TC1-13715

RAD File / Dossier de la SAR : TC1-13715 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 January 19, 2022 Date de la décision Panel Karen McGovern Tribunal Counsel for the person who is the subject of the appeal Marcela Donaji Gonzalez-Rodriguez 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. XXXX XXXX XXXX XXXX (Appellant) is a citizen of Mexico. [2] In XXXX 2019, the Appellant began a same-sex relationship with C, who was a stripper at a club. They attended a party together on XXXX XXXX, but the Appellant left early because C seemed to be under the influence of drugs. The next morning, C was left outside of the Appellant's home and was badly beaten. The Appellant discovered that C was illegally brought to Mexico from El Salvador by criminals and was beaten because she did not do the work that they wanted her to do. C called the Appellant asking for help and said the police were involved with the criminals. The Appellant gave money to C who eventually moved to the United States. After neighbours said that unknown individuals were asking for C because her mother was sick, the Appellant's home was robbed. After C called the Appellant and told her that the criminals were looking for them, the Appellant flew to Canada and sought asylum. [3] The Refugee Protection Division (RPD) found that the Appellant omitted from her Basis of Claim form (BOC) narrative that her mother had been approached at her home by people looking for C without a reasonable explanation. While the Appellant was involved in an incident in 2019, there was no evidence that the Appellant or her family members have been approached by criminals looking for the Appellant before or after she left Mexico. The letters from the Appellant's mother and grandmother provided no details of the events in Mexico from their point of view. The Appellant is not being pursued based on her relationship with C or due to her sexual orientation. The Panel acknowledged that the Appellant testified about discriminatory attitudes; however, this does not rise to the level of persecution in Mexico City. [4] The Appellant argues that the RPD erred by misinterpreting the Appellant's testimony and asking confusing and inappropriate questions, which led to disjointed testimony from the Appellant and a perceived inconsistency that is reasonably explained. The RPD erred in rejecting the letters from the Appellant's grandmother and mother because of information that was not included in them. Finally, the Appellant argues that the RPD failed to apply the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline)1 and made inappropriate comments. [5] The determinative issue is credibility. [6] The RPD did not err in finding that the Appellant omitted material information from her BOC narrative without reasonable explanation. The RPD also did not err in finding that the letters from the Appellant's mother and grandmother did not corroborate the Appellant's allegations. The RPD appropriately applied the SOGIE Guideline in analyzing whether the Appellant faces persecution on the basis of her sexual orientation and did not make inappropriate comments at the hearing. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE AND ORAL HEARING [8] In her written statement, the Appellant indicates that she is submitting new evidence; however, the Appellant's record does not contain any new documentation, and there is no mention of new evidence in the Appellant's memorandum. [9] Since there is no new evidence to admit, I have no jurisdiction to hold an oral hearing. The request for an oral hearing is denied. ANALYSIS [10] My role is to look at all of the evidence and decide if the RPD made the correct decision.2 Having reviewed the record and the transcript of the hearing, I find that the RPD did not enjoy a meaningful advantage in assessing credibility. As a result, I am conducting my review on the standard of correctness. Not disputed [11] The Appellant has not specifically challenged the RPD's finding that general discriminatory attitudes towards the Appellant based on her sexual orientation do not rise to the level of persecution and do not involve a risk to her life or a risk of serious physical harm. I have independently reviewed the RPD record and the hearing transcript, and I find no error in the RPD's finding. Credibility Omission from the Appellant's BOC narrative [12] The RPD found that the Appellant omitted material information from her narrative without reasonable explanation regarding her mother being approached at her home by unknown individuals who were looking for C to tell her that her mother was sick. The Appellant raises a number of arguments challenging this finding including that: (i) the RPD engaged in an over-vigilant and microscopic examination of the evidence and testimony; (ii) the omission is minor and is not rationally connected to her core allegations; (iii) the RPD's questioning was confusing and inappropriate, which caused the RPD to misinterpret the Appellant's testimony; (iv) the Appellant informed the RPD at the hearing that her evidence was being misinterpreted, but the RPD did not allow the Appellant to properly explain the discrepancy; and (v) the Appellant's explanation was reasonable. Having conducted an independent review of the RPD record and the hearing transcript, I am not persuaded by the Appellant's arguments. [13] The Appellant argues that the RPD's questioning was inappropriate and confusing but has not pointed to any examples or specified how the questions were inappropriate and confusing. For this reason, I find it helpful to set out the relevant portions of the transcript of the hearing in some detail. The Appellant made the following statement in her BOC narrative: One of the neighbours told my mother that some young people went to look for a friend of mine who lived in my house, they assured her that the girl lived in my house, and they wanted to give her a message from her mother, who was ill.3 [14] At the hearing, the Appellant testified about the break-in of her house, and the RPD asked the Appellant why she thought the break-in was committed by individuals from the criminal organization associated with the club. The Appellant answered that she believed this because some people had come to her home before the break-in looking for C: MEMBER: Okay. So, when did people come to your house before looking for XXXX? CLAIMANT: I don't have the dates. MEMBER: Was anybody home when they came to your house looking for? CLAIMANT: When they went to look for her, yes. MEMBER: Who was home? CLAIMANT: My mother. MEMBER: Okay. And what happened, do you know? CLAIMANT: All they said is that they were looking for my friend that they wanted to give her a message that her mother was sick.4 [15] The Appellant then testified that there was another event prior to the individuals speaking to her mother, and the RPD asked the Appellant to describe the other event. The Appellant testified about attending a Valentine's Day party with C, which she left early because C seemed to be under the influence of drugs. She also testified about finding C badly beaten at the door of her home the next morning and later learning from people at the club that C was beaten by the men who brought her to Mexico because she did not do what they wanted. Next, the Appellant indicates that her last contact with C was in XXXX 2019, and the RPD then asks more questions about when the unknown individuals who came to talk to her mother and why the Appellant did not describe this event in her narrative: MEMBER: Okay. So, you said that some people came to your home and gave your mother a message that they wanted to pass a message on to XXXX. So, was this before XXXX 2019 or after XXXX 2019? CLAIMANT: No, before. MEMBER: Before. Okay. And you took this to mean, well, when your mother told you that these people came, did she tell you who came to the door? CLAIMANT: She only said these were people who were looking for my friend. MEMBER: Okay. And she didn't describe them. She didn't get their names? CLAIMANT: No. MEMBER: Okay. Was this the only time people came to your family home looking for XXXX? CLAIMANT: Yes. MEMBER: Okay. Because in your Basis of Claim format [sic], paragraph 24, you don't tell us that people have come to the family home, you said that neighbors told your mother that some people were looking for your friend because her mother was ill? You don't mention at all that these people came to your family home and spoke with your mother. I asked why not? CLAIMANT: I didn't answer what you are asking me. MEMBER: Okay. CLAIMANT: I didn't understand what you are asking? MEMBER: Yeah, I got that. Okay, in your Basis of Claim form, you make no mention that your mother was the one that these people talk to, that these people looking for XXXX to give her a message, talk to your mother. You say, its neighbors told your mother. Can I ask why you made no mention that your mother was the person who was approached? CLAIMANT: I don't understand how they are asking me. MEMBER: Okay, so what do you think I just asked you, Madam? (01:21:05) CLAIMANT: Why didn't they tell my mother? No, I don't understand. MEMBER: Okay, you wrote this narrative, this long narrative as to why you are seeking refugee protection in Canada. At paragraph 24, you talk about how some neighbors told your mother that people were looking for XXXX or your friend because her mother was sick? INTERPRETER: No, I don't understand that because your mother was sick? MEMBER: Because her mother was sick. They wanted to pass the message. XXXX mother was sick. This is what you wrote, but today you testified that these people came to your family home and talked with your mother, and they told your mother that they were passing a message to your friend that her mother was sick. You don't mention that your mother is the person who got the message in person, you mentioned, you don't write that in your narrative. Why not? You are very confused, okay. INTERPRETER: Yeah, I feel very confused. Yeah.5 [emphasis added] [16] At this point, the hearing was recessed for a fifteen-minute break. After the break, the RPD asked the Appellant for a final time why she did not state that her mother was approached at her home by individuals looking for C: MEMBER: It's okay Counsel. Okay, we are back on the record. The same parties are here. My question before the break Madam was why did you not put in your Basis of Claim form that your mother sorry, why did you not put in your Basis of Claim form that the unknown people came to your family home and talk with your mother as it relates to looking for XXXX? (01:46:00) CLAIMANT: I would like to clarify that I am nervous because I am relieving that moment that was very hard for me. [emphasis added]6 [17] I note that the Appellant indicated that she was confused when the RPD asked the question initially. The RPD acknowledged that the Appellant was unclear about the question and rephrased the question three more times; however, the Appellant continued to say she did not understand. After the break, the Appellant was asked again, and she stated that she was nervous because it was very difficult for her to relive the events. I note that, in response to the question being asked a fifth time after a break in the hearing, the Appellant did not state that she was still confused about what the question was, and she did not answer the question. [18] In my view, the RPD's questions are not confusing, nor are they inappropriate in any way. The question involves a clear statement that the Appellant made in her BOC narrative to support her claim for protection and testimony that the Appellant gave earlier in the hearing; the question is not complicated or difficult to understand. After a careful review of the hearing transcript, I am unable to identify any point in the hearing where the Appellant told the RPD that her testimony was being misinterpreted. Instead, I note that, when the Appellant was testifying about the individuals speaking to her mother, she stated that there was another event before that, and the RPD asked her to describe the other event. [19] I do note that the RPD's reasons and decision indicate incorrectly that the Appellant eventually testified that she made a mistake, as the transcript does not contain any record of the Appellant making this statement. This error is not fatal, as I am able to correct it through my own independent review. As I have noted above, after being asked five times, the Appellant did not answer the question. This fact makes the Appellant's argument that her explanation is reasonable baseless. [20] I also cannot agree with the Appellant that the omission is a minor discrepancy that the RPD assessed with a microscopic focus and is peripheral to her core allegations, which the Appellant describes as related to her sexual orientation. When asked what she fears by the RPD, the Appellant testified that she fears all criminal organizations because "[t]hey hate women with sexual orientations and they think that I am guilty of helping my girlfriend escaped [sic]."7 The Appellant's narrative describes individuals from criminal organizations who brought C to Mexico illegally attacking C, seeking out C at the Appellant's home and breaking into the Appellant's house. The Appellant describes assisting C to leave Mexico and C telling her that the criminals are looking for them. From this context, an incident involving direct contact between the Appellant's mother and unknown criminals looking for C at the Appellant's home is rationally connected to a central element of the Appellant's claim. I find the omission is material and not reasonably explained, and I draw a negative inference on this basis. Additional arguments [21] The Appellant makes additional arguments that are either difficult to understand or mischaracterize the Appellant's testimony. I have set out the arguments and my review of them below. [22] In paragraph 15 of the Appellant's memorandum, the Appellant states: 15. Moreover, the Panel notes that none from the claimant families have been approached. The Panel draws a negative inference on paragraph 21 of the decision: [21] I note the claimant has not presented evidence that regarding anyone's efforts to locate this claimant in order to harm them. No one from the claimant's families in Mexico have been approached by anyone while the claimant has been residing in Canada. I do not find the claimant is someone that is being sought by any criminals or unknown individuals. While the claimant was involved in an incident in 2019, I do not find that she has established she has a profile as someone who is actively being sought in Mexico.8 [23] There is no further reference to the lack of contact with the Appellant's family in the memorandum, so it is unclear what the Appellant's argument is. I note the RPD does not draw a negative inference; rather, the RPD finds that the Appellant was involved in an incident in 2019 but has not established that she is being pursued in Mexico by criminals or unknown individuals. I find no error in the RPD's findings and concur with the RPD's conclusion. [24] In paragraph 16 of her memorandum, the Appellant states: 16. The Appellant submitted that the Panel's questioning regarding her involvement with an escapee of human trafficking were vague and lack credibility. The Appellant in her viva voce testimony attempted to explain her relationships however, it was rejected by the Panel. After the appellant moved to Cuernavaca, she was informed by [C] that she reached USA and the agents of persecution were looking for them. The Appellant submits that the Panel misinterpreted this information due to the confusing nature of his questioning.9 [emphasis added] [25] The Appellant does not indicate how the RPD's questions were vague or confusing, and my review of the hearing transcript does not identify any concerns about the RPD's questions. I note that the Appellant did not testify as indicated in the line emphasized above. This information is, however, in the Appellant's narrative. I find the RPD did not err in asking confusing questions nor did the RPD misinterpret the Appellant's testimony. [26] In paragraphs 21 and 22 of the Appellant's memorandum, the Appellant states: 21. The Appellant also notes that the Panel breached the presumption of truthfulness inparagraph [sic] 13: [13] When the claimant's mother told her, she told her the truth. The claimant's mother became angry but said it was fortunate that [C] had left. The claimant returned home the next day with her mother and their house was surrounded by police. The police advised that someone had called them and told them the place was being robbed. When the claimant walked into the house, she noticed that only the bedrooms were messy. A neighbour told them they got in from the roof. The claimant realized this had something to do with [C]. The claimant's mother was angry and there was tension in the house. The claimant's grandmother suggested the claimant go to Cuernavaca to a relative's home for a while. 22. Again, the Appellant in her testimony explained that the police was colluded with organized crime, and they knew where the appellant was residing to the point on practicing their corrupted ways on involving police.... Panel placed too much weight on this timeline which led to a microscopic analysis of the evidence breaching the presumption of truthfulness.10 [emphasis added] [27] It is unclear to me what argument the Appellant is making. I note, however, that paragraph 13 of the RPD's reasons and decision is included in the section that summarizes the Appellant's allegations and is an almost verbatim summary of portions of the Appellant's narrative.11 I note again that the Appellant did not testify as indicated in the line emphasized above. The Appellant did testify that the police are corrupt and work with criminal organizations, when she was asked how she could be located in a proposed internal flight alternative. The Appellant's argument fails. Letters from the Appellant's mother and grandmother [28] The Appellant argues that the letters from the Appellant's mother and grandmother are material evidence that support the Appellant's allegations that the RPD erroneously rejected for information that was not in the letters, rather than considering the information in the letters. I disagree. [29] The mother's letter is handwritten, signed and includes a photocopy of the author's voter identification card. It states in full: Through this letter I confirm that everything that it is described in the narrative is true. My daughter [the Appellant] saw herself in the need of leaving the country because I fear for the security. Since she did not have the protection of the authorities of our country, and I am sure that was the best decision.12 [30] The grandmother's letter is handwritten by her grandson, contains her fingerprint and includes a photocopy of her voter identification card. It states in full: My name is [M.G.]. I am the grandson of [the Appellant's grandmother] who is present. She is dictating me each one of theses [sic] words as she does not know how to write. Through this letter I confirm that my granddaughter [the Appellant] saw herself in the need of leaving the country as her life was in danger just as it is described in her narrative.13 [31] In my view, the RPD was correct in finding that the letters do not corroborate the Appellant's allegations. There is no information in the letters that indicates how the Appellant's mother and grandmother are aware of what the Appellant has described in her narrative. There is no information about whether they were present or observed any of the events described in the Appellant's narrative, so it is difficult to assess the extent and reliability of their knowledge. It would be reasonable for the letters to, at least, indicate what they know about the events in Mexico and how they came to that knowledge, i.e., observed events first hand. For these reasons, I give the letters little weight and find they do not corroborate the Appellant's allegations except to the extent that the Appellant's mother and grandmother exist and are aware that the Appellant is seeking protection in Canada. Application of the SOGIE Guideline [32] The Appellant argues that the RPD failed to apply the SOGIE Guideline because of the "fact that the Board Member had 'difficulty' in believing that her testimony and her sexual orientation" and did not believe that the Appellant had a relationship with C.14 The Appellant also argues that the RPD Member made inappropriate comments during the hearing. I disagree. [33] I note that the RPD did not make any finding or any statement indicating that the RPD Member did not believe that the Appellant and C were in a relationship. In fact, the RPD states that the Appellant was involved in an incident in 201915 and that she was perhaps sought out after C disappeared.16 The RPD does make findings that the Appellant and her family were not approached by individuals looking for C after the 2019 incident. I also note that the RPD did not make any statement about having difficulty believing the Appellant's sexual orientation in its reasons and decision nor at the hearing. In fact, the RPD accepted the Appellant's profile as a lesbian and assessed her risk of persecution on that basis.17 [34] The Appellant has specifically argued that the RPD Member's attitude towards her testimony was inconsistent with the SOGIE Guideline and that the RPD Member made inappropriate comments "such as 'that doesn't make sense' and 'I have difficulty believing that'."18 I note that the Appellant does not indicate how the RPD Member's attitude was inconsistent with the SOGIE Guideline. I have, however, carefully reviewed the transcript of the hearing and find no evidence of the specific comments alleged by the Appellant, nor do I find any evidence of inappropriate comments or evidence of an inappropriate attitude displayed by the RPD Member at the hearing. CONCLUSION [35] I summary, I find that the Appellant does not face a serious possibility of persecution, nor does she face a risk to life or a risk of cruel and unusual punishment or treatment, if she returned to Mexico. [36] 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) Karen McGovern Karen McGovern January 19, 2022 Date 1 Guideline issued by the Chairperson, pursuant to paragraph 159(1)(h) of the IRPA, effective date: May 1, 2017; Revised: December 17, 2021. 2 M.C.I. v. Huruglica (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas del Solar v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 3 Exhibit RPD-1, RPD Record, at p. 18. 4 Transcript of the RPD Hearing on August 31, 2021, at p. 12. 5 Ibid., at pp. 15-16. 6 Ibid., at p. 17. 7 Ibid., at p. 6. 8 Exhibit P-2, Appellant's Record, at p. 16. 9 Ibid., Appellant's Memorandum, at pp. 16-17. 10 Exhibit P-2, Appellant's Record, at p. 18 11 Exhibit RPD-1, RPD Record, at p. 18, paras 25-27. 12 Ibid., at p. 68. 13 Exhibit RPD-1, RPD Record, at p. 91. 14 Exhibit P-2, Appellant Record, at p. 21, para 31(e.). 15 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, para 21. 16 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, para 20. 17 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, para 22. 18 Exhibit P-2, Appellant's Record, at p. 22, para 32. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC1-13715 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