MB8-07546

RAD File / Dossier de la SAR : MB8-07546 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 Montreal, QC Appel instruit / entendu à Date of decision July 29, 2020 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Carlos Hoyos-Tello 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 grant this appeal and refer this matter back for re-determination by a different RPD member for the reasons that follow. [2] XXXX XXXX XXXX XXXX is a citizen of Honduras. He fears that he would be killed or seriously harmed by gunmen who killed his cousins XXXX XXXX. Mr. XXXX XXXXwitnessed the murder and ended up leaving Honduras for the United States in XXXX2014. He was then deported back to Honduras before entering the United States again in XXXX2014. When Mr. XXXX XXXX told his spouse in 2016 that he intended to return to Honduras because he could not regularize his status in the United States, she told him that she had received two threatening calls in which the callers asked for him and said they would kill him. His spouse suggested that he come to Canada since her father lives here. MrXXXX XXXX XXXXcrossed the border into Canada XXXX XXXX2016 and claimed refugee status a few months later. [3] The RPD found that credibility was a determinative issue in the case. The RPD found that Mr. XXXX XXXX was not credible due to the following: inconsistencies between his written narrative and the addresses and work information that he entered on one of his immigration forms; his omission to mention that the men who shot his cousins in 2012 ran after him and shot at him as he was running away; discrepancies between MrXXXX XXXX XXXX written narrative and a statement from his spouse about ongoing threats against him; and Mr. XXXX XXXX failure to obtain and disclose a copy of a report prepared by the police relating to his cousins' death. DECISION [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 I agree with the RPD that there are reasons to question the credibility of the forward-looking risk that Mr. XXXX XXXX alleged in this case. However, I do not agree with the actual reasons provided by the RPD for finding Mr. XXXX XXXX not credible. While one of the credibility concerns raised by the RPD was correct, I find that the RPD erred with respect to the other reasons it provided for finding Mr. XXXX XXXX not credible. In my view, the RPD erred in relying upon peripheral matters as well as a discrepancy that it did not provide Mr. XXXX XXXX an opportunity to explain. For the reasons set out below, I find that this matter must be referred back to the RPD for re-determination by a different member. PROPOSED NEW EVIDENCE The evidence presented by Mr. XXXX XXXX is rejected [5] According to the law,2 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [6] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 The RPD's decision in this case was February 20, 2018. This is the date to be used for the assessment of the proposed new evidence. [7] When he filed his appeal record, Mr. XXXX XXXX representative submitted as proposed new evidence an affidavit in which he repeats the contents of his written narrative. This affidavit is not admissible as new evidence as it simply repeats the evidence in this case. [8] After he filed the appeal record, Mr. XXXX XXXX representative sought to submit three documents as new evidence without making any arguments as to the admissibility of this new evidence. First, he sought to submit a letter confirming Mr. XXXX XXXX employment with a company in Honduras between January 2011 and August 2013. This letter is not admissible as new evidence as Mr. XXXX XXXX representative has provided no explanation as to why Mr. XXXX XXXX could not have obtained the letter sooner and file it with the RPD before it denied his claim. [9] Mr. XXXX XXXX also filed a police complaint apparently made by his spouse after the incident in XXXX2012 when his cousins were shot. This document is also inadmissible. Mr. XXXX XXXX has provided no explanation as to why he could not have obtained this document earlier and file it with the RPD. I also note that the document raises credibility concerns as Mr. XXXX XXXX made no mention of his spouse having complained to the police when the RPD asked whether the killings had been reported to the police. [10] Mr. XXXX XXXX also filed an affidavit sworn by a friend in April 2018 in which a friend relates his understanding that Mr. XXXX XXXX life is at risk due to his having witnessed the killing of his cousins in 2012. This document is also inadmissible. Although the affidavit postdates the RPD decision in this case, the information in the affidavit predates the decision. Mr. XXXX XXXX has provided no explanation as to why he did not obtain this document earlier and file it with the RPD. ANALYSIS Inconsistency between written narrative and information on immigration forms [11] Mr. XXXX XXXX argues that the RPD erred in finding that his credibility was undermined by an inconsistency between his written narrative and the addresses and employment information he provided on one of his immigration forms. I do not agree. [12] MrXXXX XXXX XXXX indicated on one of his immigration forms that he lived in the XXXX XXXX XXXX XXXX XXXX XXXX until he left Honduras in XXXX XXXX. In addition, on his Basis of Claim form, he stated that his spouse and children were living in XXXX XXXX. In his narrative, he stated that he was born in the department XXXX XXXX XXXX but, after the killing of his cousins, he moved his spouse and children to the XXXX XXXX XXXX XXXX2013 and began to work in XXXX XXXX XXXX XXXX XXXX2013. [13] Prior to the hearing, he filed an amendment to his narrative in which he indicated that he had failed to note on his immigration form that he had XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He indicated that he did not realize the importance of noting that information in his immigration form. In addition, he sought to amend his Basis of Claim form to indicate that his spouse XXXX XXXX XXXX XXXX XXXX XXXX. [14] I agree with the RPD that MrXXXX XXXX XXXX failed to provide a satisfactory explanation for the inconsistencies between his narrative, on the one hand, and the information he provided on his immigration form and Basis of Claim form about his residence as well as the residence of his spouse and children. However, I do not find that this inconsistency is of sufficient importance, on its own, to make a general finding of lack of credibility. Omission of mention that gunmen ran after Mr. XXXX XXXX [15] In his written narrative, Mr. XXXX XXXX states that he was face to face with the gun men when they shot his cousins and that he ran from the place in order to hide. Likewise, at the hearing, MrXXXX XXXX XXXX testified that the gunmen saw him and that he ran to escape after he saw his cousins killed. When the RPD asked Mr. XXXX XXXX whether the gunmen also tried to shoot at him, he said yes, that they ran after him but were not able to reach him.4 [16] The RPD found that Mr. XXXX XXXX omission of any mention that the gunmen ran after him and shot at him in his written narrative negatively affected his credibility, or conversely, his embellishment of his claim in his testimony undermined his credibility. The RPD stated that, when asked to explain the omission, Mr. XXXX XXXX stated that it was because he was forgetful. [17] I find that the RPD misrepresented Mr. XXXX XXXX evidence. To begin, although he responded "yes" to the RPD's question as to whether the gunmen shot at him, he went on to say that they ran after him. The RPD did not follow up to clarify whether he was alleging that the gunmen also shot at him or simply ran after him. Also, Mr. XXXX XXXX did not simply state that he was forgetful when asked for an explanation for the omission. Mr. XXXX XXXX stated that there were too many things on his mind, that he has forgotten a lot of things, and that he is not the same person since seeing what he saw that day. This is not the same thing as simply saying that he was forgetful. [18] In any event, I find that the information omitted from Mr. XXXX XXXX written narrative is in the nature of additional details. While being chased and shot at are important details, the core of MrXXXX XXXX XXXX claim is that the gunmen saw him on the day that they shot his cousins and that they would still wish to kill him because he witnessed the murders. In my view, the RPD erred in finding that Mr. XXXX XXXX omission of additional peripheral details in his narrative undermined his credibility. Discrepancy between spouse's statement and Mr. XXXX XXXX written narrative [19] I agree with Mr. XXXX XXXX representative that the RPD erred in finding that his credibility was negatively affected by a discrepancy between his written narrative and the statement he submitted from his spouse on the issue of whether he continued to receive death threats. [20] In his written narrative, Mr. XXXX XXXX does not mention receiving any death threats when he was in the United States and he states that his spouse suggested he come to Canada because she had received two threats. In her statement, his spouse states that Mr. XXXX XXXX received a call when he first arrived in the United States and that she was also receiving calls. She then states, "[s]ince my husband was also receiving calls in the United States, I decided to contact my father [...] in Canada." [21] I agree with Mr. XXXX XXXX that the RPD erred in relying on this apparent discrepancy without providing him with a chance to explain it. This is especially the case because the statement from Mr. XXXX XXXX spouse is not clear as to whether there was just one call when he first arrived in the United States or more calls. In my view, all of this should have been put to Mr. XXXX XXXX to provide him with the opportunity to provide an explanation before the RPD relied upon this apparent discrepancy as one of just a few reasons why it found Mr. XXXX XXXX not credible. Failure to file police report [22] I agree with Mr. XXXX XXXX representative that the RPD erred in drawing a negative inference as to credibility due to Mr. XXXX XXXX failure to obtain and file a copy of a report in which the police confirmed his cousins' deaths in 2012. Mr. XXXX XXXX had in fact filed death certificates for his two cousins as well as a document attesting to the burial of one of the two cousins.5 The RPD makes no mention of the death certificates or the burial document in its decision. In my view, its finding in relation to his failure to file a copy of the report in which the police confirmed the deaths cannot stand given his filing of the other documents with which the RPD took no issue. Errors regarding assessment of forward-looking risk [23] Due to its reliance upon peripheral matters, the RPD failed to adequately address the main issue in this case which is whether there is sufficient credible evidence to establish that Mr. XXXX XXXX would likely face a forward-looking risk at the hands of these gunmen if he were to return to Honduras today. The alleged killing of Mr. XXXX XXXXcousins occurred eight years ago and it was carried out by three unknown men. Although Mr. XXXX XXXX alleged that the three men were connected to organized crime, there was no evidence beyond his own belief to establish this connection. [24] When the RPD asked Mr. XXXX XXXX why he would face a forward-looking risk in any part of Honduras if he returns, Mr. XXXX XXXX attempted to provide his understanding of why he would be at risk. However, the RPD would not let him testify to general conditions in his country, saying that it had country condition evidence in the National Documentation Package for Honduras. This was an error. While the RPD may legitimately discount MrXXXX XXXX XXXX evidence if it finds it speculative or outside the scope of his own personal knowledge, it cannot simply forbid him from testifying as to the conditions in his country. The reason for this is that Mr. XXXX XXXX may have relevant information to provide about conditions or dynamics in his country that would lead to a forward-looking risk for him if he returns. The RPD cannot know whether his evidence lacked relevance or probative value before hearing it. In sum, the RPD might legitimately grant little weight to Mr. XXXX XXXX evidence regarding the conditions in his country but it cannot legitimately forbid him from providing any testimony as to these conditions. Overall credibility finding [25] A claimant's testimony is presumed to be true unless there are valid reasons to doubt its truthfulness. In this case, the RPD was correct to draw a negative inference as to credibility due to the inconsistencies in Mr. XXXX XXXX evidence regarding whether he and his spouse and children had relocated to a different department after the shooting of his cousins. However, I find that the RPD erred in relying on peripheral matters as well as an apparent discrepancy which it did not provide him with a chance to explain. It also failed to adequately address the issue of forward-looking risk due to its focus on peripheral matters and its disallowance of any testimony regarding conditions in Honduras. [26] In my view, it is not possible within the jurisdictional confines of the RAD, to make a final determination on this claim. I find that the inconsistency relating to Mr. XXXX XXXX place of residence is insufficient, on its own, to give rise to a general finding of lack of credibility. However, even if I were to find that Mr. XXXX XXXX account of his witnessing of his cousins' death was credible, the issue of whether he would face a forward-looking risk in Honduras remains to be adequately explored in this case. When the RAD is unable to confirm, or set aside and substitute its own decision without hearing evidence that was presented to the RPD, the RAD may return the case to the RPD for re-determination.6 In the circumstances of this case, the RAD is left with no option but to remit this matter to the RPD for re-determination. CONCLUSION [27] I allow the appeal and refer this matter back to the RPD re-determination by a different member taking into account the findings set out above. Jo-Anne Pickel Jo-Anne Pickel July 29, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Subsection 110(4) of the IRPA. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, FC 385. 4 Audio recording of hearing 1:10:00. 5 Claimant's documents, Exhibit 4 in RPD Record at P-9, P-22 and P-23. 6 Sections 111(1)(c) and 111(2) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-07546 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