TB8-32421

RAD File / Dossier de la SAR : TB8-32421 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 / heard at Toronto, ON Appel instruit / entendu à Date of decision December 20, 2019 Date de la décision Panel M. Oh Tribunal Counsel for the person who is the subject of the appeal Karen Klouth 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 OVERVIEW [1] XXXX XXXX XXXX ("the Appellant") is a citizen of Venezuela who claims to fear persecution on the basis of her political opinions as an anti-government activist. She appeals a decision of the Refugee Protection Division ("RPD"), rejecting her claim for refugee protection. The Appellant argues that the RPD breached procedural fairness, that it failed to consider and apply the Chairperson's Guideline on Vulnerable Persons1, and that it wrongly weighed her supporting documents. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"), the appeal is dismissed. I disagree with the Appellant's arguments. On an independent assessment, I too find that the Appellant's allegations lack credibility. I determine that the Appellant is neither a Convention refugee nor a person in need of protection. The Refugee Appeal Division ("RAD") therefore confirms the RPD's negative determination. BACKGROUND [3] The Appellant claims that she participated in many protests in Venezuela against the government. She describes that in XXXX 2017, she was attacked by the Bolivarian Circles during a protest and that she received threats from them. She fled Venezuela and went to visit family in XXXX, Canada and XXXX. She then returned to Canada in XXXX 2017 and decided to seek refugee protection after learning from her neighbours that the Bolivarian Intelligence Service ("SEBIN") was looking for her. [4] The RPD heard the Appellant's claim on October 4, 2018 and rejected it on October 24, 2018 on the basis of credibility. The RPD found that the Appellant was unreasonably vague in her allegations, that her description of the XXXX 2017 incident was not plausible, and that she had made no efforts to corroborate the visits from SEBIN. After weighing the evidence, the RPD concluded that the Appellant's testimony and supporting documents were insufficient to establish the allegations. Role of the Refugee Appeal Division [5] The jurisprudence establishes that the RAD is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.2 [6] In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at independent findings based on the evidence before me. ANALYSIS [7] The Appellant argues the following on appeal: a) That the RPD breached its duty of procedural fairness; b) That the RPD erred by failing to consider and apply the Chairperson's Guidelines on Vulnerable Persons; and c) That the RPD erred in its weighing of unsworn statements from the Appellant's friends. [8] For the reasons that follow, I do not agree that the RPD breached its duty of procedural fairness or that it erred in failing to apply the Chairperson's Guidelines on Vulnerable Persons. Although I disagree with some aspects of the RPD's reasons for discounting the unsworn statements, the supporting documents are ultimately insufficient to establish the core allegations in this claim. a) Whether the RPD breached its duty of procedural fairness [9] I have considered the Appellant's arguments and reviewed the hearing record. I conclude that no breach of procedural fairness occurred in the Appellant's case. [10] The Appellant argues that the RPD breached procedural fairness in two ways. First, the RPD displayed a reasonable apprehension of bias through its general manner of questioning, by inquiring into the Appellant's work as a XXXX, and by holding her to a higher standard as a result of her professional history. Second, the Appellant says that she was unfamiliar with the Canadian refugee system and as such, the RPD breached procedural fairness by proceeding with the hearing despite the Appellant's lack of legal representation. Reasonable apprehension of bias [11] There is no merit to these arguments. In Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, the Supreme Court of Canada set out the applicable test to determine the existence of a reasonable apprehension of bias: ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [The] test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.3 [12] Subsequent case law in the immigration context has found that energetic questioning, frequent interruptions, and expressions of frustration or skepticism do not necessarily give rise to a reasonable apprehension of bias. A panel's words must be considered in context, especially where the panel seeks to point out problems with the evidence, or provide a claimant with the opportunity to clarify their evidence.4 [13] The Appellant claims that the RPD lacked sensitivity and understanding, and that the panel created a "hostile environment", carrying out its questioning as if it were an "interrogation". These allegations are entirely unsupported by the hearing record. The RPD was even-toned, careful, and sensitive in its questioning. The panel provided detailed instructions to the Appellant to assist her in answering the questions, and even encouraged her to seek clarification when needed. [14] The only specific example of biased conduct that the Appellant can point to is a portion of the hearing when the RPD was asking her about her support letters from her friends. The RPD took issue with the fact that the letters from her friends were not sworn statements. The following discussion took place: MEMBER: Why didn't you have these statements sworn? CLAIMANT: I didn't know. MEMBER: You're a XXXX. CLAIMANT: But I didn't know the system here. In Venezuela, XXXX XXXX XXXX. XXXX XXXX XXXX. XXXX XXXX XXXX XXXX XXXX. [15] Contrary to the Appellant's argument, the RPD did not "exclaim" that she is a XXXX. There was no outburst here. The panel was not aggressive in its questions or comments. [16] With respect to the Appellant's background as a XXXX, I do not consider that the RPD's questions about her work history give rise to a reasonable apprehension of bias. The questions about the Appellant's professional history were relevant to the RPD's assessment of her identity and background, as well as to its assessment of her overall level of sophistication. Although the Appellant cannot be expected to have expertise in the Canadian refugee system simply because she was a XXXX in Venezuela, the RPD was not wrong to consider her relatively high level of sophistication in its assessment of her credibility. [17] I am not satisfied that the Appellant has established that the RPD's conduct gives rise to a reasonable apprehension of bias. Proceeding with the hearing without representation [18] With respect to the RPD's decision to proceed with the hearing despite the Appellant's lack of legal representation, I again find no error. [19] The key issue here is that the Appellant chose to proceed with her hearing without counsel. At no point did she express that she wanted to obtain legal representation. At no point did she request an adjournment or an opportunity to have more time to find representation. She stated that she has no XXXX and that a friend had helped her to prepare her file. [20] The circumstances here do not suggest that the Appellant is an individual who has been deprived of her opportunity to be represented by counsel. The Appellant's Basis of Claim ("BOC") form was completed in September 2017, without the assistance of counsel. Her refugee hearing took place more than a year later. She had a great deal of time to find representation, if that was what she wanted. The Appellant was a XXXX for many years in Venezuela. An immigration consultant assisted her in disclosing hundreds of pages of personal and country conditions evidence.5 The RPD noted at the beginning of the hearing that the Appellant wished to proceed without counsel. The RPD noted that the only issues it had to determine were the Appellant's credibility, and her delay and failure to claim in Canada and other countries. The Appellant responded that she understood the issues. The panel encouraged the Appellant to seek information and clarification, and promised to assist her in understanding the process. The RPD gave her an opportunity to add to her testimony, as well as to make oral submissions about why she believed her claim should be accepted. [21] The Appellant cannot insist on proceeding unrepresented at the RPD and later complain in her appeal that the RPD ought to have refused her wishes, postponed the hearing, and allowed her to obtain representation. This position is completely untenable. I am satisfied that the Appellant had a meaningful opportunity to participate in the hearing and present her evidence. She chose not be represented for her hearing, and she did not seek additional time to find counsel. Under these circumstances, I am not satisfied that a breach of procedural fairness occurred. b) Whether the RPD erred by failing to consider and apply the Chairperson's Guidelines on Vulnerable Persons [22] In addition, the Appellant argues that the RPD failed to consider and apply the Chairperson's Guidelines on Vulnerable Persons. Again, I do not see any error in the RPD's reasons and conduct. [23] The Appellant now claims that she suffers from cognitive limitations as a result of her age as a 74-year old woman. She argues that although she is a XXXX, the RPD should not have expected her to have the same mental clarity as a younger person. She says that the RPD should have applied the Chairperson's Guidelines on Vulnerable Persons due to her age, and that it should have questioned her with sensitivity and flexibility. [24] The RPD did not commit an error. As already mentioned, there was nothing problematic about the RPD's conduct during the hearing. The RPD was not insensitive. The RPD was correct to consider the Appellant's overall level of sophistication when it assessed her credibility. The mere fact that the Appellant was 74 years old at the time of her hearing does not mean that she is a "vulnerable person" as defined by the Chairperson's Guidelines on Vulnerable Persons. The guidelines define vulnerable persons as "individuals whose ability to present their cases before the IRB is severely impaired". The guidelines seek to provide such individuals with procedural accommodation. The RPD must first identify an individual as being a vulnerable person. Wherever reasonably possible, the vulnerability must be supported by independent credible evidence. [25] However, there is no obvious indication that the Principal Appellant's ability to present her case was severely impaired. The cognitive limitations that the Appellant describes are not supported by the record, nor by any evidence to date. In my review of the hearing record, I found that the Appellant was able to testify in a clear and spontaneous manner. She did not appear to have any difficulty expressing herself. There is still no objective evidence to establish any severe impairment on the Appellant's part. In addition, the Appellant has not pointed to any procedural accommodation that should have been provided to her, nor do I see what procedural accommodations ought to have been made merely on the basis of her age. [26] In the absence of any indication of severe impairment, the RPD did not err in failing to consider or apply the Chairperson's Guidelines on Vulnerable Persons. c) Whether the RPD erred in its weighing of unsworn statements from the Appellant's friends [27] The only supporting documents that the Appellant provided to corroborate her allegations were three unsworn statements from friends who knew her in Venezuela. The Appellant argues that the RPD erred in its weighing of this evidence, however I can only agree in part with the Appellant's arguments on this issue. [28] Two of the authors - XXXX and XXXX - discuss the attack that took place in XXXX 2017. All three authors describe that the Appellant took part in demonstrations in Venezuela. The RPD found that, as unsworn statements, the letters were not reliable and that they had very low probative value. The RPD also found that the absence of any sworn affidavits to support the allegations was reason to doubt the Appellant's credibility. The RPD considered that the Appellant was a XXXX for many years in Venezuela, and that she should have known better. The RPD also noted that some of the authors of the letters were also XXXX who would have had easy access to others who could commission affidavits for them. The RPD was not satisfied by the Appellant's explanation that she did not know to provide sworn statements as evidence in her claim. [29] The Appellant argues that the RPD erred by equating "insufficient evidence" with a lack of credibility. She says that the RPD erred by requiring sworn statements from her friends, relying on the Appellant's background as a XXXX to unfairly hold her to higher expectations about the evidence she was required to provide. The Appellant emphasizes that her friends, though they are XXXX in Venezuela, are unfamiliar with Canadian law, and that the manner of presenting evidence in Venezuela differs from Canada. The Appellant points out that the RPD is not bound by any legal or technical rules of evidence, and that it may rely on evidence that it considers credible or trustworthy in the circumstances. [30] There are a few distinct concepts at play here. One has to do with the Appellant's honesty as it relates to the credibility of her story; another has to do with the reliability or trustworthiness of the unsworn statements; and yet another has to do with the probative value of the unsworn statements. With assistance from the jurisprudence, the following paragraphs will attempt to elucidate these concepts. Probative value of the evidence [31] I find that the RPD erred insofar as it found that the unsworn statements had very low probative value. I also find that the RPD erred when it drew a negative credibility inference from the Appellant's failure to provide affidavit evidence from her friends. I see no logical connection between the Appellant's truthfulness, and her choice to provide sworn or unsworn statements from those who witnessed her story. The real issue, in my view, has to do with weight. In weighing the evidence, the finder of fact should consider whether the unsworn statements can be believed, in light of issues around the reliability and credibility of the evidence. [32] In Magonza v. Canada (Citizenship and Immigration), 2019 FC 14 ("Magonza"), the Honourable Mr. Justice Grammond discussed the concepts of credibility, probative value, and the weight of evidence. He described probative value as follows: As the Ontario Court of Appeal stated, "[p]robative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof" (R v T(M), 2012 ONCA 511 (CanLII) at para 43). In other words, probative value is an answer to the question, "to what degree is this information useful in answering the question I have to address?" In many cases, we do not have direct evidence of the ultimate facts that trigger the application of a legal rule. Instead, we need to rely on inferences from known facts. Probative value is the measure of the strength of those inferences.6 [33] As I understand it, probative value is about the ability of the evidence to prove the facts in question. Accordingly, in the present case, I do not agree with the RPD that the unsworn statements have very low probative value. Each of the authors claim that they witnessed the Appellant's participation in demonstrations. Two of them described what took place in the XXXX 2017 attack. If believed, the evidence is clearly capable of establishing the facts around the Appellant's political profile as well as the incident when she was attacked. Credibility and the weight of the evidence [34] This leads me to discuss the concept of the weight of evidence. In Magonza, the Federal Court defined weight as a function of credibility and probative value. It is the persuasiveness of some evidence in comparison with other evidence. It is what counts in the ultimate balancing of the evidence that tends to prove or disprove a relevant fact.7 [35] The challenge in this case is that the RPD found that the Appellant's story lacked credibility. The RPD made a number of credibility findings, with which I agree entirely, and which the Appellant has not disputed on appeal. Since the weight given to evidence is a function of credibility and probative value, it is worth considering some of the credibility findings. [36] First, the RPD found problems with respect to the Appellant's evidence about her active attendance at protests over the years. The RPD considered that the Appellant was unreasonably vague in her testimony about the many protests she supposedly attended. She omitted details about her political activities from her BOC form, which provided only a skeletal version of the facts. [37] Second, the RPD took issue with the Appellant's account of the attack that she claims to have experienced in XXXX 2017. The RPD noticed that the Appellant's allegations in the BOC narrative regarding the XXXX 2017 attack were also lacking in detail. In the narrative, she only alleged that she attended a march in XXXX 2017 and that she was attacked there. It was only at her hearing that other important details emerged. The Appellant began to describe that she and her friends were attacked by Bolivarian Circles, that they identified her and photographed her, that she escaped, and that they followed her home. The RPD found that the Appellant's account of her escape from the Bolivarian Circles was not plausible. The evidence from her friends indicated that the Bolivarian Circles surrounded them, beat them, and took photos of them with their cell phones. The letter from XXXX describes that the Appellant suffered a lot because of her age, as she was not able to run and escape quickly.8 Despite being surrounded and being an elderly woman who relies on a cane, the Appellant described (contrary to her friend's letter) that she was able to quickly escape, walking with her cane with assistance from friends, quickly enough to make their way to a car and drive off. Apparently, they somehow left so speedily that the Bolivarian Circles could not catch them, despite having surrounded them and specifically targeting them. Instead, the Bolivarian Circles pursued them all the way to the Appellant's home, where this situation somehow seemed to end. I agree with the RPD that this description strains credulity. [38] Lastly, the RPD considered the Appellant's lack of effort in corroborating the SEBIN visits, which are what caused her to initiate her refugee claim. Despite the fact that the Appellant's neighbours informed her of the visits, she made no efforts to seek evidence from them. The RPD drew a negative inference from this. The Federal Court has confirmed that, where there are valid credibility issues, the RPD may take into account a claimant's lack of effort to obtain corroborative evidence where it should be available.9 In the present case, the only explanation she could give for failing to seek evidence from her neighbours was the fact that they were living in Caracas. This is despite the fact that the Appellant was able to obtain support letters from two friends who still live in Caracas. I too consider the Appellant's level of sophistication in assessing her credibility. She described that she was an experienced XXXX in Venezuela. Over the years, she worked as a XXXX XXXX, as XXXX XXXX XXXX XXXX XXXX XXXX, as a XXXX XXXX, as a XXXX XXXX, and as a XXXX XXXX XXXX XXXX. It is unthinkable that the Appellant would not consider attempting to corroborate one of the main allegations in her claim, about the visits from SEBIN that have caused her to seek refugee protection in Canada. I agree that the Appellant's lack of effort to corroborate these allegations undermine her credibility. It is more likely than not that she could not obtain this evidence because these visits did not occur. [39] The last consideration, with respect to the weighing of the support letters, has to do with the reliability of the evidence. Magonza describes that the reliability of evidence is encompassed within the category of credibility.10 The question here is whether the evidence, and the source of information, are trustworthy. In this respect, the RPD rightly points out that none of the authors were available to make declarations before the tribunal, and that the statements were unsworn. Sworn affidavit evidence is inherently more reliable, as the individual commissioning the sworn declaration typically has duties to confirm the affiant's identity as well as to administer an oath that has legal effect. The evidence would be even more trustworthy if the evidence could be tested. In this case, for instance, this might have been possible if the authors had made themselves available as witnesses by teleconference. [40] In assessing the weight of the support letters, I have considered the probative value of the Appellant's unsworn statements, as compared to the issues around their reliability and the credibility issues that have arisen in the claim. The unsworn statements may be capable of establishing the facts, if believed. However, I am not persuaded that they should be believed, given that they are untested, unsworn pieces of evidence that speak to facts that are undermined by a number of valid credibility issues. [41] I find that the statements from the Appellant's friends are insufficient to establish the facts and overcome the various credibility problems in the claim. On an independent assessment, I reach the same conclusion as the RPD. I am not satisfied, on a balance of probabilities, that the Appellant was active in political protests in Venezuela. I am not satisfied that the XXXX 2017 attack took place as described, nor am I satisfied that the Appellant is being sought by SEBIN. CONCLUSION [42] For the above reasons, I am unpersuaded by the Appellant's arguments on procedural fairness and the RPD's failure to apply the Chairperson's Guidelines on Vulnerable Persons. I agree with the RPD's determination that the Appellant's allegations lack credibility. The facts underlying the Appellant's claim for refugee protection have not been established. On an independent assessment, I too find that the Appellant is neither a Convention refugee nor a person in need of protection. I therefore confirm the RPD's negative determination. [43] The appeal is dismissed, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "M. Oh" M. Oh December 20, 2019 Date 1 Chairperson Guideline 8: Procedures with respect to vulnerable persons appearing before the IRB.Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. Effective date: December 15, 2006. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; see also Rozas Del Solar, Paola v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at p. 394. 4 Chamo v. Canada (Minister of Citizenship and Immigration), 2005 FC 1219 at paras. 12-15; see also Ithibu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 288 at paras. 69-72. 5 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 98, 100. 6 Magonza v. Canada (Citizenship and Immigration), 2019 FC 14 at para. 21. 7 Ibid., at paras. 27-29. 8 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 105-107. 9 Ismaili v. Canada (Citizenship and Immigration), 2014 FC 84 at paras. 33-56. 10 Magonza v. Canada (Citizenship and Immigration), 2019 FC 14 at paras. 16-19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-32421 RAD.25.02 (April 04, 2019) Disponible en français 13 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 (April 04, 2019) Disponible en français