MB6-01623

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. / No de dossier de la SAR : MB6-01623 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision March 9, 2017 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal Me Gisela G Barraza Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Venezuela, is appealing against the decision of the Refugee Protection Division (RPD), which rejected her refugee protection claim. [2] She is presenting new evidence and is asking the Refugee Appeal Division (RAD) to hold a hearing. DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] The appellant was living in XXXX XXXX, in the state of Miranda. She allegedly XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX from 2011 to XXXX 2014. [5] In XXXX, she apparently became involved with the political opposition party Primero Justicia. She reportedly acted as, among other things, XXXX XXXX to promote her party. [6] In 2012, she was allegedly XXXX XXXX XXXX XXXX on behalf of her party during the elections. She was reportedly arrested by the authorities just after the elections and questioned about her political activities, then released. [7] In 2013, she was allegedly arrested again and questioned in connection with her political activities. [8] The XXXX where the appellant was working was allegedly taken over by some XXXX XXXX Reportedly, management told XXXX XXXX that they suspected some of them of being in collusion with the rebel XXXX and that they would find the guilty parties. [9] The police allegedly visited the appellant at her home on XXXX XXXX, 2014. She was supposedly questioned. Counsel who was consulted reportedly discouraged the appellant from filing a complaint. The appellant allegedly, because of this, decided to leave her country and set the wheels in motion to do so. She apparently received death threats by telephone in connection with her political activities. However, she allegedly continued to work for the XXXX XXXX XXXX XXXX XXXX until the end of XXXX 2014. The appellant permanently left Venezuela on XXXX XXXX, 2015. She arrived in Canada that same day on a Canadian study visa. [10] In XXXX 2015, the police allegedly questioned the appellant's mother and sister about her. The appellant claimed refugee protection on December 11, 2015. RPD DECISION [11] The RPD rendered a negative decision, finding that the appellant was not credible. - Despite the fact that she had feared for her safety since XXXX 2014 and had a valid Canadian visa as of September 3, 2014, the appellant first travelled to Curaçao and Suriname between XXXX XXXX, 2014, and XXXX XXXX, 2014, returning to her country before permanently leaving Venezuela on XXXX XXXX, 2015. The RPD found that this behaviour was inconsistent with the alleged fear and, as a result, that it seriously undermined the appellant's credibility. - The appellant's delay in claiming refugee protection in Canada (nearly one year) is inconsistent with the alleged fear. The RPD found that this undermined her credibility. - The RPD found that the appellant's credibility was seriously undermined, having discovered a contradiction between a written document1 and the Basis of Claim Form (BOC Form). In the first, she indicates that she has never been incarcerated, put in jail or detained. In the other, she instead states that she has been arrested, taken to a police station and also illegally detained, more than once. The RPD rejected the appellant's explanations and found that her credibility was again undermined. These factors led the RPD to disbelieve the alleged story in support of the appellant's refugee protection claim. - Also, the RPD did not give any probative value to the attestation from Primero Justicia, dated XXXX XXXX, 2015, submitted into evidence.2 It found the document to be of poor quality and also took into account the fact that it had been issued in XXXX 2015, when the appellant had not yet claimed refugee protection. - The RPD also gave no weight to the document introduced into evidence at the hearing.3 It is a page taken from the government site related to voter registration (untitled). It found that the document neither disproved nor confirmed anything. - The RPD drew a negative inference from the fact that the appellant had not submitted her Primero Justicia membership card to the RPD, finding that she had made no effort to obtain it and that, given her personal profile (experience and education), it was reasonable to expect her to make efforts to obtain said card. - The RPD was of the opinion that the photographs submitted into evidence in which the appellant is seen at political rallies establish only the allegations that the appellant had participated in political rallies, nothing more. [12] For these reasons, the RPD found that the appellant was not credible. MEMORANDUM [13] The appellant is of the opinion that the RPD erred in its assessment of the evidence, that it carried out a faulty and unreasonable analysis of the testimony and documentary evidence before it, and that, as a result, its findings were ill founded. - The delay in claiming or the failure to claim in another country are factors that the RPD can consider, but the lack of subjective fear is not determinative in itself. - The appellant's failure to check on her IMM 5569 form that she had been detained was a minor omission, since the BOC Form and the IMM 5569 were submitted together to Citizenship and Immigration Canada (CIC). - The RPD erred by failing to consider the fact that the appellant had testified spontaneously, in detail and without contradiction about her allegations of belonging to a political party. - The RPD arbitrarily rejected the documentary evidence related to the political affiliation. - It is not sufficient for the RPD to reject the appellant's refugee protection claim based solely on the lack of subjective fear and on a peripheral detail such as failing to put a check mark on a form (IMM 5569). - The tribunal that is the RPD must take care when it bases its decision on implausibilities, given that the appellant comes from a different culture and that some actions that may seem implausible to Canadian culture may be plausible in a different cultural context, such as that of Venezuela. NEW EVIDENCE [14] The appellant is requesting that new evidence be submitted to the RAD. - A - Letter from Primero Justicia, municipality of XXXX, dated XXXX XXXX, 2016.4 - B - Attestation from Primero Justicia, dated XXXX XXXX, 2016.5 - C - Letter from Primero Justicia, municipality of XXXX XXXX, dated XXXX XXXX XXXX XXXX.6 - D - Appendix, Attestation from Primero Justicia, dated XXXX XXXX, 2016.7 - E - Party membership card. - F - Article from La Presse, "Le Canada suspend la vente de billets d'avion au Venezuela" [Canada suspends the sale of airline tickets to Venezuela], dated January 24, 2014. [15] Subsection 110(4) of the IRPA states the following: On appeal, 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 the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [16] Aside from the newspaper article (evidence item F), which will be dealt with later, all of this evidence (items A to E) concerns the appellant's alleged involvement with Primero Justicia between XXXX and 2014, before she left her country. Documents A to D were written after the RPD's negative decision. The RPD hearing was held on February 9, 2016, and the RPD's written decision was signed on March 9, 2016. The documents were written one month later, in XXXX 2016. [17] Their content provides no new evidence. No explanation is given as to why these documents were not, pursuant to subsection 110(4), available prior to the RPD's decision or why she could not reasonably have been expected to have presented them at that time. The same applies to the item submitted as the party membership card (evidence item E). The appellant told the RPD at the hearing that she had not thought to present it to the RPD. Based on the appellant's statement, this card already existed, and consequently it is not new evidence that arose after the RPD's decision. In the circumstances, the RAD considers that no valid explanation was given to indicate why this card was presented only to the RAD and not to the RPD, why it was not reasonably available or why she could not reasonably have been expected to have presented it prior to the RPD's decision. For the reasons set out above, evidence items A to E do not meet the criteria of subsection 110(4) of the IRPA. [18] Moreover, the RAD asked to see the originals of exhibits A, B, C, D and E. Exhibit E, which is supposed to be a Primero Justicia party membership card, is a piece of paper on which is printed, in colour, a card of such poor quality that it is difficult to make out what is written under the Primero Justicia logo, and the whole thing appears to be crudely printed with ill-defined lettering. The paper is amateurishly cut, so that some white space can be seen surrounding the card in question. [19] This paper bears no resemblance to what one might expect of a party card. The fact that it has a stamp in black ink behind Primero Justicia adds no authenticity to it, especially since what is supposed to be a signature above Primero Justicia looks like a meaningless scribble. [20] The RAD is of the opinion that this document is apocryphal. [21] The RAD's role is not to compensate for the appellant's shortcomings before the RPD. The appellant submitted more or less the same document from Primero Justicia (evidence item A)8 that had been rejected at the RPD hearing.9 This document offers nothing new. [22] Consequently, and having also considered Singh,10 which adopts three criteria from Raza11 (credibility, relevance and newness), the RAD does not accept these documents as evidence. [23] As for the article from La Presse, again, the same reasoning applies. This document is dated January 24, 2014, and consequently is not evidence that arose after the RPD's decision. Also, the appellant did not explain why it was not available prior to the RPD's decision or, if it was, why she could not have reasonably been expected to have presented it at that time. [24] It is not accepted as evidence. HEARING BEFORE THE RAD [25] Subsection 110(6) of the IRPA states the following: 110(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [26] The appellant is asking that a hearing before the RAD be held. [27] The RAD is of the opinion that there is no cause to hold a hearing before it. [28] For these reasons, there is no cause to hold a hearing. THE RAD'S ROLE [29] The RAD is an appeal tribunal for RPD decisions. [30] Federal Court and Federal Court of Appeal decisions have established that the RAD is "a specialized (if not overspecialized) tribunal"12 and that it hears hybrid appeals, according to recent case law. The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [31] The Federal Court of Appeal recently determined in Huruglica13 that the RPD, having heard the testimony, may enjoy an advantage with regard to credibility: [70] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [32] It is up to the RAD to determine in its analysis whether the RPD had an advantage, having heard the testimony, and in doing so, determine what degree of deference the RPD should be afforded in this matter. [33] Paragraph 103 of Huruglica specifies the standard of review to be adopted by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [34] Accordingly, the standard of review that the RAD must apply is that of correctness, except when the finding under review involves an issue of credibility of any testimony to which, in the RAD's opinion, it must show deference. [35] The RAD will conduct its own analysis. The RAD will consider all the evidence, including the testimony. It will determine whether the RPD's decision contains errors of fact, of law or of mixed fact and law, and whether they are determinative to the outcome of the case and are such that the decision cannot be upheld. ANALYSIS [36] The RAD considered all the evidence in its analysis. [37] It seems to the RAD that, in terms of credibility, it must show the RPD a measure of deference with regard to the testimony, since it is the one that saw and heard the appellant. [38] As regards the first issue raised by the appellant: the RPD erred in criticizing the appellant for failing to apply for asylum in either Curaçao or Suriname, the two countries that the appellant visited before coming to Canada (which are not signatories to the Convention), and returning to Venezuela. The appellant maintains that subjective fear should not be considered a determinative factor in a refugee protection claim and that the appellant's explanations were valid and should not have been rejected. [39] The RAD is of the opinion that the appellant did not demonstrate any subjective fear in this regard, and that her credibility is undermined because of this. The fact that she alleges that she feared for her life and had in her possession a Canadian study visa (applied for in connection with her fear) because she was seeking a way to leave the country (according to her testimony) is inconsistent with her behaviour. If the appellant was genuinely afraid, the RAD is of the opinion that all her efforts and energy would have been focused on leaving her country for Canada, and not on going on vacation and then returning to her country. The fact that she had trouble finding foreign currency appears, at the very least, to be an unsatisfactory explanation. It might be difficult, in Venezuela, to obtain foreign currency, but it is not impossible. If the appellant was able to visit two countries (Suriname and Curaçao), the RAD does not see why she could not have instead left for Canada. [40] In other words, if the appellant had actually been arrested and detained twice, questioned by the police at her home and received death threats several times over the telephone, all between XXXX 2012 and XXXX 2014, and, as a result, she had begun to fear for her safety, she would have taken suitable, quick, attainable measures to protect herself. The appellant already had a Canadian visa when she left Venezuela to travel to Curaçao and Suriname. [41] Moreover, nothing in the evidence shows that the appellant was obliged to return to Venezuela. The fact that she did so without finding an alternative while she was outside the country does not demonstrate that the appellant had a subjective fear. [42] The RAD does not agree with the appellant's opinion that the lack of subjective fear is not determinative in itself. The definition of Convention refugee indicates that the claimant must have a "well-founded fear of persecution." This element is twofold: it is both subjective and objective in nature. In other words, both aspects must be present to find that the claimant has a well-founded fear. The subjective aspect often requires an assessment of credibility.14 [43] Therefore, the analysis of this trip outside the country and the return is central to the credibility assessment. [44] The RPD also found that the fact that the appellant waited nearly one year after her arrival before claiming refugee protection in Canada is inconsistent with the alleged fear. [45] The RAD is of the opinion that the RPD's findings on this issue are acceptable. The RAD is also of the opinion that the arguments in the appellant's memorandum to the effect that she had been waiting for the situation to improve in the country and that, during that time, she had simply wanted to stay away from Venezuela are unsatisfactory. According to her allegations, the appellant had received death threats and was being targeted, which is why she decided to leave her country. In the circumstances, given the virtual dictatorship by one political party in Venezuela, with no indication that this party and its leader would cease to be in power in 2015,15 the RAD is of the opinion that these explanations are unsatisfactory. The appellant's behaviour was not that of someone who fears for her life. The RPD did not err. [46] As for the fact that there is a contradiction between form IMM 5569 and the BOC Form: on the first, the appellant answered "no," she had not been incarcerated, detained or put in jail, and on the other, the BOC Form, she was imprisoned twice. [47] The appellant maintains that this omission is minor since both documents were submitted at the same time anyway. Therefore, it was allegedly an error, nothing more. [48] The RAD does not share this opinion, for the following reason: Form IMM 5569 was signed on December 11, 2015, and the BOC Form, on January 27, 2016. More than one month elapsed between the completion of the first and the second. [49] It would be one thing if both forms had been completed at the same time. The RAD would then accept that it was merely an error. However, that was not the case. In the first document, the appellant's answer to this simple question is unambiguous: "no," she had not been detained, incarcerated or arrested. Neither can the RAD accept the explanation that the appellant had misunderstood the document: it had been translated for her, the appellant had signed it and she had answered all the questions. In the RAD's opinion, her credibility is undermined. The RPD did not err. [50] The appellant maintains that the RPD arbitrarily rejected the documents presented in support of her allegations. The RPD did not give any probative value to the document from Primero Justicia16 that would corroborate her political affiliation. It is a written document from the party submitted by the appellant. The RPD found that this document, when looked at with the naked eye, had weaknesses, such as [translation] "the blurry, poor-quality header." The RPD also found that it was inconsistent that the appellant had requested this document while she was in Canada and had not yet claimed refugee protection. The RPD did not accept the appellant's explanations that she had requested this letter because she had wanted to protest in Canada against the Venezuelan government. [51] The RAD is of the opinion that the appellant's testimony regarding this letter is inconsistent. Questioned by the RPD at the hearing as to whether she had her membership card, the appellant spontaneously showed Exhibit C-4 as being the card. Yet, C-4 is instead a letter from Primero Justicia stating that the appellant is an activist. She subsequently corrected herself and stated that the membership card was in Venezuela. [52] If the appellant had actually had a card in Venezuela, the RAD is of the opinion that she would have made efforts to obtain that pre-existing card, instead of requesting a letter that had to be written. [53] For these reasons and also because the appellant, with regard to her story, has credibility-related issues, the RAD is of the opinion that the RPD did not arbitrarily reject the document from Primero Justicia. [54] As for Exhibit C-21,17 which is a printout of a page from the Internet site Listadoscne.com, the RAD agrees with the RPD. This document neither confirms nor disproves anything other than the appellant is registered to vote. The RPD did not err. [55] The same applies to the photographs submitted into evidence.18 These photographs show that the appellant was present at Primero Justicia demonstrations; they appear to have been taken during an election campaign. These photographs show nothing more than that and do not demonstrate that the appellant had allegedly been an activist involved in the polling stations. [56] Considering the factors mentioned above, the RAD is of the opinion that the RPD made the correct decision. REMEDY [57] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [58] Her appeal is dismissed. Roxane Cyr Roxane Cyr March 9, 2017 Date IRB translation Original language: French 1 Form IMM 5669, RPD record, page 150. 2 RPD record, page 181. 3 Ibid., page 263. 4 Appellant's memorandum, pages 21 and 22. 5 Ibid., pages 23 and 24. 6 Ibid., pages 25 and 26. 7 Ibid., pages 27 and 28. 8 Item A-1, appellant's record, page 21. 9 Attestation from Primero Justicia of XXXX XXXX, 2015, RPD record, page 181. 10 Singh v. M.C.I., 2016 FCA 96. 11 Raza v. M.C.I., 2007 FCA 385. 12 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, paragraph 28. 13 Huruglica v. M.C.I., 2016 FCA 93, paragraph 70. 14 Handbook on Procedures and Criteria for Determining Refugee Status, Office of the United Nations High Commissioner for Refugees, January 1992, paragraphs 37 to 41. 15 RPD record, pages 45 to 64. 16 Exhibit C-4, RPD record, pages 180 to 181. 17 Supra, footnote 3. 18 Document 10, RPD record, pages 199 to 209. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB6-01623 14 RAD.25.02 (2014.09.11) Disponible en français