MB8-22138

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. / No de dossier de la SAR : MB8-22138 MB8-22139 / MB8-22140 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision September 13, 2019 Date de la décision Panel Normand Leduc Tribunal Counsel for the Appellant(s) Me Claudia Andrea Molina Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) XXXX XXXX XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX XXXX her spouse XXXX XXXX XXXX XXXX and their minor son, XXXX XXXX XXXX XXXX, all citizens of El Salvador, are appealing against the decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. [2] They are submitting what they assert is new evidence in their appeal and they are requesting that an oral hearing be held before the Refugee Appeal Division (RAD). [3] The principal appellant, XXXX XXXX XXXX XXXX XXXX, was appointed the designated representative of her minor son. DETERMINATION OF THE APPEAL [4] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are neither "Convention refugees" under section 96 of the IRPA nor "persons in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [5] In her Basis of Claim Form (BOC Form), the principal appellant, XXXX XXXX XXXX XXXX XXXX, alleges that she and the other appellants are afraid of criminals in a gang called Mara 18 in El Salvador. [6] The female appellant alleges that members of Mara 18 kidnapped and killed her father in 2009 and that a young man was sentenced to seven years in prison for the murder. [7] She alleges that these Mara 18 members started to assault and threaten them in April 2017. [8] The appellants left Mexico for the United States on XXXX XXXX XXXX 2017, before arriving in Canada to claim refugee protection. [9] Further to a hearing held on August 14, the RPD rejected the refugee protection claim on the grounds that the appellants' allegations were not credible. The RPD also concluded that section 96 of the IRPA did not apply in this case because the alleged fear is not related to any of the five grounds set out in the definition of Convention refugee. [10] Before the RAD, the appellants submit that the RPD erred in determining that section 96 of the IRPA did not apply in their case and in assessing their credibility, for reasons that will be detailed below in the "Analysis" section, if necessary. [11] For these reasons, the appellants are asking the RAD to set aside the RPD's determination and grant them refugee protection. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [12] The role of the RAD is to review RPD decisions, applying the correctness standard of review after conducting its own analysis of the record in order to determine whether the RPD erred, as submitted by the appellant. The exception to this rule concerns the RPD's findings in the assessment of the credibility of or the weight to be given to the oral evidence it hears, in cases where it enjoys a meaningful advantage. The RAD then owes a measure of deference to the RPD's findings (Canada v. Huruglica, FCA, No. A-470-14). Reasons will be provided in my analysis if I consider that the RPD had a meaningful advantage. NEW EVIDENCE [13] The appellants produced three documents before the RAD that they submit to be new evidence pursuant to subsection 110(4) of the IRPA, which indicates that: On appeal, 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. [14] In addition to the explicit conditions of subsection 110(4) of the IRPA, the RAD must also consider the implicit conditions on the admissibility of new evidence as established by the Federal Court of Appeal in Singh (M.C.I. v. Parminder Singh, 2016 FCA 96) and, with specific reference to this case, the criteria of credibility and relevance of new evidence. [15] Document P-14 (see pages 19 to 25 of the appellant's record) is a newspaper article from The Washington Post dated March 17, 2017, entitled "How an innocent man wound up dead in El Salvador's justice system." [16] Document P-15 (see pages 26 to 40 of the appellant's record) is the French translation of a document, entitled "Une médecine légale manque de criminalistique (sic) avec une spécialisation académique" [forensic medicine lacks forensics with an academic specialization] dated May 6, 2018, from the website of Laprensagrafica. [17] Document P-16 (see pages 41 to 46 of the appellant's record) is an excerpt from an America Watch report entitled "El Salvador and Human Rights - The challenge of reform" dated March 1991. [18] These three documents are dated prior to the date on which the claim was rejected (August 15, 2018). [19] In their memorandum, the appellants submit that these documents were not presented to the RPD because they had no reason to believe that it would be necessary for the hearing and these documents contradict the RPD's findings on their credibility. [20] I do not accept these documents as evidence for the following reasons. [21] The appellants do not demonstrate why these documents were not reasonably presented to the RPD. The issue of the credibility of a refugee protection claimant's allegations is always relevant, if not determinative, before the RPD. In the present case, the RPD indicated at the beginning of the hearing that the issue of the credibility of the allegations was one of the issues in dispute. The appellants also could have asked the RPD for more time to submit the documents, or any other evidence if they considered this necessary, which they did not do. [22] Moreover, the appellants do not state in their memorandum, in a full and detailed manner, how those documents meet the criteria set out in subsection 110(4), how they are related to them, that is, how they are relevant to the claim for refugee protection, and how they contradict the RPD's findings about their credibility, as required by paragraph 3(g)(iii) of the Refugee Appeal Division Rules. ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [23] Subsection 110(6) of the IRPA indicates that: [24] The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) a. that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; b. that is central to the decision with respect to the refugee protection claim; and c. that, if accepted, would justify allowing or rejecting the refugee protection claim. [25] As no new evidence on appeal was accepted before the RAD, there is no cause to hold an oral hearing in this case. ANALYSIS Section 96 [26] The appellants submit that the RPD erred in finding that section 96 did not apply in this case because they allege having a well-founded fear of persecution due to their membership in the particular social group of family and their imputed political opinion. [27] I am of the opinion that this issue is not relevant in this case because the RPD's finding with regard to the credibility of the appellants' allegations, which I confirm later on, applies to the analysis under both sections 96 and 97 of the IRPA. In other words, if the appellants' central allegations are not credible, neither of the two sections can apply. [28] And I would like to add that I do not agree with the appellants' submission. [29] First, the appellants' counsel confirmed, in his arguments presented before the RPD, that the claim was made under section 97 of the IRPA and that section 96 did not apply because there was no nexus to any of the five grounds set out in the definition of Convention refugee. [30] Then, for the particular social group of family to apply, the persecution feared or experienced by the principal member of the said family, the female appellant's father in this case, has to be related to one of the five grounds set out in the Convention refugee definition. I am of the opinion that nothing in the evidence shows that. [31] Moreover, nothing in the evidence demonstrates that political opinion could have been imputed to the appellants. For example, they are not taking a stand against Mara 18 or anyone else. There is no evidence in this case that the criminals the appellants allege fearing could impute a political opinion to them. Appellants' credibility [32] The RPD's finding in this matter is based on a number of elements. Upon review of the evidence submitted, I share the RPD's opinion that, taken cumulatively, these elements undermine the credibility of the appellants' allegations. In my opinion, the most important of these elements are the following. I. The death certificate (Exhibit P-7) states that the male appellant's father died on December 16, 2009, at 5 p.m., while there is no evidence that anyone knew exactly when he died. The police report (Exhibits P-11) states that the body was found by a farmer that same day on December 16, 2016, at 10 a.m. and that a doctor determined that the death had occurred [translation] "4 to 10 days" earlier and that the cause of death would be determined by autopsy. No autopsy report was submitted as evidence. The report of the Institute of Forensic Medicine (Exhibit P-8) states that the death was caused by "cutting bruises traumatisms," which according to the RPD's specialized knowledge is not a specific cause of death. [33] The RPD is of the opinion that the documents regarding the death of the female appellant's father contain contradictory information and do not demonstrate the cause of death or the circumstances surrounding it. [34] The appellant'' assertion that the RPD did not give them an opportunity to comment on what it considered to be its specialized knowledge about the causes of death is true. However, I am of the opinion that this was not fatal to the RPD's finding in that these documents do not establish the appellants' central allegation about the circumstances surrounding the death of the female appellant's father, i.e. that he was kidnapped and killed by Mara 18 members. II. The appellants did not submit in evidence any legal documents relating to the trial or the conviction of the person who killed the female appellant's father. [35] When questioned about the efforts she made to obtain such a document, the principal appellant replied that the only thing she could do was ask her father's wife, who stated that she did not have any of these documents. [36] The appellants are not specifically contesting this conclusion by the RPD in their memorandum, and I am also of the opinion that their failure to take any steps, such as reaching out to the court, the prosecutor or a lawyer to obtain the documents corroborating one of their central allegations, undermines the appellants' credibility. [37] The alleged murder of the female appellant's father is central to the refugee protection claim, and legal documents relating to this matter should have existed. [38] I would add that newspaper articles on this matter could also exist, but again, the appellants did not take any steps to obtain any. III. It is implausible that the Mara 18 would threaten the appellants when they did not threaten the spouse of the female appellant's father or the female appellant's brother, who both identified the murderer and took part in the trial. [39] While taking into account the fact that the appellants are not obliged to explain someone else's actions, it nevertheless seems implausible to me that the Mara 18 would threaten the appellants and not the people most involved in this matter, i.e. the principal appellant's stepmother and brother, who still live in the same place and still own the same business. This would be all the more implausible if the Mara 18 had wanted vengeance after one of their own was convicted. [40] With regard to the alleged threats, the evidence submitted is vague. The appellants claim that they received a threatening note from Mara 18 asking them to [translation] "cooperate." However, there is no indication as to what kind of cooperation was being asked of them. IV. The fact that the appellants travelled to the United States three times, in 2011, 2012 and 2015, and returned to their country voluntarily each time represents a behaviour that is inconsistent with that of people who fear for their safety. [41] When asked about this, the male appellant replied that things had gone back to normal because a person had been arrested and subsequently convicted of the murder of the female appellant's father. [42] I am of the opinion that these explanations are not reasonable. The appellants alleged they had [translation] "lived in fear" after the murder of the principal appellant's father and were afraid of the Mara 18 group, which has multiple members at large. [43] Therefore, I also consider it inconsistent that the appellants would only start being threatened by Mara 18 members in 2017, after the reported release of the person who killed the female appellant's father, while other members of this group, the murderer's accomplices, were still at large. V. The complaint filed with the police (Exhibit P-4), in response to the alleged theft of the male appellant's telephone and wallet on April 10, 2017, indicates that the complaint was filed for insurance purposes and that the complainant [translation] "does not authorize the prosecutor to take legal action." [44] When asked about this, the male appellant replied that he did not notice that sentence in the complaint. The male appellant then testified that he had obtained copies of the complaints to the authorities (exhibits P-4 and P-3) to substantiate the delay in a project he had been working on as an architect. [45] Exhibit P-4 refers to the theft that the male appellant was a victim of but makes no reference to Mara 18. Exhibit P-3, which allegedly followed the threatening note, states that the said note is attached to the complaint. However, I note that the threatening note was not attached to the copy of the complaint submitted as evidence. [46] For all these reasons, I am of the opinion that no probative value should be given to these complaints as corroboration of the appellants' central allegations. [47] Consequently, in light of the foregoing, I conclude that the appellants have not demonstrated that the RPD made any errors that would justify the RAD's intervention. REMEDY [48] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX are neither "Convention refugees" under section 96 of the IRPA nor "persons in need of protection" within the meaning of section 97 of the IRPA. [49] The appeal is dismissed. Normand Leduc Normand Leduc September 13, 2019 Date IRB translation Original language: French 3 RAD.25.02 (April 9, 2013) Original language: French RAD File No. / No. de dossier de la SAR : MB8-22138 MB8-22139 / MB8-22140 2