His testimony was as follows: CLAIMANT: ... So after the kidnapping I thought it all ended there then nothing else was going to happened but then the threats continue arriving or getting to us that if they were going to kill me that next time they were just going to kill me. So for that reason is when my parents decide that I need to get out of the country for takeoff and just leave the country. I suspect that my sister also left for the same reasons.9 ... MEMBER: Okay. You also mentioned earlier that after you were released you were receiving threats against you. How did you receive those threats? CLAIMANT: They would call me, they would send me message through fake accounts on social media, they would send me messages directed to me.10 ... MEMBER: You also said that they would call you and send you messages on social media but you, I don't have evidence of that you didn't submit those. CLAIMANT: No, because the accounts were fake so the accounts didn't exist they only existed when they were sending the threats after that they did not exist. MEMBER: Can you explain to me why you did not indicate on your Basis of Claim form that you received any threats? CLAIMANT: Yes, I did write that I received threats. So I even included that after I was released they told me that they were going to be following me.11 [15] However, contrary to this explanation, the Appellant's BOC narrative does not mention either that he received further threats by phone and social media or that his kidnappers were going to be following him. The Appellant makes no submissions on this issue. I find the Appellant did not provide a reasonable explanation for this omission. The RPD did not err in drawing a negative inference. The Appellant's testimony respecting the timing of the threatening messages received by his father is not credible [16] The Appellant provided two screenshots of threatening text messages that had been received by his father.12 The Appellant testified that these had been received by his father in either 2021 or 2022 and that after receiving them, his father had advised him to flee the country: MEMBER: Okay. Before we go with the translation can you tell me what this is? CLAIMANT: Yes, ma'am, that's one (1) of the messages that arrived. MEMBER: And how did you get a copy of the screenshot? CLAIMANT: My father sent me this evidence as proof this is the only thing that he had. MEMBER: So you're saying that these messages were sent to your father? CLAIMANT: Yes, ma'am. MEMBER: So whose phone was this screenshot taken on? CLAIMANT: This message was, it's a screenshot from the cell phone, my dad's cell phone in Colombia. MEMBER: When did he receive these messages? CLAIMANT: That message I received this year when I was gathering the evidence. ... MEMBER: So what did your father do when he received this message? CLAIMANT: When he received that message he told me, this is the only thing he told me you need to leave the country.13 ... MEMBER: And when did your father receive those messages? CLAIMANT: I do not know the exact date all I know is that it was in 2022, in 2021, in 2022.14 [17] The RPD pointed out that it appeared that the messages were actually sent on XXXX XXXX 2023, since the messages are dated Saturday, XXXX XXXX which is consistent with the year 2023 and not 2022. The Appellant's response was that, "What they do is they alter the dates of the messages because when they are going to be investigated they sometimes have used that dates in the future, like two (2) years from now."15 [18] I find that, although the Appellant testified that his father received these messages in 2021 or 2022 and then advised the Appellant to flee the country, the messages were, more likely than not, sent on XXXX XXXX 2023 - when the Appellant had already been in Canada for approximately 11 months. I find the Appellant's explanation that the senders altered the dates is not plausible and that, if the dates had been altered, it would have been reasonable for him to have provided this information from the outset rather than only after being confronted with the inconsistency. I find the Appellant's testimony that his father advised the Appellant to flee the country after receiving these messages is not credible. The RPD correctly drew a negative inference. Credibility summary [19] Although the Appellant argues generally that the RPD was overly microscopic, I find that the omissions and inconsistencies in the Appellant's testimony and evidence are not minor or peripheral details. Rather, they relate directly to the events that formed the basis of the Appellant's claim and for which no reasonable explanation was provided. This is sufficient to cast significant doubt on the truthfulness of the Appellant's allegations with respect to the alleged threats and kidnapping by the ELN. [20] As a result, I find the Appellant has failed to establish, on a balance of probabilities, the core allegations upon which his claim are based. Namely, that he was kidnapped and threatened by the ELN because his father was being extorted. This is dispositive of the Appellant's claim whether considered under section 96 or subsection 97(1)(b) of IRPA. [21] In coming to this conclusion, I have considered that the Appellant was self-represented at his RPD hearing. The Appellant has not pointed to any prejudice that he suffered as a result. [22] Having reviewed the Record, I note that the Appellant did not attend his hearing when it was first scheduled for 16 February 2023. A second sitting of the hearing was convened on 2 March 2023 which the Appellant did attend. The RPD accepted the Appellant's reasons for not attending the first hearing. It ensured that the Appellant was aware that the Minister had intervened in his claim and that he could obtain counsel. It noted that the Appellant had not submitted any evidence and provided the Appellant with a further adjournment to allow him to prepare for his hearing and to submit the supporting documents which he said were in his possession. At the hearing of 23 March 2023, the RPD asked the Appellant if he was ready to proceed without counsel and he indicated that he was ready. The RPD explained the process and outlined the issues to be covered. I find the Appellant's responses during testimony indicate that he understood the questions being asked. The RPD clearly indicated which parts of the evidence were conflicting and provided the Appellant with the opportunity to clarify and explain. At the end of the hearing, the RPD provided the Appellant with an opportunity to raise any issues which hadn't been covered but he felt were relevant. It provided him with a month to provide further submissions in writing and took steps to ensure that the Appellant understood the issues to be addressed. In my assessment, the RPD made reasonable accommodations for the Appellant, and he was not significantly prejudiced by his choice to proceed without representation. CONCLUSION [23] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) David Morris David Morris 19 September 2023 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Singh v. Canada (Citizenship and Immigration), 2021 FC 1464, at para. 12. Referring to: Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras. 89-90; Odia v Canada (Citizenship and Immigration), 2018 FC 363, at para. 5; Keqaj v. Canada (Citizenship and Immigration), 2020 FC 563, at para. 30. 3 RPD Record, Exhibit 2, at p. 27, para. 7. 4 Transcript of 23 March 2023 RPD hearing, at p. 17, lines 23-27. 5 Transcript of 23 March 2023 RPD hearing, at p. 21, lines 20-31. 6 RPD Record, Exhibit 5, at pp. 120-121. 7 RPD Record, Exhibit 5, at p. 121. 8 Transcript of 23 March 2023 RPD hearing, at p. 23, lines 33-35; p. 24, lines 1-6. 9 Transcript of 23 March 2023 RPD hearing, at p. 11, lines 16-20. 10 Transcript of 23 March 2023 RPD hearing, at p. 12, lines 5-8. 11 Transcript of 23 March 2023 RPD hearing, at p. 12, lines 23-30. 12 RPD Record, Exhibit 5, at pp. 113-114. 13 Transcript of 23 March 2023 RPD hearing, at p. 13, lines 4-18. 14 Transcript of 23 March 2023 RPD hearing, at p. 15, lines 1-2. 15 Transcript of 23 March 2023 RPD hearing, at p. 16, lines 7-8. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC3-25718 RAD.25.02 (August 20, 2021) Disponible en français 2 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 (August 20, 2021) Disponible en français