TB9-23252

RAD File No. / Nº de dossier de la SAR : TB9-23252 TB9-23253 / TB9-23254 / TB9-23255 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 19, 2020 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subject of the appeal James Stephen Schmidt Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, his wife, XXXX XXXX XXXX XXXX XXXX, as well as their two minor children, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, citizens of El Salvador, are appealing a Refugee Protection Division (RPD) decision rejecting their refugee protection claim. [2] The female appellant, XXXX XXXX XXXX XXXX XXXX, was appointed as the designated representative of her two minor children. DETERMINATION OF THE APPEAL [3] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the RPD's determination, namely that XXXX XXXX XXXX XXXX, 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 [4] In the written account of her Basis of Claim Form (BOC Form) that she prepared on behalf of all four appellants, the female appellant XXXX XXXX XXXX XXXX XXXX alleges that they fear members of the criminal group MS13 in El Salvador. [5] The appellants allege that they began receiving threatening telephone calls and extortion demands from MS13. This began in XXXX 2016 and continued until XXXX XXXX XXXX 2017, the date they left El Salvador for Canada, where they claimed refugee protection. [6] After the hearing held on April 28, 2017, a first RPD panel rejected the appellants' refugee protection claim. The appellants brought this decision before the RAD and a first RAD panel dismissed the appeal, confirming the RPD determination. The appellants asked the Federal Court to review that RAD decision. The Court allowed the application and returned the matter before the RAD. On November 7, 2018, a second RAD panel allowed the appeal and returned the matter before the RPD for re-determination. [7] After the hearing held on April 26, 2019, and in a decision rendered on August 16, 2019, a second RPD panel rejected the refugee protection claim on the grounds that the appellants' allegations were not credible. [8] It is the second RPD determination that is the subject of this appeal. [9] The appellants submit, before the RAD, that the RPD erred in its assessment of their credibility, for reasons that will be detailed later in the Analysis section. [10] 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 [11] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting its own analysis of the record to determine whether, as submitted by the appellants, the RPD erred. The exception to this rule concerns the RPD's findings in the credibility assessment of or the weight accorded to the oral testimony given before it. In situations where it enjoys a particular advantage, the RAD must then show a degree of deference to the RPD's findings (Canada (Citizenship and Immigration) v. Huruglica, F.C.A., No. A-470-14). If I am of the opinion that the RPD enjoyed a particular advantage, I will provide reasons in my analysis. ANALYSIS [12] The issue in this case is whether the RPD erred in its assessment of the appellants' credibility. [13] In my view, after analyzing all the evidence that was submitted-the RPD's reasons and the appellant's submissions-the answer to this question is no, for the following reasons. [14] The RPD's decision with regard to the credibility of the appellants' allegations is based on a certain number of noted omissions and contradictions. I am of the opinion that as a whole, the omissions and contradictions that follow can only undermine the appellants' credibility. [15] 1- The complaint submitted by the female appellant to the police on XXXX XXXX XXXX 2016, does not include the telephone threats from XXXX XXXX XXXX 2016, the initial telephone calls from XXXX 2016, and the calls that were not answered, as alleged in the BOC Form. [16] When reading this document (pages 185 to 189 of the RPD record), I also note that the alleged threats received since XXXX 2016 are not mentioned. I add that this document states that extortion threats were received on XXXX XXXX XXXX 2016; however, in the BOC Form, it states that the threats were received on XXXX XXXX XXXX 2016. [17] When asked about these omissions, the female appellant answered that the complaint was formalized on XXXX XXXX XXXX I am of the opinion that this answer does not provide a reasonable explanation for the omissions and contradictions. [18] 2- This same complaint is dated XXXX XXXX, 2018, but the female appellant testified that it was submitted on XXXX XXXX, 2016. [19] When questioned on this matter, the female appellant responded that she submitted it on the XXXX, but that it was not completed until the XXXX. However, as the RPD noted, the document clearly indicates that the complaint was submitted on XXXX XXXX XXXX 2016. [20] This is not a [translation] "microscopic analysis," as stated by the appellants. On its own, this contradiction would likely not fatally undermine the appellants' credibility; it is nonetheless a factor to consider when assessing the overall credibility of the allegations. [21] Furthermore, in their memorandum, the appellants add the following about the complaint document: "...there is no reason to draw the definitive conclusion that because the form says that the statement was read back to the claimant that it was necessarily read back to the claimant, particularly where the claimant says it was most certainly not read back to her." [22] Does this mean that the appellants are claiming that the contents of the document are not necessarily true? If we accept that argument, consequently, there is no reason to give the document any credibility. [23] 3- There is an omission in the second complaint submitted to the police on XXXX XXXX XXXX 2016 (see pages 254 to 260 of the RPD record). A telephone threat from XXXX XXXX XXXX 2016, as well as an alleged assault on the male appellant by two men on a motorcycle on XXXX XXXX XXXX 2016, were not included in the complaint. In addition, the complaint includes a telephone threat received on XXXX XXXX XXXX 2016, that is not mentioned in the BOC Forms. [24] Furthermore, I am of the same opinion as the RPD that these omissions can only undermine the credibility of the appellants' allegations, whether they did report the assault to the police or not, as alleged in their memorandum. [25] 4- In the male appellant's visa application, it states that his parents live at the same address as the appellants; however, there is nothing in the evidence demonstrating that his parents were threatened by the MS13 after the appellants left. [26] When questioned on this matter, the male appellant answered that the address indicated as being his parents' address on the visa application is wrong. I am of the opinion that this explanation is unreasonable. The male appellant does not explain how this error could have happened. How could the male appellant have indicated his address as that of his parents [translation] "by mistake?" [27] 5- The letter from the female appellant's cousin, filed into evidence (page 425 of the RPD record), contradicts the complaint submitted to the police by the cousin's spouse (page 420 of the RPD record) regarding the threats allegedly received in XXXX 2018. The letter states that the female appellant's cousin received threats; meanwhile, the complaint states that it was her spouse who received the threats. [28] The appellants are not specifically challenging this RPD conclusion. I do not see where the RPD erred in this matter. Furthermore, I would also add that it is surprising, if not unrealistic, that the criminals who threatened the appellants would have waited over a year and a half after the appellants left the country to search for them through the female appellant's cousin. [29] As a result, in light of the foregoing, I conclude that the appellants failed to establish that the RPD committed errors that justify the RAD's intervention. REMEDY [30] For these reasons, I confirm the RPD's determination, namely that XXXX XXXX XXXX XXXX, 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. [31] The appeal is dismissed. Normand Leduc Normand Leduc February 19, 2020 Date IRB translation Original language: French RAD File No. / Nº de dossier de la SAR : TB9-23252 TB9-23253 / TB9-23254 / TB9-23255 RAD.25.02 (January 2020) Disponsible en français 6 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.25.02 (January 2020) Disponible en français