MB8-06516

RAD File No. / No de dossier de la SAR : MB8-06516 MB8-06517 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 6, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the persons who are the subject of the appeal Me Teodora Vassileva Manova Conseil des personnes en cause Designated representative

XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] This is a de novo appeal filed by XXXX XXXX, a citizen of Haiti, and his son, XXXX XXXX, a citizen of Venezuela, against the Refugee Protection Division (RPD) decision rendered on February 19, 2018, in which the panel of first instance excluded XXXX XXXX under Article 1E of the Convention1 and rejected his son's claim. [2] To help the reader clearly understand this case, the Refugee Appeal Division (RAD) will provide a chronology of events. [3] Basically, the account submitted by the appellants is fairly straightforward. The principal appellant states that he fears for his safety and his life and that of his child if he were to return to Haiti. He submits that, in XXXX 2004, criminals robbed and killed his father-a XXXX XXXX in Haiti-and he fears that those criminals will attack him because he has identified them. He states that, shortly afterwards, he fled to the Dominican Republic but then learned that the criminals had returned to his mother's house and had stolen everything. He returned to Haiti to support his family-as the eldest-but had to flee to Port-au-Prince shortly afterwards. He states that he did not ask the police for help because the criminals were working with the police. He left for Venezuela on XXXX XXXX, 2005, and stayed there until XXXX 2016. On XXXX XXXX, 2016, he arrived in the United States, where he stayed until XXXX XXXX, 2017. He then

arrived in Canada. [4] As mentioned above, the hearing before the RPD took place on February 19, 2018, and the decision was rendered orally during the hearing. The RPD excluded XXXX XXXX from the application of the Convention and rejected his son's claim. A notice of decision was issued on March 9, 2018. The individuals are appealing that first decision. On January 23, 2019, the RAD concluded that both appellants are excluded from the application of the Convention. The appellants filed an application for judicial review and the Federal Court set aside the RAD determination on XXXX XXXX, XXXX, noting that the respondent of record acknowledged that the RAD erred in law by excluding XXXX under section 98 of the IRPA, despite the fact that he is a citizen of Venezuela, and by failing to analyze his fear under sections 96 and 97 of the same Act. [5] The appellants are asking the RAD to set aside the RPD determination and render a determination that the appellants are Convention refugees and persons in need of protection. [6] On appeal, the appellants submit the following arguments to the effect that the RPD erred in concluding that they were excluded under Article 1E of the Convention: 1. Immigrant communities in Venezuela are [translation] "specifically targeted by acts of violence that take place in the context of government programs," especially young men with low incomes; this

is not a case of generalized violence; 2. "...even if the appellant is granted permanent resident status, which the appellant stated expires, this does not mean that the appellant will be able to return to Venezuela, or that, if he returns, he will not be subject to abusive deportation." [translated as it appears in the French version] [7] The appellants are not requesting to submit new evidence under subsection 110(4) of the IRPA but are requesting an oral hearing under subsection 110(6) of the IRPA. [8] The Minister's representative did not intervene on appeal. As was the case before the RPD, the RAD appoints the principal appellant as the designated representative of his minor son.

DETERMINATION [9] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the RPD determination that XXXX XXXX is excluded from the application of the Convention and that XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [10] The appeal is dismissed.

ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [11] The appellants are asking the RAD to hold an oral hearing under subsection 110(6) of the IRPA. Subsection 110(6) of the IRPA states that the RAD may hold a hearing if, in its opinion, there is new evidence that is admissible and meets the three conditions listed.2 In this case, the RAD is of the opinion that there is no cause to hold an oral hearing as no new evidence was submitted and accepted and it was not considered admissible under subsection 110(4) of the IRPA. [12] Consequently, there is no cause to hold an oral hearing before the RAD.

SCOPE OF THE APPEAL [13] In accordance with Huruglica, the RAD must apply the correctness standard of review to questions of fact, law, and mixed fact and law.3 [14] The RAD conducted its own independent analysis of all the evidence on the record, after listening carefully to the recording of the RPD hearing, in order to form my own opinion concerning this refugee protection claim and to determine whether the RPD's decision is correct.

ANALYSIS [15] Having considered all the evidence on the record, both testimonial and documentary, the RAD comes to the same conclusion as the RPD. [16] The appellants are of the opinion that the RPD failed to properly assess their credibility and that the impact on the decision is to suggest that the appellants would not be persecuted in their country. [17] The very essence of this case relies on credibility and the statements made during this hearing. [18] The general thrust of the memorandum is that the RPD erred in concluding that they were excluded under Article 1E of the Convention. At this stage, it must be noted that there is a misinterpretation in the reading of the RPD's decision rendered on February 19, 2018. Only the fatherXXXX XXXX XXXX, is excluded. His son, the second appellant, is not excluded. His case, his claim for refugee protection, is rejected pursuant to sections 96 and 97 of the IRPA. First finding. [19] The appellant left Haiti to flee criminals, according to his account. He states that criminals robbed and killed his father. Based on what was heard, his father was a XXXX XXXX. He left for the Dominican Republic but thieves came to his mother's house and took everything they could get their hands on. He returned home to support his family. He then left for Venezuela on XXXX XXXX, 2005. He apparently obtained his permanent residence, and a card (Exhibit

D-8) indicates that he does have the residence. His passport has a wet stamp indicating that he has been a permanent resident since XXXX XXXX, 2012, valid until XXXX XXXX, 2017. The appellant lived in that country for more than 11 years. In XXXX 2016, he left Venezuela for the United States, where he stayed for several months without seeking asylum from the US authorities. [20] The content of the memorandum does not match the contents of the account and the hearing in February 2018. The appellants state that immigrants are targeted by acts of violence and that this affects young low-income men, and they add to the first point that this is not a situation of generalized violence. It is important to note that these points were not attributed to the appellant. In its decision, the RPD notes that the appellant did not refer to any risk or persecution in Venezuela and that his statements in the hearing room dealt with violence in general. What about the appellant's testimony? [21] The RAD would like to note that the appellant's testimony was direct and candid. He noted that his spouse and his two other children are still in Venezuela, that his wife is a permanent resident, and that the children were born in that country and are therefore citizens of Venezuela. He told the panel that, when he arrived in Venezuela, he [translation] "did not find it was a good country to settle in." He

added that, because he was working on the street selling crêpes, he saw that there were gangs and shootings. He stated that [translation] "that is why I cannot go back." He concluded by stating that it is the only reason he cannot go back. The next sentence is most important: I would like to raise my children in a better country. That statement came up on numerous occasions. [22] When asked what is preventing him from returning to Venezuela, the appellant answered that [translation] "nothing could prevent me from returning." Moreover, in his information form, he states that his fears are about Haiti, not Venezuela. He added that he did not write that down because it was not a problem in Venezuela. He added, and this contradicts the previous statement, that there are demonstrations, shootings and insecurity. [translation] "It's commonplace, everyone is living the same reality." According to his previous statement, he does not want to raise his children in that situation. The RAD understands that he is coming to Canada because he wants to raise his children in a better country, and that is why he is leaving. This theme has come up many times. [23] The RAD is of the opinion that, based on the appellant's direct testimony about his family life, he wants a good future for his children. This is to his credit. However, his submitted account and oral testimony are not supported by the

arguments submitted in the memorandum. The central point is that immigrants are being targeted in that country. His testimony is quite different. He mentioned demonstrations and gunshots, and he attributes those problems to gangs, but he also stated that the entire population faces those challenges. He stated that he had no particular fears in Venezuela other than the violence that was rampant on the streets of the country. [24] The RAD is of the opinion that the RPD did not err on this point. [25] The second issue raised in the memorandum is that, according to the appellant, his permanent resident status has expired. If he were to return to Venezuela, which he feels is conditional, he could face problems, even deportation. [26] With respect to his permanent residence, the panel asked him, before the hearing, to contact the Venezuelan consulate to obtain information about his situation. When the subject was raised, the appellant testified that he had done nothing about it. Considering that the status is permanent according to the stamped page in his passport, but that he must renew it at certain periods, the RPD agreed that there was prima facie evidence of permanent residence. The status does not expire simply because the date on the document has passed. In addition, the appellant did not demonstrate that he had lost it. Furthermore, his spouse and two other children are still

in Venezuela and are in good standing, according to what was heard during the hearing. The analysis of Shamlou4 in the RPD decision is correct. He concluded that he prefers not to return to Venezuela for the well-being of his children. [27] The RPD received no evidence regarding the minor appellant's fear. Consequently, he is not at risk and does not qualify under sections 96 and 97 of the IRPA. [28] For the reasons set out in this decision, the RAD is of the opinion that the RPD rendered the correct and appropriate decision.

REMEDY [29] For these reasons, the RAD confirms the RPD determination that XXXX XXXX is excluded from the application of the Convention under Article 1E because of his permanent status in Venezuela. [30] In addition, the appellants, XXXX and XXXX XXXX, are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" under section 97 of the same Act. [31] The appeal is dismissed. (signed) Michel Jobin Me Michel Jobin February 6, 2020 Date IRB translation Original language: French 1 Article 1E of the Convention, section 98 of the Immigration and Refugee Protection Act (S.C. 2001, c. 27). 2 M.C.I. v. Singh, 2016 FCA 96, paragraph 51. 3 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 Shamlou, Pasha v. M.C.I. (F.C.T.D., No. IMM-4967-94), Teitelbaum, November 15, 1995. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-06516 MB8-06517 RAD.25.02 (January 2020) Disponible en français 5 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