TB7-21043

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 File / Dossier de la SAR : TB7-21043 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 17, 2018 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are) the subject of the appeal Marcela D. Gonzalez-Rodriguez Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW OF THE APPEAL [1] XXXX XXXX XXXX ("the Appellant") appeals the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The appeals concerning the rejected claims of the Appellant's spouse and two children were dismissed by the Refugee Appeal Division (RAD) in December 2017 for lack of jurisdiction. The Appellant submits that the RPD erred in finding that he is not a Convention refugee or a person in need of protection. Having carefully reviewed the evidence, I find that the RPD did not err in its findings or in its assessment of the evidence. Therefore, I am confirming the decision of the RPD and dismissing the appeal. BACKGROUND [2] The Appellant alleges that he and his family were persecuted by the army, the government and its agents ("the G2") in Guatemala because his father witnessed a massacre by the G2 death squads in 1982. He maintains that the government believes that he will denounce the government for the massacre. He also maintains that the government and its agents want to kill his whole family, including him, his wife, his parents, his siblings, and his children. Two of the Appellant's cousins were killed in the Appellant's village - the last one in 1996. In 1997, the Appellant fled his village, first to a large town, and then later to Guatemala City. In 2005, the Appellant fled to the United States of America (US). In 2008, the Appellant's cousin was kidnapped and killed. In April 2017, the Appellant entered Canada and filed a claim for refugee protection. The Appellant also alleges that he suffered a lot of discrimination in Guatemala because he is an indigenous person. SCOPE OF THE APPEAL [3] As held by the Federal Court of Appeal in Huruglica, the Refugee Appeal Division (RAD) is to review decisions of the RPD on a standard of correctness on questions of fact, law, and mixed fact and law, after conducting an independent assessment of the evidence before it.1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases may attract a standard of review of reasonableness.2 Unless otherwise stated, a correctness standard has been applied. ANALYSIS Credibility/Subjective fear Discrimination, well-founded fear of persecution, evidence regarding massacre [4] The RPD found that the Appellant was not able to articulate in what way he and his family, as Mayans, experienced discrimination in Guatemala, or why, on that basis alone, he and his family have a well-founded fear of persecution, except to repeat that they all face a risk to life, as the government and its agents want to kill them because of what his father witnessed in 1982. It found the Appellant's allegation that he faces a risk to life because his father witnessed a massacre in their village at the hands of government-supported death squads not credible. It found that the Appellant had not established that the alleged massacre took place in the time and place he said it did. It also noted that the Appellant's father is presumably the primary target; yet, he has continued to live in Guatemala since the alleged massacre, and nothing has happened to him or any of the Appellant's other immediate family members who continue to reside in that country. [5] The Appellant points out that the RPD found, on a balance of probabilities, that he is at least partly Mayan. He also points out that information in the National Documentation Package (NDP) for Guatemala provides support for his allegation of persecution of indigenous Mayans. He maintains that various sources confirm that the massacres of the Mayans he spoke about took place, which the RPD does not dispute. He also points out that the NDP includes evidence that discrimination and racism persists today against the indigenous peoples, including the Mayans. [6] The Appellant points out that it is trite law that a refugee claimant need not show that he has personally suffered persecution if other persons who are similarly situated have been persecuted. He also points out that discrimination and harassment that is persistent can cumulatively amount to persecution. He submits that the RPD did not consider the objective evidence concerning the treatment of indigenous peoples, including the Mayans. [7] The Appellant submits that the RPD's negative credibility findings do not mean that he cannot be considered to be a Convention refugee or a person in need of protection if there is objective evidence that supports that he would be at risk. He argues that the RPD accepted that he is at least partially Mayan, so on this issue, the negative credibility findings do no apply. He submits that there was an onus on the RPD to assess the country information concerning the treatment of Mayans, as an indigenous people, in order to properly make a determination of the claim; however, the RPD does not refer to any country documentation concerning the conditions for indigenous Mayans in its reasons. [8] In my view, the Appellant's argument fails for the following reasons. The Appellant alleges that the government and its agents want to kill him because of the massacre his father witnessed in 1982; however, no credible evidence was presented to indicate that the Appellant's father or the Appellant's other immediate family members who have resided in Guatemala have been pursued or harmed by the government or its agents. This undermines the credibility of the Appellant's allegation that the government and its agents want to kill him because of the massacre his father witnessed in 1982. [9] With respect to considering the evidence of similarly situated individuals, not only did the RPD consider the evidence regarding other persons who are similarly situated such as the Appellant's parents, his siblings, and his son in San Juan, it considered the Appellant's experiences in Guatemala, including in Guatemala City, and the absence of problems or incidents the Appellant and his family experienced. There were no noted problems the Appellant or his immediate family experienced in Guatemala with respect to their ethnicity. The absence of any noted problems undermines the credibility of the Appellant's assertion that he and his family experienced discrimination in Guatemala because they are partially Mayan. [10] While the objective documentary evidence indicates that the marginalization of indigenous communities is a problem in Guatemala,3 no credible evidence was presented to indicate that the Appellant or his family members suffered from this. As noted by the RPD, the Appellant was unable to describe in what way he and his family, as Mayans, experienced discrimination in Guatemala. The Appellant failed to demonstrate a link between the objective evidence and his personal situation. [11] The RPD was not wrong to find that the Appellant was not able to describe in what way he and his family, as Mayans, experienced discrimination in Guatemala, or why, on that basis alone, he has a well-founded fear of persecution. I find that the Appellant failed to demonstrate a link between the objective evidence regarding the treatment of indigenous peoples in Guatemala and his personal situation. [12] The RPD was also not wrong to find the Appellant's allegation that he faces a risk to life because his father witnessed a massacre in their village at the hands of government-supported death squads not credible. The Appellant's evidence simply did not support this allegation, on a balance of probabilities. Reason for leaving Guatemala [13] It was noted by the RPD that the Appellant provided inconsistent evidence regarding his reason for leaving Guatemala. It noted that, upon entry to Canada, the Appellant indicated that he had left Guatemala due to poverty and made no mention that he feared for his life and needed protection. The RPD found the Appellant's answers to questions at the port of entry are not consistent with his Basis of Claim Form (BoC) narrative and are not consistent with a fear of persecution or other serious harm, rebutting the presumption of truth. [14] I note that the Appellant makes no allegation of error in the RPD's findings on this issue, and I see none. The Appellant alleged that he fled Guatemala because the government, the army and the G2 made threats against his family and because he suffered a lot of discrimination; however, according to his response at the port of entry, he left Guatemala due to the poverty in that country.4 The inconsistency undermines the Appellant's credibility with regard to his subjective fear of returning to Guatemala, his allegations, and his overall credibility. Lack of problems in Guatemala City [15] The RPD noted that the Appellant lived in Guatemala City for five years and did not encounter any problems there. It noted that the Appellant's parents, siblings, and one of his sons are safely living in Guatemala without problem or incident. The RPD found that the Appellant's stated fears are tenuous, dubious and absurd. It found no reason that the Appellant cannot live like his immediate family in Guatemala. It also noted that there was no reason provided to help it understand why the government of Guatemala in 2017 would worry about the son of a witness from 1982 at this time, much less want to do him harm. [16] The Appellant makes no allegation of error in the RPD's findings on this issue, and I see none. The fact that the Appellant had no noted problems in Guatemala City, and his parents, siblings, and one of his sons are safely living in Guatemala without problem or incident, further undermines the credibility of the Appellant's allegations regarding his fear of returning to Guatemala. Failure to claim in the United States [17] The RPD noted the Appellant's failure to claim in the United States during the 13 years he resided there, and his failure to research or consult with immigration counsel as to how he could remain in the United States legally. It found the delay egregious and made his claim for protection in Canada even more tenuous and dubious. [18] I see no error in the RPD's finding regarding the Appellant's failure to claim in the United States. The Appellant alleges no error. [19] In my view, the Appellant's failure to claim in the United States further undermines his credibility, the credibility of his allegations and the credibility of his subjective fear of persecution in Guatemala. The Appellant alleges that he had fled Guatemala to the United States for fear of persecution or harm relating to government threats based on what his father had witnessed in 1982 and because of discrimination he faced as a Mayan. He indicated that he did not claim asylum in the United States because he was afraid he would be sent back to Guatemala. This is counterintuitive. If an individual fears returning to his home country, one would expect him to seek protection in the safe country he had travelled to. I note that the United States is a signatory to the Protocol Relating to the Status of Refugees, and there is no reason to believe that it does not abide by its obligations. Even in the current political climate in the United States, there is no reason to believe that the Appellant's asylum claim, had he filed one in the United States, would not have been properly considered. Internal Flight Alternative (IFA) Possibility of persecution in IFA [20] The RPD found that there is no serious possibility of the Appellant being persecuted or, on a balance of probabilities, in danger of torture or subjected to a risk to life or a risk of cruel and unusual treatment or punishment in either Guatemala City or San Juan. It noted that the Appellant lived in Guatemala City for five years before he went to the United States, and he had not reported any incident of either discrimination, persecution or serious harm that befell him or that he faced there. It found there is no more than a mere chance the Appellant would face persecution should he return. It was also noted by the RPD that the Appellant's son, XXXX XXXX XXXX XXXX, lives in San Juan with the Appellant's sister and her family, and no evidence was presented to indicate that they have experienced any persecution or discrimination in San Juan. It was noted that no evidence was presented to indicate that any of the Appellant's ten siblings in various parts of Guatemala are being sought by death squads or agents of the killers from 1982. [21] The Appellant submits that the RPD's conclusions with respect to IFA have to be assessed in light of the objective evidence concerning treatment of the Mayans. He points out that the RPD did not address this evidence in its discussion of IFA. He submits that this evidence demonstrates that the risk to him would be faced anywhere in Guatemala. He submits that there is objective support for his claim that he has no viable IFA due to his ethnicity. [22] As noted above, the Appellant failed to demonstrate a link between the objective evidence and his personal situation. It is not sufficient for refugee claimants to provide documentary evidence about problematic situations in their country in order to be recognized as Convention refugees or persons in need of protection. The refugee claimant must also demonstrate a connection between that evidence and their personal situation,5 which the Appellant in this case failed to do. [23] While there is evidence in the NDP regarding problems faced by indigenous persons in Guatemala, the Appellant provided no credible evidence that he or his family faced these problems besides asserting that he was poor. The fact that the Appellant left school at an early age to help his father farm their land explains at least in part his previous economic situation in Guatemala. Documentary evidence indicates that poverty is an issue in Guatemala, particularly among the indigenous population, women and rural inhabitants.6 The Appellant failed to demonstrate or establish that his poverty was the result of his ethnicity. [24] The RPD was not wrong to find that there is no serious possibility of the Appellant being persecuted or, on a balance of probabilities, in danger of torture or subjected to a risk to life or a risk of cruel and unusual treatment or punishment in either Guatemala City or San Juan. Having reviewed the evidence, I find the same. Reasonableness of IFA [25] The RPD noted that the Appellant lived in Guatemala City for five years; his siblings and son live in San Juan, and no evidence was presented to indicate that the Appellant would face undue hardship in either place. It found that it would not be unreasonable for the Appellant to live in either Guatemala City or San Juan. The RPD indicated that the Appellant could even move to his parents' locale of Rabinal, and it noted that his other siblings live in Rabinal and El Quiche. Noting that it had considered the conditions in Guatemala City and San Juan and all of the circumstances of the case, including those particular to the Appellant, the RPD found it is not objectively unreasonable for the Appellant to seek refuge in Guatemala City or San Juan. [26] The RPD was not wrong to find it not objectively unreasonable for the Appellant to seek refuge in Guatemala City or San Juan. Considering the conditions in Guatemala City and San Juan (they are not rural areas), and the circumstances noted above, I find the same. [27] As a cumulative result of the above-noted anomalies and findings, I find that the Appellant lacks credibility. I do not accept, on a balance of probabilities, that the material events, as described by the Appellant in his BoC and at his hearing with the RPD, occurred as described. I also find that the Appellant has a viable internal flight alternative in Guatemala City or San Juan. [28] Therefore, I find that there is not a serious possibility of persecution should the Appellant return to Guatemala. I therefore conclude that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and, for these same reasons - the lack of credibility and a viable internal flight alternative - I find that the Appellant is not a person in need of protection or at a risk to life, or at risk of cruel and unusual treatment or punishment, or in danger of torture as set out in section 97 of the IRPA. CONCLUSION [29] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD and dismiss the appeal. (signed) "M. Pettinella" M. Pettinella September 17, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Huruglica, 2016 FCA 93, at paras. 69-74; X (Re), 2017 CanLII 33034 (CA IRB). 3 Exhibit RPD-1, RPD Record, at p. 182, National Documentation Package (NDP) for Guatemala (28 April 2017), item 2.1, United States Department of State, Guatemala: Country Reports on Human Rights Practices for 2016, 3 March 2017, at p. 1. 4 Exhibit RPD-1, RPD Record, at p. 48. 5 Rahaman, Mizanur v. M.C.I. (F.C.A., no. A-711-00), Evans, Stone, Malone, March 1, 2002; 2002 FCA 89; [2002] F.C.J. No. 302 (F.C.A.) (QL). 6 Exhibit RPD-1, RPD Record, at p. 182, NDP for Guatemala (28 April 2017), item 13.1, International Work Group for Indigenous Affairs, Guatemala: The Indigenous World 2016, April 2016, at p. 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-21043 10 RAD.25.02 (August 08, 2018) Disponible en français