MB7-03291

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 : MB7-03291 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision May 10, 2019 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Luciano Mascaro Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Cuba, claims that he would have a well-founded fear of persecution if he were to return to Cuba. He alleges that the authorities are looking for him and that he was charged with human trafficking because he had helped his friend XXXX XXXX XXXX, a baseball player, flee Cuba illegally. [2] He is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim on the ground that [translation] "the claimant is generally not credible." He submits that the RPD erred in assessing his credibility and finding that he is generally not credible. He is not filing any new evidence or requesting that a hearing be held. [3] Having reviewed all the evidence, I allow the appeal. In my opinion, the RPD erred in the assessment of credibility. BACKGROUND [4] In the Basis of Claim Form (BOC Form), the appellant alleges that he was charged for helping his friend XXXX XXXX XXXX, a baseball player, leave Cuba. He alleges the following facts in the BOC Form: * During his military service in XXXX and XXXX, he was incarcerated for two days because of his political opinion; * After his military service, he was assigned as a XXXX XXXX in a XXXX; * Beginning in XXXX 2013, the appellant came to Canada on a number of occasions and stayed for several months to visit his wife. He was exposed to news media that are blocked in his country. Starting in 2014, he played on a baseball team every time he came to Canada; * In 2015, he stayed in Canada from XXXX XXXX XXXX 2015, to XXXX XXXX, 2015. When he returned to Cuba, he started training with the XXXX XXXX XXXX team at the XXXX XXXX XXXX stadium in XXXX; * On XXXX XXXX, 2015, his friend XXXX, a baseball player, left Cuba illegally to play on a professional team in another country. The appellant stopped going to team practices because the players and the coach were asking him whether his friend had told him that he was leaving the country; * On XXXX XXXX XXXX 2016, he received a summons. The national police questioned him for several hours because they suspected that he had helped his friend XXXX leave the country illegally. The appellant was released after he had been told that he was never to leave his house again; * On XXXX XXXX XXXX 2016, police officers came to his home again with a summons; * On XXXX XXXX, 2016, the appellant left Cuba to return to Canada. He alleges that the police have been going to his home, leaving summonses and making threats since then; * In XXXX 2016, one of his friends went to play baseball in XXXX. He told him that the Cuban authorities were still looking for him in the case of his friend XXXX illegal departure from the country; * On XXXX XXXX, 2016, the appellant applied for an extension of his visitor's visa; * In XXXX 2016, his wife withdrew her sponsorship application; * In XXXX 2016, the appellant filed a refugee protection claim. [5] In January 2017, the Minister of Immigration, Refugees and Citizenship (the Minister) intervened before the RPD. He filed exhibits M-1 to M-4.1 He submitted that the documents, the newspaper articles filed under M-4, establish that the appellant's refugee protection claim lacks credibility. The Minister asked that the RPD reject the refugee protection claim and find that it is manifestly unfounded and fraudulent. ISSUE [6] Did the RPD err in its credibility assessment? SCOPE OF THE APPEAL [7] Except in cases where the credibility of oral evidence is at issue and the RPD enjoys a meaningful advantage, the RAD must determine whether the RPD decision is correct.2 If I owe deference to the RPD because it enjoys a meaningful advantage, I will indicate it in my analysis. Impugned decision [8] The RPD found that the refugee protection claim was not fraudulent or manifestly unfounded. However, it found that the appellant was generally not credible. Its decision is based on the following points: The appellant failed to establish that he was imprisoned for two days during his military service for political reasons. According to the RPD, the evidence suggests that he was [translation] "sent to the brig" because he had violated military rules concerning absences; The appellant failed to establish that he or his family members were persecuted by reason of a real or imputed political opinion; The appellant was unable to establish in a credible manner that his friend XXXX left the country illegally. On the contrary, according to the RPD, the Minister's documents (M-4) suggest a regular departure; The statements made at the hearing and those in the written account regarding the date when he received the first summons are contradictory; The RPD decided not to give probative value to the summons filed as Exhibit D-3 because the appellant's signature is not on it, even though there is a space for the signature of [translation] "the recipient," and because the original was not submitted; There were contradictions between his oral and written statements related to the issue of whether the authorities left summonses with his mother; Even though the appellant states in the BOC Form that when he was released, the officer told him that he was never to leave his home again, the Minister filed Exhibit M-5, in which the appellant is seen at the baseball stadium a few days before he left the country; The RPD found that the behaviour of the appellant, who left the country without asking his mother, who works in the XXXX, or his father, a XXXX XXXX XXXX, to intervene is inconsistent with the alleged fear of the authorities; The RPD was not satisfied with the appellant's explanations to justify the delay in claiming refugee protection. The appellant's arguments [9] Essentially, the appellant submits that sworn testimony is presumed to be credible and that the RPD erred in assessing his credibility. [10] After conducting an independent assessment of the evidence, including listening to the recording of the hearing, I conclude that the RPD erred in reviewing the evidence, and as a result, its findings are erroneous. Here is why. ANALYSIS [11] In support of his refugee protection claim, the appellant states that the Cuban authorities hold him responsible for helping a baseball player, XXXX XXXX XXXX, leave the country illegally. [12] According to the Minister, Exhibit M-4, containing two documents in a bundle, establishes that this player's departure was authorized. Internet articles filed under Exhibit M-4 [13] To me, the following article excerpts are useful for providing a better understanding. The first article, titled XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 3 states: [translation] The XXXX XXXX XXXX team will no longer be able to rely on the services of its XXXX XXXX XXXX XXXX XXXX XXXX, who left the island legally this week in search of a professional baseball contract. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX told XXXX XXXX XXXX.4 [14] The other article, dated XXXX XXXX XXXX 2016, from XXXX XXXX XXXX XXXX newspaper states: [translation] Cuban XXXX players continue to switch to the major leagues. Only a few hours after prospect XXXX XXXX signed a XXXX XXXX XXXX XXXX XXXX deal, another player received the green light. XXXX XXXX XXXX, who was considered one of the best XXXX in the National Series when he left Cuba, just received his free agent papers. [15] Based on these two articles, the RPD was of the opinion that the appellant failed to establish in a credible manner that his friend had left the country illegally. On the contrary, the Minister's evidence suggests that his friend had been authorized to leave the country. [16] With respect to the appellant's explanations, the RPD states: [translation] [20] ... The claimant was not able to find the initial blog that was allegedly the source of this false information in the publications filed by the Minister. The panel is therefore unable to establish whether the articles were copied and pasted from it. However, the panel notes that the two articles submitted by the Minister do not resemble each other and, accordingly, were not copied and pasted from the same document. [21] The panel is not satisfied with these explanations because the claimant failed to establish, on a balance of probabilities, that the initial blogger exists, that what he writes is not reliable and that these two articles are both based on this source. This contradiction concerning the very cause of the claimant's most serious problems undermines his credibility. [17] The appellant provides the same explanations as he did before the RPD. He adds that the RPD's finding is capricious and that the panel failed to consider all his explanations that [translation] "the first article copied and pasted statements made by a local blogger, who is not a reliable source," and that if his friend had left the country legally, the Cuban authorities would have been proud to announce it. [18] With respect, I am of the opinion that the RPD did not adequately consider the appellant's explanations. I will explain. [19] The first article, "XXXX XXXX XXXX XXXX XXXX XXXX XXXX," is an excerpt from the blog XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and is dated XXXX XXXX. It is not wrong to state that information from such a source is generally less reliable than that written by a journalist. [20] In carefully reviewing the article, I note that it states: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In addition, the document indicates that XXXX XXXX gave a statement to XXXX XXXX, a blog written by a baseball aficionado, according to the appellant's statements. This leads me to find that this article is not an original and that the appellant's explanations were not adequately considered. [21] Moreover, it seems to me that the RPD confused the appellant's statements by declaring that "the panel notes that the two articles submitted by the Minister do not resemble each other and, accordingly, were not copied and pasted from the same document." [22] I listened to the recording of the hearing, and I did not understand the appellant's statements that one of the articles submitted by the Minister was copied and pasted from the other one. However, there is more. Date of the first summons [23] The appellant stated that he received two summonses and that the last one was from XXXX XXXX XXXX 2016. His oral and written statements differ with respect to when he received the first summons. The BOC Form indicates that it was XXXX XXXX XXXX 2016, even though, at the hearing, he testified several times that he had received it on XXXX XXXX XXXX 2015. The RPD did not find his explanation, namely, that an error may have been made when the BOC Form was completed, to be acceptable. Before I review this finding, I will comment on the RPD's assessment of Exhibit D-3,5 a copy of a summons that the appellant claimed to have received. [24] At paragraph 24, the RPD writes: [translation] The claimant testified that he signed the summons that was given to him on XXXX XXXX, 2015. However, the panel noted that the claimant's signature is not on the copy entered into evidence as D-3. The panel pointed out to the claimant that there is an empty signature line for the [translation] "recipient." The claimant explained that the original summons had two sections. He had to sign the detachable part at the bottom of the summons, which he was required to give back to the officer. Given that the claimant could not have the original document sent to Canada, the panel was not able to establish whether a part of the document might have been detached. Nevertheless, this document has an empty signature line. The claimant did not provide an explanation as to why this is the case. The panel does not give any probative value to this document, as it is missing a signature and the original was not provided. [25] First, contrary to what the RPD indicates in its analysis, Exhibit D-3 does not refer to the summons received on XXXX XXXX, 2015, but rather to the one received on XXXX XXXX, 2016. It can be seen as a simple mistake, but the RPD's statement that "[t]he panel pointed out to the claimant that there is an empty signature line for the 'recipient'" seems unacceptable to me after analyzing the document and considering the statements made by the interpreter at the hearing. [26] Concerning the annotation at the bottom of the page, Nombre y apellidos del que recibe, the appellant stated that, in Cuba, the person who is served with a summons must acknowledge receipt by signing the detachable portion. In this context, the appellant cannot be criticized because his signature is not on it. [27] Second, contrary to what the RPD states, a review of the document does not reveal that there is an empty space for the signature of the recipient. I noted a signature that was different from the appellant's signature in his BOC Form and other documents that he filled out. In addition, with regard to this annotation, the interpreter stated that, in Spanish, the term del que recibe means the recipient, but that it can also mean the person who assumes responsibility. She stated that the language used may be different in Cuba.6 The RPD should have considered the interpreter's warning. [28] Considered together, these elements lead me to find that the RPD's analysis is flawed. [29] In reviewing this appeal, I noted that the RPD took issue with the fact that the appellant delayed in claiming refugee protection. However, although the delay can be considered when assessing credibility, it is necessary to take all the circumstances of the case into account. I am not satisfied that this was done. Contradiction with respect to the date of the first summons [30] In the BOC Form, the appellant states that he received a summons on XXXX XXXX XXXX 2016. He reported to the authorities and was questioned. At the hearing, he testified several times that he received the first summons on XXXX XXXX, 2015.7 He stated that he reported to the police unit, where he was questioned and charged with putting his friend in contact with people in the Dominican Republic.8 He was released on the condition that he would not leave his province.9 When asked whether there were any consequences of his arrest, the appellant responded that there were still rumours on the street and that to avoid confirming to the police that he was involved with the baseball players, he decided not to go to practice anymore. After the holidays, on XXXX XXXX, 2016, he received another summons.10 [31] When confronted with this inconsistency, the appellant maintained his statements that he received the first summons on XXXX XXXX, 2015, and another one on XXXX XXXX XXXX 2016. He added that there was an error when the BOC Form was completed, specifying that he was going through a difficult period in his life when he claimed refugee protection: he was having problems with his family, his ex-wife and the police.11 In my opinion, the RPD erred by accepting the Minister's arguments that it is not simply an error in the date, but in the chronology of events. The Minister's arguments are based on a microscopic examination of the evidence. [32] The RPD's findings are also based on a careful review of the appellant's use of Facebook. CONCLUSION [33] For these reasons, I set aside the RPD's determination that XXXX XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection under section 97 of the Immigration and Refugee Protection Act. The matter is referred to the RPD for re-determination of the refugee protection claim by another panel. [34] The appeal is allowed. Maria De Andrade Me Maria De Andrade May 10, 2019 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) record, pages 148 to 187. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 RPD record, pages 178 and 179 and translation, page 176. 4 RPD record, pages 176 and 178. 5 RPD record, page 198. 6 Hearing CD, 2:17:24 to 2:21:30. 7 Hearing CD, 1:15:56 and 1:17:22. 8 Hearing CD, 1:17:22 to 1:19:10. 9 Hearing CD, 1:21:20. 10 Hearing CD, 1:22:47. 11 Hearing CD, 1:27:08. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB7-03291 10 RAD.25.02 (February 7, 2014) Disponible en français