TC0-09959

RAD File / Dossier de la SAR : TC0-09959 TC0-09960 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision May 28, 2021 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the persons who are the subject of the appeal Leigh Salsberg 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 and XXXX XXXX XXXX XXXX are citizens of Honduras who claim being threatened by a powerful former employer with alleged criminal connections. Employed along with four others by a Honduran businessman, they were sent to Canada to undertake XXXX XXXX work XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Arriving in XXXX 2017, they met issues with payment of wages, difficult living conditions XXXX XXXX XXXX XXXX, and a tense working environment. [2] In late April things came to a head when Mr. XXXX communicated with his employer indicating he was going to leave, considering the lack of wages and the working climate. Mr. XXXX and another employee also indicated their intention to leave. [3] The three left XXXX XXXX XXXX for Toronto on May 2nd. Approaching immigration officials with the intention of filing refugee claims, they were redirected to the Red Cross for shelter with the shelter in turn referring them to a refugee centre. [4] The employer and Mr. XXXX exchanged text messages on May 4th, June 29th and 30th, the essence of which concerned amounts claimed by Mr. XXXX and references, on the part of the employer, to consequences for Mr. XXXX actions. [5] The Appellants allege the manner they were recruited, transported, and forced to work while the employer exercised control over their movements constitutes human trafficking. In this context, they posit needing protection as they are members of a particular social group, namely those who have tried to enforce their human rights. Their actions allegedly also expose them to consequences from their employer who would have threatened them and is rumoured to have criminal implications. Lastly, it is also argued that having been abroad for a prolonged period makes them targets for extortion. [6] The Refugee Protection Division (RPD) concluded the Appellants are neither Convention refugees nor persons in need of protection as: - they are not members of any particular social group; - there is no prospective risk for them in Honduras given their employer's profile and the lack of interest he has shown them. [7] The Appellants' memorandum pleads the RPD erred in its decision in that it: - did not find a nexus; - concluded to an absence of prospective risk based on improper credibility and plausibility findings, inferences, and speculations. [8] The determinative issue is prospective risk. DECISION [9] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. ANALYSIS [10] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [11] The Appellants' claim is known as a sur place claim in that it is circumstances once in Canada that warrants their claim for protection. [12] Mr. XXXX hails from XXXX XXXX XXXX XXXX with experience working XXXX XXXX XXXX XXXX as a XXXX XXXX. He first met his employer, the alleged agent of harm, in 2009 when he approached him to work XXXX XXXX XXXX XXXX XXXX his company, XXXX XXXX. [13] In his first employ, he spent four months near XXXX working as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX a Cuban customer XXXX XXXX XXXX XXXX XXXX purchased black-market XXXX XXXX Subsequently hired again, he worked near XXXX where the XXXX XXXX XXXX XXXX Americans and apparentlyXXXX XXXX XXXX illegally XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Upon his return to Honduras, he was periodically hired for XXXX XXXX purposes and learned of his employer's intention to sell XXXX XXXX XXXX a well-known Honduran criminal. [14] In December 2016, he was again contacted by his former employer to XXXX XXXX XXXX purchased in Canada and XXXX XXXX XXXX XXXX XXXX Honduras. [15] Mr. XXXX, the other Appellant, hails from XXXX XXXX XXXX with experience in XXXX XXXX and XXXX work. He learned of the need for XXXX XXXX through a friend and was offered the job of XXXX XXXX XXXX in Canada in January 2017. He joined Mr. XXXX and four other employees at the airport for their flight to Canada in XXXX 2017. [16] The employer undertook all necessary travel arrangements securing the required authorizations. Upon arriving in XXXX, the broker remitted to one of the employees CAN$18,000 to XXXX XXXX XXXX. Mr. XXXX received US$1,700 of the agreed upon US$5,000 salary alleging that two of those entrusted with the money from the broker stole some of it, using it for themselves or sending it to their families. [17] Although wages weren't being paid, they were asked to XXXX XXXX XXXX their employer showed interest in buying. Lack of wages, supplementary work, miserable conditions, crew dissatisfaction and the employer's apparent lack of concern for these issues culminated with the XXXX XXXX XXXX XXXX by Mr. XXXX, Mr. XXXX and a third member who travelled together to Toronto on May 2, 2017 to undertake refugee protection claims. Convention Nexus [18] The Appellants argue being victims of human trafficking at the hands of their employer and, having contested this state to enforce their human rights, makes them members of a particular social group. They also posit that as people returning from abroad, they are perceived to be bringing back resources and as such may be at risk of extortion based on belonging to the group of returnees. [19] The RPD found there wasn't any nexus to the Convention. [20] Written submissions argue the Appellants' situation fits the very definition of human trafficking set out in the Canadian government's National Action Plan to Combat Human Trafficking. The definition states human trafficking involves recruitment, transportation, harbouring and/or exercising control, direction, influence over the movements of a person to exploit that person, typically through sexual exploitation or forced labour. [21] Though original, the argument cannot be retained. In the present case, the employees were given wages agreed upon and seemingly fair though not promptly paid. In such circumstances, they were able to stop working and had all necessary documentation to freely allow their travel, including tickets to return home. Nothing in this allows me to conclude they were victims of trafficking nor that they were conducting activism of any kind. The RPD's decision in this regard is correct. [22] The second argument is that people returning from abroad are perceived to be bringing back resources and as such may be at risk of extortion, thereby belonging to the particular social group of returnees. [23] Canadian jurisprudence rejects this argument2 since violence to which the Applicants might be subject is the fallout of criminal activity and not the targeting of a particular group in a discriminatory fashion. The RPD's conclusion in this regard is correct. Conclusion of an absence of prospective risk [24] The RPD concluded the Appellants did not face a prospective risk upon returning to Honduras considering: - the lack of evidence establishing their employer's criminal profile; - the absence of interest shown by their employer in over two and a half years; - the speculative risk associated with having lived in Canada for almost three years. [25] The Appellants allege they only need to establish being targeted by a wealthy Honduran businessman where corruption, violence and impunity are pervasive, irrespective of a criminal profile. Furthermore, it is pleaded the employer's clean name has no incidence on his perceived capabilities. The lack of evidence establishing their employer's criminal profile [26] Responding to elements the RPD considered indicative of an absence of prospective risk, the Appellants raise: - the plausibility of Mr. XXXX explanations as to why he continued to work for someone he suspected of criminal activity; - the absence of any relation established between Mr. XXXX brother's death and his employer; - the erroneous credibility finding concerning working conditions in Canada based on an absence of corroborative evidence; - violation of principles of natural justice through the irregular use of unfiled evidence and inferences drawn from unstated elements in news articles disregarding objective statements contained therein. i- Employer's profile of criminal involvement [27] The RPD did not find it credible Mr. XXXX would continue working multiple times for an employer after learning of his criminal involvement. It follows from this that his continued work for his employer leads the RPD to conclude to the lack of credibility of the allegation about his employer's criminal associations. [28] Mr. XXXX claims having been reassured of the legitimacy of his task given the application of Canadian law for the work. Furthermore, two illicit activities stemming from his employer's commercial operations were encountered where he was called to operate XXXX XXXX XXXX criminal activities were taking place. In another instance, he provided training XXXX XXXX XXXX XXXX to employees of a well-known criminal. [29] If, as advanced by Mr. XXXX, his employer associated with criminals and participated in criminal activities by providing equipment allowing for such operations, then it is legitimate to wonder why he would have continued to risk being caught up with those his employer associates with. It is also legitimate to ponder continued employment for someone who is apparently as dangerous as Mr. XXXX makes his employer out to be. In that context, either Mr. XXXX knowingly associated with criminal elements through his work or the extent of his employer's criminal involvement was substantially less than what he makes it out to be. Even if the contract in Canada offered reassurances, one wonders about the continued risk run by Mr. XXXX in carrying out any kind of work for such individuals. The RPD's conclusion that continued association by Mr. XXXX with his employer does not lend credibility to the allegation of his ties to criminal elements is correct. ii- Link between Mr. XXXXs brother's murder and his employer [30] Mr. XXXX's testimony references a threat from his employer saying he will meet the same fate as his brother. Save for that, no relation is established between his brother's murder and his employer. The RPD's analysis extrapolates from Mr. XXXXs narrative saying it implies a causal effect between the murder and continued employment. I disagree. The RPD's analysis of this element is not substantiated by the evidence. iii- The erroneous credibility finding concerning working conditions in Canada based on an absence of corroborative evidence [31] The RPD noted: - the Appellants did not report their treatment XXXX XXXX XXXX XXXX in Canada to authorities; - those responsible for them whilst in Canada and aware of the situation equally failed to report it to authorities; - no supporting corroborative evidence was presented on their behalf by either XXXX XXXX XXXX who helped them out or the individual who invited them and assumed responsibility for them during their stay. [32] The Appellants plead their failure to contact Canadian authorities is a reaction consistent of trafficking victims in addition to their ignorance of their rights and limited language skills. These arguments, though legitimate, cannot be readily applied to the case at hand. To begin, Mr. XXXX indicates having been reassured to work once again for someone thought to have criminal affiliations believing Canadian laws would dissuade illegal activity. Furthermore, Mr. XXXX was sufficiently well versed in the use of technology to be able to do internet research on the possibility of making a refugee claim in Canada. Nothing indicates any hindrance to his having researched other legal aspects of Canadian law including working conditions. [33] The RPD faults the Appellants for the lack of corroborative evidence from third parties witness to the conditions in which they found themselves. The Appellants' justification for this absence of corroborative evidence essentially rests on the unwillingness of these individuals to get involved. Although corroborative evidence is useful, the absence of such should not be detrimental to the Appellants' claim in the absence of contradictory elements in the narrative, testimony and associated documents filed in support thereof. iv- Violation of principles of natural justice through the irregular use of unfiled evidence and inferences drawn from unstated elements in news articles disregarding objective statements contained therein. [34] The RPD concluded to the employer's absence of criminal ties based on Canadian sources indicating he was a reputable businessman and newspaper articles submitted by the Appellants. [35] The Appellants allege evidence not filed by the Minister, as it chose not to intervene, was used by the RPD without informing it would treat this letter as evidence. Furthermore, the document on which it relied offers no sources for the information, simply stating searches were done on the internet and social media for the purported employer. [36] As for the newspaper articles submitted, the Appellants allege the RPD noted the articles did not contain any adverse statements regarding the living conditions XXXX XXXX XXXX XXXX XXXX employer's reputation. However, the Appellants note it fails to consider that XXXX XXXX XXXX XXXX they were working was seized by Canadian authorities leading to a fundraising by the community allowing the XXXX XXXX XXXXto return to Honduras. Essentially, the employer appears to have left XXXX XXXX XXXX member stranded in Canada without money to travel home, helping corroborate the Appellants' position he acts in an unprofessional manner. [37] The argument raised by the Appellants has merit. The use of a document whose sources are generic and not filed as evidence violates the principles of natural justice. Relying on such information is an error and whatever conclusions reached by the RPD founded on this alone should be set aside save where other elements in the file allow for a similar conclusion. [38] The RPD correctly concluded the employer does not have a dangerous profile with connections to organized crime. Mr. XXXX continued work for the individual was correctly assessed as undermining the credibility of this allegation. No link between Mr. XXXXs brother's murder and his XXXX XXXX XXXX XXXX was intimated. The absence of corroborative evidence as to the nature of working conditions doesn't undermine the credibility of this allegation. Corroboration is not a requisite where there aren't any internal inconsistencies that would raise a doubt as to the veracity of the allegation. However, there is a difference between alleging harsh working conditions and establishing conditions akin to slavery. Finally, evidence found in newspaper articles indicates the actions of the employer aren't as professional as one would expect. There again, this does not equate his commercial practices with criminal implications. The absence of interest shown by their employer in over two and a half years [39] The RPD noted the employer continued communicating with the Appellants after XXXX XXXX XXXX XXXX XXXX XXXX travel to Toronto. The employer even came to Canada at some point and failed to answer Mr. XXXX calls or try to establish contact with them. Furthermore, it noted Mr. XXXX's mother and sister continued to reside at the same place and were never approached about him or his plans to return to Honduras. [40] On one occasion, XXXX XXXX 2017, the employer did enquire at Mr. XXXX' former place of work about XXXX XXXX XXXX XXXX has not undertaken any other measures since then. [41] The Appellants argue there is speculation on the RPD's part regarding actions which an agent of harm would undertake and misapprehension of Mr. XXXX testimony concerning his fear of the employer. [42] The essence of exchanges between the Appellants and their employer pertain to threats of legal repercussions for their actions. In essence, both employer and employees consider there is a breach of contract which will result in extensive legal ramifications both in Canada and in Honduras. Threats of consequences for the Appellants once the employer arrived in Canada appear to have been baseless as nothing was undertaken, and communications were cut. [43] The RPD's conclusion on the absence of communications or actions by the employer in the past three years as being indicative of a lack of continued interest in the Appellants is correct. This is further substantiated by the fact, on a balance of probabilities, the employer's profile is not indicative of criminal activity or violence. The speculative risk associated with having lived in Canada for almost three years [44] The RPD found the argument speculative that upon returning to Honduras, the Appellants will be perceived as wealthy from living abroad and be exposed to a risk of extortion. [45] The Appellants' memorandum argues the RPD erred in concluding there was no evidence before it of a personal risk to them. It cites the National Documentation Package for Honduras3 which mentions evidence of individuals killed by gangs shortly after their return. However, it is worthwhile to note the cited document specifies this usually concerns individuals who initially left due to gang violence. In this case, the Appellants' work XXXX XXXX XXXX are non-distinguishing. Furthermore, Mr. XXXX indicates that people do not know his whereabouts but could eventually find out. On a balance of probabilities, his history of absenteeism from his country for prolonged periods of time is such that a return would not arise any more suspicion than in the past. Lastly, extortion is not specifically targeted at those returning but rather applies to wealthy and poor alike in almost all neighbourhoods.4 The risk to which the Appellants are exposed is not different from the risk faced generally by others. [46] The RPD decision does contain errors. Using generic elements as evidence while failing to inform the Appellants of such or making negative credibility findings based on their failure to provide corroborative proof of alleged conditions XXXX XXXX XXXX XXXX are two examples. Those elements which are erroneous are immaterial to the outcome even with their exclusion. The essential elements which constitute the basis of the RPD's conclusion are correct. On a balance of probability, they do not face any prospective risk as their agent does not have a criminal profile, has not shown any continued interest in them and the nature of their work does not expose them to a risk any different from that to which others are exposed. CONCLUSION [47] 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) Me Richard Sheitoyan Richard Sheitoyan May 28, 2021 Date RS/lp 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Cius v. Canada (Citizenship and Immigration), 2008 FC 1 (CanLII) 3 RPD-1, National Documentation Package (NDP) for Honduras (29 March 2019), tab 2.8: ?Honduras: Information Gathering Mission Report. Immigration and Refugee Board of Canada. February 2018. 4 RPD-1, NDP for Honduras (29 March 2019), tab 7.15: ?Crime, Violence, and Community-Based Prevention in Honduras. Justice, Security and Development Series. The World Bank. Louis-Alexandre Berg; Marlon Carranza. June 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-09959 TC0-09960 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