MB9-18102

RAD File No. / No de dossier de la SAR : MB9-18102 MB9-18103 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 Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision September 9, 2020 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subject of the appeal Me Claudia Andrea Molina 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX and her minor daughter XXXX XXXX XXXX XXXX citizens of Mexico, are appealing the decision of the Refugee Protection Division (RPD) rejecting their refugee protection claim. [2] The principal appellant, XXXX XXXX XXXX XXXX, was appointed the designated representative of her minor daughter. [3] In rendering its decision, the panel took into account the Chairperson's Guideline on Women Refugee Claimants Fearing Gender-Related Persecution. [4] The appeal is dismissed for the reasons that follow. BACKGROUND [5] In her Basis of Claim Form (BOC Form), the principal appellant alleges that she was a XXXX for the Partido Revolucionario Institucional (PRI) political party in Mexico City, and that her coordinator, named XXXX XXXX demanded that she hand over a portion of her salary to her. [6] The appellant alleges that this XXXX was also a member of a criminal gang called Union de Tepito. [7] The appellant alleges that XXXX then continually threatened and assaulted her, her husband XXXX (who also worked for the PRI) and her daughter. Specifically, she alleges, two men attempted to sexually assault her daughter on XXXX XXXX XXXX 2018, and her husband was assaulted by six men in XXXX 2018. [8] The appellants and the principal appellant's husband left Mexico on XXXX XXXX XXXX 2018, and came to Canada, where all three claimed refugee protection. [9] The refugee protection claim of the principal appellant's husband was determined to be ineligible, and, pursuant to paragraph 104(2)(a) of the Immigration and Refugee Protection Act (IRPA), the notice of ineligibility terminated the proceedings pending in respect of his claim in the RPD. Only the appellants were heard before the RPD, and the principal appellant's husband was heard as a witness. [10] The minor appellant did not testify and was excluded from the hearing room at the request of her mother, her designated representative. The minor appellant is basing her claim on that of her mother. [11] Following a hearing on June 28, 2019, the RPD rejected the refugee protection claim on the ground that the appellant's allegations were not credible. The RPD's written reasons are dated July 12, 2019. [12] The appellants submit before the Refugee Appeal Division (RAD) that the RPD erred in its assessment of the principal appellant's credibility for reasons that will be detailed below under Analysis, as needed. [13] For these reasons, the appellants are asking the RAD to set aside the RPD's determination and grant them refugee protection or, alternatively, to refer the matter to the RPD for re-determination. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [14] The role of the RAD is to review RPD decisions applying the correctness standard of review after conducting its own analysis of the record in order to determine whether the RPD erred, as the appellants allege. NEW EVIDENCE [15] The appellants submitted two documents before the RAD asserting that they constitute new evidence under subsection 110(4) of the IRPA, which indicates that: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [16] In addition to the explicit conditions of subsection 110(4) of the Act, the RAD must also take into account the implicit conditions concerning the admissibility of new evidence, as established by the Federal Court of Appeal in Singh (M.C.I. v. Parminder Singh, 2016 FCA 96), specifically, criteria for assessing the credibility and relevance of new evidence. [17] Document A-1 is a psychological assessment of XXXX XXXX the principal appellant's husband, carried out by a Canadian psychologist and dated XXXX XXXX XXXX 2019. It is noted in this evaluation that the psychologist met with XXXX on XXXX XXXXandXXXX XXXX XXXX XXXX 2019. In summary, the assessment concludes that XXXX presents with symptoms of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [18] Document A-2 is a psychological assessment of the minor appellant carried out by the same psychologist as for document A-1, dated XXXX XXXX XXXX 2019. It is noted in this evaluation that the psychologist met with the minor appellant on XXXX XXXX XXXX 2019. In summary, the assessment concludes that the minor appellant presents with symptoms of XXXX. [19] Although dated after the rejection of the refugee protection claim, the content of these two documents, namely the psychological assessments, refers to situations that predate the rejection of the claim. [20] In the affidavit that she submitted with her appellant's record, the principal appellant explains that she is filing this evidence [translation] "... because the panel did not advise us that they did not believe my testimony and would disregard the report from my daughter's doctor." She also submits that a lack of financial resources resulted in her husband and daughter being unable to consult psychologists before the RPD hearing. [21] The appellants repeat these explanations in their memorandum, adding that they did not think the husband would be testifying before the RPD. [22] I do not accept this document in evidence, for the reasons that follow. [23] First of all, an appeal to the RAD is not a second chance to adduce evidence to correct weaknesses identified by the RPD (Abdullahi v. Canada (Citizenship and Immigration), 2016 FC 260, para. 15). That is essentially what the appellants are trying to do in this case. The credibility of the allegations was an issue raised by the RPD from the outset; I would go so far as to say that it is a relevant issue in every case coming before the RPD. [24] Next, I cannot accept the appellants' argument that they did not know the husband was going to testify before the RPD. When the hearing started, the principal appellant's husband was in the room, and it was counsel for the appellants who asked that he be excluded from the hearing room [translation] "so that he could serve as a witness, if necessary" (see page 7 of the transcript). It therefore cannot be argued before the RAD that the appellants did not know the husband would be called upon to testify. As well, neither the appellant nor their counsel ever informed the RPD of the principal appellant's husband's mental health issues, which could have affected the quality of his testimony if that were the case. [25] Furthermore, the appellants submitted no evidence to demonstrate that financial issues were the reason why psychological reports, if relevant, were not adduced before the RPD. No invoice showing the cost of the reports was presented, nor any evidence demonstrating that the appellants suddenly came into sufficient financial resources to obtain these reports a few days after receiving the RPD decision, whereas they allege that they did not have those resources before. [26] Given their source, these reports are credible. However, I find that they do not meet the relevance criterion in this case. Indeed, in my opinion, the conclusions of these two reports do not show that the RPD's credibility findings with respect to the principal appellant are erroneous. As will be discussed below under the Analysis heading, I confirm the RPD's findings on that subject, and I am of the opinion that the the medical condition of the minor appellant and the principal appellant's husband cannot explain or justify the deficiencies identified. ANALYSIS [27] The issue in this case is whether the RPD erred in its assessment of the principal appellant's credibility. [28] I am of the opinion that the answer to this question is no for the following reasons. [29] The RPD's conclusion is based on a number of contradictions and omissions that, in its view, undermine the credibility of the principal appellant's allegations. Upon analyzing the evidence adduced, I come to the same conclusion as the RPD. [30] The most significant contradiction noted is the one relating to the identification of the person whom the appellants allegedly fear in Mexico. [31] In her BOC Form and her testimony, the principal appellant identifies this person as XXXX XXXX whereas her husband identifies her in his testimony as XXXX. When questioned about this, the appellant's husband stated that XXXX did not go by another name. [32] I also see in this a major contradiction or implausibility that can only serve to undermine the credibility of the allegations. The claim is based on a fear of this person, who was allegedly close to the appellants and the witness, yet they are unable to clearly identify the person. [33] In their memorandum, the appellants submit that the witness' situation must be taken into account in the credibility analysis, specifically, his low level of education and his stress. [34] In my opinion, the witness' situation cannot explain this major contradiction. Even taking his education into account, along with the fact that he might be stressed and anxious, particularly testifying before the panel, the witness clearly and with no hesitation identified the agent of persecution as XXXX. And he persisted and signed when the RPD asked him whether that person might be known by another name. [35] Secondly, the RPD did not believe that the principal appellant was a member of the PRI and worked for the party, as she alleges. [36] Questioned about the names of the party leaders and party ideology, the appellant replied that she did not know. [37] Yet the appellant alleges that she has been a member of the party since 2016 and that she, as a XXXX XXXX did promotion for the party in the streets and urged people to vote for it. [38] In their memorandum, the appellants submit that the RPD failed, on that subject, to consider the appellant's PRI membership card, filed as document P-3. [39] I noted in fact that a PRI membership card in the appellant's name is on the RPD record, not under P-3, but rather as a document seized by the Canada Border Services Agency, a copy of which was sent to the panel (see page 92 of the RPD record). I note that this membership card is dated XXXX XXXX XXXX 2018. [40] In my view, even though this card demonstrates that the appellant was a PRI member as of XXXX 2018, her testimony about this political party, as noted by the RPD, still undermines her credibility regarding her alleged activities within the party. [41] The appellant did not explain why her membership card is dated XXXX 2018, when she is alleging that she has been a party member for a number of years, and I note as well that the appellant did not file any document relating to her alleged PRI employment, which is supposed to be the basis of her refugee protection claim, for example, an employment contract, pay stubs, or any other proof of membership in this party. [42] In their memorandum, the appellants submit that the RPD erred by not informing them that it would be taking into account her specialized knowledge about the PRI political party. [43] I cannot accept this argument. The RPD's finding is not based on the appellant's specialized knowledge, just on her lack of knowledge about the leaders and ideology of the party for which she claims to have worked as an activist. [44] In my opinion, these two elements identified by the RPD, and by the RAD, are sufficient to dispose of the case because they strike at the very basis of the claim. The RPD, however, identified other elements undermining the appellant's credibility. I find that the RPD's following conclusions are correct. A. The appellant's husband's complaint dated XXXX XXXX XXXX 2018, following the alleged assault of the previous XXXX 28, does not mention this assault and indicates erroneous dates of employment (Exhibit P-13). [45] Questioned on this point, the appellant replied that the police do not indicate everything in complaints. The witness indicated that he often mixes up the months of XXXXandXXXX XXXX. I do not consider these explanations reasonable either. Even if the police do not list [translation] "everything," it seems unlikely to me that they would not list the main reason for the complaint, namely the alleged assault. [46] On top of that, I note that this document, in its original Spanish version, is not signed and has no stamp. [47] For all of these reasons, I am of the opinion that no credibility should be attached to this document. B. The complaint filed by the appellant (Exhibit P-12) contains contradictions with her testimony. [48] The complaint is dated XXXX XXXX XXXX 2018, whereas the appellant testified that she submitted it on XXXX XXXX XXXX 2018. The complaint indicates that the problems began on XXXX XXXX XXXX 2018, whereas the appellant testified that they began on XXXX XXXX XXXX 2018. [49] Questioned on this point, the appellant replied that the police are corrupt and that they did not write what she told them. Once again, I do not find these explanations reasonable. For one thing, I do not see what interest the police would have in changing the dates given by the appellant. For another, the appellant's argument is that the source of this document, namely the police, is corrupt and does not write the truth on the complaint. In other words, if the source of the document is corrupt and untrustworthy, then there is no reason to give any credence to the document. C. The medical document relating to the attempted assault against the minor appellant (Exhibit P-16) does not connect this assault to the appellants' allegations. [50] I certainly do not wish to minimize the consequences of such an assault on the minor appellant, but I nevertheless agree with the RPD's conclusion on this point, considering the credibility issues raised above. The document is very brief and gives no details about the assault, its causes or the perpetrators. [51] Finally, I would add that the six letters of support filed as P-3 to P-8 are not sufficient to offset the credibility issues that have been identified. These are simple unsworn letters (even though the appellants erroneously state in their exhibit list that they are [translation] "sworn" statements), from sources unknown to the panel. [52] Accordingly, in light of the foregoing, I conclude that the appellants have failed to demonstrate that the RPD made errors that warrant the RAD's intervention. REMEDY [53] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX are neither "Convention refugees" under section 96 of the IRPA nor "persons in need of protection" within the meaning of section 97 of the IRPA. [54] The appeal is dismissed. (signed) Normand Leduc Normand Leduc September 9, 2020 Date IRB translation Original language: French RAD File No. / No de dossier de la SAR : MB9-18102 MB9-18103 RAD.25.02 (January 2020) Disponible en français 9 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