MB9-28403

RAD File No. / No de dossier de la SAR : MB9-28403 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 Montréal, Quebec Appel instruit / entendu à Date of decision January 15, 2021 Date de la décision Panel Me Anne-Thierrie Tétreault Tribunal Counsel for the person who is the subject of the appeal Me Manuel Antonio Centurion 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 (the appellant) is a citizen of Mexico who is appealing the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. He is requesting that the appeal be allowed. In support of his appeal, he is submitting new evidence1 and is requesting an oral hearing.2 [2] The RPD did not accept the appellant's allegations of extortion, kidnapping, captivity and ransom. It therefore concluded that the appellant did not establish that there is a serious possibility of persecution, or that, on a balance of probabilities, he would be personally subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment. [3] The appellant submits that the panel must consider all of the evidence submitted before it when assessing credibility. Referring to the case law,3 he submits that the RPD cannot make an unfavourable credibility finding while disregarding the evidence he submitted to explain some of the inconsistencies observed. DETERMINATION [4] I dismiss the appeal. The RPD correctly determined that the appellant is not a Convention refugee or a person in need of protection. BACKGROUND [5] In his Basis of Claim Form (BOC Form), the appellant alleges that on September 19, 2017, he received an extortion call ordering him to pay 30,000 Mexican pesos each month so that he could work in peace. Accordingly, his family agreed to pay the amount demanded, which was possible for the months of September and October. After that, they could not pay the amount demanded, and in November 2017, the company closed down. [6] On January 12, 2018, the appellant claims that he was kidnapped by armed and hooded individuals. He was held captive for three days and on January 13, his family paid 300,000 Mexican pesos. The appellant was released on January 14 and later made a complaint to the police. [7] On April 23, 2018, the appellant's father received a call demanding additional money, failing which his son would be killed. He filed a complaint with the police, to no avail. The appellant then took steps to leave Mexico. He arrived in Canada on XXXX XXXX, 2018, and made a refugee protection claim at the port of entry. NEW EVIDENCE AND ORAL HEARING The evidence presented by the appellant is admitted [8] Under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), I can allow only evidence: * that arose after the RPD rendered its decision; * that was not reasonably available at the time of the decision; or * that the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was rendered. [9] If the evidence meets one or more of these requirements, I must, in accordance with the case law,4 decide whether the evidence is new, credible, and relevant before admitting it. [10] The appellant submitted the following new evidence: * an email from his father dated January 30, 2020; and * a statement on the events of December 5, 2019. [11] These documents are dated in December 2019 and January 2020, that is, after November 12, 2019, the date when the RPD rendered its decision, and they describe events that allegedly occurred subsequently. Thus, they were not reasonably available at the time of the RPD's decision. They therefore meet the requirements of subsection 110(4) of the IRPA. [12] For that reason, it is appropriate to consider whether this new evidence is credible and relevant before admitting it on the record, in accordance with Singh and Raza. [13] The appellant submitted an email from his father with his appeal, and an identity card5 for his father is on the record. The email is dated and bears the appellant's father's name. The fact that it is from a reliable source is convincing. There is no reason to doubt its trustworthiness. Furthermore, the allegations in it are relevant to the appellant's refugee protection claim, since the appellant's father alleges in it that he received a threatening call from the Cartel Jalisco Nueva Generaci?n (CJNG) on December 3, 2019, and that he, his wife, and his son had to leave their house in San Andres Tuxtla to go into hiding. In that email, the father suggests that it is the same cartel that kidnapped his son in January 2018. [14] I am therefore of the opinion that the email from the appellant's father is relevant and can be allowed in evidence. [15] With his appeal, the appellant also submitted a statement of facts indicating that his father had received threatening calls directed at himself, his family, and his son, the appellant. The individuals calling allegedly stated that they were from the CJNG. Like the email, this statement describes events that are relevant to the appellant's case since they directly concern his family members who stayed in Mexico. Furthermore, this document appears to be from a reliable source, namely the prosecutor of the San Andres Tuxtla main prosecution unit. [16] Considering that the statement meets the requirements of subsection 110(4) of the IRPA and those set out in the case law, I allow this document in evidence. [17] I will consider the weight to be given to the documents newly admitted into evidence below. Oral hearing [18] In his appeal memorandum,6 the appellant requests that an oral hearing be held. [19] Subsection 110(6) of the IRPA provides that the Refugee Appeal Division (RAD) may hold an oral hearing if, in its opinion, there is documentary evidence referred to in subsection (3), that: (a) raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) is central to the decision with respect to the refugee protection claim; and (c) if accepted, would justify allowing or rejecting the refugee protection claim. [20] Although the new evidence is admissible, the requirements of subsection 110(6) of the IRPA are not met. This new evidence is not central to the decision with respect to the refugee protection claim and does not justify allowing the refugee protection claim. The appellant has not convincingly established the allegations that are central to his refugee protection claim, namely those concerning his kidnapping. The new evidence does not provide information on the appellant's allegations or counteract the inconsistencies that the RPD identified. The weight to be given to the new evidence is therefore insufficient to change the outcome of the refugee protection claim. Furthermore, in his testimony, the appellant alleged that he feared his attackers, against whom he had filed a complaint, to no avail. He also admitted that he did not know whether his attackers were members of the CJNG. [21] For these reasons, there is no cause to hold an oral hearing before the RAD. ROLE OF THE REFUGEE APPEAL DIVISION [22] My role is to examine all of the evidence and determine whether the RPD's decision is correct.7 [23] Consequently, I will conduct my own independent analysis of the record to determine whether the RPD erred, based on the arguments submitted by the appellant in his appeal memorandum. ANALYSIS [24] For the purpose of my own thorough and independent analysis, I considered all the evidence presented, including the recording of the hearing held on October 22, 2019. [25] The determinative issue is whether the RPD erred in its assessment of the appellant's credibility. Contradictions between the testimony and the notes taken at the port of entry [26] The RPD found that the appellant's credibility was undermined by contradictions between the notes8 taken by the Canadian Border Services Agency (CBSA) officer when the appellant claimed refugee protection at the port of entry, and his testimony. The notes indicate that the appellant was kidnapped for a ransom of 200,000 pesos and that his brother "has been taken and has not been returned." However, the appellant's written account and testimony do not recount that fact, and the amount claimed for the ransom is different. [27] In his memorandum, the appellant argues, citing the case law,9 that the RPD gave too much weight to the notes taken by the CBSA officer. He submits that he was never questioned in English, that all of the forms were completed in French, and that only the CBSA officer's notes were written in English. He also points out that the notes bear no signature, name or identification of the person who wrote them other than XXXX, while the other documents filled out at the port of entry bear badge numbers, rather than XXXX. He alleges that these notes are not consistent with his written account. [28] During the hearing, the appellant testified that at that time, his parents were living in San Andres Tuxtla and his brother was in Mexico City, where he was staying with his uncle and aunt. He denied that he mentioned his brother being kidnapped when he was claiming refugee protection. He stated that he does not recall having referred to his brother except in completing the forms requesting the names and birth dates of the members of his family. Moreover, the appellant claimed in his testimony and in his BOC Form that his parents had paid a ransom of 300,000 Mexican pesos for his attackers to release him. [29] The issue is whether the RPD gave too much weight to the CBSA officer's notes. Contrary to the appellant's claim, by inscribing the initials XXXX XXXX the officer made himself traceable and identifiable. These are not anonymous notes. It is important to add that the notes do indeed indicate the appellant's name, unique client identification (UCI) number and date of birth, and this information is consistent. When noting down what he heard, there was no benefit to the CBSA officer in modifying the information obtained from the appellant. Moreover, federal civil servants have the option of using either of Canada's official languages, namely English or French. I am therefore of the opinion that these notes, which were included in the claimant's kit, are compliant and from a reliable source. [30] In March 2019, the Federal Court reiterated and recognized that: the notes at the port of entry must be interpreted with caution (Cetinkaya v Canada (Citizenship and Immigration), 2012 FC 8 at paras 50-51). However, it is clear from the case law that inconsistencies between an applicant's statements made at the port of entry and those made to the RPD may support a negative credibility finding (Kusmez v Canada (Citizenship and Immigration), 2015 FC 948 at para 22 [Kusmez]; Arokkiyanathan v Canada (Citizenship and Immigration), 2014 FC 289 at para 35; Bozsolik v Canada (Citizenship and Immigration), 2012 FC 432 at para 20; Navaratnam v Canada (Citizenship and Immigration), 2011 FC 856 at paras 14-15). In addition, although minor discrepancies between port of entry statements and oral testimony are not sufficient to determine whether an applicant is not credible, the RPD may conclude that an applicant lacks credibility if an omission concerns a central element of the refugee protection claim (Kusmez at para 22; Jamil v Canada (Minister of Citizenship and Immigration), 2006 FC 792 at para 25).10 [31] In this case, the RPD concluded that there was no reason to doubt the notes. It identified significant inconsistencies in the appellant's allegations, as he claimed upon his arrival in Canada that he had been kidnapped in exchange for a ransom of 200,000 pesos and that his brother had also been kidnapped and had not yet been returned. These are certainly not minor discrepancies, and the RPD was correct in finding that the appellant lacked credibility given that these inconsistencies concern central elements of his refugee protection claim. [32] The appellant did not demonstrate that the RPD erred with regard to the weight given to the CBSA officer's notes. Date of the complaint filed with the police [33] The RPD noted a contradiction between the appellant's testimony and his BOC Form concerning the date when he made the complaint to the authorities following his kidnapping. The BOC Form11 indicates that, [translation] "3 or 4 after, my parents and I went to the Veracruz public ministry to report the event," which the RPD interpreted as meaning three or four days following his release on January 14, 2018. The appellant did not contest the RPD's interpretation, either in his testimony or in his appeal memorandum. [34] Although he testified that he filed the complaint on January 15, a date that is corroborated by the statement of facts12 submitted in evidence, the RPD drew a negative inference from it, finding that this contradiction further undermined the appellant's credibility. [35] In his appeal memorandum, the appellant did not contest this finding, which I consider to be correct. Cartel [36] The RPD detected an omission in the appellant's BOC Form, which does not mention that his attackers were members of the CJNG. It drew a negative inference from this in relation to the appellant's credibility. [37] During the hearing, the appellant acknowledged that he presumed his attackers were members of CJNG. Furthermore, he states in his affidavit13 included with his appeal memorandum that the criminals did not mention that they were members of the CJNG and that this was his own deduction. He does not contest the RPD's conclusions in this respect. [38] I am of the opinion that the RPD's conclusion is correct. Psychological report [39] The RPD considered that the appellant answered the questions clearly during his testimony and that he appeared to be in control of himself. The appellant confirmed that he attended four sessions with the psychologist and that the psychologist did not recommend that he consult with a psychiatrist or take medication. The appellant also testified that he had not seen a psychologist since coming to Canada. The RPD therefore did not give any probative value to the psychological report14 filed in evidence, since it did not believe the underlying fact alleged by the appellant and because there is no independent clinical analysis corroborating the diagnosis. [40] The appellant does not contest the RPD's conclusion in terms of its assessment of the psychological report, and I am of the opinion that this conclusion is correct. Threats received by the appellant's father on December 3, 2019 [41] With his appeal memorandum, the appellant submitted into evidence an email from his father dated January 30, 2020, and a statement of facts dated December 5, 2019, stating that the appellant's parents in Mexico had to leave their home in San Andres Tuxtla due to telephone threats from the CJNG starting on December 3, 2019. [42] At the hearing, the appellant stated that since his departure from Mexico on XXXX XXXX XXXX 2018, his family, who stayed in the country, had not suffered any reprisals. Moreover, he explained that he was the one at the head of the business.15 People believed that he was the owner, even though it was really his father. When the RPD asked him why he did not state in his BOC Form that he had been kidnapped by members of the CJNG, he admitted that it was a supposition on his part, since, in fact, he did not know whether his attackers were actually members of that cartel, since they never identified themselves as such. He reiterates this statement in his appeal memorandum. [43] The RPD's negative decision was rendered on November 12, 2019, stating that it had concluded that the appellant had not met his burden of proof in terms of establishing that he had been dealing with the CJNG. In addition, the appellant testified that between XXXX XXXX, 2018, the date he left Mexico, and October 22, 2019, the date of the hearing, his parents had not been bothered. Despite that, on December 3, 2019, that is, approximately three weeks after this negative decision, the appellant's parents were allegedly targeted for the first time by none other than the same cartel, even though they had apparently moved to a different city located over four hours away from their former home following the alleged events of January 2018. [44] It is important to note that the appellant's father does not mention the nature and context of the threats received, either in his email or in the statement of facts. He also does not explain why the CJNG would threaten his son, who left Mexico in XXXX 2018. As a result, it is difficult to make a connection between the appellant's alleged kidnapping and the new threats that the family supposedly received. [45] Moreover, it is mentioned in the statement of facts that the father merely informed the authorities of the situation and that he will subsequently file a complaint, and I quote, [translation] "since the issue of this document is necessary at this time."16 The appellant did not file any document attesting that the father filed a complaint on this matter. This raises a serious doubt about the real and serious goal of undertaking this procedure with the authorities. I am of the opinion that the main purpose of these documents is to answer the questions raised by the RPD in its decision regarding the assailants' membership in the CJNG. I do not believe that the appellant's parents were targeted by threats made by that cartel in December 2019. [46] Given that this new information strangely coincides with the appellant's appeal proceedings, even though he stated that he was the person targeted by the criminals and that his parents had not been bothered until that time, I do not give any weight to these documents. CONCLUSION [47] In summary, the RPD correctly assessed the appellant's credibility. I conclude that its decision is correct. The appellant did not demonstrate that there is a serious possibility of persecution within the meaning of section 96 of the IRPA, or that, on a balance of probabilities, he would be personally subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment within the meaning of subsection 97(1) of the IRPA. [48] I dismiss the appeal and confirm the RPD's determination that XXXX XXXX XXXX XXXX is not a Convention refugee or a person in need of protection. (Signed) Anne-Thierrie Tétreault Anne-Thierrie Tétreault January 15, 2021 Date IRB translation Original language: French 1 Appellant's record, appeal memorandum, p. 37. 2 Appellant's record, appeal memorandum, p. 45. 3 Owusu-Ansah v. Canada (MEI) (1989), 98 N.R. 312 (F.C.A.), 8 Imm L.R. (2d) 106; Frimpong v. Canada. (MEI) (1989), 99 N.R. 164 (F.C.A.). 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, FC 385. 5 Refugee Protection Division (RPD) record, p. 94. 6 Appellant's record, appeal memorandum, p. 45. 7 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 8 RPD record, p. 79. 9 Wu v. Canada (Minister of Citizenship and Immigration), 2010 FC 1102, para. 16; RKL v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116, para. 13; Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. no. 444 (FCA) (QL). 10 Asadnejad v. Canada (Citizenship and Immigration), 2019 FC 357, para. 14. 11 RPD record, p. 25. 12 RPD record, p. 88. 13 Appellant's record, affidavit, pp. 21 and 22, paras. 14 to 16. 14 RPD record, p. 108. 15 Recording of the hearing, 1:27. 16 RPD record, p. 39. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-28403 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français