MB3-02613

N° de dossier de la SAR/RAD File No.: MB3-02613 Huis clos/Private Proceeding Motifs et décision - Reasons and Decision Personne(s) en cause XXXXX XXXXX XXXXX Person(s) who is(are) the subject of the appeal Appel instruit à Montréal, Québec Appeal considered Date de la décision October 8, 2013 Date of Decision Tribunal Stephen J. Gallagher Panel Conseil(s) de l'appelant Me Diane B Coulthard Counsel for the Appellant Représentant(e)(s) désigné(e)(s) S/O Designated Representative(s) Conseil du (de la) Ministre S/O Counsel for the Minister REASONS AND DECISION [1] Mr. XXXXX XXXXX XXXXX is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant has not presented new evidence and has not requested an oral hearing. I. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the RPD, namely, that Mr. XXXXX is neither a "Convention Refugee" pursuant to s. 96 of IRPA nor a "person in need of protection" pursuant to s. 97 of IRPA. II. BACKGROUND [3] The Appellant alleges in his RPD claim that he is at risk from the Chinese Public Security Bureau (PSB) because corrupt officials in China are seeking to have him 'removed' in order to steal his inheritance. [4] The Appellant alleges that he was supposed to have inherited farm land from his grandmother. This land was expropriated by the government to build a XXXXX. The Appellant alleges that when he went to collect this money an official, identified as 'Mr XXXXX', conspired to steal this money. The Appellant became aware of this and confronted the official. The official sought to have the Appellant charged with an offence. The Appellant, allegedly fearing for his life, secured the aid of a smuggler and traveled to Canada. III. SUBMISSIONS [5] The Appellant alleges that the RPD was committed several errors in its decision. The Appellant argues that the core issue in this appeal is the RPD's 'unreasonable' (negative) credibility determination. The Appellant argues that this core determination is fatally tainted by the fact that the RPD indulges in speculation and that at points the logic of the RPD is "incoherent". In addition, the RPD is viewed as having put too much weight on inconsistencies. The Appellant characterizes such inconsistencies, if they exist, as "trivial" and "not central" to the claim. [6] The Appellant also argues that the RPD erred in law in its conclusion that there was no nexus with the refugee convention in this claim. [7] The Appellant argues that the RPD's decision should be reversed and the Appellant should be granted protection. The Appellant also argues that if the RAD does not reverse the RPD's decision, it should, in the alternative, return the file to the RPD for a redetermination. IV. STANDARD OF REVIEW [8] My understanding of my role in this appeal derives from a reading of a decision of the Alberta Court of Appeal in Newton v. Criminal Trial Lawyers' Association (2010) ABCA 399. The Newton decision analyzes the role of an Alberta based appellate board vis-à-vis a first instance determination process to consider whether a de novo hearing is required in every case. The Court in this case notes that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him" (Paragraph 82). The Court went on to conclude that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere" (Paragraph 95). [9] I conclude that an analysis of the RPD's credibility determination which in this appeal constitutes the determinative issue involves an analysis of issues of fact and using Newton as a guide I conclude that this issue attract a deferential standard of review which is 'reasonableness'. This is because this appeal does not qualify for a hearing and the RPD did hold a hearing and directly questioned Mr. XXXXX. The RPD was also directly reviewing the evidence in a hearing setting to reach its conclusion. My objective is therefore to review the RPD decision for the "existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". This understanding flows from Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. [10] With respect to the argument that the RPD erred by not concluding that this was a claim that should be evaluated under Section 96 of IRPA, this is a question of law and attracts a 'correctness' standard. Issue 1: Did the RPD err in making 'unreasonable' credibility findings? [11] The Appellant alleges that the RPD was 'microscopic' in its approach and found numerous omissions and inconsistences which might be true but which the Appellant would argue are 'trivial'/not central to the core allegations. In this way the RPD is held to have discredited what was heard and then replaced these allegations with 'speculation' as to what really happened from the RPD's perspective. [12] The Appellant's approach in the Appellant's 'Memorandum of Fact and Law' is to go through the RPD decision, point by point, to identify how individual negative credibility determinations stem from speculation about what the Appellant should or might have done. The thrust of the Appellant's logic is that there is no specific evidence to show that the Appellant is not telling the truth and it is unreasonable, given the Appellant's nature (young) and situation (at risk), for the RPD to expect to be provided corroborative evidence. According the Appellant: "In the instant case, by concluding that the Claimant's credibility as a whole was "undermined" by what is respectfully submitted as non-central and trivial inconsistencies in his evidence, the Claimant respectfully submits that the Panel committed reviewable error. The Panel expressly relied upon these trivial inconsistencies to arrive at further adverse credibility determinations (Memorandum, Paragraph 52, p. 49)". [13] I conclude that on perhaps one or two issues where the Appellant was found 'not credible' I find it borderline for the RPD expect clear knowledge or corroborative evidence. The problem for the Appellant is, however, that the RPD identifies inconsistencies, omissions, incoherencies, vagueness and the absence of corroborative evidence across the entire claim. These include, for example, when he stopped living at his grandmother's home, how long and where he was hiding before leaving China and when he traveled from XXXXX to Shanghai. The Appellant could also not remember the names of the hotels he allegedly stayed at in Shanghai. The Appellant also could provide minimal information about how he was smuggled into Canada. The RPD recognizes that human smuggling is a daunting experience; however, the RPD rejects the Appellant's explanation that he simply paid little attention and did what he was told, for the fact that the Appellant can remember so little of this transit. [14] Almost a third by length of the RPD's credibility assessment analysis (RPD, Paragraphs 30-41) is focused on the inconsistency/omission between what the Appellant said at the POE interview and what was written in the BOC narrative. In the POE interview, the gist of the answers to CBSA questions was that the Appellant is a young man whose family's land has been expropriated and now must make his way in the world and borrowed money to migrate to Canada.1 There is no mention of an agent of persecution or some danger of return. In the BOC narrative, the Appellant is at risk of maltreatment at the hands of corrupt officials and must flee China to save his life. [15] At some point, in the presence of multiple clear problems it is reasonable for the RPD to stop giving the Appellant the benefit of the doubt on even borderline issues. The omissions in the POE interview cannot be viewed as borderline and speak directly to credibility issues. It is the Appellant's burden to establish the truth of his claim and I find it reasonable for the RPD to conclude based on all this evidence that the Appellant did not approach this threshold in this case. [16] I must conclude that the RPD has a responsibility to question the Appellant and, given the manifest vagueness and important inconsistencies and omissions, seek out and evaluate corroborative evidence. The RPD listened to the reasons for this omission/inconsistency and gave reasons for rejecting the responses, which I find reasonable. For example, the Appellant was asked by the RPD why he did not mention that the PSB were after him in his POE documentation or interview. The Appellant responds that he was afraid to be returned to China. The RPD rejects this explanation because if it were true he would not have come to Canada in the first place (RPD, Paragraph 41). [17] The RPD notes that the Appellant provided no corroborative evidence related to his risk from the PSB or in other areas for that matter. The Appellant explains that he was afraid and in hiding after the incident with Mr. XXXXX. The RPD rejects this logic noting that the Appellant could afford the services of a smuggler and had perhaps 2 months to garner documentation. The RPD concludes that the lack of such evidence "draws a negative inference" (RPD, Paragraph 25) . [18] In the Appellant's Memorandum, there is no analysis or arguments related to the unreasonability of this important element of the RPD's credibility assessment. If the thrust of the Appellant's argument is that the RPD is focusing on trivia and 'non-central' inconsistences it is incumbent on the Appellant to address those inconsistencies that the RPD found important and central to pave the way for the Appellant's analyses of 'trivialities' to have traction. In this case, the Appellant did not challenge the RPD's important conclusions with respect to the Appellant's POE interview. [19] In addition, in listening to the recording of the testimony, it is clear the Appellant provided halting and vague answers to questions for which clear answers might be expected. For example, the RPD asked the Appellant why his relatives who lent him the 100,000 RMB to travel to Canada could not aid him in other ways such as addressing the Appellant's legal problems in China or securing corroborative evidence? In response to one such question, the RPD was faced with a lengthy pause, an inability to understand the question and ultimately the Appellant responded that he did not know (RPD hearing digital recording, @ 63 minutes). This is the type of question that the Appellant should be expected to answer and I find it reasonable that the RPD took note of such features when it identifies 'vague testimony' as a factor in its credibility assessment. [20] Overall, across of a range of RPD concerns with respect to authenticity and disposition of documents, hotel stays and transit to Canada I find the individual conclusions of the RPD reasonable in the context of the overall dearth of adequate responses and lack of corroborating evidence. Issue 2: Did the RPD err by concluding that there is no nexus to the refugee convention in the claim? [21] In this claim, the RPD provides an extremely developed credibility assessment with a conclusion that the "central elements" of the claim were "manufactured". Given that a central element referred to is the Appellant's alleged confrontation with Mr. XXXXX with its associated risk at the hands of the PSB, this determinative conclusion on credibility renders an analysis of whether this claim should be evaluated as a Section 96 and/or Section 97 claim, unnecessary. Given that I find the RPD's conclusion on credibility reasonable, there is no need to go further and address questions related to a nexus to the refugee convention. V. REMEDIES [22] For all these reasons, I confirm the determination of the RPD, namely, that Mr. XXXXX is neither a "Convention refugee" nor a "person in need of protection." Therefore, the appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher October 8, 2013 Date /ag/kp REFUGEE APPEAL DIVISION / CLAIMANT'S APPEAL / CORRUPTION / STANDARD OF REVIEW / CREDIBILITY / MALE / CONFIRM THE DETERMINATION / CHINA 1 RPD, In the Matter of an Appeal Concerning XXXXX XXXXX XXXXX, p. 62-66. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français N° de dossier de la SAR/RAD File No.: MB3-02613 7