MB9-08834

RAD File No. / No de dossier de la SAR : MB9-08834 MB9-08835 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 XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision July 21, 2020 Date de la décision Panel Me Zofia Przybytkowski Tribunal Counsel for the persons who are the subject of the appeal Me Alain Joffe 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] I dismiss the appeal. The appellants, XXXX XXXX XXXX XXXX (XXXX XXXX), and XXXX XXXX XXXX XXXX (XXXX XXXX), are brothers. They are citizens of Guatemala and are claiming refugee protection in Canada. a. The appellants fear returning to Guatemala owing to extortion and threats from the criminal group Mara Salvatrucha (MS-13). XXXX XXXX states that MS-13 began to extort money from his family in XXXX2014. XXXX XXXX states that MS-13 began to extort money from his family in XXXX 2017, when his family sheltered the family of his brother, XXXX XXXX, in order to protect them. Both appellants state that they are being targeted by MS-13 because they obtained seasonal employment contracts in Canada and are perceived as wealthy. b. The Refugee Protection Division (RPD) rejected the appellants' refugee protection claims. It found that their account included inconsistencies and implausibilities that undermined their credibility. The RPD also found that the fact that XXXX XXXX delayed claiming refugee protection undermined his credibility. Moreover, the RPD concluded that the appellants faced a risk which is shared by a large part of the population; accordingly, this is a generalized risk in Guatemala. c. The appellants challenge the RPD decision using many arguments. They state that the RPD erred in concluding that their claim had no nexus to the Convention. They challenge the RPD's findings on credibility and generalized risk. They also submit arguments regarding state protection and the Internal Flight Alternative (IFA). [2] I conducted an independent assessment of the evidence, taking into consideration the Refugee Appeal Division (RAD) record and the RPD record, including the recording of the RPD hearing. Because the appellants did not submit any new evidence on appeal, I proceeded without holding an oral hearing. DETERMINATION [3] I dismiss the appeal. The RPD correctly determined that the appellants are neither Convention refugees nor persons in need of protection. [4] I conclude that the appellants' claims have no nexus to the Convention. [5] I conclude that the determinative issue is the credibility of the appellants' allegations. I have considered both the chronology of events and the delay in claiming refugee protection as a whole, and I conclude that the RPD did not err. The appellants' account includes inconsistencies and implausibilities which, taken as a whole, make their allegations not credible. [6] Because a negative credibility finding is determinative, it is not necessary to examine the matters of generalized risk, state protection, or the IFA. ANALYSIS The appellants' arguments [7] The appellants submit a prolific memorandum in support of their appeal; they submit confused and repetitive arguments. I also note that the memorandum does not comply with the RAD Rules on memorandum presentation because it violates the minimum font size that should be used.1 If the font size set out in the Rules had been respected, the memorandum probably would have been longer than the 30-page maximum required by the Rules.2 [8] The appellants' arguments are lost amid long repetitions of their allegations, excerpts of documents submitted into evidence, and excerpts from the hearing-all superfluous because they already form part of the RPD Record. [9] Nevertheless, I have read the appellants' memorandum, and I am of the opinion that their arguments can be summarized as follows: - The RPD erred when it concluded that the appellants' refugee protection claims do not have a nexus to the Convention grounds; - The RPD made erroneous findings regarding the appellants' credibility by basing its decision on implausibilities, hypotheses and speculation, and by asking them to justify the actions of their agent of persecution; - The delay in claiming refugee protection is not a determinative element as regards the appellants' credibility; - The RPD failed to confront the appellants about its concerns regarding their credibility, which is a breach of the principles of natural justice; - The RPD failed to consider evidence corroborating the appellants' allegations; - The RPD erred in concluding that the appellants face the same risk as a large portion of the population in Guatemala. [10] Moreover, the appellants criticize the RPD in many ways for the attitude of the member-for example, for showing contempt toward them because of their social class and for taking fewer notes at certain points during the hearing. Because these arguments either are not based on the evidence on record or have no relevance in the analysis of the RPD decision, I will not take them into account. [11] Furthermore, the appellants criticize the RPD for concluding that adequate state protection was available in Guatemala even though this matter was not analyzed by the RPD, which identified other determinative issues. I will therefore not take into account this argument, which reflects an erroneous reading of the RPD decision. I will not take into account the arguments submitted by the appellants regarding the IFA because this is also not a matter with regard to which the RPD made findings. Because credibility is a determinative issue, it is not necessary for me to deal with the matter of state protection and the IFA. The RPD correctly concluded that there is no nexus to a Convention ground [12] The question of whether the appellants' refugee protection claims have a nexus to one of the Convention grounds has an impact on the burden of proof applicable in their claims. The appellants maintain that their denunciation of the corruption in Guatemala and the state's lack of action as regards MS-13, which has become a pseudo state, means that a political opinion has been imputed to them. The RPD correctly rejected this argument. [13] The allegation that the appellants are victims of extortion and threats is an allegation that concerns a risk to their lives or a risk of cruel and unusual treatment or punishment pursuant to section 97 of the Immigration and Refugee Protection Act (the Act). None of the appellants' evidence or testimony makes it possible to conclude that anyone, either MS-13 or the Guatemalan state, is targeting the appellants owing to a real or imputed political opinion. [14] The appellants criticize the RPD for its terse reasons on this matter. I conclude that the RPD did not err in rejecting this argument regardless of the number of details in its reasoning. The evidence on record does not contradict its conclusion. The RPD correctly found that the appellants' allegations lack credibility The appellants' credibility is seriously undermined by their behaviour [15] From the outset, the RPD questioned the existence of MS-13 threats toward appellant XXXX XXXX because he had obtained employment contracts in Canada since 2008 and did not experience extortion and threats until 2014. The appellants criticize the RPD for expecting the appellant to predict the future or explain the actions of his agents of persecution. I do not agree with the appellants' argument. [16] The appellants repeat themselves in their arguments, both to the RPD and to the RAD, that MS-13 is a powerful organization or a state within a state. They cannot know how this organization was able to find out they were working in Canada, but this is the only reason that it allegedly targeted the appellants. However, the appellants have traveled back and forth between Guatemala and Canada several times and never had any problems. [17] In the case of XXXX XXXX, it is not erroneous on the part of the RPD to conclude that it is implausible that such a powerful organization would take eight years to locate and target him because he worked in Canada. In the case of XXXX XXXX, MS-13 allegedly took four years to locate him and did not target him until 2017, even though he had traveled to Canada since 2013 and they had been targeting his brother since 2014. [18] The fact that the extortion began shortly before the end of both brothers' last contract is not in and of itself implausible. However, if we consider their allegations regarding the reason why they were targeted by MS-13, and the power of this organization, as well as their respective behavior from the moment XXXX XXXX was allegedly targeted, their credibility is seriously undermined. [19] XXXX XXXX traveled to Guatemala after his brother was the victim of extortion, in 2015 and 2016, and did not express any fear or testify as to any threat from MS-13 during this period. If his brother was targeted solely because of his contracts in Canada and he was afraid to return to Guatemala after 2014, the fact that XXXX XXXX traveled to Guatemala between his contracts with no fear seriously undermines the credibility of the appellants' allegations. XXXX XXXX stated that he was targeted from the moment his family sheltered his brother's family, but if his brother had already been targeted by MS-13 for years, it is implausible that he would have had no fear or worries before that date. A powerful organization like that could have identified him as being the brother of XXXX XXXX and a seasonal worker in Canada well before he sheltered his brother's family. The RPD noted this inconsistency in its reasons, and correctly concluded that XXXX XXXX behavior was inconsistent with the two brothers' allegations. This undermines the credibility of the appellants' allegations of extortion. [20] Moreover, the RPD correctly concluded that the behaviour of XXXX XXXX, who remained in Canada after his last employment contract expired, from XXXX 2014 to XXXX 2017, without legal status and without claiming refugee protection, is inconsistent with his fear. XXXX XXXX did not provide any explanation for his delay in claiming refugee protection in Canada. Only his brother stated that he tried to convince him to claim refugee protection, but to no avail. [21] None of these elements is in and of itself determinative of the appellants' credibility. However, if we consider their account and their respective behaviour as a whole, I find that the allegation that they were victims of extortion is not credible. There was no breach of the principles of natural justice [22] The appellants criticize the RPD for not confronting them with its concerns about their credibility; according to them, this is a breach of the principles of natural justice. I note that the RPD neglected to confront the appellants directly about their behaviour. However, I conclude that this error did not create a breach of the principles of natural justice and is not sufficient to invalidate the RPD decision. [23] The RPD adopted a unique approach when asking questions. It questioned the appellants about how the events that led to their refugee protection claim unfolded, and then summarized their testimonies while asking them to confirm whether it had understood properly. However, the RPD neglected to confront the appellants directly about their behaviour, and the appellants therefore did not have the opportunity to provide explanations during the hearing. [24] Nevertheless, the appeal before the RAD allows the appellants to provide any explanations regarding their behaviour they were not able to give before the RPD. The appeal memorandum enables them to respond directly to the explicit conclusions in the RPD decision. [25] As regards XXXX XXXX, the appellants maintain that, when he traveled to Guatemala in 2015 and 2016, he could not know in advance that he would be targeted in 2017. However, the problem does not stem from the fact that he could not have predicted this, but rather from the fact that he traveled to Guatemala without any fear even though his brother's family had been subjected to extortion since 2014, owing to his brother's work in Canada. I conclude that he did not provide an adequate explanation for his behaviour which is inconsistent with the allegations of his refugee protection claim. [26] Regarding XXXX XXXX, the appellants argue that there was no hesitation in his testimony, contrary to the RPD's conclusion. I agree with this. However, they still have not provided any explanation as to why XXXX XXXX waited for over two years before claiming refugee protection. They merely repeat that XXXX XXXX tried to convince him, without success, until he himself decided to claim refugee protection. [27] I conclude that the appeal before the RAD is a remedy for the RPD's failure to confront the appellants about its concerns. I conclude that the appellants did not submit adequate explanations on appeal even though they had ample opportunity to do so. The documentary evidence does not make it possible to rehabilitate the appellants' credibility [28] The appellants maintain that the RPD erred in disregarding the evidence submitted in support of their claim, specifically an opinion written by a Guatemalan lawyer.3 [29] The other evidence submitted is as follows: statements from the appellants' family members, identity documents, remittance receipts, and articles about the situation in Guatemala. [30] First, I note that just because the RPD did not mention certain documents does not mean that it did not take them into consideration. I conclude that these documents are insufficient to overturn the negative findings regarding the appellants' credibility that stem from the analysis of their testimonies. [31] The statements of the appellants' family members repeat their allegations, which have already been found not credible and inconsistent. They also do not make it possible to explain the appellants' inconsistent behaviour given the risk they allege. [32] The remittance receipts merely demonstrate that the appellants send money to their families. They do not show that this money is used to pay MS-13. [33] As regards the legal opinion of the Guatemalan lawyer, I conclude that it is not of significant weight in the analysis of the appellants' credibility. It confirms that the appellants' allegations of extortion are consistent with a situation that exists in Guatemala, but it does not make it possible to demonstrate that the appellants were personally targeted by this situation. The lawyer did not represent the appellants or their families in legal proceedings, and did not personally witness the extortion they allege. [34] A similar logic applies to the articles dealing with the situation in Guatemala. They do not make it possible to demonstrate that the appellants personally experienced the types of situations they describe. It is not necessary to examine other issues [35] Since I confirm the RPD determination regarding the appellants' credibility, and since this is a determinative issue in their refugee protection claim, I conclude that it is not necessary to analyze the RPD's conclusions on the issue of generalized risk, pursuant to section 97 of the Act. I also conclude that I do not need to examine the appellants' arguments regarding this issue. CONCLUSION [36] I dismiss the appeal and confirm the determination that the appellants are not Convention refugees or persons in need of protection. (signed) Zofia Przybytkowski Zofia Przybytkowski July 21, 2020 Date IRB translation Original language: French 1 RAD Rules, subsection 27(1). 2 RAD Rules, subsection 3(4). 3 Exhibit P-2, RPD Record, pp. 239-254. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-08834 MB9-08835 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français