MB7-04802

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 : MB7-04802 MB7-04803 / MB7-04804 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision August 5, 2019 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Chantale Ianniciello Conseil de la personne en cause Designated representative XXXX XXXX XXXX XXXX XXXX XXXX Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX XXXX XXXX XXXX XXXX, and her minor children, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, are citizens of Chile. They are alleging a well-founded fear of persecution because of their mixed ethnicity as Mapuche Peoples. [2] The principal appellant was appointed as the designated representative of her minor children. [3] The appellants are appealing against a decision of the Refugee Protection Division (RPD) rejecting their refugee protection claims on the grounds that they failed to credibly establish some material facts in support of their claims and that the problems they claim to have faced do not constitute persecution and that, if they were to return, they do not face a serious possibility of persecution on one of the five Convention grounds. [4] The principal appellant submits that the RPD erred in its assessment of their credibility and their prospective risk. [5] Having considered all the evidence, I find that the RPD's decision is correct. [6] The appeal is dismissed. BACKGROUND [7] The alleged facts in the Basis of Claim Form (BOC Form) are as follows. [8] The principal appellant is from a mixed marriage. Her father is Mapuche, while her mother is not Indigenous. Her children are also from a mixed union, as their father is not Indigenous. [9] The appellant alleges that she has been mistreated, assaulted and discriminated against because of her background. She states that the discrimination encountered by her family amounts to persecution. She fears that her children will face persecution again if they have to return to Chile. [10] The appellant arrived in Canada on XXXX XXXX, 2016, with her minor children. They asked to be admitted as visitors; her spouse, the father of the children, had been on vacation in Canada since XXXX 2016. Impugned decision [11] The RPD did not question that the appellant had mixed ancestry or that, as a result, her children have Indigenous backgrounds. However, the RPD determined that the inconsistencies in the appellant's statements, the omission from the BOC Form of facts deemed important and a delay in leaving Chile undermined the credibility of her allegations that there is a serious possibility of persecution for her and her children. Appellant's arguments [12] On appeal, it is submitted that the RPD erred in its credibility assessment. It is argued that when credibility is at issue, it is difficult to conceive how the appeal would not be de novo.1 ISSUE [13] In the context of this appeal, the Refugee Appeal Division (RAD) must determine whether the RPD erred in its credibility assessment by finding that the problems faced are not persecution and by erring in the assessment of the prospective risk. SCOPE OF THE APPEAL [14] Contrary to what is being argued, the RAD appeal is not a de novo appeal. The RAD must decide whether the RPD erred by determining whether the RPD's decision is correct, except in cases where the credibility of oral evidence is at issue and the RPD enjoys a meaningful advantage.2 If in reviewing an RPD finding I owe deference to the RPD, I will indicate it. ANALYSIS Credibility Inconsistency in the evidence regarding the alleged problems [15] At the outset, the RPD pointed out that in an interview with an immigration officer, the appellant stated that the Mapuche living in Temuco have problems but that she lives in Santiago and would not have any problems returning there. [16] When asked by the RPD to comment on her statement, the appellant explained that she had not received a death threat and that her life was not in danger. The RPD found her explanation insufficient. According to the RPD, the appellant's initial statements to the immigration officer raise serious doubts, since the refugee protection claims are based on allegations that [translation] "she and her family are not only discriminated against, but also abused and threatened to the point that it would no longer be possible for her and her children to live in Chile." [17] The appellant argues that the RPD was wrong to find that this inconsistency in the evidence [translation] "severely" undermined her credibility. The appellant alleges that the RPD put too much emphasis on the notes taken by the immigration officer at the port of entry. She argues that the case law encourages caution in the use of such notes because of the circumstances in which they are made and because immigration officers choose what they write, among other reasons. [18] With respect, the appellant did not convince me of the merits of the arguments presented on appeal, even though the Federal Court has recently urged us again to exercise caution regarding the notes taken at the port of entry.3 [19] In this case, it appears from the immigration officer's notes that the appellant first applied to be admitted as a visitor for five months in order to visit her spouse, who was in Canada temporarily. Considering that she claims to have been persecuted for many years because of her ethnicity, I also find it surprising that she did not spontaneously declare to the immigration officer that she feared for her safety and that of her children by reason of their ethnicity. [20] It is important to note that the appellant initially stated that the Mapuche of Temuco have problems but that, living in Santiago, her life was not in danger.4 It was only when faced with removal to Chile that the appellant amended her statement to indicate that she encountered problems in the context of her work. [21] Despite the caution required, where statements diverge significantly, or concern elements central to the claim, inconsistencies between a claimant's statements made at the port of entry and those made to the RPD may support an adverse credibility finding.5 [22] In my opinion, the appellant's statement is unequivocal. Some Mapuche, more specifically those living in Temuco, have problems. As for her, living in Santiago, her life is not in danger. I cannot interpret the statements differently. In this context, I cannot conclude that the RPD erred in finding that this was a major inconsistency that affects the credibility of the appellant's claims. That the RPD used the term [translation] "severely" is not fatal. Moreover, its decision is not based solely on this element. Omissions in the BOC Form [23] The appellant testified that, because of her ethnic background, she was evicted from her home after her spouse left for Canada in XXXX 2016. However, this information was not included in the BOC Form. [24] On appeal, it is argued that refugee protection claimants regularly omit elements from their account and that an omission is not an indicator of lack of credibility. Then, the argument is made that the RPD is requiring the appellant to be rigorous in preparing the BOC Form when the RPD itself lacks rigour by referring at paragraph 23 of the decision to the appellant being a university-educated woman, when this is apparently not the case. [25] First, I do not agree that the RPD requires rigour from the appellant that it itself does not have. I note that question 7 of the IMM-5669 form states that the female appellant attended a university-level institution from XXXX 2008 to XXXX 2009. [26] Moreover, in Osinowo v. Canada, 2018 FC 284, the Federal Court states, "Material omissions from a BOC narrative going to central elements of a claim may ground adverse credibility findings." [27] I agree with the RPD; if the appellant was evicted because of her ethnicity, this is a major element that should have been included in the BOC Form. [28] The RPD was correct in pointing out that the appellant was represented by an experienced refugee lawyer. This eviction, if it occurred, is an important fact because, if it is credible, it will have to be considered in order to determine whether there is persecution on cumulative grounds. [29] For my part, I cannot ignore the information in question 12 of the IMM-5669 form, which indicates that the appellant lived at the same address from XXXX 2014 to XXXX 2016, the date of her departure from the country.6 [30] The omission of the alleged incident from the BOC Form, combined with the information contained in the IMM-5669 form, leads me to find that the appellant has not established on a balance of probabilities that this incident occurred. Problems in the context of her work [31] At the hearing, the appellant stated that in 2011, while she was working at XXXX, a co-worker insulted her and hit her. Without questioning that the appellant may have had problems with her co-worker, the RPD found that she had not conclusively established that she had been struck, as this information did not appear in the BOC Form. [32] The RPD noted that at the hearing, the appellant stated that she had experienced discrimination because of her ethnicity from several co-workers while she was working as an XXXX XXXX for XXXX XXXX., but that she had never indicated it in her BOC Form. [33] It is argued that the RPD conducted a microscopic analysis of the facts, even though [translation] "the claimant was found credible as to her Indigenous origins, and the documentary evidence clearly establishes the many problems experienced by them, as unfortunately is the case in many countries in the world, including Canada."7 [34] The fact that a person is considered credible with regard to his or her ethnic background is not in itself an indication that he or she has problems because of it. Each individual's particular situation must be taken into account. The fact that she was hit is not insignificant. It should have been included in the BOC Form if that was the case. The RPD did not err in finding that this omission affects the appellant's credibility, particularly since the appellant stated in the BOC Form that the problems with this co-worker were such that she would have resigned. Discrimination or persecution [35] The RPD's analysis to determine whether the appellants have been victims of persecution or would face such a possibility should they return is correct. [36] The RPD took into account the concepts set out in paragraphs 51 to 55 of the UNHCR Handbook and the principles developed by the case law that persecution is "sustained or systemic violation of basic human rights demonstrative of a failure of state protection." The RPD also did not neglect to consider that the cumulative effect of different discriminatory acts may amount to persecution. [37] It is important to note that, in this case, when the appellant encountered problems at work, her superiors intervened to protect her. For example, when she worked in a XXXX XXXX XXXX and was threatened by a XXXX, the employer changed her position. Similarly, when she was discriminated against by receiving a lower salary than other employees, she complained to the competent authorities, who forced the employer to pay her the same salary as other employees. [38] In this case, the appellants have not established that their fundamental rights have been violated or that there is a serious possibility that they would be if they were to return. Delay in leaving the country [39] The RPD also noted the delay in leaving Chile, when the appellant alleges that she has faced discrimination and persecution because of her ethnicity since she was a child. [40] I do not agree with the arguments presented that the RPD did not give sufficient consideration to her explanations. [41] As noted by the RPD, this factor, while not determinative, affects the credibility of her claims that her life is in danger. The appellant stated that she had been persecuted since childhood. There is no evidence to conclude that she attempted to leave the country at any time. Her spouse, who is not Mapuche, came to Canada in XXXX 2016, yet the appellant, who has Mapuche ancestry, remained behind while claiming to be a victim of persecution. Documentary evidence [42] The appellant argues that the documentary evidence filed indicates that the Mapuche Peoples have serious problems in Chile, that they are marginalized, poor and poorly educated. [43] With respect, generally speaking, a claim for refugee protection cannot be based solely on the evidence contained in the National Documentation Package, as it does not address the particular situation of the refugee protection claimant.8 In this case, the RPD took into account the particular situation of the appellant, an educated woman who has not been deprived of her fundamental rights in her country. The evidence indicates that she has XXXX years of schooling. She worked from 2008 until she left the country in XXXX 2016. She told the immigration officer that the Mapuche Peoples living in Temuco have problems but that she lived in Santiago. Hence, as the case law indicates, the importance of taking into account the specific facts of each case. CONCLUSION [44] For these reasons, I confirm the RPD's determination that the appellants, XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, are neither "Convention refugees" nor "persons in need of protection." [45] The appeal is dismissed. Maria De Andrade Me Maria De Andrade August 5, 2019 Date IRB translation Original language: French 1 Appellants' record, appellants' memorandum, page 16. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Avrelus v. Canada (Citizenship and Immigration), 2019 FC 357. 4 Refugee Protection Division (RPD) record, port-of-entry notes, page 245. 5 Kusmez v. Canada (Citizenship and Immigration), 2015 FC 948, Arokkiyanathan v. Canada (Citizenship and Immigration), 2014 FC 289, Bozsolik v. Canada (Citizenship and Immigration), 2012 FC 432, Navaratnam v. Canada (Citizenship and Immigration), 2011 FC 856. 6 RPD record, IMM-5669 form, page 52. 7 Appellants' record, appellants' memorandum, page 20. 8 Kettia Joseph v. Canada (Citizenship and Immigration), 2018 FC 638, Jacquelin Jean v. Canada (Citizenship and Immigration), 2019 FC 242. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB7-04802 MB7-04803 MB7-04804 9 RAD.25.02 (February 7, 2014) Disponible en français