MB8-26479

RAD File / Dossier de la SAR : MB8-26479 MB8-26480 / MB8-26481 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision October 17, 2019 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the persons who are the subject of the appeal Claude Whalen Conseil des personnes 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, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, citizens of Vietnam, are appealing a decision of the Refugee Protection Division (RPD), dated November 8, 2018, rejecting their claims for refugee protection. [2] The Appellants submit that the RPD erred in its assessment of their credibility. They ask that the Refugee Appeal Division (RAD) find them to be Convention refugees or persons in need of protection. In the alternative, they ask that the matter be referred back to a different member of the RPD for redetermination or that the RAD conduct a new hearing. [3] Pursuant to Section 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. [4] The appeals are dismissed. BACKGROUND [5] The Appellants, a mother (XXXX XXXX XXXX) and her two adult children (XXXX XXXX XXXX XXXX) fled their country following threats allegedly made by a man, Mr. XXXX, who sought to go out with XXXX XXXX. [6] According to the Basis of Claim form (BOC)1, Mr. XXXX opened a XXXX XXXX XXXX the XXXX XXXX operated by XXXX XXXX in 2014. He asked her several times to go out with him but she refused as she was to marry someone else. In 2016 when the marriage was officially announced, Mr. XXXX, according to XXXX XXXX, became upset and threatened to harm XXXX family. According to her, Mr. XXXX said that he would arrange for her brother, XXXX XXXX to be drafted in the military even though, being a student, XXXX was exempted from military duty. She also alleged that he sent gangsters to her parents' restaurant to damage their property. [7] In XXXX 2016, after her brother received a draft order for the military, XXXX closed her XXXX XXXX and fled to the US with her brother. However, in XXXX 2017, upon hearing that her boyfriend had a motorcycle accident allegedly caused by Mr. XXXX, she returned to Vietnam and remained there until XXXX XXXX, 2017, when she married her boyfriend. After the ceremony, she came to Canada with her mother. Her brother who had remained in the US joined them in Canada where they made their refugee claim. [8] The Appellants allege that, upon return to Vietnam, they will be harmed by Mr. XXXX. ROLE OF THE RAD [9] In Huruglica, the Federal Court of Appeal held that after carefully considering the RPD decision, the RAD is to carry out its own analysis of the record to determine whether the RPD erred. Where no issue of credibility of oral evidence is raised, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law.2 Where the credibility of oral evidence was raised, the RAD will defer to certain findings of the RPD where the RPD enjoyed a meaningful advantage. In such instances where I find that I must apply deference, I will explain how the RPD enjoyed a meaningful advantage in making its finding. Application for an Oral Hearing [10] In the conclusions of their Memorandum of Appeal, the Appellants ask that an oral hearing be held, pursuant to Section 110(6) of IRPA, if the RAD deems it necessary.3 [11] Sections 110(3), (4) and (6), when read together, establish that the RAD must not hold a hearing in an appeal unless there is new Section 110 (4) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellants, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [12] No new evidence has been submitted in this appeal. As such, I must proceed without a hearing. The Appellants' request for an oral hearing is denied. ANALYSIS [13] After conducting my own analysis of the record, including listening to the audio of the hearing which took place before the RPD, I am satisfied that the impugned findings by the RPD are supported by the evidence. My reasons follow. [14] The Appellants submit that the RPD erred in its assessment of their credibility. [15] My review of the testimony verifies that the Appellants' testimony was vague, hesitant lacking in specificity and contradictory. I concur with the RPD that the anomalies in the Appellants' testimony, as set out below undermined their credibility. The Federal Court has held that a claim may be rejected as lacking in credibility if the claimants' testimony is found to be vague, or lacking in sufficient detail4. [16] In her Basis of Claim, XXXX XXXX alleged that Mr. XXXX threatened her family's safety because she would not marry him. In support of her claim, she gave the following examples of incidents whereby she concluded that he persecuted and threatened her family. [17] XXXX XXXX parents operated a XXXX. In her BOC, she claims that Mr. XXXX sent gangsters on several occasions to damage her parents' XXXX property. However, the testimony provided by her mother, Mrs XXXX, at the hearing, contradicted this information. To begin with, Mrs. XXXX testified that she had received threats from Mr. XXXX5 but when asked by the RPD when she had been threatened or if she personally received the threats, she was unable to answer. She explained that she was fearful after hearing about the threats in XXXX XXXX XXXX 2017 during a conversation between XXXX and Mr. XXXX over the telephone. [18] Mrs. XXXX then testified about two different incidents of problematic conduct by different people who, after XXXX, said that they did not XXXX XXXX XXXX that had been XXXX and found the XXXX XXXX. In one instance the XXXX were thrown on the floor. Mrs XXXX testified that on both occasions she was alone and phoned the police. However, the RPD noted that this testimony contradicted the BOC which indicates that it was the father who had phoned the police6. In reply, Mrs. XXXX explained that she had thought about calling the police and that it was this thought that made her substitute her name in her answer instead of her husband's. [19] The RPD concluded that there was no evidence that the so-called gangsters at the XXXX were acting on Mr. XXXX orders. The Appellants submit that while they cannot prove beyond a reasonable doubt that Mr. XXXX was involved, the fact is that the parents' XXXX had never experienced such a situation until Mr. XXXX threats. Thus, they submit that on a balance of probabilities, it is clear that Mr. XXXX was persecuting the family. [20] The RAD does not concur with the Appellants. When faced with contradictions between the BOC and testimony, the RPD may draw negative inferences if the Appellants are unable to provide satisfactory answers to explain such differences.7 I do not consider Mrs. XXXX explanations satisfactory. The fear of persecution is at the heart of the Appellants' claim and the incidents, if true, would warrant a clearer testimony than what was provided at the RPD hearing. The testimony at hand was vague and unpersuasive. The fact of the matter is that Mrs XXXX characterized the disruptive behavior in her XXXX as being caused by unhappy customers and not gangsters sent by Mr. XXXX as would want us to believe XXXX XXXX. I find that the RPD's conclusions that Mrs XXXX testimony lacked credibility correct. I need not intervene. [21] Appellant XXXX XXXX testified that after receiving a draft order for military service, he flew to the US with his sister because he did not want to do military duty. As a student, under Vietnamese law, he is exempted from military duty. While he admitted not having been personally threatened by Mr. XXXX, he did testify that his sister, XXXX XXXX, had told her father that Mr. XXXX had threatened to have her brother drafted. [22] The Appellants submitted documentary evidence (Exhibit C-6) outlining the existence of corrupt practices in Vietnam whereby people pay in order to avoid having to do military duty. Questioned by the RPD as to whether he approached the appropriate authorities to draw to their attention the fact that he was exempted, he testified that this would be a waste of time and money8. The answer provided by the Appellant is unsatisfactory given that his status as a student provided him with an exemption under the law. His failure to pursue this opportunity undermines his credibility and is incompatible with the conduct of a person who is fearful of persecution. Failure to claim asylum [23] Appellants XXXX and XXXX XXXX argue that the RPD erred in concluding that their failure to claim asylum during the period of XXXX 2016 - XXXX 2017 that they resided in the USA undermined their credibility with respect to their allegations of persecution and negated a well-founded fear of persecution. They submit they had valid reasons for not claiming refugee status. [24] Mr. XXXX explained that he was not interested in claiming asylum in the US. He just wanted to avoid the military draft. This explanation, coupled with his inaction regarding his legal exemption, undermines his credibility. The RPD's conclusion that this conduct is incompatible with a genuine fear of persecution is correct. I need not intervene. [25] In the case of XXXX XXXX, she explained that she did not seek asylum in the US because she did not feel personally threatened by Mr. XXXX at that time. This explanation is not satisfactory coming from someone who alleges that he persecuted her family and that she feared for her life9. [26] This incompatible conduct is further compounded by her return to her country after finding out that her boyfriend had suffered from a motorcycle accident, that she alleges was caused by Mr. XXXX. While she admitted her boyfriend only had a few bruises and scratches, she nevertheless put herself in harms' way and returned to Vietnam where she remained until XXXX to get married. [27] It is well established by the Courts that it is reasonable to expect persons fleeing persecution to claim asylum at the first opportunity.10 [28] The RPD's conclusion that her conduct is incompatible with a person who fears for their life is correct. I need not intervene. [29] Finally, I note from the evidence that while the Appellant XXXX XXXX claims that Mr. XXXX had threatened her entire family, she did admit at the hearing that no harm had occurred to her father, her grandmother, her sisters and even her husband for that matter. [30] I also note that the RPD carefully considered the Chairperson's Guideline 411 in its analysis of the case evidence as well as that tendered at the hearing when assessing Mrs. XXXX and Ms. XXXX situation. I see no reason to intervene on this point. [31] On a final note, I would add that I cannot concur with the appellants' overall submission that all of the incidents are the making of Mr. XXXX. In fact, there is no evidence that he was involved, either directly or indirectly, in any of the incidents in any way. [32] On the basis of the findings noted above and after conducting my own assessment of all the evidence in the record, including listening to the recording of the hearing, I agree with the RPD's finding that the Appellants have not established, on a balance of probabilities, that they have been threatened with harm should they return to Vietnam. [33] I also find that there is not a serious possibility of persecution should the Appellants return to Vietnam. CONCLUSION [34] For these reasons, I confirm the decision of the RPD that the Appellants are neither Convention refugees pursuant to section 96 nor persons in need of protection, pursuant to section 97 of the IRPA. [35] The appeals are dismissed. (signed) "Nicole Ladouceur" Nicole Ladouceur October 17, 2019 Date 1 RPD-1, Basis of Claim form, RPD file. 2 Canada (M.C.I.) v. Huruglica, 2016 FCA 93, para. 78. 3 P-2, Appellant's Record, Memorandum of Appeal, p. 12. 4 Khuabi v. MCI), 2012 FCA141; Chen v. MCI (F.C.T.D. no. IMM-808-00; Rokni v. MCI (F.C.T.D., no. IMM-6068-93. 5 Audio, Hearing before RPD, October 17, 2018,00:38:16. 6 Ibid., 01:13:00 7 Grinevich et al v. Canada (MCI), IMM-1773-96 8 Audio, Hearing before the RPD, October 17, 2018, 01:37 9 Ibid, 02:04. 10 George v. Canada (MCI), 2014 FC 535, par. 10. 11 Chairperson's Guideline 4: Women Refugee Claimants fearing gender-related persecution. Available on the IRB website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-26479 MB8-26480 / MB8-26481 RAD.25.02 (April 04, 2019) Disponible en français 8 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 (April 04, 2019) Disponible en français