TB5-09138

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 : TB5-09138 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 28, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard M. Addinall Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Colombia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that this Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he fears returning to Colombia because he will be persecuted by the National Liberation Army (ELN) for failing to comply with extortion demands made against him by members of the ELN. Greater details may be found in the Appellant's Basis of Claim (BOC) form,1 his amended narrative2 and in the audio recording of the hearing. [4] The Appellant's application for refugee protection was heard on June 5, 2015. A negative decision was rendered in writing on August 6, 2015. The RPD found that the Appellant failed to establish that there was a serious possibility of persecution for a Convention ground or that, on a balance of probabilities, he would personally be subjected to a danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment, should he return to Colombia. [5] The Appellant submits that the RPD erred in its assessment of the Appellant's credibility. [6] The Appellant submits that the RPD erred in finding that the Appellant had no nexus to a Convention ground. [7] The Appellant submits that the RPD erred in finding that the Appellant would have a viable internal flight alternative (IFA). ANALYSIS Role of the RAD [8] The RAD finds that the recent Federal Court decision, in Huruglica,3 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [9] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [10] The Appellant argues that the RPD erred in its assessment of the Appellant's credibility. The Appellant argues that the negative inferences gleaned by the RPD and based on omissions from the Appellant's original BOC, which was completed while at the Port of Entry (POE), are not reasonable. The Appellant cites case law4 which speaks to the expected brevity of narratives and to how the Board must not expect a narrative to be a complete documentation of the Appellant's case. Further, the Appellant explained how he was very nervous when he filled out his initial BOC. The Appellant blames improper translation by the interpreter of his original BOC as the reason for the omission of the name of the group he was afraid of. [11] The RAD has examined the evidence and after listening to the audio recording of the hearing, finds that this argument is not convincing. The RAD notes that the issues go beyond just "omitting" the information, as the Appellant argues. For example, the RAD notes that in the original BOC, question 2(a), it clearly reads as follows: "Have you or your family ever been harmed, mistreated or threatened by any person or group" [12] The Appellant was not too nervous to check off "yes" in answer to the question and then to provide detail which includes a month and year (August 2012) and a location (Medellin). The Appellant clearly writes in that question box that "They would call me from an unknown public phone to my home and cell. I do not know who these people were." [Emphasis added] This is not an omission which was being added in later on. This is a very clear statement of fact, to which the Appellant had sworn to be true. [13] As stated in Sharifian: The Court has consistently maintained that credibility of a narrative is in serious jeopardy when an Applicant omits key or central elements, significant to the narrative in a PIF; and, only, subsequently inserts elements to a narrative that substantially change the original narrative (Grinevich v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 444 at para 4).5 [14] The Appellant here clearly stated that he did not know who the extortionists were. They were unknown. To change that in a later narrative, identifying the perpetrators now as members of the ELN, greatly impacts the Appellant's credibility. Contrary to the Appellant's arguments, the "errors" in the original BOC are not reasonable. Even here, the Appellant cites Cetinkaya and Argueta6 but again misconstrues the issue. This is not simply about omitting items which may substantiate a claim; this issue is about saying one thing in the BOC and saying something completely different in the amended narrative. The case law cited by the Appellant does not properly apply to this issue. [15] The Appellant argues that the RPD made a negative inference because the Appellant failed to produce a medical report concerning injuries he alleged he received at the hands of his assailants. The Appellant reminds the RAD that the Federal Court has said that it is improper to adduce a lack of credibility from an absence of documentation. On its own, the RAD would agree with the Appellant; however, the absence of a medical report is only one small piece of the puzzle. The RAD finds that there is a much larger issue on hand regarding these documents provided by the Appellant. The Appellant filed a report with the local police and another with the Fiscalia (Office of the Attorney General of the Nation) regarding the extortion, threats and assaults against him. However, nowhere in any of the reports does he mention that the perpetrators were with the ELN. In fact, in the document7 presented by the Appellant, (the "Attorney General of the Nation Unique Format for Criminal Notice Initial Information") the question is asked of the Appellant under the section "Statement of Facts", "Do you know, or suspect a responsible person for this incidents?" To this question, the Appellant answered "No. May be someone who envies me." No place in his reports (to the authorities in Colombia) is there any indication that the Appellant had any idea who the perpetrators were. The RAD finds that the RPD did not err in its credibility assessment. The complete contradiction is not a minor omission and the RAD finds that these contradictions regarding the identity of the perpetrators impacts heavily on the Appellant's credibility. [16] The Appellant argues that the RPD erred in finding that the Appellant had no nexus to a Convention ground. The Appellant argues that his nexus is "...based on an imputed political opinion because of his refusal to cooperate with the ELN."8 However, the Appellant has produced insufficient evidence to establish, on a balance of probabilities, that the ELN had any part to play in his problems. The only evidence of ELN involvement is what the Appellant has written in his second narrative and then testified to in his hearing, after having already indicated to the Colombian police, the office of the Colombian Attorney General, the Canadian government agents at his POE, and to the IRB that he had no knowledge of who was extorting him. The RAD believes that the assignment of blame to the ELN was done for no reason other than to bolster his claim. [17] The RAD is guided by the principles established in the Federal Court of Appeal in Maldonado9 wherein the court states, in part, "When 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." The key here is the last few words "unless there be reason to doubt their truthfulness". In this particular case, the clear contradictions illustrated above, along with the lack of any supporting documentation regarding the ELN as the perpetrator, is sufficient reason for the RAD to rebut the presumption of truth in this case. The RAD finds that there is no nexus to a Convention ground for this Appellant as he has only been able to substantiate as fact that he has been a victim of crime. Based on the above noted credibility concerns, the RAD finds that the ELN is not the perpetrator of the crime alleged and as a result there is no perceived political opinion involved. The RAD finds that there is no basis for either the section 96 or the section 97 claims. [18] The Appellant argues that the RPD erred in finding that the Appellant would have a viable IFA. The panel does not need to address the IFA issue as the determinative issue in this case is credibility and the panel has found that there is not a serious possibility that the Appellant would be persecuted on a Convention ground in Colombia or that, on a balance of probabilities, he would be personally subjected to a danger of torture or to a risk to life or a risk of cruel or unusual treatment or punishment upon his return to Colombia. Disposition [19] For the reasons set out above, the RAD, having reviewed the evidence, agrees with the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The RAD finds that the Appellant has not established that there is a serious possibility of persecution for a Convention ground or that, on a balance of probabilities, he would personally be subjected to a danger of torture, or face a risk to life, or a risk of cruel and unusual treatment or punishment upon return to Colombia. CONCLUSION [20] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe October 28, 2015 Date 1 Exhibit RPD-1, RPD's Record, pp. 11-19. 2 Exhibit RPD-1, RPD's Record, pp. 22-25. 3 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 4 Perera, Ravindra Lakmahal v. M.C.I. (F.C., no. IMM-7995-04), Beaudry, July 10, 2005, 2005 FC 1069; Singh, Gurmeet v. M.E.I (F.C.T.D., no. IMM-888-93), Reed, October 8, 1993, [1993] F.C.J No. 1034; Chahal, Mandeep Singh v. M.C.I. (F.C.T.D., no. IMM-6424-98), Denault, September 27, 1999. 5 Sharifian,Soghra v. M.C.I. (F.C., no. IMM-583-15), Shore, August 26, 2015, 2015 FC 1009, para. 23. 6 Cetinkaya, Ercan v. M.C.I. (F.C., IMM-3362-11), Russell, January 4, 2012, 2012 FC 8; Argueta, Paul Ulloa v. M.C.I. (F.C., no. IMM-89-11), Rennie, October 7, 2011, 2011 FC 1146. 7 Exhibit RPD-1, RPD's Record, p. 130. 8 Exhibit P-2, Appellant's Record, p. 24. 9 Maldonado v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 220 (F.C.T.D.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-09138