MC0-02954

RAD File No. / No de dossier de la SAR : MC0-02954 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, QC Appel instruit / entendu à Date of decision March 23, 2021 Date de la décision Panel Mokhtar Lamani Tribunal Counsel for the person who is the subject of the appeal Robin Dejardin 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 is a citizen of Mexico. She is appealing the decision by the Refugee Protection Division (RPD) dated January 15, 2020, rejecting her claim for refugee protection on grounds of credibility due to contradictions, omissions and inconsistencies in the appellant's testimony. [2] The appellant alleges that the RPD erred:1 a. In failing to assess and interpret all testimonial and documentary evidence in accordance with the Act and the case law. b. In failing to apply the presumption of truthfulness to the appellant's allegations. c. In failing to give the benefit of the doubt in its assessment of the appellant's testimony. d. In failing to apply the Chairperson's Guideline 4. [3] The appellant is asking the Refugee Appeal Division (RAD) to allow a de novo hearing before the RAD, to set aside the RPD's decision, to determine that the appellant is a refugee, or to refer the matter to a differently constituted panel of the RPD.2 [4] In support of her appeal, the appellant is resubmitting the exhibits that were previously submitted to the RPD3 and is requesting an oral hearing before the RAD.4 [5] The determinative issue for the RAD, as it was before the RPD, is credibility. DETERMINATION [6] The RAD confirms the RPD's determination and dismisses the appeal. BACKGROUND [7] According to her Basis of Claim Form (BOC Form), the appellant had been working at a XXXX XXXX since XXXX XXXX XXXX 2018. [8] On XXXX XXXX XXXX 2018, a shop customer named XXXX XXXX began harassing the appellant. [9] On XXXX XXXX XXXX 2018, XXXX XXXX forced the appellant to get into his car while striking her. [10] The appellant filed a complaint with the police, to no avail. [11] On XXXX XXXX XXXX 2018, XXXX XXXX XXXX went to the appellant's home with a gun. He had intended to rape her, but at that moment his cellphone rang and he left, indicating that he would return. [12] The appellant left Mexico for her safety on XXXX XXXX XXXX 2018. [13] On October 10, 2018, the appellant sought Canada's protection. NEW EVIDENCE The evidence submitted by the appellant is rejected [14] Pursuant to the Immigration and Refugee Protection Act5 (IRPA), the RAD may admit only evidence: i. that arose after the RPD rendered its decision; ii. that 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 have presented to the RPD before the decision was made. [15] If the evidence meets one or more of these requirements, the RAD must determine whether the evidence is new, credible and relevant before admitting it.6 [16] The appellant is resubmitting the following exhibits: - D-1: Information package provided by the Canada Border Services Agency/Immigration, Refugees and Citizenship Canada; - D-2: RPD BOC Form; - D-3: National Documentation Package on Mexico dated August 30, 2019; - D-4: Google map photograph produced by the RPD; - C-1: Medical certificate following the assault; - C-2: Photographs of the lesions; - C-3: Photograph of the assailant; and - C-4: Sketch of the workshop, produced at the RPD hearing. [17] The onus is on the appellant to provide full and detailed submissions in her memorandum as to how the proposed new evidence meets the requirements of subsection 110(4) of the IRPA and how it relates to the appellant. [18] In her memorandum, the appellant does not explain how this evidence meets the requirements of subsection 110(4) of the IRPA. [19] The RAD's mandate regarding new evidence submitted by an appellant is clearly established in subsection 110(4) and in Singh and Raza, as noted at paragraphs 14 and 15 above. The RAD's power is not discretionary with regard to the admission of new evidence. [20] In addition, the role of the RAD is not to provide the opportunity to complete deficient evidence submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.7 [21] All of these documents were already submitted to the RPD, and the appellant had the opportunity to respond to the RPD's concerns at the hearing, but the RPD considered her explanations unsatisfactory. [22] The information contained in these documents, as well as the information contained in the appellant's affidavit, did not arise after the refugee protection claim was rejected. [23] Consequently, these documents are not considered new evidence under subsection 110(4) of the IRPA and form part of the RPD's record. Oral hearing before the Refugee Appeal Division [24] The RAD appeal process is generally a paper-based process. Before an oral hearing is held, new evidence must be admitted on appeal in accordance with subsection 110(4) of the IRPA, and the new evidence, if accepted, must raise a serious issue with respect to the appellant's credibility, must be central to the decision with respect to the refugee protection claim, and may justify allowing or rejecting the refugee protection claim. [25] Since no new evidence was presented or accepted, there is no cause to hold an oral hearing in this case. STANDARD OF REVIEW [26] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing credibility.8 That said, the RAD's role is to determine whether, as submitted by the appellant, the RPD erred. [27] The RAD applied the standard of correctness in this case. ANALYSIS [28] In a memorandum worded in general terms, the appellant identifies all of the paragraphs of the RPD's decision as places where it erred but does not provide any other relevant or specific explanations regarding the RPD's errors. The RAD did note certain [translation] "anomalies" in the appellant's memorandum, such as the reference to women who are victims of domestic violence,9 when the appellant is single, or the reference to the appellant as a young man fleeing organized crime and to whom an internal flight alternative (IFA) has been applied,10 when the appellant is a young woman who has never alleged that she was fleeing organized crime. The RAD assumes that these are errors and will not consider them. [29] In addition to her memorandum, the appellant submitted a seven-page sworn statement. In her memorandum, the appellant asks the RAD to consider the contents of this statement as an integral part of her memorandum.11 Appellant's statement [30] The appellant's statement reiterates several arguments already made in her memorandum, including the resubmission of evidence that was submitted before the RPD. She challenges the RPD's decision as a whole, insisting that her testimony and explanations were not considered by the RPD, while maintaining that her account was consistent.12 [31] The appellant adds that during the hearing, she had no knowledge of English or French and that the RPD sought to contradict her at any cost and destabilize her in her testimony by asking her to draw a sketch of her workplace and by questioning her about the place where she received medical treatment, when the RPD had a Google map photograph in its possession without informing her or her counsel of this before the hearing.13 [32] The appellant is of the opinion that the RPD's approach was unfair; she never thought a judge would do that in Canada and she had the impression that the RPD member was playing poker, hiding cards up her sleeve like a cheater trying to win at all costs.14 [33] The appellant maintains that she is a victim of domestic violence in Mexico, but the RPD member sought to make fun of her situation out of pride. She argues that the contents of her BOC Form are true, correct and truthful, that her testimony is corroborated by the credibility of her BOC Form and the exhibits submitted as evidence, that she testified under oath at the hearing on November 1, 2019, that she answered all of the RPD's questions, that she always looked the member in the eye to express her sincerity, that she was nervous during the hearing, that she had never appeared before a panel before, that a Spanish/French translator was present in the room, and that the essential elements of her refugee protection claim revealed no contradictions.15 [34] The appellant is of the opinion that the RPD used anything and everything in its reasons to discredit her.16 She also criticizes the RPD for not ruling on state protection and on the internal flight alternative (IFA).17 [35] Lastly, the appellant concludes her statement by acknowledging that her BOC Form is less precise than the testimony she gave at the hearing because it had been her understanding, upon arriving in Canada, that she would have the opportunity to explain everything to a judge during a confidential and private hearing. She does not understand why the RPD attacked her credibility and was not satisfied as to her sincerity when her counsel had explained to it that there was a presumption of truthfulness regarding her allegations at the hearing. She also wondered whether it was the colour of her skin and her Indigenous background that served to discredit her as a victim of domestic violence.18 [36] The RAD cannot agree with these unfounded criticisms that are without merit. [37] Notwithstanding the fact that the appellant's statement and memorandum do not include full and detailed submissions regarding the errors made by the RPD and where they are located, as per subparagraph 3(3)(g) of the Refugee Appeal Division Rules, the RAD conducted its own analysis of the RPD's decision and the evidence. [38] The appellant does not explain how the RPD allegedly erred in its analysis or what facts it misinterpreted. She merely states and reiterates that the RPD made numerous errors that are sufficient to invalidate its decision, without identifying the nature of those errors. [39] The onus is on appellants, not the RAD, to identify the errors made by the RPD and to make specific submissions accordingly.19 The appellant simply reiterates certain facts involved in the RPD's negative inferences and adds, next to each one, the reference (not relevant). (Paragraphs 45 to 49 of the appellant's statement). [40] In this lengthy statement, the appellant argues that the RPD erred in failing to analyze state protection and the IFA. [41] The RAD disagrees. [42] At paragraph 27 of its reasons, the RPD states that [translation] "given the claimant's overall lack of credibility, the panel will not address state protection or an IFA." The RAD is of the opinion that the RPD was not required to consider these issues because it rejected the refugee protection claim on grounds of credibility. The RPD was not required to consider every possible issue once it found that the appellant's refugee protection claim was not credible. [43] The appellant also argues that she was nervous during the hearing and that she spoke neither English nor French, but the recording reveals that at no time during the hearing did the appellant have any difficulty in testifying on some points, nor did she (or her counsel) mention her inability to do so due to stress. [44] The RPD conducted the hearing properly and made it clear at the outset of the hearing that the determinative issue was credibility and prospective risk. Its questions were clear and courteous. Stress cannot explain the many grave, serious and major credibility issues that were raised during the hearing. Moreover, the law in Canada does not require refugee protection claimants to speak either of Canada's official languages. The Immigration and Refugee Board of Canada (IRB) always offers interpretation to and from the language chosen by the refugee protection claimant. Here, as is customary, the RPD ensured at the start of the hearing that the appellant and the interpreter understood each other clearly.20 [45] Next, the appellant criticizes the way in which the RPD conducted its examination and felt insulted when the RPD showed her a Google map photograph and asked her to draw a sketch of her workplace. [46] The RAD disagrees. [47] The case law does in fact indicate that the RPD must not be overzealous in looking for contradictions in an applicant's testimony and must not be excessively vigilant in its examination of the evidence. However, concluding that a refugee protection claimant is a Convention refugee requires more than their assertion that certain events occurred and the filing of documents when there are serious reasons to doubt that they are genuine. [48] An RPD member carries a heavy burden. They must, among other things, ensure that refugee protection is granted only to those who need it; the process for granting refugee status must not be used for other purposes. To that end, they must question the refugee protection claimant to ensure that the facts alleged are true, and when they have doubts regarding the documents that have been filed, they have no choice but to share them with the claimant to provide them with an opportunity to respond, which was done in this case. [49] The appellant also criticizes the RPD for not believing that she is a victim of domestic violence. [50] The RAD is of the opinion that this is an error made by the appellant's counsel as a result of copying and pasting. The appellant does not indicate in her BOC Form and did not state during her testimony that she was married or in a relationship and was subjected to domestic violence. Her allegations involve an account of sexual harassment by a customer at the shop where she worked. [51] Finally, there are multiple allegations involving the behaviour of the female RPD member (and not "le commissaire," or male member, as appears throughout the appellant's statement and memorandum) to the effect that she is [translation] "very unfair" and "played poker like a cheater." The RAD listened to the recording of the hearing and is of the opinion that the RPD member showed empathy and made sure the appellant felt comfortable, was able to regain her composure and was able to testify. These arguments are therefore unfounded. Appellant's memorandum [52] In her memorandum, the appellant reiterates several general criticisms already mentioned in her statement, namely, that the RPD made numerous errors, that she is a victim of domestic violence, that there are no contradictions or omissions in her testimony, that the RPD applied a high standard, and that the supposed contradictions and omissions noted by the RPD are not determinative. [53] The appellant raised three specific criticisms regarding the RPD's decision. These include the assessment of the appellant's credibility (in particular the differences between the BOC Form and the oral testimony), a failure to apply the principle of presumption of truthfulness to the appellant's allegations, and lastly, a failure to apply Guideline 4. [54] Although the appellant does not specifically explain the RPD's alleged errors with respect to these three claims, the RAD analyzed the entire record, listened to the recording of the hearing and considered the appellant's arguments, and it considers that the RPD did not err in its assessment of the refugee protection claim, as is evidenced by the following: A) Difference between the Basis of Claim Form and the oral testimony [55] The RPD noted contradictions, omissions and inconsistencies in the appellant's testimony regarding her activities in Mexico over the past 10 years, including events that took place between XXXX XXXX XXXX 2018, and XXXX XXXX XXXX 2018, and the period between XXXX XXXX XXXX 2018, and her departure for Canada.21 [56] Here, the RPD noted the following issues: - Omissions and contradictions regarding the appellant's work - The appellant provided no evidence that she worked at the XXXX XXXX, even though she stated that she had spoken to the shop owner on the eve of her departure from Mexico (XXXX 2018), and that she did not think to ask for a letter or evidence showing that she did in fact work at the shop.22 - In her BOC Form and her IMM5669 form, the appellant states that she worked at the XXXX XXXX from XXXX 2009 to XXXX 2018; at the hearing, however, she testified that she began working at the shop on XXXX XXXX XXXX 2018. When asked to explain this contradiction, the appellant stated that she worked at her brother's XXXX XXXX from 2009 to 2016 and that she occasionally helped her father assemble XXXX. The appellant merely stated that she did not think it necessary to detail all of her duties and that these were just family activities.23 - Inconsistencies in events between XXXX XXXX XXXX 2018, and XXXX XXXX XXXX 2018. - The appellant testified that she feared her assailant because in fleeing from his car after being forced to get into it on XXXX XXXX XXXX 2018, she left her purse, which contained her papers, her keys and her telephone, in the car. When asked whether she took any precautions (such as changing the locks) to prevent the assailant from entering her home, the appellant replied that she had not thought of it. The RPD drew a negative inference from this.24 - The appellant testified that she went to a 24-hour hospital at approximately 10:00 p.m. after the incident of XXXX XXXX XXXX 2018, and remained there under observation for 24 hours, whereas Document C-1 filed as evidence (medical certificate) indicates that it was a clinic, not a hospital. - The RPD confronted her with a photograph of the front of this clinic, whose sign indicating that the clinic is open only on weekdays until 8:30 p.m. When confronted with this discrepancy, the appellant simply replied that the clinic was open when she arrived. Moreover, the medical certificate was not signed and was dated XXXX XXXX, whereas the appellant testified that she was discharged from the hospital on XXXX XXXX. The RPD gave little weight to this certificate and drew a negative inference regarding the appellant's credibility as to the hospital/clinic stay.25 - Lastly, the RPD noted anomalies with respect to the appellant's testimony regarding her attempt to file a complaint with the police and the photograph of the alleged assailant purportedly taken from his Facebook page.26 - Absence of persecution between XXXX 2018 and departure for Canada in XXXX 2018 - The appellant testified that, after the incident of XXXX XXXX XXXX 2018, she moved into her aunt's home until she left for Canada on XXXX XXXX XXXX 2018. When asked about her assailant's absence during this time, the appellant responded that her aunt was strict and did not let her go out. The RPD rejected this explanation, which contradicts the appellant's testimony that she had continued to work at the XXXX XXXX until she left for Canada, commuting to work on a daily basis. The RPD concluded that, based on the behaviour described by the appellant, her assailant could have found her easily by waiting for her as she was leaving work.27 [57] In her memorandum, the appellant cites case law and argues that she disagrees with the RPD's interpretation of the facts,28 that she provided more information at the hearing,29 that the BOC Form is only a form that may contain a written account that helps explain the expected answers but is not mandatory in itself.30 At the hearing, however, a refugee protection claimant is called upon to answer a multitude of questions; the member controls how the hearing is conducted and asks questions in their language, while the claimant responds with help from an interpreter.31 Accordingly, it is entirely normal for a claimant to provide more information at the hearing than in their BOC Form, and the correction or addition of information is acceptable in the circumstances.32 [58] Finally, the appellant submits that the RPD noted a number of alleged contradictions, omissions and implausibilities that are not necessarily determinative in the assessment of her credibility, contrary to the case law.33 Generally speaking, the RPD quite simply ignored the appellant's explanations.34 [59] The RAD disagrees. [60] First, the RPD did not conclude that there were implausibilities; it stated that there were contradictions, omissions and inconsistencies. [61] Next, the appellant's arguments do not specifically challenge each of the RPD's credibility findings, which were clearly and explicitly formulated. [62] In this case, all of these elements undermined the appellant's credibility. While any one element taken in isolation may appear to be of lesser significance, the accumulation thereof casts serious doubt on the alleged facts. [63] Like the RPD, the RAD considered all the evidence and applied it in accordance with the facts that were presented. The RPD drew its conclusions on the basis of the evidence presented before it and identified that which was central to the appellant's case. The RPD did not err in concluding, on a balance of probabilities, that the appellant failed to provide sufficient credible and trustworthy evidence to prove her allegations. B) Did the Refugee Protection Division observe the principle of the presumption of truthfulness? [64] The appellant submits that, in accordance with Maldonado, the panel must take the facts described by a claimant to be true and may reject them only if there is valid reason to doubt them. She argues that a thorough analysis of the alleged contradictions, omissions and implausibilities noted by the RPD shows that it abused its power of investigation by dismissing all of the appellant's explanations.35 [65] The RAD does not share the appellant's point of view. It is of the opinion that the RPD was correct in concluding that there are contradictions, omissions and inconsistencies regarding fundamental elements of the refugee protection claim and in considering the appellant's explanations unsatisfactory. [66] An analysis of the decision and the process that took place before the RPD does not reveal any failure on its part to apply the principle of Maldonado, a cornerstone in the assessment of credibility in the context of granting refugee status, which states that "[w]hen an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness." [Emphasis added.] [67] During the appellant's testimony, the RPD noted a number of contradictions and omissions, as she went no further than vague, evasive responses that were lacking in detail and sometimes contradictory with regard to the persecution to which she was subjected. [68] After noting an obvious credibility issue, the RPD is entitled to inform the refugee protection claimant of its concerns and then to ensure that the claimant has the opportunity to provide explanations or present further evidence. The RPD must fully consider any explanation presented by the claimant and provide clear reasons if the explanation proves insufficient. [69] After reviewing the entire record and all the documentation, and after listening to the audio recording of the RPD hearing, the RAD is of the opinion that these criticisms are unfounded and concludes that the appellant failed to demonstrate, on a balance of probabilities, that she would be subjected to a risk to her life or a risk of cruel and unusual treatment or punishment if she were to return to Mexico. [70] As indicated in the preceding paragraphs, the appellant did not provide satisfactory responses to a number of the RPD's concerns regarding contradictions between her BOC Form and her statements at the hearing, or between her BOC Form and the documents submitted in support of her allegations. Her responses were evasive and inconsistent, and her explanations were unsatisfactory. [71] The RAD is of the opinion that the RPD did not err. C) Did the Refugee Protection Division apply Guideline 4? [72] Although the appellant referred to the application of Guideline 4 as one of the four headings in part II of her memorandum entitled "Les questions en litige"36 [issues], she did not specify how the RPD should have applied it. The memorandum contains no argument to that effect. [73] According to the Guideline, women refugee claimants may face special problems in demonstrating that their claims are credible and trustworthy. The RAD also took into consideration the appellant's cultural, social and economic background. [74] The case law establishes that the Guideline must be considered by RPD members in appropriate cases. RPD members must have the knowledge required and must apply it in a thorough and sensitive manner when deciding issues of violence against women.37 [75] However, although the RPD, like the RAD, must be particularly sensitive to the difficulty that some women who have been victims or fear becoming victims of violence will experience during their testimony, this Guideline is not intended to correct every deficiency in the refugee protection claim or the documents filed as evidence,38 and they do not oblige IRB decision-makers to turn a blind eye to contradictory evidence.39 [76] The RPD stated at paragraph 2 of its reasons that it took Guideline 4 into consideration, and the RAD did not note any failure on the RPD's part to apply the Guideline. D) Irrelevant arguments in the memorandum. [77] The appellant's memorandum includes paragraphs that have no connection with the present case. In addition to the above-mentioned paragraphs regarding domestic violence, paragraphs 53 to 60 pertain to the situation of a young man for whom the RPD identified an IFA in Mexico, and paragraphs 64 and 65 concern a man who cannot avail himself of state protection. [78] The RAD refrains from addressing these anomalies, which are clearly the result of copying and pasting. They have no relevance. [79] Ultimately, the RPD's credibility findings involved significant aspects of the appellant's refugee protection claim and were based on the evidence. The appellant failed to provide satisfactory answers that would corroborate her allegations of fear. [80] The RPD's decision is correct. CONCLUSION [81] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Mokhtar Lamani Mokhtar Lamani March 23, 2021 Date IRB translation Original language: French 1 Appellant's memorandum, part II: Les questions en litiges [The matters at issue]. 2 Ibid., Memorandum conclusions. 3 Ibid., para. 7 of part I, scanned page 12 of the appellant's record. 4 Ibid., para. 8 of part I, scanned page 12 of the appellant's record. 5 Immigration and Refugee Protection Act , S.C. 2001, c. 27, subs. 110(4). 6 Canada (Citizenship and Immigration ) v. Singh, 2016 FCA 96; Raza v. Canada (MCI) 2007 FCA 385. 7 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 54. 8 Canada (MCI) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (MCI), 2018 FC 1145. 9 Appellant's memorandum, para. 8 of part III, scanned page 14 of the appellant's record. 10 Ibid., para. 54. Scanned page 21 of the appellant's record. 11 Appellant's memorandum, para. 4 of part I, scanned page 12 of the appellant's record. 12 Appellant's record, statement, paras. 1 to 13. Scanned pages 5 and 6. 13 Ibid., paras. 7 to 23, scanned pages 6 and 7. 14 Ibid., paras. 24 to 27, scanned page 7. 15 Ibid., paras. 28 to 41, scanned pages 7 and 8. 16 Ibid., paras. 44 to 49. 17 Ibid., para. 50. 18 Ibid., paras. 57 to 67. 19 Refugee Appeal Division Rules, SOR/2012-257, paragraph 3(3)(g). 20 Transcript of the recording of the hearing, page 1, lines 27 to 43. 21 Refugee Protection Division (RPD) reasons, para. 14. 22 Ibid., para. 15. 23 Ibid., para. 16. 24 Ibid., para. 21. 25 Ibid., paras. 23 and 24. 26 Ibid., para. 25. 27 Ibid., para. 26. 28 Appellant's memorandum, para. 17. 29 Ibid., para. 18. 30 Ibid., paras. 20 and 21. 31 Ibid., paras. 22 to 24. 32 Ibid., paras. 25 to 30. 33 Ibid., para. 33. 34 Ibid., para. 39. 35 Ibid., paras. 40 and 41. 36 Ibid., part II (issues), scanned page 13 of the appellant's record. 37 Aziza Mahamat Nour v. Canada (MCI), 2012 FC 805; para. 37. Higbogun v. Canada (MCI), 2010 FC 445, paras. 55 to 58. 38 Manege v. Canada (MCI), 2014 FC 374, paras. 29 to 32. 39 Kaniz v. Canada (MCI), FC 63, para. 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-02954 RAD.25.02 (January 2020) Disponible en français 15 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