MB8-25716

RAD File No. / No de dossier de la SAR : MB8-25716 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 Montréal, Quebec Appel instruit / entendu à Date of decision September 21, 2020 Date de la décision Panel Me Kristine Plouffe-Malette Tribunal Counsel for the person who is the subject of the appeal Me Marie-José Blain 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] XXXX XXXX XXXX XXXX (the appellant), a citizen of Mexico, is appealing the decision of the Refugee Protection Division (RPD) dated October 24, 2018, to reject his claim for refugee protection, mainly because his testimony was not credible. [2] In his amended written account, attached to his Basis of Claim Form (BOC Form), the appellant alleges that, in XXXX 2013, he borrowed XXXX XXXX XXXX Mexican pesos from XXXX XXXX, with no fees or interest. He paid off the loan from XXXX 2013 to XXXX 2013 with amounts of XXXX XXXX XXXX pesos per month. Then, starting in XXXX 2013, XXXX XXXX allegedly demanded the payment of additional amounts, payments that the appellant made. [3] In his written account, he states that he had no contact with XXXX XXXX from XXXX 2014 to XXXX 2015. [4] The appellant states that, from XXXX 2015 to XXXX 2017, XXXX XXXX extortion resumed. [5] First, in XXXX 2015, the appellant's car was allegedly vandalized. He then allegedly received a lot of telephone calls from XXXX XXXX reminding him of the amount owing and threatening him with reprisals. Moreover, he was supposedly twice questioned by the police on the orders of XXXX XXXX. He apparently tried to complain to the police on two occasions. [6] Starting in XXXX 2016, XXXX XXXX allegedly called on someone called XXXX to try to recover other sums of money from the appellant. In XXXX 2016, XXXX apparently went to the appellant's residence and beat him. At the same time, the appellant allegedly lost his job because of the harassment from XXXX XXXX and XXXX at his place of work. [7] In XXXX 2017, XXXX XXXXand XXXX allegedly went to the appellant's residence to attack him physically. After that, XXXX XXXX apparently made a death threat against the appellant on Facebook, then appeared at his residence once more, in XXXX 2017, to demand money. [8] On XXXX XXXX XXXX 2017, the appellant left Mexico for Canada, where he filed a claim for refugee protection XXXX XXXX XXXX. [9] The RPD rejected the appellant's claim for refugee protection because of major credibility problems as to the very basis for his claim for refugee protection, which he was not able to satisfactorily explain. In his memorandum, the appellant contends that the RPD erred in its assessment of his credibility and challenges all its conclusions. This is the only determinative issue in the case. [10] On June 15, 2020, the appellant was informed by the Refugee Appeal Division (RAD) that he had 30 days in which to send any documents or written submissions in support of his appeal. His request to extend the deadline, submitted on July 14, 2020, was granted and, on August 7, 2020, the appellant submitted two new items of evidence, together with a request for an oral hearing: - An affidavit from his mother, XXXX XXXX XXXX XXXX XXXX, dated XXXX XXXX XXXX 2020; - An affidavit from XXXX XXXX XXXX, a former colleague of the appellant, dated XXXX XXXX XXXX 2020. [11] For the reasons that follow, the new evidence is allowed, but both the request for an oral hearing and the appeal are dismissed and the RPD's determination is confirmed. The appellant's testimony was not credible; it was confused and lacking in spontaneity. DETERMINATION [12] The RPD was right to determine that the appellant is neither a Convention refugee nor a person in need of protection. The RAD dismisses the appeal. NEW EVIDENCE ALLOWED - REQUEST FOR AN ORAL HEARING DISMISSED [13] To be admitted by the RAD, the new evidence must first meet the criteria in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), and then those in Singh,1 adapted from Raza,2 both decisions of the Federal Court of Appeal. Subsection 110(4) of the IRPA states that "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." In Raza, the Court specified three conditions for admissibility: credibility, relevance and newness. These conditions also apply to any request for new evidence to be admitted before the RAD. [14] The RAD is of the opinion that the two affidavits meet the criteria in subsection 110(4) of the IRPA, in the sense that they could not reasonably have been presented before the claim was rejected because they mainly describe events that presumably took place after XXXX 2018. They are also new, credible and relevant, as the case law intends. In terms of their newness and their credibility, the RAD notes that the affidavits did not exist and could not have existed before the RPD's decision and nothing casts the veracity of the documents into doubt. Their relevance is also established in that they contain statements about the continued risk that the appellant could face should he return to Mexico. [15] However, the RAD is of the opinion that this new evidence does not meet the criteria in subsection 110(6) of the IRPA and does not allow for an oral hearing to be held. [16] For an oral hearing to be held, all the criteria in subsection 110(6) of the IRPA must be met. This means that the new evidence raises a serious issue with respect to the credibility of the person who is the subject of the appeal, that it is central to the decision with respect to the refugee protection claim, and that it would justify allowing or rejecting the refugee protection claim. [17] In this case, the affidavit from XXXX XXXX XXXX describes a work-related meeting with XXXX XXXX that he supposedly had on XXXX XXXX XXXX 2019. XXXX XXXX apparently approached him in order to buy a car and then, after recognizing him from the time that he had worked with the appellant, he tried to obtain information as to his whereabouts and also made threats against him. Although this evidence was admitted, the RAD is of the opinion that it is not sufficiently compelling to confirm the risk of harm should the appellant return to his country. Consequently, this evidence is not central to the decision and is not in itself substantial enough to justify allowing or rejecting the refugee protection claim. [18] In her affidavit, the appellant's mother suggests the hypothesis that XXXX XXXX could be the person who approached her on two occasions, in XXXX 2018 and XXXX 2019, although the person introduced himself as XXXX XXXX XXXX, and said that he was looking for her son. She states that, in the two weeks after the incidents, cars parked not far from their residence watched their comings and goings. When she asked the occupants of the vehicles to leave the area, they allegedly stated: "XXXX should have thought about this before reaching an agreement with them." Not only did the appellant's mother not identify XXXX XXXX, but she also states that the person identified himself using another name. Furthermore, she did not testify as to the identity of the individuals apparently watching their house. Consequently, although this evidence is admitted, the RAD is of the opinion that it is not central to the decision and does not provide enough persuasive evidence to support or confirm the risk of harm should the appellant return to his country. It cannot in itself justify allowing or rejecting the refugee protection claim. [19] For the preceding reasons, the criteria in subsection 110(6) of the IRPA are not met and the request for an oral hearing is dismissed. SCOPE OF THE APPEAL [20] Pursuant to Huruglica,3 the RAD must carry out an independent review of the evidence submitted in support of an appeal and, except where the RPD enjoys a meaningful advantage as to the issue of credibility, must apply the correctness standard. In this case, the RAD conducted an independent review of all the evidence, including listening to and reading the transcript of the hearing before the RPD. It is not of the opinion that the RPD enjoyed a particular advantage in assessing the appellant's credibility and, as a result, applied the correctness standard. ANALYSIS [21] On appeal, the appellant contends that the RPD erred in its assessment of his credibility, while he provided satisfactory explanations of the contradictions, inconsistencies and omissions in his testimony. For the reasons that follow, the RAD does not share that view and is of the opinion that the RPD decision is correct. Nothing justifies its intervention in this case. [22] In paragraphs 24 to 32 of its decision, the RPD came to two negative findings as to the appellant's credibility, as the result of his inability to provide clear testimony about the initial terms of the contract and about when XXXX XXXX first demanded additional amounts. [23] In his memorandum, the appellant states that the member clearly indicated to him, on many occasions, that he understood the difficulties he was having in recalling the dates of the various events. He states that, as a result, he had not been presented with the various inconsistencies surrounding them. Consequently, he cannot reasonably be criticized in the RPD's decision for providing contradictory testimony as to the dates of the events. [24] From listening to and reading the transcript of the hearing, it is clear from the appellant's testimony that many contradictions emerge about those two matters, which he tries to justify by nervousness. On a number of occasions, the RPD was patient with the appellant in trying to find out the original terms of the agreement between him and XXXX XXXX, the number of payments made, and when additional payments were asked for. The appellant had the opportunity to explain his story, which is clearly and chronologically presented in his amended written account. He did not take the opportunities provided to him, although the RPD tried, even in a second hearing, to clarify each of the contradictions raised. Nervousness cannot satisfactorily explain the fact that the appellant does not remember when he borrowed the money, the number of payments he made or when additional payments were asked for. These three points are central to his refugee protection claim. Instead, the appellant adjusted his testimony to the various contradictions that the RPD listed. Like the RPD, the RAD finds that the appellant's credibility is seriously undermined. [25] In paragraphs 35 to 38 of its decision, the RPD drew a negative inference from the appellant's statement that he had received telephone calls from XXXX XXXX before XXXX 2015, despite stating in his written account that nothing happened from XXXX 2014 to XXXX 2015 and that the threatening telephone calls began in XXXX 2015. When presented with that contradiction, the appellant had no explanation other than to state that, since he had not spoken with the person who called him before XXXX 2015, in the sense that he did not pick up the telephone, they were not actual calls. The RPD did not find that explanation to be satisfactory. [26] In his memorandum, the appellant contends that this is a simple mistake that should have no effect on his credibility. Like the RPD, the RAD is not of that opinion. Either there were telephone calls between XXXX 2014 and XXXX 2015, or there were not. The RPD asked a simple question that called for a simple answer. The appellant's credibility is undermined by this contradiction between his written account and his testimony, in which no reasonable explanation was provided. [27] In paragraphs 39 to 45, the RPD examined the two occasions on which the appellant was allegedly stopped by the police. It wanted to find out when those events took place. In the written account, the two interactions seem to have occurred a few days apart. However, the appellant twice testified that they occurred several months apart, one in 2015 and the other in 2016. When presented with this contradiction, the appellant stated that he had been nervous when he answered. The RPD did not find that explanation to be satisfactory. [28] In his memorandum, the appellant contends that the RPD could not criticize him for the problem with the date because the member stated that he understood the situation at the hearing. There is a clear difference between requiring a refugee protection claimant to remember a specific date and requiring him to recall the year in which an event took place. The member did not demand the exact date of the various events but he did want the appellant to tell him at least the year in which the second alleged police stop took place. That is not too much to ask, but the appellant's explanation in no way accounts for the contradiction between the testimony and the written account. Instead, the appellant tells two different versions of the same story. The RAD is of the opinion that the appellant's credibility is seriously undermined. [29] In paragraphs 46 to 48, the RPD drew two negative inferences from the appellant's testimony, first, from the contradiction as to whether or not his father was present, which emerges from the father's letter filed in support of the refugee protection claim, and second, from the appellant's failure to mention that he had gone to the police four or five times. The appellant tried to justify his father's statement that he had gone to the police with his son twice by stating that they had gone four or five times. When presented with his written account and his initial testimony that he had only gone to the police twice, the appellant stated that he had only mentioned the two most significant events. The appellant's explanation certainly created a contradiction in his testimony, as well as providing no satisfactory explanation for it. The RAD draws a negative inference from this line of testimony, which undermines the appellant's credibility. [30] In paragraphs 49 to 52, the RPD found that the appellant's testimony was not credible when he was presented with the letter from his father stating that he had seen his son hit in the face, although he stated that his father had never seen him assaulted. By way of explanation, he stated that he had been physically attacked on three or four occasions, the last of which was XXXX days before he left the country. [31] On appeal, the appellant argues that his father had perhaps meant to state in his affidavit that he had seen his injuries, not that he had seen the attack. The affidavit is clear in that the appellant's father stated that he had witnessed his son being hit in the face on several occasions: " I XXXX XXXX XXXX XXXX was witness how my son was punched in several times in his faces...."4 Without an explanation, the appellant's credibility is once more undermined and the RAD gives no probative value to the affidavit in question. [32] Overall, after reviewing all the appellant's testimony, the RAD finds, as the RPD found, that his testimony was not generally credible. He tried to adjust it several times, with no satisfactory explanation for the contradictions, inconsistencies and omissions raised. [33] Lastly, the RPD reviewed the documents submitted in support of the appellant's claim for refugee protection and gave them little or no probative value. The RAD is of the opinion that each of the RPD's decisions is correct. [34] In addition to the affidavit from his father, the appellant submitted six documents to the RDP. These were communications on various social media platforms and private messages (R-2 and R-6), a complaint to the attorney general (R-3), two letters from friends (R-4), a document from a school organization (R-5), and a package of documents dealing with private information obtained using a Mexican citizen's social insurance number (R-8). [35] Like the RPD, the RAD is of the opinion that it is not possible to clearly establish the source of documents R-2 and R-6, and that their content alone cannot confirm that anyone is wishing for or planning the appellant's death. These communications confirm only that an individual wants money from the appellant, who was insulted in the process. They contain no threats. No probative value can be attributed to those documents. [36] As for the complaint to the attorney general (R-3), the appellant himself stated that it does not present the facts as they happened and that the person who took the complaint chose not to reproduce the appellant's version. Moreover, as the RPD pointed out, the authenticity of the document was not established because the signature and the seal mentioned in the body of the text do not appear on the document. No probative value can be given to the document. [37] The letter from the office of the school organization (R-5) is also signed by the appellant's father and reports incidents that his son allegedly went through. No probative value has been given to this document because of the major contradictions that arose in the appellant's testimony as to whether or not his father was present at the various alleged events. [38] The RPD found that the two letters from the appellant's friends (R-4), while they might be given some probative value, do not have the weight needed to restore the appellant's credibility. The same goes for the package of documents dealing with private information obtained using a Mexican social insurance number (R-8). Having assessed the documents, the RAD makes the same finding. [39] Furthermore, the RAD finds that the two affidavits, while admitted as new evidence, do not have sufficient value to restore the appellant's credibility. The affidavit from the appellant's mother does not clearly identify the individuals who approached her, while the affidavit from the appellant's friend deals only with an alleged meeting between himself and someone called XXXX. The credibility problems that the appellant has accumulated cannot be outweighed by that one document. The RAD therefore gives these two documents no probative value. [40] In conclusion, the appellant has failed to demonstrate that, should he return to Mexico, he would face a serious possibility of persecution, or be personally subjected to a danger of torture, a risk to his life, or a risk to cruel and unusual treatment or punishment, on the balance of probabilities. CONCLUSION [41] Pursuant to paragraph 111(1)(a) of the IRPA, the appeal is dismissed and the RPD's determination is confirmed, namely that the appellant is neither a Convention refugee nor a person in need of protection within the meaning of subsection 97(1) of the IRPA. (signed) Kristine Plouffe-Malette Me Kristine Plouffe-Malette September 21, 2020 Date IRB translation Original language: French 1 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 2 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 SPR-1, Refugee Protection Division record, R7, Letter from the appellant's father, p. 69. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-25716 RAD.25.02 (January 2020) Disponible en français 6 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