TB9-12273

RAD File / Dossier de la SAR : TB9-12273 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 October 2, 2020 Date de la décision Panel Ayanna Roberts Tribunal Counsel for the person who is the subject of the appeal Me Temitope T Ayodele 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 the appeal. XXXX XXXX XXXX XXXX (Appellant) is a citizen of Guatemala. a. The Appellant fears MS-13 gang members in Guatemala whom he alleges will kill him for failing to pay their extortion demands in 2001, and instead fleeing Guatemala. The Appellant alleges that his father was killed by the gang and that his mother was harassed by them, all because he has not heeded their extortion requests. The Appellant fled Guatemala in 2001 and, but for his deportation in 2001 and return to the US in 2002, remained in the US for 16 to 17 years before requesting Canada's protection in 2017. The Minister intervened before the Refugee Protection Division (RPD) with evidence demonstrating that the Appellant had omitted instances of detention in the United States from his declaration in Canada. b. The Appellant appeared before the RPD with his wife and children. Their appeals were dismissed prior to this decision for lack of jurisdiction. The RPD found that the Appellant was not credible about their his in Guatemala due to unexplained inconsistencies in his claims about the MS-13 threats against his family members, due to his failure to claim asylum in the US, and because he and his wife denied being detained twice by the US Department of Homeland Security. The Appellant argues that the RPD erred in its assessment of his credibility. c. The determinative issue for the Refugee Appeal Division (RAD) is credibility. d. The Appellant is not credible about his fears in Guatemala. He failed to credibly explain why he was detained a second time by the United States Department of Homeland Security. His wife's testimony, which is relevant to his case, contained similar unexplained contradictions. The contradictions in the Appellant's testimony about his family's struggle with alleged MS-13 extortion attempts means that the allegations are not established on a balance of probabilities. The Appellant's failure to explain his detention in the US casts serious doubt on his general credibility. DECISION [2] 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 [3] The Appellant thrice requested that the RAD consider new evidence. The Appellant submitted one request at the time of perfection, and two requests after perfection. The latter two requests were submitted in July 2020 and September 2020. The evidence presented by the Appellant at the time of perfection is rejected [4] At the time of perfection, the Appellant requested that the RAD accept the following documents into evidence: a. A police report for XXXX XXXX XXXX XXXX;1 b. A denunciation by XXXX XXXX XXXX XXXX;2 c. A handwritten letter from XXXX XXXX XXXX XXXX;3 d. Audio recordings in Spanish and transcripts of those recordings.4 [5] According to the law,5 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 person 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.6 [7] The Appellant argues that this new evidence is relevant because it establishes that he continues to be at risk in Guatemala. He argues that the information arose after the RPD issued its decision since the incidents are said to occur in April 2019. He alleges that the information is credible since the alleged incident is accompanied by a genuine police report, a sworn statement of fact and audio recordings. He suggests that this information could have altered the RPD's determination of their credibility. I disagree with the Appellant. [8] First, the new evidence pertains to problems that XXXX XXXX XXXX XXXX is having with gang members. Nothing in the police report, audio recordings, or denunciation establishes that these alleged problems relate to the Appellant; a connection is only made by XXXX XXXX XXXX XXXX in his personal speculations to the Appellant. [9] The new evidence provided does not resolve the credibility issues raised by the RPD, which I find to be correct. This evidence does not establish that the Appellant's father died at the hands of gang members, that his mother was harassed and does not explain why the Appellant and his wife were detained a second time by US authorities. These are the primary credibility problems that must be resolved in this claim. July/September 2020 - COVID-19: Additional new evidence presented by the Appellant is rejected. [10] In March 2020, the Board's operations were affected by the global COVID-19 coronavirus pandemic. In June 2020, the Board communicated with the Appellant to inform him that his appeal had been assigned to a member for analysis. The Appellant was invited to submit documents or written submissions in support of their appeal, if needed. [11] In July 2020, the Appellant elected to submit additional evidence in support of his appeal. The requirements related to RAD Rule 29 and subsection 110(4) of the IRPA apply to these submissions. [12] The new evidence consists of two articles discussing the situation related to COVID-19 in Guatemala: a. "Guatemalan Courts To Close After Rise In COVID-19 Infections." Latino USA. July 9, 2020. The information in this article states that Guatemala is experiencing an increase in COVID-19 cases that is higher than other Central American countries. It states that the crisis could affect economic growth and indicates that as of July 2020, the unemployment rate is 2.5% and that airports will reopen in the next 15 days. b. "Number of People Facing Hunger in Guatemala Doubled Due to COVID-19." Relief Web. June 17, 2020. This article indicates that 1.2 million people need emergency food aid and that there are 15,000 cases of acute malnutrition among children as of May 2020, exceeding the total number of cases for 2019. It mentions that some families are experiencing increased economic difficulty. It contains speculation about what would be the effects if people see a further loss of income and if the health system collapses. [13] The Appellant also provided written submissions indicating that he will be victimized in Guatemala, considering the current situation resulting from the coronavirus pandemic. He argues that the health system is weak, that it will be difficult to find employment opportunities, that he could be exposed to the virus which could lead to mortality and that the pandemic has affected food security. He argues that if the pandemic continues to worsen in Guatemala, people might see further loss of income, the health system may collapse, and lives may be at risk due to lack of medical care. He has used the two articles submitted to support his arguments. [14] In September 2020, the Appellant again communicated with the Board and requested that new evidence be considered. In this submission, the Appellant indicated that his brother passed away on August 23, 2020, due to COVID-19. The submissions consist of: a. An affidavit from the Appellant explaining that his brother has passed away; b. A letter of Explanation from his brothers' wife; c. His brother's death certificate; d. His brother's Covid-19 test result; and, e. A photograph of his brother. [15] In his affidavit accompanying the September 2020 submission, the Appellant explained that the state of healthcare in Guatemala is poor, that he is stressed, and that he fears that he will also contract the virus if he returns to Guatemala, thus rendering him unable to support his wife and children. [16] The determinative issue on this appeal is the Appellant's credibility. While I accept that the information related to the coronavirus pandemic as well as his brother's death arose after he perfected his appeal, these arguments and articles are not relevant to the determinative issue. The Appellant's arguments are largely speculative with respect to the likelihood that he will contract COVID-19 in Guatemala, the impacts that they will suffer, as well as the possible collapse of the Guatemalan health system. These arguments do not relate to the basis of his claim. I find that the new evidence does not speak to their credibility and is not relevant. The information before me does not cause me to displace their credibility as the determinative issue. [17] Moreover, Section 97(1) of the IRPA means that the risk that the Appellant faces must not be caused by the inability of that country to provide adequate health or medical care. The Appellant's COVID-19 related submissions are entirely focused on the inability of Guatemala to provide adequate health care. ORAL HEARING The request for an oral hearing is rejected [18] Since new evidence has not been accepted into the record before the RAD, the request for an oral hearing is denied. ANALYSIS [19] My role is to look at all the evidence and decide if the RPD made the correct decision.7 Credibility The Appellant generally is not credible [20] Both the RPD, and the Minister in his intervention, raised a serious credibility issue that I find has not been adequately explained by the Appellant. The Appellant appeared before the RPD accompanied by his wife and children. The testimony provided by both the Appellant and his wife are relevant to the credibility of his claim. Biometric information obtained from the US shows that both the Appellant and his wife were stopped by the Department of Homeland Security (DHS) and fingerprinted twice. The Appellant and his wife were fingerprinted upon arrival into the US from Mexico in 2000. Additionally, the Appellant was stopped by the DHS and fingerprinted when he returned to the US in 2002. His wife was stopped by the DHS and fingerprinted in 2017. Both the Appellant and his wife deny that they were stopped by the DHS a second time. [21] The Appellant testified and reconfirmed in his testimony at the second hearing that he entered the US undetected in 2002. His biometric information says otherwise. The report indicates that he was apprehended on March 21, 2002, using the slightly altered name "XXXX XXXX-XXXX" and the slightly adjusted birthdate of XXXX XXXX XXXX XXXX.8 The Appellant was born on XXXX XXXX XXXX XXXX, according to his passport.9 [22] The Appellant's wife testified that the only time she was fingerprinted other than on arrival from Guatemala was after a traffic stop in about 2011 or 2012. She stated that she was fingerprinted at the court house, and was fined $200 for driving without a licence. She denied that she had been detained by the DHS in 2017. [23] I consider the biometric information to be very reliable. It is based upon the Appellant's fingerprints and those of his wife, which are obviously highly personal to them. The names associated with these fingerprints in the American system are very similar to their legal names. The information was provided by US authorities, whom I consider to be competent and reliable. I find, on a balance of probabilities, that the Appellant and his wife were stopped, fingerprinted and had exchanges with the DHS. It is very troubling that the Appellant and his wife did not disclose even the fact that they were stopped, notwithstanding the reasons for which they were apprehended. The Appellant has not addressed this credibility issue on appeal other than to state that the Federal Court has recognized that refugees sometimes use false identities in their quest for safety. While I agree with the Federal Court, in this case, the issue is not the use of false identities, it is their denial of having had encounters when faced with very credible biometric data. In the absence of any credible information explaining those encounters, I find that their credibility is seriously impugned. [24] In that context, it was correct for the RPD to displace the presumption of truth associated with the Appellant's testimony. [25] I do not find that the Appellant's failure to claim asylum in the United States presents a significant credibility concern. It is understandable that the Appellant was not informed about how to request protection upon arrival. Moreover, while a sign of risky behaviour and poor planning, his failure to inform himself about how to request protection and stabilize his status before 2017 does not mean that his allegations pertaining to Guatemala are false. What does present a credibility concern, in addition to the unexplained detentions in the US, is that the Appellant's oral and written testimony about the situation in Guatemala contains significant contradictions which cast serious doubt on the assertion that he and his family are being sought after by MS-13 members. The Appellant has not established that his father was killed by MS-13 because he didn't respond to their extortion demands [26] The Appellant clearly contradicted himself in an important way when explaining the circumstances surrounding his father's death in 2008. The Appellant testified that his sister called him to tell him of his father's death. He testified that his sister told him that the police told her that their father had been murdered by the gang members. He said he received the call from his sister on the day of his father's death, in the afternoon. He said the police reached its conclusion because an anonymous caller told the police that people were pursuing a man in a certain place.10 The Appellant's narrative does not reflect his oral testimony. His narrative states: On January 2, 2008 as my father was riding a mule to his daily work, a pickup truck crashed into him. He was taken to hospital where he died on XXXX XXXX XXXX2008. The pickup truck was found abandoned on the street and no suspect found. This crash occurred on the same street at about the same spot where I was first attacked in August 2000. This event indicted to us that we were still at risk from the maras, and we abandoned our thought of returning to Guatemala.11 [27] I consider that the Appellant contradicted himself in a significant way about the circumstances surrounding his father's death. On one hand, he knew in 2008 that his father had been murdered by the gang members, according to the police. On the other hand, he wrote in his Basic of Claim (BOC) that there were no suspects in his father's death. On appeal, the Appellant alleges that his father's death was a traumatic event for him and that he did not remember important details for that reason. I do not accept this argument. The Appellant has recalled other significant details in his narrative, to the point of testifying that he remembered that he was attacked by the gang members on a Sunday in August of 2000, because it was a significant event.12 I find that if his father had been clearly murdered by gang members, he would have included this detail in his narrative since it is a key allegation related to the basis of his claim and his self-stated reason for fearing a return to Guatemala so much that he remained in the United States without status. This is a major event and is not peripheral. I find that this contradiction damages his credibility and means that the circumstances surrounding the death of his father have not been established on a balance of probabilities. The credibility of the police report provided to corroborate the Appellant's father's death cannot be established [28] The Appellant provided a police report to corroborate the circumstances surrounding his father's death. The RPD correctly found that the police report was not a genuine document due to the circumstances surrounding its production. In his BOC, the Appellant claims to have requested in 2017 that his wife's cousin, a police officer, obtain the document for him. He claims that his wife's cousin was threatened and then killed for having requested the document. He testified that in 2018, he asked his friend XXXX XXXX to obtain the document for him. He testified that XXXX XXXX asked a friend who works in a police station to get the document, which the friend is alleged to have done successfully. Among the numerous elements leading the RPD to doubt the document's authenticity, the RPD found that it was not credible that the Appellant's relative would be killed in retaliation for requesting the document, but that a friend would be able to navigate that same danger and obtain it in 2018. I note that the Appellant testified that he did not know the name of XXXX XXXX friend who obtained the report yet testified that the report was sent to him directly by that friend in October 2018. Despite that, he could not produce the envelope in which it was sent; he only produced envelopes sent to him by his relatives XXXX XXXX and XXXX XXXX. Moreover, he testified that he knows nothing about how the friend obtained the document. Given that the Appellant cannot explain how the document was obtained, and cannot produce the envelope in which the document was mailed to him by XXXX XXXX friend, and given the problems with the Appellant's overall credibility, I find that the RPD was correct to conclude that the police report is not a genuine document. The Appellant has not established that his mother was threatened by MS-13 for reasons related to their extortion demands against him [29] The RPD noted that the Appellant's testimony and corroborating evidence was inconsistent regarding his mother's problems with the gang members. The Appellant testified that the gang members regularly visited his mother to ask about his unpaid extortion debt. He provided two letters13 from people in Guatemala to corroborate his claim that his mother was harassed. The harassment of his mother is entirely absent from his BOC and the letters contradict one another. [30] The Appellant testified that his mother moved to Guatemala City for four months after his father died, but returned to the family home in Cubulco, thinking that things had died down. His father's death and his mother's move are said to have occurred in 2008. He testified that the gang members visited his mother every two to three months, asking her for money and that she never paid them. When asked why there is no mention of his mother or any family member having had problems between 2008 and 2016 in his BOC, he replied that he did not think it was important to include it because it wasn't personal to him. I don't accept this explanation because the Appellant alleges that his mother was harassed because of his unpaid extortion debt. It is very personal to him and goes to the basis of his claim - his ongoing risk at the hands of the gang members. I find that the omission of his mother's ongoing harassment detracts from the credibility of his claims. [31] In the letters, the Appellant's brother XXXX and brother-in-law XXXX allege that his mother was harassed by gang members in July 2018. XXXX indicated that on July 25, the day of the Cubulco fair, gang members threatened to kill her if she did not reveal the whereabouts of her sons and pay them money. XXXX wrote that she said the incident happened during the fair on July 20. Moreover, XXXX wrote that he was stopped by gang members on July 25. When presented with the contradictions, the Appellant proposed that there could have been two incidents involving his mother during the fair. I find that the Appellant's proposal is speculation. The contradictions between the letters cause me to assign them no probative value. I find that the lack of clarity around the number of incidents and the date of the alleged incident, and the omission from the Appellant's BOC of his mother's difficulties, mean that the allegations relating to his mother have not been established on a balance of probabilities. The Appellant is not credible about the basis of their claim [32] Given that the Appellant has not credibly established key elements going to the heart of his claim, I find that he is not credible about his allegations and alleged fear in Guatemala. The RPD correctly concluded that other evidence - such as an alleged handwritten note from gang members - is not enough to overcome these significant credibility concerns. CONCLUSION [33] 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) Ayanna Roberts Ayanna Roberts October 2, 2020 Date AR/dd 1 P-2, Appellant's Record, at pp. 37-40. 2 Ibid, at pp. 42-47. 3 Ibid, at pp. 48-51. 4 Ibid, at pp. 52-57. 5 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 110(4). 6 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385 7 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 8 RPD-1, RPD Record, GCMS Biometrics information report, at pp. 184-187. 9 RPD-1, RPD Record, Passport of XXXX XXXX XXXX XXXX, at p. 115. 10 RPD Hearing, Audio Recording, November 8, 2018, between 1:23:20 and 1:32:22. 11 RPD-1, RPD Record, Basis of Claim form of XXXX XXXX XXXX XXXX, Narrative, at para 18, p. 39. 12 RPD Hearing, Audio Recordin,. November 8, 2018, between 39:29 and 40:44 minutes. 13 RPD-1, RPD Record, Letters from XXXX XXXX XXXX XXXX, at pp. 197-202. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-12273 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