VB5-00429

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 No. / N° de dossier de la SAR : VB5-00429 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision August 7, 2015 Date de la décision Panel Rena Dhir Tribunal Counsel for the person(s) who is(are) Jose Godoy (Toku) Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant€ désigné€ Counsel for the Minister N/A Conseil du inister REASONS FOR DECISION [1] XXXX XXXX XXXX (the "appellant") is a citizen of El Salvador. He appeals the January 13, 2015 determination of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on January 13, 2015 with a Notice of Decision being sent to the appellant on January 23, 2015. The RPD found that the appellant is neither a Convention1 refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (the "Act" or "IRPA").2 DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(a) of the Act, the Refugee Appeal Division (the "RAD") confirms the determination of the RPD, namely, that the appellant is not a Convention refugee under section 96 nor a person in need of protection pursuant to section 97 of the Act. This appeal is therefore dismissed. BACKGROUND [3] Counsel for the appellant before the RAD is different than he had at the RPD. The Minister has not intervened before the RPD hearing or the RAD. [4] A transcript of the RPD proceedings has not been included in the Appellant's Record.3 [5] The appellant does seek to present "new" evidence to the RAD pursuant to subsection 110(4) of the Act. BASIS OF CLAIM [6] According to the allegations set out in the appellant's Basis of Claim Form,4 the appellant fears retaliation from a gang for refusing to join them. [7] The RPD's Reasons stated that the appellant's claim for refugee protection was rejected based on credibility and the availability of an Internal Flight Alternative (IFA). GROUNDS OF APPEAL [8] The appellant's submissions as to the grounds of this appeal can be summarized as follows.5 * Did the RPD Member 'ignore and misinterpret' the evidence that would establish that the appellant is a victim of persecution from the Mara Salvatrucha (MS)? * Did the RPD Member reach unreasonable credibility conclusions by stating that due to the appellant's age, he would not be a target? CONSIDERATION OF NEW EVIDENCE [9] Subsection 110(4) of the Act provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [10] The appellant has submitted a letter in support of why he left his employment in San Salvador dated XXXX XXXX, 2014 as new evidence at the time the appeal was perfected pursuant to subsection 110(4) of the Act. [11] The appellant submits6 that the appellant's "previous employer has submitted her testimonial regarding the persecution Mr. XXXX faced and the violent reality of the country's current situation. Although the restaurant is no longer open due to the constant blackmailing from the gangs, a statement was made by the legal representative of 'XXXX XXXX XXXX to confirm the reason XXXX had to leave his job."7 The appellant further submits that this new evidence is crucial to his case as "it demonstrates that he in fact was a target of gang violence in his country and that his age was not a factor as both he and his employer were targeted in this situation."8 [12] However, the issue of the appellant's employment and why he left his employment was central to his refugee protection claim. I note that the appellant has not provided any explanation as to why this letter was not submitted to the RPD as corroborative evidence. Clearly this was all relevant to the appellant's refugee claim. I also note that the appellant was represented by counsel before the RPD. The appellant has not provided a reasonable explanation for why such evidence was not presented to the RPD Member during the hearing of his claim. As such, this evidence does not represent new evidence within the meaning of subsection 110(4) of the Act. I decline to admit this letter as new evidence for this RAD appeal. REMEDY SOUGHT [13] The appellant has requested that the RAD substitute a positive determination as per paragraph 111(1)(b). ROLE OF THE RAD [14] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [15] RAD, being a new Division, has struggled with the standard of review to be used in RAD appeals based on several Federal Court (the "Court") cases that have differed in their approach of what standard should be used. Initially, RAD followed the Supreme Court of Canada (the "Supreme Court") case Dunsmuir9 as the leading case on standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing decisions of administrative tribunals: reasonableness and correctness. The standard of correctness applies to questions of law, while the standard of reasonableness applies to questions of fact, and mixed fact and law. [16] In recent months, the Court has issued differing decisions on the role of RAD when conducting an appeal of a RPD determination. These decisions include the Court cases Iyamuremye,10 Eng,11 Alvarez,12 Huruglica,13 Njeukam,14 Yetna,15 Wahgmo,16 and Alyafi17 among others. [17] The Court in Iyamuremye addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness: That said, the Court finds that in assessing the reasonableness of the decision, the RAD should, at the very least, have reviewed the evidence that was presented before the RPD and conducted an independent assessment of all the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had properly considered the evidence and reasonably justified its conclusion.18 [18] In Alvarez, Justice Shore said that, "the Court is of the view that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts."19 Furthermore, Justice Shore stated that, "[w]hen analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error."20 Justice Shore also said in Alvarez that, "the RAD must nonetheless perform its own assessment of all the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error."21 [19] In Huruglica, Justice Phelan found that the RAD erred in reviewing the RPD's decision on the standard of reasonableness and concluded that the RAD is required to conduct a hybrid appeal. "It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection."22 Justice Phelan also states that, "that notion may well justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative. Where there is no adverse finding of credibility, the policy rationale for deference is not sustainable."23 [20] Justice Phelan also found that the RAD's role should be to determine whether the RPD decision is wrong rather than look at whether it was a reasonable decision. Justice Phelan emphasized that the RAD's mandate is to conduct a fact based review. The RAD, Justice Phelan said "must review all aspects of the RPD's decision and come to an independent assessment . . . Where its assessment departs from that of the RPD, the RAD must substitute its own decision." Furthermore: In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error".24 [21] The appellant has not provided any submissions regarding the standard of review to be used for this RAD appeal. The evidence must be reassessed fully and independently by RAD.25 [22] The Huruglica decision is the most thorough of all the recent cases and the first one where the Federal Court has certified a question for the Federal Court of Appeal (the "FCA"). Again, I refer to paragraphs 54 and 55 of Huruglica which read as follows: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.26 [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error".27 [23] Following the Huruglica decision, many other Court cases relating to RAD have followed the Huruglica approach in what the role of the RAD should be in assessing an appeal. There is another line of authority that suggests that the standard that RAD should apply is that of "palpable and overriding error".28 In Alyafi,29 Djoussou,30 and Siliya,31 the Court notes that there are two competing approaches in the Court jurisprudence and that the RAD Member is free to decide which approach to follow. [24] In Kanga, the Court held: Furthermore, even where there is divided Federal Court authority on a point of law, I do not agree that the Board is required to explain why it has adopted one view over the other. Presumably, Federal Court jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law.32 [25] In this appeal, and taking into consideration the Court decisions regarding the role of the RAD, I will be applying the points set out in Huruglica. In this appeal, I have reviewed all aspects of the RPD's decision and have conducted my own independent assessment of all the evidence to determine whether the appellant is a Convention refugee or a person in need of protection, while giving a certain deference to the RPD's findings regarding the appellant's credibility and any other issues where the RPD enjoys a particular advantage. As well, it is clear from the many recent Court cases that have been previously mentioned, all agree that the standard of correctness should be used for any error of law found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [26] The appellant has raised two separate issues in his arguments for this RAD appeal. [27] One of the arguments put forth by the appellant is that the "RPD ignored and misinterpreted the evidence that would establish that the appellant is a victim of persecution from the MS."33 [28] The RPD Member notes in his decision that:34 As acknowledged by your counsel during her submissions, there is no nexus between your allegations and any of the five refugee Convention grounds35 for protection and, accordingly, I have only assessed your claim under the provisions of section 97(1) of the Act. [29] Clearly, the issue of persecution was not put before the RPD Member and thus I will not pursue this issue for this RAD appeal. The appellant is required to advance errors made by the RPD Member in his memorandum and not introduce new issues that were not addressed at the RPD hearing due to the fact the appellant conceded that the issue need not be addressed. Taking into account the results of the RPD hearing and the counsel's agreement that there is no nexus for this refugee claim,36 I will be focusing on my analysis by examining the RPD Member's reasons on IFA as it relates to section 97 of IRPA. [30] I also note the appellant's second argument concerning the RPD Member's findings that the appellant would not be a target due to his age. The appellant provided a supporting document as 'new evidence' from his former employer to corroborate his argument. I have already declined to admit this as new evidence. The RPD Member finds:37 I do acknowledge that the gangs in El Salvador are responsible for a large majority of the violence that occurs in that country and that El Salvador is one of the most violent countries in the world, based in large part due to the gang violence problem. However, I did not find it plausible that the gangs would simply approach a person who is not a child, somewhat older in their years, who is at a place of work and just demand that he join the gang without any explanation or reason. [31] The RPD Member made reference to country documents that refer to who the Maras typically target for recruitment purposes. However, I also note that the RPD Member made other credibility findings in coming to the conclusion that the appellant is not credible. I do not find that this argument is determinative of the refugee claim and thus I will be focusing on the RPD Member's IFA analysis where the RPD Member starts off by stating the following: Lastly, even if I found that there was a risk for you in San Salvador where the threat was made, there is insufficient evidence for me to find that there was a risk for you in Ahuachapán.38 [32] The RPD Member notes in his reasons that "the determinative issues in your case are nexus, credibility and Internal Flight Alternative."39Thus, I will assess this appeal by analyzing the RPD Member's reasoning on whether he applied the proper test as it relates to IFA. The RPD Member did inform the appellant at the beginning of the RPD hearing that the proposed IFA location he will be considering is Ahuachapán.40 [33] The key concepts concerning IFA come from two cases: Rasaratnam41 and Thirunavukkarasu.42 The Panel must be satisfied, on a balance of probabilities, that (1) there is no serious possibility of the claimant being persecuted or, on the balance of probabilities, subjected to a risk to life or to cruel and unusual treatment or punishment, or a danger of torture in the IFA43 and, (2) that conditions in that part of the country are such that it would be reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.44 [34] The FCA has stated that one must first determine whether an IFA exists and then determine whether the IFA is a realistic, achievable option, given the particular circumstances of the individual.45 In Rasaratnam,46 the FCA held that, with respect to the burden of proof, once the issue was raised, the onus is on the claimant to show that he or she does not have an IFA. Furthermore, both prongs must be satisfied for a finding that the appellant has an IFA. [35] I have reviewed the evidence in its entirety, including listening to the compact disc recording of the RPD oral hearing.47 I find the main issue is whether the gang feared by the appellant has the motivation and connections to find the appellant in Ahuachapán. [36] In reference to the first prong, the RPD Member found that the gang feared by the appellant did not have the motivation to find the appellant in the proposed IFA location. The RPD Member also found that the appellant failed to establish that the gang would look for him in the proposed IFA location. [37] Furthermore, the RPD Member states in his decision that:48 Lastly, even if I found that there was a risk for you in San Salvador where the threat was made, there is insufficient evidence for me to find that there was a risk for you in Ahuachapán. This is the place where you fled to in XXXX 2012, remained there until XXXX 2012, returned to in XXXX and XXXX 2012 and then remained in until XXXX 2013. There is no evidence that the gang ever looked for you at this place or would even be made aware of your presence in this town. While the small size of El Salvador often negates the viability of Internal Flight Alternatives, the fact that Ahuachapán is XXXX kilometres from the place where you were threatened and the absence of evidence establishing that the gangs are looking for you, would negate even the risk you would face if other members of the same gang happened to come across you while you were in Ahuachapán. [38] The RPD Member further notes that:49 I do acknowledge the documentary evidence indicates that gangs operate throughout El Salvador and that, perhaps, there is a level of connectedness and communication between various gang cliques that operate in different parts of El Salvador. However, in order for this type of communication to present itself to the gang members, the people that are targeting you, there would need to be some sort of a reason why you would be approached by them in the first place. [39] This is important in an IFA analysis - would the appellants be safe from those they fear in another location within their home country? In my assessment of the evidence, I agree with the RPD Member that the appellant has not provided persuasive evidence that the gang he fears has the motivation to find him in the proposed IFA location. The RPD Member assessed the appellant's situation in coming to this finding. The RPD Member asked the appellant if he would have any problems if he returned to El Salvador and lived in Ahuachapán. The appellant testified that he would as the gang would never forget.50 The appellant also testified that his problems happened in San Salvador and that he left for Ahuachapán when he was threatened. The appellant also testified that Ahuachapán is XXXX kilometres from San Salvador.51 The RPD Member specifically asked the appellant if he had contact with the gangs personally when he was living in Ahuachapán to which the appellant testified 'no'.52 I note that the appellant bases his fear on his belief that the gangs 'never won't forget'53 and will continue to pursue him. He specifically testified that 'when they say they will do something then they will do it'.54 In reviewing the testimony, I find that the appellant is basing his responses on speculations. There is no persuasive evidence in the Record that the gang has the motivation to pursue the appellant and has continued to do so. Based on my review of the evidence, I find that I have no reason to disagree with the RPD Member's conclusion that the appellant would be able to live safely in Ahuachapán taking into consideration all the facts surrounding the appellant's situation. [40] On a balance of probabilities, I find there is no persuasive evidence before the RPD or the RAD to suggest that the gang feared by the appellant has the motivation to find the appellant in the proposed IFA location. [41] As mentioned earlier, the Court has said that the onus is on the claimant, in this case the appellant, to show that he does not have an IFA. I find, on a balance of probabilities and on my own assessment of the evidence, that the appellant has not provided persuasive evidence to support his allegation that the gang has the motivation to find the appellant in the proposed IFA location in El Salvador. Thus, I find no reasons to disagree with the RPD Member's conclusion given the facts surrounding this claim. [42] Having found that there is no serious possibility of persecution or, on the balance of probabilities, of a danger of torture or risk to life or cruel and unusual treatment or punishment in the identified IFA, the issue becomes whether it would be unreasonable for the appellant to seek refuge there. Bearing in mind that, as discussed earlier, the appellant bears the onus of demonstrating, on a balance of probabilities, that the proposed IFA is unreasonable, having considered the conditions in the proposed IFA and all the circumstances of this appeal, including those particular to the appellant, I find that it is not objectively unreasonable for the appellant to seek refuge in the proposed IFA location. [43] In reference to the second prong for IFA, the RPD Member asked the appellant whether there was any other reason besides his fear of the gang as to why he cannot live in Ahuachapán. The appellant replied "No, that's the only one."55 Therefore, I find the RPD Member's assessment as it relates to the second prong of the IFA test is accurate, and I find the appellant has not provided persuasive evidence, either to the RPD nor the RAD, that he could not live safely in the proposed IFA location. [44] The appellant has not provided evidence to meet the onus on him to meet the two prongs of the IFA test. I have not found anything in my review of the evidence before the RPD or the RAD that would indicate that he faces a serious possibility of persecution or, on the balance of probabilities, of a danger of torture or risk to life or cruel and unusual treatment or punishment and it would be unreasonable for the appellant to live in Ahuachapán. [45] In summary, having considered all the evidence, I find that I agree with the RPD that the appellant has an IFA in El Salvador and therefore is not a person in need of protection. REMEDY [46] For all these reasons, I confirm the determination of the RPD in accordance with paragraph 111(1)(a) of the Act, namely, that the appellant is neither a Convention refugee nor a person in need of protection. This appeal is therefore dismissed. (signed) "Rena Dhir" Rena Dhir August 7, 2015 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C., 2001, c. 27. 3 Refugee Appeal Division Exhibit 2, Appellant's Record (AR). 4 Exhibit 3, Refugee Protection Division Record (RPDR). 5 Exhibit 2, AR. 6 Exhibit 2, AR, Memorandum. 7 Exhibit 2, AR, Memorandum. 8 Exhibit 2, AR, Memorandum. 9 Dunsmuir v. New Brunswick, 2008 SCC 9. 10 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 11 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 12 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 13 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 14 Njeukam v. Canada (Citizenship and Immigration), 2014 FC 859. 15 Yetna v. Canada (Citizenship and Immigration), 2014 CF 858. 16 Wahgmo v. Canada (Citizenship and Immigration), 2014 FC 923. 17 Alyafi v. Canada (Citizenship and Immigration), 2014 FC 952. 18 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494, para. 41. 19 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 27. 20 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 28. 21 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 33. 22 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, para. 54. 23 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, para. 37. 24 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, para. 55. 25 Exhibit 2, AR. 26 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, para. 54. 27 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, para. 55. 28 Eng v. Canada (Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; and Spasoja v. Canada (Citizenship and Immigration), 2014 FC 913. 29 Alyafi v. Canada (Citizenship and Immigration), 2014 FC 952. 30 Djoussou v. Canada (Citizenship and Immigration), 2014 FC 1080. 31 Siliya v. Canada (Citizenship and Immigration), 2014 FC 120. 32 Garcia Kanga v. Canada (Citizenship and Immigration), 2012 FC 482. 33 Exhibit 2, AR, Memorandum. 34 Exhibit 3, RPDR, Member's Decision. 35 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979, re-edited, Geneva, January 1992). 36 Exhibit 3, RPDR, Compact Disc (CD), oral hearing, 01:19:46. 37 Exhibit 3, RPDR, Member's Decision. 38 Exhibit 3, RPDR, Member's Decision. 39 Exhibit 3, RPDR, Member's Decision. 40 Exhibit 3, RPDR, CD, oral hearing. 41 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA). 42 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 163 N.R. 232 (F.C.A.). 43 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 44 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 45 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 163 N.R. 232 (F.C.A.). 46 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 47 Exhibit 3, RPDR, CD, oral hearing. 48 Exhibit 3, RPDR, Member's Decision. 49 Exhibit 3, RPDR, Member's Decision. 50 Exhibit 3, RPDR, CD, oral hearing, 01:08:30. 51 Exhibit 3, RPDR, CD, oral hearing, 00:53:49. 52 Exhibit 3, RPDR, CD, oral hearing, 00:54:44. 53 Exhibit 3, RPDR, CD, oral hearing, 01:08:30. 54 Exhibit 3, RPDR, CD, oral hearing, 01:08:32. 55 Exhibit 3, RPDR, CD, oral hearing, 01:11:58. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB5-00429