VB8-07076

RAD File / Dossier de la SAR : VB8-07076 VB9-00163 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 Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision October 19, 2020 Date de la décision Panel Alison Kennedy Tribunal Counsel for the persons who are the subject of the appeal Gladis Realegeno Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] I dismiss this appeal. XXXX XXXX XXXX XXXX (Principal Appellant/ PA) and XXXX XXXX XXXX XXXX (Associate Appellant/ AA) are citizens of Guatemala. They are appealing a decision of the Refugee Protection Division (RPD) that they are not Convention refugees or persons in need of protection.

DETERMINATION [2] I find that the Appellants have failed to provide sufficient credible evidence to demonstrate that they face a serious possibility of persecution or, on a balance of probabilities, a s. 97 risk if they return to Guatemala. Consequently, their appeal is dismissed.

BACKGROUND [3] The Appellants allege that their family has been targeted for harassment and extortion by the Mara 18 gang in Guatemala since 2006. The PA arrived in Canada in 2007 as a temporary foreign worker. As such, he would work in Canada for 7-8 months and then return to Guatemala for a month or two before returning to continue work in Canada. His brother, the AA, joined him in Canada in 2015. [4] The Appellants allege that the gang continues to target their family in Guatemala. They claim that the gang was responsible for their father's death, and that members of their family were threatened and attacked by the gang in XXXX of 2018. They further allege that their brother - who was also previously a part of their claim for refugee protection - abandoned his refugee claim in May 2018 and returned to Guatemala to protect their family after the XXXX 2018 attack. The Appellants allege that they will be targeted and killed by the gang if they return to Guatemala. [5] The RPD found that the Appellants had not proven that there was sufficient evidence to establish they would face a serious possibility of persecution or a s. 97 risk upon returning to Guatemala. In reaching this decision, the RPD found that the PA had returned to Guatemala for a month or two at a time for many years which did not support his allegation of fear. The RPD further found that the Appellants'

allegations that the gang murdered their father was not credible, nor was the alleged attack on their mother. Furthermore, the RPD noted that the alleged extortion they faced was tied to rural land that the family has since abandoned, and that leaving the rural area where the gang operates has substantially mitigated any risk they would face upon their return. [6] The Appellants argue that the RPD erred when it contradicted its decision with its reasons, given that the RPD states in one part of its decision that the Appellants are refugees and persons in need of protection, but that the Notice of Decision states that they are not. The Appellants also allege that the RPD erred by impugning their credibility without taking into consideration that they are peasants with little to no education. Finally, the Appellants argue that the RPD erred in finding that Guatemala would be a safe place for them without considering the recent increase in crime and gang activity there.

NEW EVIDENCE Rule 29 application - new evidence is accepted in part [7] The Appellants submitted a Rule 29 application including new documents including another affidavit from their mother1 and a letter from the AA's wife2. In determining whether to allow the application to admit new evidence pursuant to Rule 29, I must consider any relevant factors, including: i) the relevance and probative value of the documents; ii) any new evidence the document brings to the appeal; and iii) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record.3 [8] I note that much of the information contained within the Appellants' mother's affidavit is a repetition of evidence already before the RAD, for instance, about her son Carlos returning to Guatemala in XXXX 2018. However, I note that this affidavit contains some new and relevant evidence, that being that her son Carlos returned to the U.S. in XXXX 2019 because of continued alleged extortion in Guatemala. Given that this allegation occurred after the appeal record was submitted, I find that the Appellants could not have provided this evidence with their appeal record. As such, I find that the portion of the affidavit speaking to her son's return to the U.S. meets the criteria set out in Rule 29. I also

find that this evidence is of sufficient credibility to admit into evidence, given that there is no reason, on the face of the evidence, to doubt the circumstances in which it came into existence. [9] I do not find that the AA's wife's letter is admissible in this instance, given that I do not find it brings new and/or relevant evidence to the appeal regarding the risk facing the Appellants in Guatemala or their credibility as related to this risk, which are the issues before the RAD. Furthermore, I do not find that the Appellants have explained why this evidence could not have been provided with their Appellant record. For these reasons, I find that the criteria enumerated in Rule 29 have not been met, and this evidence is not admissible. Subsection 110(4) application - the evidence presented by the Appellants is accepted in part [10] The Appellants are attempting to submit many new documents on appeal. For ease of reference, I will group these documents as follows: a) Affidavit of XXXX XXXX XXXX;4 b) Affidavit of brother XXXX XXXX XXXX and supporting medical note (and translation thereof);5 c) Affidavit of sister XXXX XXXX XXXX and supporting medical note (and translation thereof);6 d) Birth certificates for 6 family members (and translation thereof).7 [11] According to the law,8 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably

available at the time of the decision; or iii. that the Appellants could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [12] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.9 [13] I find that the affidavit of XXXX XXXX XXXX arose after the hearing, given that it was not sworn until after the RPD rendered its decision. Nevertheless, I find that much of the affidavit speaks to events that occurred prior to the RPD rendered it decision, and the Appellants have not explained why this information was not reasonably available at the time the RPD rendered its decision, or why they could not reasonably have been expected in the circumstances to bring to the RPD before its decision. As such, I will only consider this affidavit insofar as it speaks to events that occurred after the RPD's decision, including, for instance, the alleged attack on the affiant's brother on XXXX XXXX, 2018. I find that this evidence is relevant regarding the potential risk facing the Appellants if they return to Guatemala, and new insofar as it speaks to an event that occurred after the RPD rendered its decision. I also find that this evidence meets the credibility threshold given that there is no reason, on the face of the evidence, to doubt the circumstances in which

it came into existence. [14] Similarly, I accept the affidavit of XXXX XXXX XXXX insofar as it speaks to the attack he alleges experiencing in XXXX 2018, which was after the RPD rendered its decision. However, I will not consider the content of this document insofar as it explains the affiant's decision to leave Canada in XXXX 2018, given that this event occurred prior to the RPD hearing, and the Appellants have not explained why this evidence was not reasonably available at the time of the decision, or why they could not reasonably have been expected in the circumstances to bring this evidence to the RPD before its decision. I also accept the medical document provided by the affiant regarding the attack he experienced on XXXX XXXX XXXX 2018. I find that the portion of the affidavit and the medical document speaking to the attack the affiant faced in XXXX 2018 is relevant as they speak to the potential risk facing the Appellants and their family in Guatemala. I also find that this evidence is new, given that it relates to events that occurred after the RPD rendered its decision. Finally, I find that this evidence is credible given that there is no reason, on the face of the evidence, is doubt the circumstances in which the evidence came into existence. [15] The affidavit of XXXX XXXX XXXX and supporting medical note both post-date the RPD's decision. However, I find that the

content of this affidavit and visit described in the medical note refer to an incident that occurred in XXXX 2018, that being before the RPD rendered its decision. I do not find that the Appellants have explained why this evidence was not reasonably available at the time of the decision, or why they could not reasonably have been expected in the circumstances to bring this evidence to the RPD before its decision. As such, I find that this affidavit and related medical document is not admissible on appeal. [16] The Appellants have also provided birth certificates for them and several family members on appeal. I note that the Appellants' birth certificates are already on record and need not be re-admitted. With regard to the additional birth certificates, I do not find that this evidence arose after the RPD decision. Nor do I find that the Appellants have reasonably explained why this evidence was not reasonably available at the time of the decision, or why they could not reasonably have been expected in the circumstances to bring to the RPD before the decision. For this reason, I find this evidence is not admissible on appeal. Furthermore, even if the criteria enumerated in subsection 110(4) had been met, I do not find that this evidence is new or relevant, given that the identity of the Appellants' family is not at issue on appeal. Oral Hearing [17] Given that I have admitted new evidence on appeal, I must consider whether an oral hearing is necessary under s. 110(6) of IRPA. Having reviewed the new evidence and the record, I find that an oral hearing is not required in this appeal because the new evidence does not raise a serious issue about the Appellants' credibility that is central to the decision and that, if accepted, would justify allowing or rejecting the claim.

ANALYSIS Error in RPD decision not determinative [18] The Appellants submit that the RPD erred when it contradicted its decision with its reasons, given that one part of its reasons finds that they are Convention refugees, but its Notice of Decision states they are not.10 The Appellants are correct that the RPD's decision contains an error in this regard, however, I find that this error is simply a typographical error and not substantive. Rather, the same paragraph that erroneously reports that the RPD finds the Appellants to be Convention refugees starts by stating that "the Panel finds that the claimants are not Convention refugees." While I find that the RPD's decision contains a typographical error in this case - that being the omission of the word not - I do not find that this error is substantive such that it requires the decision to be overturned. Rather, apart from this one typographical error, the overall content of the decision is clear regarding the RPD's findings regarding the outcome of the Appellants' claims. Appellants' annual return to farm in Guatemala undermines allegations of fear and risk [19] The Appellants also argue that the RPD failed by impugning their credibility without taking into consideration their limited education and, for the PA, his illiteracy. The Appellants submit that the PA had trouble expressing himself before the RPD given his limited

education and inability to read and write. I am mindful of the Appellants arguments that their limited educational background affected their ability to testify in this case. However, I do not find that the credibility findings made by the RPD are reasonably explained by the Appellants' lack of education. [20] For instance, the RPD noted that the PA had been returning home to Guatemala on an annual basis for many years, for several months at a time. While the PA testified during the hearing that he was hiding at his sister's place when he returned to Guatemala, this is inconsistent with his personal history form, which notes that he returned to Guatemala and worked as a farmer on his parents' land at the following times: - XXXX to XXXX 2008; - XXXX to XXXX 2009; - XXXX 2009 to XXXX 2010; - XXXX to XXXX 2011; - XXXX to XXXX 2012; - XXXX to XXXX 2013; - XXXX to XXXX 2014.11 [21] The PA explained that this inconsistency in his evidence was simply a mistake. However, the RPD found that this explanation was not sufficient, and it was more likely than not that the Appellant told the truth initially in his background forms, but then adjusted his testimony in light of the risk he alleged facing in Guatemala on his parents' farm. [22] I agree with the RPD that the PA's explanation that the inconsistency about where he resided when he returned to Guatemala was simply a mistake is not a

reasonable explanation. Nor do I find that this inconsistency is reasonably explained because of the PA's lack of education or literacy. Rather, I find that the PA's background forms provide thorough and detailed evidence about when he returned home to work on his parents' farm on an annual basis from 2008 to 2014, despite alleging that his family had faced harassment and extortion from the gang since 2006. Furthermore, I note that the Appellant attested that this information was truthful, complete, and correct, and also that an interpreter declared that the content of this document was translated to the PA.12 Moreover, these documents contain a declaration that the PA received assistance in filling out these forms by the legal assistant of his counsel before the RPD.13 [23] Given that the PA's documentation was completed in a very thorough manner with professional assistance, I do not accept that the content of these forms is in error as alleged. Rather, I find that the information contained in the PA's documentary evidence is, on a balance of probabilities, a truthful account of when and where he resided upon his annual return to Guatemala and his activities there. As such, I do not accept his testimony before the RPD that he was "in hiding" when he returned to Guatemala annually. Furthermore, I agree with the RPD that the fact that the PA travelled back and forth between

Canada and working on his parents' farm in Guatemala on an annual basis from 2008 to 2014 - where he now alleges he was at risk - undermines his credibility, as well as the credibility of the Appellants' allegations of ongoing risk in Guatemala. Furthermore, I note that the inconsistency between the PA's testimony of being in hiding on his return to Guatemala and his documentary evidence stating that he worked annually on his parents' farm further undermines his credibility. Other unchallenged RPD findings on credibility [24] The RPD made other findings regarding the credibility of the Appellants' claim, for instance, finding that the Appellants' testimony and evidence was not credible regarding their father being murdered by the gang. Rather, the RPD noted that the medical evidence showed that their father died because of a pre-existing medical condition (hypertension), and that he died of a heart attack in his home. The RPD found that the Appellants' credibility was eroded because they embellished the circumstances surrounding the death of their father when the objective documentation stated that he died of natural causes rather than murder as alleged. [25] Similarly, the RPD found that the Appellants had not proven that the alleged attack of their mother occurred, and that the medical documentation noted that she missed her children and suffers from hypertension, but did not

mention that she had been a victim of criminal threats or violence, nor did it report any injuries. The RPD also found that little weight was owed to the Appellants' mother's statement given that it too embellished the circumstances of her husband's death (in stating that he was "vilely murdered"), and also failed to mention any ongoing risk to her despite her now owning the farmland. [26] The Appellants did not make any specific arguments regarding the RPD's findings on these points, and I do not find that the Appellants' arguments regarding their lack of education and/or illiteracy explain the contrast between the Appellants' allegations of their father being murdered versus the documentary medical evidence which states that his death occurred as a result of natural causes, nor the shortcomings with regard to their mother's evidence as identified by the RPD. Given that the Appellants have not made any other arguments in relation to these findings, I do not see any reason to interfere with RPD's findings on these points and its related credibility findings. New allegations of attack on brother [27] The Appellants allege that they remain at risk in Guatemala and suggest that this is supported by the alleged XXXX 2018 beating of their brother XXXX. However, I do not find that there is sufficient credible evidence before me to prove, on a balance of probabilities, that Carlos was

attacked by a gang because of ongoing extortion as alleged. While I note that the Appellants have provided a medical note to corroborate XXXX being attacked on XXXX XXXX XXXX 2018, I do not find that the note corroborates the Appellants' allegation regarding the motive for the attack. Furthermore, given the credibility issues already identified with the Appellant's allegations and supporting evidence, I do not find that this additional allegation and supporting medical evidence is sufficient to outweigh the credibility concerns previously noted regarding the alleged extortion the family is facing. While I accept that the Appellants' brother may have been the victim of a beating on XXXX XXXX, 2018, I do not find that they have provided sufficient evidence to prove, on a balance of probabilities, that he was beaten by a gang as a result of ongoing extortion of the Appellants' family as alleged. [28] Similarly, while the Appellants' mother has provided new evidence that XXXX returned to Canada to avoid further extortion, I do not place much weight on this evidence of proof of the alleged extortion, given the RPD's unchallenged findings regarding the credibility of the Appellants' mother's other evidence on file, and also because this information was not provided by XXXX himself. Furthermore, even if XXXX has returned to Canada as alleged by the Appellants' mother in her affidavit,

I do not find that the Appellants have provided sufficient evidence to prove, on a balance of probabilities, that he returned to Canada because of extortion as alleged. Personalized risk in Guatemala not proven [29] The Appellants allege that the RPD failed to consider country conditions in Guatemala in determining they would be safe there, for instance the recent increase in gang crime and violence.14 However, I have found that the personalized risk the Appellants allege facing is not credible in this instance because of: the PA's annual return to his parents' farm in Guatemala; inconsistencies between the Appellants' allegations and supporting evidence related to the PA's return to Guatemala and the death of his father; and because of the additional uncontested credibility findings made by the RPD. [30] Furthermore, I do not find that the Appellants have proven that they would face a serious possibility of persecution or, on a balance of probabilities, a s.97 risk upon their return to Guatemala because of the amount of gang violence there. Rather, I have found that the Appellants have not provided sufficient credible evidence to show that they would personally face a serious possibility of persecution or a s. 97 risk upon their return to Guatemala as alleged. Rather, I find that any criminal or gang-related risk facing the Appellants upon their return would be a generalized risk facing all citizens of Guatemala and is not sufficient to demonstrate a serious possibility of persecution or a s. 97 risk.

CONCLUSION [31] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Alison Kennedy Alison Kennedy October 19, 2020 Date 1 Exhibit P-3, Appellant's Rule 29 submission, Mother's affidavit, pp. 1-7. 2 Ibid., AA's wife's letter, p. 8 3 Refugee Appeal Division Rules, Rule 29(4). 4 Exhibit P-2, Appellant's Record, New evidence at pp. 10-11 5 Ibid. at pp. 13-18 6 Ibid. at pp. 19-24 7 Ibid. at pp. 25-54 8 Subsection 110(4) of the IRPA 9 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385 10 Appellant's Record, Memorandum at p. 61 11 Appellants' Record, ibid. at pp. 128-131 12 Ibid. at p.134 13 Ibid. at p. 141 14 Ibid., Memorandum at p. 62 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-07076 VB9-00163 RAD.25.02 (January, 2020) Disponible en français 2 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