MB7-05680

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 File No. / N° de dossier de la SAR : MB7-05680 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 at Montréal, Quebec Appel instruit à Date of decision March 28, 2019 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Gisela Barraza Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Honduras, submitted documents before the Refugee Protection Division1 (RPD) and stated that he feared a Mara 18 gang that is acting in complicity with the police.2 [2] The Minister of Public Safety and Emergency Preparedness (the Minister) intervened before the RPD and submitted that the claimant lacked credibility.3 [3] The RPD rejected the refugee protection claim, finding that the story of risk and persecution was not credible.4 [4] The appellant submitted that the RPD erred in failing to respect the presumption that sworn testimony is true, in demanding evidence to corroborate the facts presented in his testimony and in failing to give sufficient consideration to the context in Honduras. He also submitted that the RPD erred in faulting him with omissions when there were none.5 The Refugee Appeal Division dismisses the appeal. ANALYSIS OF THE APPEAL [5] After conducting my own analysis of the record,6 I find that the RPD enjoyed no meaningful advantage and that it is the correctness standard of review that must be applied.7 In my opinion, the RPD did not err as alleged. Here is why. [6] When they swear to the truth of certain allegations, refugee protection claimants are presumed to be telling the truth. However, the presumption is rebuttable where the evidence is inconsistent with the testimony or where the RPD is unsatisfied with the explanation for those inconsistencies.8 The RPD may draw negative inferences based on implausibilities, inconsistencies or omissions. It is the entirety of the evidence that must be assessed, and RPD members may apply common sense and human experience.9 [7] The RPD did not believe anything in the appellant's account. In its decision, it explained that several factors undermined the credibility of this account: contradictions, inconsistencies, omissions and behaviour inconsistent with that of a person who fears being killed in his country. The RPD based itself primarily on the veracity of the appellant's testimony before finding that he was not credible, although reliability of the testimony also played a certain role.10 [8] In my opinion, a major contradiction makes it possible to find that the appellant was not an honest witness or that he was not telling the truth. In form IMM 5669, when asked to list all addresses where he had lived in the past 10 years, the appellant listed only one single address.11 In other words, he never mentioned living outside the family home. This information contradicts what he stated in his BOC Form and at the hearing, namely, that during the week following XXXX XXXX, 2016, he left his home and went to hide at a friend's home in XXXX.12 When asked to explain this contradiction, the appellant stated that he had not listed this information because where he went to hide was a mountain; that he did not go there to live, just to hide for a while; and that, in his opinion, it did not constitute a change of address.13 This explanation is unacceptable. The question on the form was clear and precise, and the appellant, by signing form IMM 5669, stated that the information he had given was not only complete, but true and correct. [9] I also find that after XXXX XXXX, 2016, his behaviour was inconsistent with that of a person who was in fact being pursued not only by a Mara 18 gang but also by the police and who, as a result, had lived in hiding. In XXXX 2016, the appellant went to a tourist spot in XXXX. He also attended a graduation ceremony at the city hall in XXXX XXXX XXXX, where his family home is located. He posted photographs on a website showing him at these locations.14 When asked to explain his behaviour, the appellant stated that he had not posted the photographs until the day after the event so that he could not be located. Confronted with the fact that the police surely had the technological means to locate him, he then stated that he had put the photographs on the site to reassure his friends who did not see him anymore because he was in hiding; it was a way for him to tell them that they had nothing to worry about. Otherwise, it would have been more dangerous if the members of Mara used his friends to get to him.15 Frankly, this explanation makes no sense. [10] In addition, there is the fact that, although he had a Canadian visa issued on XXXX XXXX, 2016,16 the appellant did not leave his country until XXXX XXXX, 2016. When asked to explain why he had not left his country sooner, the appellant stated that, at that time, there were no flights and that he could not leave.17 This explanation is unacceptable. XXXX XXXX XXXX is approximately XXXX kilometres from XXXX XXXX XXXX International Airport, and it is easy to get there, including by bus. [11] In his memorandum, the appellant submits that he had not failed to mention in his account the fact that various people had gone to his home and that, during the hearing, having misunderstood the member's question, he had failed to refer him to the right paragraph in his account, namely, paragraph 25. [12] There is no merit to this argument. Paragraph 25 of his BOC Form states that starting on XXXX XXXX, 2016, while he was still in Honduras, various people came to his home looking for him. Furthermore, paragraph 29 states that, after he left Honduras, his father received calls asking for him.18 During the hearing, the RPD clearly stated its question, asking the appellant how many times people had gone to his home since he left Honduras. The appellant replied that individuals had gone to his home four times and introduced themselves as friends. Unable to find the response provided by the appellant at the hearing in his BOC Form, the RPD asked the appellant to help it identify where this response could be found. The appellant was unable to indicate where this information was located in his BOC Form, but he stated that paragraph 29 meant that, since he left, people had gone to his home looking for him.19 This explanation is unacceptable as paragraph 29 makes no reference to people going to his parents' home after he left Honduras. CONCLUSION [13] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is neither a refugee pursuant to section 96 nor a person in need of protection under section 97 of the Immigration and Refugee Protection Act. [14] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette March 28, 2019 Date IRB translation Original language: French 1 These documents are reproduced at pages 203 to 276 of the Refugee Protection Division (RPD) record. 2 Two versions of the Basis of Claim Form (BOC Form) are reproduced at pages 12 to 38 of the RPD record. 3 The Minister's Notice of Intervention and the documents he submitted into evidence are reproduced at pages 149 to 202 of the RPD record. 4 Oral decision rendered by the RPD on April 26, 2017, pages 1 to 11 of the RPD record. 5 Appellant's memorandum, June 13, 2017, pages 22 to 26 of the Appeal Book. 6 Including by listening to the recording of the RPD hearing: First part of the RPD hearing held on April 20, 2017, 00:01 to 02:54:20. Second part of the RPD hearing held on April 26, 2017, 00:01 to 01:58:55. 7 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145. 8 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 9 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 10 Magonza v. Canada (Minister of Citizenship and Immigration), No. IMM-1506-18, Grammond, January 7, 2019; 2019 FC 14, paragraphs 16, 17 and 18. 11 This form is reproduced at pages 46 to 49 of the RPD record. See answer to question 12. 12 Amended BOC Form, paragraph 24, page 37 of the RPD record. 13 First part of the hearing, 02:40:30 to 02:42:50. 14 These photographs are reproduced at pages 191 and 192 of the RPD record. 15 First part of the hearing, 02:17:30 to 02:24:00. 16 The visa is reproduced at page 56 of the RPD record. 17 First part of the hearing, 45:30 to 47:00. 18 Amended BOC Form, page 37 of the RPD record. 19 Second part of the hearing, 02:30 to 09:30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No. : MB4-02904 RAD.28.07 (2015.06.02) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-05680 4