VB8-03363

RAD File / Dossier de la SAR : VB8-03363 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision March 14, 2019 Date de la décision Panel Paula Faber Tribunal Counsel for the person(s) who is(are) the subject of the appeal Jane G. Rukaria Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Kamal Gill Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Minister of Immigration, Refugees and Citizenship and the Minister of Public Safety (Appellant) appeal a decision of the Refugee Protection Division (RPD) made on May 22, 2018, allowing the refugee protection claim of XXXX XXXX XXXX XXXX (Respondent), a citizen of Ecuador. [2] The Respondent fears members of the Mafia Rusa criminal organization in Ecuador. [3] The Appellant argues that the RPD erred by not considering section 98 of the Immigration and Refugee Protection Act (IRPA),1 erred in its credibility findings, and erred by concluding that the Respondent does not have an Internal Flight Alternative (IFA). [4] The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and substitute its own finding that the Respondent is not a Convention Refugee or a person in need of protection, or refer the matter back to the RPD for re-determination. [5] The Respondent argues that the RPD did not err by not raising the exclusion issue or in its credibility and IFA findings. The Respondent requests that the Minister's appeal be dismissed and that the positive decision of the RPD be confirmed. [6] The determinative issue is whether the RPD erred in finding that that Respondent faces a personalized risk of harm in Ecuador. [7] I find that the RPD has not erred. For the reasons that follow, the decision of the RPD is confirmed pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). [8] The RAD confirms the decision of the RPD that the Respondent is a person in need of protection. BACKGROUND [9] The Respondent's allegations are detailed in various documents within the RPD record, including the Basis of Claim form, narratives, Canada Border Service Agency (CBSA) interviews, affidavit and testimony. [10] To summarize, the Respondent was born in XXXX, Ecuador on XXXX XXXX, 1981. [11] In May 2015, he was involved in an altercation in his neighbourhood with four armed men from the Mafia Rusa criminal organization. He struck one of the men who had identified himself as XXXX XXXX XXXX, and was shot at by the men while fleeing. [12] He was contacted by Mafia Rusa members and told they would not bother him because they knew he was in the navy. However, after being placed on medical leave for addiction issues on XXXX XXXX, 2015, he was contacted by the gang and told that they were going to kill him for hurting their boss during the earlier altercation. The Respondent was discharged from the navy on XXXX XXXX, 2015. [13] The Respondent began receiving threatening calls, and his mother's house was being watched. [14] In September 2015, he travelled to Quito to get a visa for Mexico. He relocated to his uncle's home in XXXX City after he was approached by a vehicle in XXXX. [15] The Respondent's mother was beaten by members of the Mafia Rusa on February XXXX, 2016, and in the process, she disclosed her son's location to them. The Respondent then went to the island of XXXX, but returned to XXXX after hearing that people were looking for him there. [16] The Respondent flew to Mexico on XXXX XXXX, 2016. He eventually made his way to the United States and then to Canada. He crossed the US/Canada border without reporting to immigration officials on XXXX XXXX, 2016. The Respondent has a Canadian citizen common-law spouse and two children. The Respondent made his claim for refugee protection after he was arrested by CBSA officers on April 7, 2016. [17] The Respondent's first hearing before the RPD took place on June 21, 2016. The Respondent received a negative decision in writing on August 16, 2016. The first panel of the RPD found that he was generally credible, but refused the claim after finding a viable Internal Flight Alternative in Quito, Ecuador. [18] The Respondent appealed this decision to the RAD, and on May 12, 2017, the appeal was allowed and the matter was referred back to the RPD for re-determination. The RAD found that the RPD had erred in its IFA analysis. [19] The Respondent's second hearing before the RPD took place on March 2, 2018. In a written decision dated May 22, 2018, he was found to be a person in need of protection and his refugee claim was accepted. [20] On June 7, 2018 the Respondent was sent a letter requesting his attendance at an examination/interview with an Inland Enforcement officer with the Canada Border Services Agency on June 12, 2018. [21] On June 13, 2018, the Minister of Immigration, Refugees and Citizenship and the Minister of Public Safety filed a notice of appeal of the positive RPD decision before the RAD. NEW EVIDENCE AND ORAL HEARING Appellant [22] The Appellant is not requesting that a hearing be held under section 110(6) of the IRPA, however, the Appellant is presenting new evidence in this appeal:2 * Transcript of June 12, 2018 interview with a CBSA Enforcement officer. * UK Border Agency, Country of Origin Information Key Documents, Ecuador, 12 May 2009. * Amnesty International Report, 2007 - Ecuador. * Amnesty International Report, 1998 - Ecuador. * Insight Crime Article, April 24, 2012. [23] Pursuant to section 171(a.5) of the IRPA, the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister's appeal or intervention in the appeal. [24] The Minister as the Appellant, is not limited by the rule on new evidence3 and may present any evidence on appeal even though the Minister had not intervened in this matter in the previous RPD or RAD proceedings. Respondent [25] The Respondent has submitted an affidavit as new evidence. This affidavit provides context with respect to the June 12 interview with CBSA, addresses concerns raised, and provides the Respondent's perspective.4 Procedural Fairness has been breached [26] The Respondent has argued that the transcript of the June 12, 2008 interview should not be admissible in this appeal because principals of procedural fairness including the right to counsel in CBSA examinations have been breached, and because CBSA lacked authorization to interview the Respondent after the determination of the RPD hearing. With respect to the question of procedural fairness, I concur with the Respondent. [27] I find that the CBSA breached procedural fairness by not notifying counsel of the interview. [28] While I recognize that the right to counsel is not absolute, section 167.(1) of the IRPA provides that, "A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel." [29] The Respondent is an individual who is clearly represented by counsel. His counsel of record has not changed and is noted in the immigration forms completed at the time his claim for refugee protection was made to CBSA.5 His counsel of record is listed at question 9 of the BOC.6 He was represented by his counsel in all three of his previous IRB proceedings.7 Counsel is listed on the Distribution/Statement of Service document sent to CBSA on May 23, 2018, along with the RPD notice of decision and reasons for decision.8 Counsel's representation continues in this second RAD appeal. [30] The letter sent by the CBSA Inland Enforcement Officer to the Respondent on June 7, 2018 notifying him about the June 12, 2018 interview (examination), indicates that a copy of the letter will be sent to his counsel.9 The Carbon Copy (CC) section at the bottom of the letter is blank, and there is no statement of service to counsel provided. The Respondent's counsel states in the memorandum that she never received the letter notifying her of her client's interview.10 [31] The Respondent could have provided a copy of the letter to his counsel, but given the wording of the letter, I find that he would have been under the impression that the letter had been sent to his lawyer. The interview notice letter also states that the Respondent is not required to have counsel at the interview. [32] The letter also does not indicate the purpose of the interview, it simply states that the respondent is to appear for an examination to process an application. According to the argument made in the Respondent's Memorandum, he had just received a positive decision from the RPD and believed that the interview related to his permanent residency. During his interview, he believed that he was a permanent resident. He was not informed that information gathered in the interview could be used against him, nor was he informed of his right to counsel. [33] In the case of Gutierrez,11 the Federal Court of Appeal agreed with the Federal Court's decision, when it concluded that subsection 167(1) of the IRPA did not confer a right to counsel only at hearings before the Board. Instead, the Federal Court concluded that this subsection conferred a right to counsel on anyone who is the subject of proceedings before the Board. [34] In the decision, the Federal Court distinguished the interview relating to eligibility to claim refugee status12 from interviews conducted for another purpose. In the view of the Court, a refugee claimant does not have a right to counsel at an eligibility interview. [35] In the Gutierrez decision, the Federal Court of Appeal held that the Federal Court correctly interpreted the scope of subsection 167(1) to include the right to have counsel present at an interview held in respect of a refugee claim. The failure of the hearing advisor to respect the respondents' right to counsel constituted a breach of procedural fairness. [36] In this particular case, the June 12, 2018 interview was held after the RPD proceeding, but it precipitated the filing of the appeal before the RAD. It therefore involved a person with counsel of record who was the subject of proceedings before the Board. [37] In the Gutierrez decision, the Court clarified that this subsection conferred a right to counsel on anyone who is the subject of proceedings before the Board, and this phrase is broad enough to encompass persons who are required to attend information gathering interviews. [38] For all these reasons, I find that the transcript of the June 12 interview is inadmissible as evidence in the appeal because procedural fairness has been breached. 13 [39] I also find that even if the June 12 interview had been admissible as new evidence, it would not have taken away from my finding that the RPD did not err by not raising the issue of exclusion in this case. [40] Because the Respondent's Affidavit 14was presented in response to the June 12 interview transcript provided by the Appellant, I find that it is also inadmissible as evidence in the appeal. ROLE OF THE RAD [41] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness, as per Huruglica. [42] Where an issue of credibility of oral evidence arises and I find that the RPD had a meaningful advantage, I may defer to the RPD's assessment of that evidence. Any deference given to the RPD will be clearly acknowledged in my reasons for decision.15 ANALYSIS The RPD did not err by not considering section 98 of the IRPA [43] The Appellant has argued that the RPD erred in law and failed to exercise its jurisdiction by not considering Section 98 of the Act. The Appellant contends that the RPD did not assess the entirety of the "Convention refugee" definition and erroneously ignored the evidence related to his service in the Ecuadorian navy. As a result, the Appellant argues that the RPD did no analysis of whether the Respondent's military service and responsibilities amount to complicity in crimes against humanity. I find that the RPD has not erred. [44] Section 98 of the IRPA provides that a person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. [45] Article 1F, set out in the schedule to IRPA, reads as follows: F The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes. [46] The Minister did not intervene in the two previous RPD hearings, however, I agree with the Appellant that the RPD is still obligated to consider whether section 98 of the Act is applicable. Non-participation of the Minister does not preclude an exclusion finding. In this particular case, however, there was no reason for the RPD to consider the applicability of the section. [47] Rule 26 of the RPD rules requires the Division to notify the Minister in writing and provide any relevant information to the Minister of possible exclusion before or during the hearing. This notification was not made before or during both previous RPD hearings. [48] The issue of exclusion is not raised in every refugee claim, there has to be sufficient credible evidence to trigger the requirement for notification, and in this case, I find that there was not. [49] The Respondent has been transparent about his years of service in the Ecuadoran Navy since he made is refugee claim. He lists his employment as a corporal first class with the Marine Force Ecuador in his schedule A document,16 and he describes his military activities during both of his interviews with CBSA officers.17 The information revealed in these interviews with CBSA did not prompt the Minister's intervention on exclusion grounds at the RPD hearings. The evidences does not establish complicity in crimes against humanity [50] The Federal Court has noted that crimes against humanity are defined in the Charter of the International Military Tribunal as "...murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population..." Additionally, the crime in question, in order to rise to the level of a crime against humanity, must be committed in a "widespread systematic fashion".18 [51] In his CBSA interviews,19 the Respondent describes being in charge of the physical education program, and making sure that new recruits were fit. He stated that he did patrols for drug traffickers, but he never saw combat. He was consistent in his testimony regarding his role in the military. [52] I find that the evidence before the RPD was insufficient to raise the issue of Article 1F(a) exclusion, and therefore no error has been committed. [53] To warrant exclusion, the Supreme Court of Canada in Ezokola,20 clarified that individuals can only be excluded for complicity in international crimes if there are "serious reasons for considering that he or she voluntarily made a significant and knowing contribution to an organization's crime or criminal purpose. [54] Ezokola further provides that to determine whether an individual's conduct meets the actus reus and mens rea for complicity, certain factors may be considered including: * the size and nature of the organization; * the part of the organization with which the refugee claimant was most directly concerned; * the refugee claimant's duties and activities within the organization; * the refugee claimant's position or rank in the organization; * the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group's crime or criminal purpose; and * the method by which the refugee claimant was recruited and the refugee claimant's opportunity to leave the organization. * any viable defences (for example, duress). [55] The evidence before the RPD included the Respondent's statements about his rank in the military as a first corporal, being responsible for the physical education program - making sure new recruits were fit and reassessing serving members. While he states that the purpose of his unit was stopping drugs and FARC guerillas from entering Ecuador from Colombia, he never engaged in or saw combat. Appellant's Country Documents [56] I have reviewed the country conditions documents provided by the Appellant on appeal. These documents have been admitted as new evidence. There is no indication within the Appellant's Memorandum on why these reports are being relied upon or their relevance. The documents are general country conditions documents from 1998, 2007 and 2012. Updated versions of these reports as well as more current information were before the RPD within the National Documentation Packages for Ecuador21 and in documents submitted by counsel before the RPD. [57] Having reviewed the reports, I find that they contain country information, particularly with respect to human rights issues in Ecuador. Excerpts from these reports include: * The 2009 UK Border Agency Report, states that while the government generally respected the human rights of its citizens, there continued to be problems in areas including, isolated unlawful killing and use of excessive force by security forces. * The 2007 Amnesty International Report describes killings on the Colombia border. * The 1998 Amnesty Report describes instances of torture and ill-treatment by members of the military. * The 2012 Insight Crime Article describes organized crime as a top priority of the Ecuador military. [58] I find that this objective documentation does not give rise to exclusion grounds given the appellant's evidence about his rank, role and activities in the Ecuador military. Personal Risk [59] The case law has been clear that if the risk faced by a person stems from a general risk in that country, the person is not protected under section 97(1)(b). Refugee protection is limited to those who face a specific risk not faced generally by others in the country. Having reviewed all of the evidence and argument, I find that in this case, the Respondent faces a particular risk that is personal and therefore is distinct from the indiscriminate or random risk faced by others in Ecuador. The RPD did not err in its credibility finding [60] The Appellant has argued that the RPDs findings were unreasonable and made without regard to the evidence. Of particular concern to the Appellant is that the RPD overlooked contradictory and inconsistent statements when making its credibility finding. [61] I do not find that the RPD failed to consider all of the evidence before it, and even acknowledged that there were areas of inconsistency including in statements made to CBSA. However, given the evidence as a whole, including statements from his family members, the Respondent was found to be a reliable witness with a genuine fear of returning to Ecuador. [62] As pointed out in the RPD decision, sworn testimony is presumed to be true unless there is sufficient reason to doubt its trustworthiness.22 In this case the RPD described the Respondent as having testified in a straightforward manner, without undue hesitation, with responses that were reasonably well detailed and plausible given country conditions. The presumption of credibility was not rebutted. I agree with the RPD's finding. [63] With respect to the Respondent's credibility, it must be noted that the first panel of the RPD hearing the claim also mentioned some contradictions between testimony and statements made to CBSA but found overall that he was credible and had been targeted by the Mafia Rusa criminal organization. [64] The Respondent has pointed out that the inconsistencies identified by the Appellant are not real inconsistencies and do not give rise to meaningful concerns about the Respondent's credibility. [65] I have considered all of the evidence and have made my own independent assessment. I find that overall the Respondent is credible and the RPD has not erred in making its credibility finding. The RPD did not err in its IFA finding [66] The Appellant argued that the RPD erred by finding that the Respondent does not have an IFA in Ecuador without having identified it as an issue or hearing submissions on it. [67] I have listened to an audio recording of the hearing. The RPD did identify IFA as an issue at the beginning of the hearing, albeit not as the main issue, which was credibility. The RPD also identified state protection as an issue [68] As part of the record before the second panel of the RPD, was the decision, evidence and argument from the first RPD hearing in August 2016, as well as the first RAD decision in May 2017. The determinative issue in these decisions was IFA. In the RAD decision, the decision of the RPD finding an IFA for the Respondent in Quito was found to be incorrect. [69] In its decision, the second panel of the RPD found that the Respondent had presented credible evidence that he has been personally targeted by members of the Mafia Rusa and that they have made enquiries about him in a number of locations in Ecuador. The RPD also stated that the evidence before it indicated that the gang could track the respondent anywhere in Ecuador. [70] I find that among all the evidence before the second RPD panel were facts and arguments directly on point to this issue from the previous hearing and decision. Given this, it was unnecessary for the RPD to revisit the issue in depth during the second hearing. [71] In order for the Appellant to have been found to be a Convention refugee or a protected person, the RPD had to have found that he met the definition and that there was no state protection or IFA available to him. [72] Having reviewed all of the evidence, I find that it was correct for the RPD to conclude that there was no IFA or state protection available to him in Ecuador in his particular circumstances. No State Protection [73] In its reasons, the RPD found that state protection would not be reasonably forthcoming in this particular case. [74] The respondent did not seek police protection, which he is required to do, unless it is not reasonably available. In this case the RPD found that the country documentation indicates that protection is dubious. [75] The Department of State Country Report on Human Rights Practices stated:23 * Corruption, insufficient training, poor supervision, and a lack of resources continued to impair the effectiveness of the National Police. * While the constitution provides for an independent judiciary, outside pressure and corruption impaired the judicial process. Legal experts, bar associations, and human rights organizations reported on the susceptibility of the judiciary to bribes for favorable decisions and faster resolution of legal cases. Judges reportedly rendered decisions more quickly or more slowly due to political pressure or, in some cases, the payment of bribes. [76] The International Narcotics Control Strategy Report for 2017 stated:24 Situated between two of the world's largest cocaine producing countries, Ecuador is a major transit country for illegal narcotics. Cocaine and heroin from Colombia and Peru are trafficked through porous land borders and via maritime routes for distribution to the United States and Europe. While not a major drug producing country, Ecuador is a major transit country for chemical precursors to process illegal narcotics and is also vulnerable to transnational organized crime due to permeable borders and corruption. Ecuador's police, military, and judiciary lack sufficient resources to confront the transnational criminal challenges they face. [77] The 2018 Crime and Safety Report describes crime in Ecuador as a severe problem which is increasing. The report states that: Police coverage is sparse outside major urban areas. Ecuador has a less than 1% conviction rate for major crimes.25 [78] I have made my own assessment of the evidence. I find that the objective evidence provides clear and convincing evidence that the police and judiciary in Ecuador are largely ineffective and state protection would not be reasonably forthcoming in this particular case. I concur with the RPDs finding on this issue. CONCLUSION [79] Having considered all of the evidence and argument, the RAD dismisses the appeal and confirms the decision of the RPD that the Respondent is a person in need of protection pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Paula Faber" Paula Faber March 14, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). 2 Appellant's Record, pps 21-87. 3 RAD Rule 29. 4 Respondent's Record, item 3. 5 Schedule 12, IMM0008. Signed April 13, 2016. RPD Record (RPDR), pg. 37. 6 Question 9(a) - 9(k) BOC form, Signed April 13, 2016. RPDR, 12-21. 7 RPD June 21, 2016, RAD May 12, 2017, RPD March 2, 2018. 8 Distribution/Statement of Service, Appellant's Record, page 11. 9 Exhibit 5, CBSA letter dated June 7, 2018. 10 Respondent's Memorandum, para. 25. 11 Canada (Citizenship and Immigration) v. Paramo de Gutierrez, [2017] 2 FCR 353, 2016 FCA 211 (CanLII). 12 Dehghani v. Canada[1993] 1 SCR 1053, 1993 Can LII 128 (SCC), distinguished in Gutierrez FCA at para 54. 13 Respondent's Memorandum of Argument. 14 Respondent's Record, item 3. 15 MCI v. Huruglica, 2016 FCA 93. 16 Schedule A, IMM 5669, Question 8, RPDR, pps. 38-43. 17 RPDR, Enforcement Officer, Solemn Declaration, April 7, 2016 and Hearings Advisor Solemn Delcaration, April 8, 2016. 18 Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.). 19 RPD Record, pp. 51-56. 20 Ezokola v. Canada (Citizenship and Immigration), [2013] 2 S.C.R. 678. 21 Indexes for the following National Documentation Packages for Ecuador were all in evidence before the RPD: May 13, 2016; March 31, 2017; February 28, 2018. 22 Maldonado v. Canada[1980] 2 F.C. 302. 23 National Documentation Package (NDP) for Ecuador (February 28, 2018), item 2.1. 24 NDP for Ecuador (February 28, 2018), item 7.1. 25 NDP for Ecuador (February 28, 2018), item 7.3. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-03363 RAD.25.02 (September 18, 2018) Disponible en français 17 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 (September 18, 2018) Disponible en français