TB9-32987

RAD File / Dossier de la SAR : TB9-32987 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 Calgary, AB Appel instruit / entendu à Date of decision February 23, 2021 Date de la décision Panel Rita Aggarwala Tribunal Counsel for the person who is the subject of the appeal Joel Sandaluk 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] These are my reasons for rejecting the appeal of Mr. XXXX XXXX XXXX. Mr. XXXX is citizen of El Salvador. On October 25, 2019, the Refugee Protection Division (RPD) denied him Convention1 refugee protection and found that he is not a person in need of protection. He is appealing that decision to the Refugee Appeal Division (RAD). [2] For the reasons that follow, the appeal is dismissed. Although I appreciate Mr. XXXX sincere efforts to maintain his sobriety and his desire to stay in Canada, as well as the widespread gang criminality in El Salvador that appears to touch so many who live there, Mr. XXXX has not established that he is either a Convention refugee or a person in need of protection. [3] The main issue to address is whether Mr. XXXX has provided sufficient credible and reliable evidence to establish that he faces a serious possibility of persecution or a likelihood of a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture ("Section 97 Harm")2 if he returns to El Salvador. The decision turns on whether Mr. XXXX has established that, because of a XXXX and XXXXaddiction which he was too afraid and ashamed to bring to the attention of the RPD, a new narrative that he has provided to the RAD ought to be considered at the RAD. He claims that his addictions, particularly his XXXX addiction, impaired his ability to present his case to the RPD and rendered him unable to appreciate the nature of those proceedings, [4] I find that Mr. XXXX has not proven, on a balance of probabilities, that he was unable to appreciate the nature of the RPD proceedings because of his XXXX and XXXX use, nor that his substance abuse rendered him unable to provide the information in his new narrative to the RPD. Although I accept that he was too ashamed to disclose his XXXX and XXXX usage to the RPD, this usage does not in and of itself establish a forward-facing risk of persecution or Section 97 Harm. Mr. XXXX has not provided sufficient credible evidence to establish that he is a Convention refugee or a person in need of protection. [5] My role is to look at all the evidence and decide if the RPD made the correct decision. I have accordingly reviewed all the evidence and submissions made at both the RPD and the RAD; have held an oral hearing at the RAD with respect to certain portions of the new evidence submitted by Mr. XXXX; and have reviewed the transcript and oral recording of the RPD hearing. These reasons are based on my independent assessment of the evidence. BACKGROUND [6] Mr. XXXX claim at the RPD was that his family was targeted by the MS-13, a powerful gang in El Salvador, because his uncle had angered them when he reported the rape of his daughter by a gang member to authorities. The uncle was murdered in 2010. Another uncle was murdered in 2018. One of Mr. XXXX brothers was threatened with kidnapping in 2015. Another brother moves from place to place in El Salvador to stay safe. Mr. XXXX told the RPD that he himself was extorted by the same gang in 2011 and 2012 and that he left for Canada in 2012. [7] At the RAD, Mr. XXXX submitted an affidavit which explained that he was not truthful at the RPD with respect to a number of allegations, including his residence history and the allegation that he had been threatened and extorted by the MS-13 while he was in El Salvador. He submitted a new narrative which alters and adds to his RPD evidence. He asked the RAD to consider this new narrative as his real basis for the claim, as opposed to the narrative he provided to the RPD. NEW EVIDENCE [8] Mr. XXXX provided new evidence to the RAD both before and after the perfection of his appeal. Different admissibility rules apply depending on when the evidence was provided. The following is a list of the new evidence provided before perfection of the appeal: a. An affidavit sworn by Mr. XXXX, dated December 18, 2019, wherein Mr. XXXX explains his XXXX and XXXX addiction, and provides a new narrative;3 i. Paragraphs 4 - 15, 27 and 35 of the affidavit explain Mr. XXXX XXXX and XXXX addiction, focusing on his XXXX addiction; his reasons for being untruthful at the RPD; and the link between these (the "Addiction Evidence"); ii. The remaining paragraphs of the affidavit, along with Exhibits A and B of the affidavit, present a new narrative, to replace Mr. XXXX RPD evidence. (the "New Narrative"). b. An affidavit dated XXXX XXXX, 2019, sworn by an articling student of the law firm representing Mr. XXXX, which attaches four articles considering substance abuse issues in El Salvador.4 [9] The following is a list of new evidence provided after the perfection of the appeal: a. An affidavit dated January 6, 2021, sworn by a legal assistant of the law firm representing Mr XXXX, which attaches eight articles regarding criminal activity in El Salvador;5 b. An affidavit sworn by Mr. XXXX, dated January 25, 2021, which attaches letters written by various members of his family.6 Some evidence meets the requirements of RAD Rule 29 [10] Evidence provided to the RAD after the perfection of an appeal must meet the requirements of RAD Rule 29.7 RAD Rule 29 requires the RAD to consider any relevant factors in deciding whether to allow the Rule 29 application. These factors include the relevance and probative value of the documents; any new evidence the documents bring to the appeal; and whether Mr. XXXX could have provided the documents with his appeal record with reasonable effort. In the circumstances of this case, the third RAD Rule 29 factor weighs heavily in the analysis. [11] I find the articles attached to the January 6, 2021 affidavit meet the requirements of RAD Rule 29, except for the article which is already in the National Documentation Package (NDP) for El Salvador and is therefore already part of the evidence in front of the RAD. The articles are relevant to the appeal, as they address issues of gang criminality in El Salvador, and Mr. XXXX is alleging a fear of gangs if he returns to El Salvador. An expanded version of one of the documents8 is in the NDP for El Salvador and is therefore already before the RAD. The rest of the documents bring some new evidence to the appeal, as they contain some information that is not in the current NDP for El Salvador. Mr. XXXX could not have provided the documents with his appeal record, as they were not written until after his appeal was perfected and they pertain to events that occurred after the perfection of his appeal. [12] I do not accept Mr. XXXX affidavit dated January 25, 2021 and the attached letters as new evidence at the RAD, since these documents do not meet the requirements of RAD Rule 29. The affidavit explains that after the first sitting of the RAD oral hearing, which was completed over two sittings on January 19 and 28, 2021, Mr. XXXX realized that the RAD was interested in evidence such as letters and affidavits that would comment on his drug use. In response, he provided letters from his father, one of his brothers, a nephew and a brother-in-law. The letters are relevant to Mr. XXXX claim, as they address the risks he faces in El Salvador and the XXXX usage that is central to his appeal arguments. The letters bring some new evidence, some contradictory evidence and some corroborative evidence to the appeal. However, importantly, the letters could have been provided with Mr. XXXX appeal record with reasonable effort, and ought to have been provided at that time. Although this is not the only factor to consider under RAD Rule 29, it is an important one in this case, considering both the length of time that has elapsed between the perfection of Mr. XXXX appeal and the January 25, 2021 affidavit, and the specific reference by the RPD to the lack of supporting documentary evidence presented by Mr. XXXX. In any case, the portions of the letters which address Mr. XXXX drug addiction would not have an impact on my decision. I will address each set of letters individually. [13] Weighing the factors in RAD Rule 29, I am not able to accept the letters from Mr. XXXX father at this late date. The letters from his father are dated September 15, 2018 and December 10, 2019. They do not discuss Mr. XXXX substance abuse, which is the reason cited by Counsel for providing the letters. This alone is sufficient to reject these letters. They both pre-date Mr. XXXX appeal record, and one of them pre-dates the RPD hearing and the submission of his Basis of Claim (BOC) form to the RPD. There is no explanation provided for why the letters have been provided at this time and not earlier. In his affidavit of December 18, 2019, Mr. XXXX did discuss some documents he received from his father over WhatsApp that he was not able to provide to the RPD because he lost his phone. However, by the time he filed his appeal record, he indicated that he had retrieved his phone and yet did not provide any documents from his father. He has not provided any explanation as to why these documents were not provided with his appeal record, and I find that they could have been provided with his appeal record with reasonable effort. [14] Weighing the RAD Rule 29 factors, I am not able to accept Mr. XXXX brother's letter, nor his brother-in-law's letter, as new evidence at the RAD. The letter from Mr. XXXX brother is dated January 20, 2021. The letter from his brother-in-law is dated January 21, 2021. Both letters discuss Mr. XXXX history in Canada since 2012, as well has his drug usage later on. Much of the information could have been provided to the RPD, and the information about drug usage could have been provided with Mr. XXXX appeal record with reasonable effort. Mr. XXXX was represented by experienced counsel. He was expected to put forward the various elements of his case at the earliest possible time and as completely as reasonably possible. His drug use is central to his appeal, and it is reasonable to expect that supporting letters about his drug use would have been provided with his appeal record. The explanation that he was not aware until the RAD oral hearing started that the RAD would be interested in such documents is not a reasonable explanation. Appeals at the RAD are generally carried out on the record and an oral hearing is unusual. Mr. XXXX did not request an oral hearing and was expected to put forward his appeal fully with his appeal record. Moreover, the RPD noted the lack of supporting letters and corroborative information in its reasons.9 Mr. XXXX and his counsel were well aware of the importance of putting forward such documents at the earliest possible opportunity. Again, in any case, the portions of the letters which address Mr. XXXX drug addiction would not have an impact on my decision. [15] For the same reasons as above, I am not able to accept the bulk of Mr. XXXX nephew's letter into new evidence. The letter from Mr. XXXX nephew is undated, however from its contents it appears to be have been written very recently. Again, it discusses historical events as well as the drug addiction, and corroborates events that are described in Mr. XXXX December 18, 2019 affidavit. These aspects of the letter ought to have been provided with Mr. XXXX appeal record. A portion of the letter describes Mr. XXXX sobriety over the past year. This part of the letter, although it post-dates the perfection of the appeal, does not bring new evidence to the appeal and has no effect on my decision, because I accept Mr. XXXX evidence that he has been sober over the past year. I therefore find this evidence is not admissible. Some evidence meets the requirements of Immigration and Refugee Protection Act (IRPA) section 110(4) [16] The articles that meet the RAD Rule 29 requirements, as well as the documents listed above that were submitted before the perfection of Mr. XXXX appeal, must meet the requirements of section 110(4) of the IRPA10 before they can be accepted as new evidence at the RAD. Section 110(4) of the IRPA allows me to accept only evidence that arose after the RPD decision; or was not reasonably available at the time of the decision; or that could not reasonably have been expected in the circumstances to be brought to the RPD before the decision. If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.11 [17] The following documents meet the requirement of section 110(4) of the IRPA for new evidence at the RAD and are accepted as new evidence at the RAD: the articles attached to the January 6, 2021 legal assistant affidavit and which meet the RAD Rule 29 requirements, and the articles attached to the December 18, 2019 articling student affidavit: a. The former set of articles were written after the RPD decision. As explained above, they are new as they were written following the perfection of Mr. XXXX appeal and deal with events that occurred after that time. They are relevant as they address gang violence in El Salvador. They are credible on their face as they are written by independent thirds-party organizations. b. The set of articles attached to the December 18, 2019 articling student affidavit deal with the drug situation in El Salvador. They could not reasonably have been expected in the circumstances to be brought to the RPD before the decision, as the issue of drug addiction in El Salvador was not an issue at the RPD. They are credible on their face as they are written by independent third-party organizations. They are relevant because Mr. XXXX claims that he will be at risk in El Salvador because of his XXXX usage. [18] The remaining new evidence is the affidavit sworn by Mr. XXXX on December 18, 2019, which was submitted before the perfection of his appeal. It consists of the Addiction Evidence and the New Narrative. As explained below, the Addiction Evidence meets the requirements for new evidence at the RAD and is accepted as new evidence at the RAD. The New Narrative does not meet the requirements for new evidence at the RAD. This was determined after an oral hearing was held in respect of the Addiction Evidence. Although some aspects of the New Narrative were incidentally touched upon at the RAD oral hearing, since the New Narrative is not admissible evidence, I have disregarded Mr. XXXX oral testimony in relation to the New Narrative in making my decision.12 Sections 110(3), 110(4) and 110(6) of the IRPA13 [19] On my interpretation of the legislation that gives the RAD its authority, an oral hearing may be held by the RAD to determine whether evidence presented to the RAD meets the criteria for admission when admissibility is not clear from the written materials in front of the RAD, and where the evidence otherwise meets the requirements of section 110(6) of the IRPA. [20] Oral hearings at the RAD are relatively unusual and are held pursuant to section 110(6) of the IRPA. An oral hearing at the RAD may be held where documentary evidence presented to the RAD raises a serious issue with respect to the credibility of the person who is the subject of the appeal; is central to my decision with respect to the refugee protection claim; and, if accepted, would justify allowing or rejecting the refugee protection claim.14 [21] The general practice of the RAD is to hold an oral hearing only after documentary evidence is already accepted as new evidence, and only where the requirements for an oral hearing are met. An oral hearing in the nature of a voir dire, where a hearing is held in order to determine whether the documentary evidence ought to be admitted into evidence, is not generally held at the RAD. In my view, although it will be rare, section 110(6) of the IRPA does allow for such a hearing to be held at the RAD when the requirements for an oral hearing are otherwise met. Section 110(6) specifically states that a hearing may be held where there is documentary evidence referred to in section 110(3) of the IRPA that, if accepted, would justify allowing or rejecting the refugee protection claim. This suggests that at the time of the hearing, there may still be a question as to admissibility of evidence, and the hearing may inform the question of whether or not to accept the documentary evidence. [22] Section 110(3) of the IRPA states that matters before the RAD are to proceed without a hearing and on the basis of the RPD record, subject to certain time limits under section 110(3.1); the presentation of new evidence under section 110(4); and the holding of a hearing under section 110(6). Section 110(3) of the IRPA also states that the RAD may accept documentary evidence, again subject to certain time limits under section 110(3.1); the presentation of new evidence under section 110(4); and the holding of a hearing under section 110(6). In section 110(6), the documentary evidence referred to in section 110(3), and that may be subject to an oral hearing, is evidence that the RAD "may accept." It is notable that section 110(6) refers to documents referred to in section 110(3) that may meet the criteria for admissibility, but not to documents referred to sections 110(4) or 110(5), that do meet the criteria for admissibility. Again, this suggests an oral hearing may be held in the rare situation where it is not clear whether new evidence meets the requirements of section 110(4), to determine whether that evidence ought to be admitted. [23] As the legislation is written, the pragmatic interpretation is that one purpose of an oral hearing may be to assess the admissibility of evidence presented to the RAD. Consideration of the words "if accepted" in section 110(6)(c) arguably may suggest that "if accepted" means "if believed." However, the use of the word "accept" in section 110(3) of the IRPA refers to documents and submissions that are admitted for consideration, not evidence that is believed to be true. A word is presumed to mean the same thing when used more than once in the same piece of legislation. Therefore, in my view, "if accepted" in section 110(6)(c) of the IRPA has the same meaning as in section 110(3), that is, it means "if accepted into evidence," the determination of which may be made with the aid of an oral hearing. If Parliament had intended that evidence could only be subject to an oral hearing once it was accepted as evidence at the RAD, it would have clearly indicated so, and the words "if accepted" would not be needed in section 110(6)(c). [24] I do not know of any higher court authority that has addressed this issue directly and in the current context of holding a hearing to determine admissibility of new evidence at the RAD. I am aware of Federal Court dicta that explains that new evidence that is admitted is not automatically subject to an oral hearing, and that it must also meet the requirement of section 110(6) of the IRPA.15 I am also aware of Federal Court dicta that explains that a hearing may be considered when otherwise credible and admitted evidence raises a serious issue with respect to the general credibility of the appellant.16 However, none of this dicta considers whether there may be situations in which a hearing is required to determine the admissibility of new evidence, where the criteria of section 110(6) are otherwise met. I know of one case before the RAD in which the RAD conducted a hearing that addressed the admissibility of new evidence and proceeded to reject that evidence.17 Application to Addiction Evidence and New Narrative [25] In this case, Mr. XXXX submitted an affidavit after the RPD decision, which states that because of a severe addiction to XXXX and XXXX, which he did not disclose to the RPD or to his Counsel earlier due to fear and shame, he was unable to properly present his case to the RPD. In his words, he "was not in a place mentally where I was truly able to comprehend what I needed to do to properly prepare and advance a refugee claim."18 He asks the RAD to consider a New Narrative, in preference to his previous narrative. That New Narrative would meet the criteria for section 110(4), namely that Mr. XXXX could not reasonably have been expected in the circumstances to have brought the evidence to the RPD before the decision, if he in fact was not able to properly present his case to the RPD or, using the legal test prescribed by the IRPA for designated representation, if he was unable to appreciate the nature of the RPD proceedings.19 In that case, the New Narrative would also meet the criteria for an oral hearing under section 110(6): it raises a serious issue with respect to Mr. XXXX credibility, considering it is a shift from his previous narrative; it would be central to my decision about his refugee protection claim, considering it provides additional evidence about the risks faced by Mr. XXXX family; and it could justify allowing or rejecting the refugee protection claim, depending upon whether and which portions of the New Narrative were found to be credible or not credible. [26] If, on the other hand, Mr. XXXX ability to present his case to the RPD was not hindered by XXXX and XXXX use to the extent that he was unable to appreciate the nature of those proceedings, the New Narrative would not meet the criteria for new evidence in section 110(4) of the IRPA, and could not be admitted as new evidence at the RAD. This is because in that case, the events described in the New Narrative did not arise after the RPD decision; the evidence was reasonably available at the time of the RPD decision; and Mr. XXXX would have reasonably been expected in the circumstances to have brought the evidence to the RPD before the decision. Therefore, admission of the New Narrative is dependent upon my assessment of Mr. XXXX ability to present his case at the RPD in light of his alleged drug abuse. As explained below, an oral hearing was held in respect of the Addiction Evidence, in order to assess the effects of Mr. XXXX alleged XXXX and XXXX abuse on his ability to present his case at the RPD, and by extension, in order to assess whether or not the New Narrative is admissible as new evidence at the RAD. [27] The Addiction Evidence meets the new evidence criteria in section 110(4) of the IRPA, as Mr. XXXX states that he hid his addictions from the RPD and from his Counsel due to shame and fear, which statement I accept, at least on its face. Therefore, this evidence was not reasonably available at the time of the RPD decision, or it could not reasonably have been expected in the circumstances to have been presented at the time of the rejection. Furthermore, the evidence is new to these proceedings; it is credible to the extent that it is contained in what appears to be a properly sworn affidavit, and it is relevant, as it raises issues of procedural fairness and a possible further ground for persecution dealing with the treatment by Salvadoran gangs of people with XXXX addiction. [28] The Addiction Evidence also meets the criteria for an oral hearing: It raises a serious issue with respect to Mr. XXXX credibility, as he is asking the RAD to disregard his former evidence in favour of his new evidence; it is central to my decision with respect to his claim, as his XXXX usage is a cornerstone of his appeal submissions and forms a new basis for his claim; and it could justify allowing the claim if it is found to be credible, since it both forms the basis for a claim based on risk as a drug user, and would also allow me to consider the New Narrative, which provides additional information about risks faced by Mr. XXXX family members in El Salvador. The Addiction Evidence could also justify rejecting the claim if it is found substantially not to be credible, since in that case, I would not be able to consider the New Narrative. In addition, Mr. XXXX original narrative presented at the RPD would be seriously tainted by his admission in the Addiction Evidence that he was not truthful at the RPD. [29] I admit the Addiction Evidence but not the New Narrative. An oral hearing was held in respect of the Addiction Evidence, and to determine whether the New Narrative was admissible as new evidence at the RAD, with the view that if the New Narrative was admissible, the scope of the oral hearing would extend to examination of the New Narrative. Following the oral hearing, I determined that the Addiction Evidence does not establish that Mr. XXXX was unable to appreciate the nature of the RPD proceedings. Accordingly, it is reasonable in the circumstances to expect Mr. XXXX to have presented the New Narrative to the RPD before the RPD's decision. The New Narrative does not meet the criteria for new evidence at the RAD, and is not admitted. [30] The result in this case would be no different if I took a different procedural route in regard to the new evidence. If the more common approach of the RAD is taken, I would accept the New Narrative as new evidence at the RAD before convening an oral hearing. I would accept the New Narrative because it is inextricably linked to the Addiction Evidence, which is admissible and meets the criteria for an oral hearing. I would find that the Addiction Evidence and Mr. XXXX oral evidence relating to that evidence has not established that Mr. XXXX was unable to appreciate the nature of the RPD proceedings because of his drug use. This leaves two differing narratives in front of the RAD, both of which are unreliable given the circumstances: there is an admission that the original narrative is not truthful, and also my finding that the basis for presenting the New Narrative is not sufficient. In order to preserve the integrity of RAD proceedings, prevent an abuse of process, and honour the principle that the RAD is not intended to be an opportunity to retry an appellant's claim, I would be unable to attach any weight to the New Narrative. At the same time, the credibility of the evidence that was provided to the RPD would be tainted. The resulting decision, provided below, is the same regardless of which way I approach sections 110(3), 110(4) and 110(6) of the IRPA. The same reasoning applies if proceeding as originally outlined above would create unfairness because Counsel was not advised in advance that the oral hearing would focus on the Addiction Evidence and would only move to the New Narrative once the Addiction Evidence was assessed. MR. XXXX APPRECIATED THE NATURE OF THE RPD PROCEEDINGS [31] The Addiction Evidence and Mr. XXXX oral testimony at the RAD establishes, and I accept, on a balance of probabilities, that Mr. XXXX consumed XXXX and XXXX during the period from when his partner left him some time in 2017 to XXXX 2019, and that he did not inform the RPD or his Counsel of his XXXX use. However, Mr. XXXX has not established, on a balance of probabilities, that his XXXX and XXXX addiction rendered him unable to appreciate the nature of the RPD proceedings. As such, I cannot consider or, alternatively, give weight to the information in the New Narrative or to the testimony provided by Mr. XXXX in connection to the New Narrative at the RAD. The New Narrative is not admitted as New Evidence at the RAD. Alternatively, it is given no weight. Mr. XXXX testimony at the RPD [32] Mr. XXXX testimony at the RPD hearing was not such that it would lead one to reasonably conclude that he did not appreciate the nature of those proceedings, on a balance of probabilities. I have reviewed all of the RPD evidence, including Mr. XXXX oral testimony at the RPD. Based on the written record and the audio recording of the hearing, it does not appear that Mr. XXXX had any issues in presenting his claim before the RPD. He listened to the questions and provided answers. He did not appear to be confused or to experience temporary memory loss or blackouts. A few questions were repeated, however that is not uncommon at RPD hearings, particularly where all communication occurs through an interpreter. Lack of medical evidence [33] Mr. XXXX has not provided any medical evidence whatsoever to substantiate his claim that he was unable to properly put forward his claim at the RPD or to appreciate the nature of the RPD proceedings because of his XXXX and XXXX addiction, and the resulting effects on his brain. Without any such evidence and based on his testimony alone, I am not able to conclude, on a balance of probabilities, that his ability to understand the nature of the RPD proceedings was impaired. As discussed below, his oral and written testimony at the RAD also suggests that he was very aware of the nature of the RPD proceedings. [34] Mr. XXXX states that because of his XXXX XXXX and XXXX usage during the period from when his partner left him in 2017 to XXXX 2019, his mind was not able to properly comprehend the nature of the RPD proceedings, and that as a result, his testimony at the RPD ought not to be considered, rather his New Narrative ought to be considered in determining his refugee claim. In essence, he suggests that it would be procedurally unfair to consider his RPD testimony as reliable given the circumstances of his XXXX and XXXX use and how it affected his mind at the RPD. [35] In this circumstance, where Mr. XXXX is suggesting his XXXX and XXXX use impacted his mind to such an extent that he was unable to appreciate the nature of the RPD proceedings, and where this is not apparent on a review of the RPD Record, it is reasonable to expect Mr. XXXX to provide the RAD with some medical or psychological evidence of the existence and extent of his mental impairment at the RPD, particularly where such evidence ought to be reasonably available to him. The Federal Court in Janvier makes it clear that in cases where refugee protection claimants appear to have had the opportunity to gather evidence to corroborate their claim before or after arriving in Canada, the strength of the presumption of truthfulness may depend directly on the extent to which corroborative evidence is provided.... where corroborating evidence should reasonably be available to establish the essential elements of a claim for refugee protection and there is no reasonable explanation for its absence, the administrative decision maker may draw a negative credibility finding based on the claimant's lack of efforts to obtain that evidence... 20 [36] Mr. XXXX testified that about one week before the RPD hearing, he was taken to the hospital by ambulance because of an episode of paranoid delusion caused by XXXX. He was restrained by police officers during the episode. He was given injections and kept at the hospital overnight. However, Mr. XXXX did not present any evidence of that hospital stay, which was in Canada. Neither did he provide any police report. [37] When asked why he did not have a record of the hospital stay or any medical reports arising from the stay, Mr. XXXX replied that he made efforts to obtain the hospital report about two months before the RAD oral hearing, but that due to COVID-19 restrictions, he was not permitted to request the report in person. He stated that he asked his Counsel to obtain the report. Counsel explained that his file indicated that a report was requested, but the hospital did not provide evidence of a visit. Mr. XXXX testified that during his hospital visit, he was told he would be admitted to a rehabilitation facility, but the hospital did not follow up. He has been managing his addiction with the support of his family and friends, and has been sober for what appears to be several months. He testified that his brother-in-law had called a few rehabilitation centres, but that they were full. [38] Mr. XXXX did not supply any other medical evidence explaining the effects of XXXX usage, for example, expert evidence commenting on the length of time someone is affected after using XXXX. Mr. XXXX testified that he had not approached his family physician or any psychologists or psychiatrists in relation to his XXXX addiction, though he is hoping to see a psychologist when he can afford one. [39] I find it is unreasonable that Mr. XXXX does not have any medical or psychological evidence to substantiate his claim that his XXXX and XXXX use rendered him unable to appreciate the nature of the RPD proceedings and as a result, to properly present his case at the RPD. He has not provided a reasonable explanation for this lack of medical evidence, given the passage of time and the opportunities Mr. XXXX has had to obtain medical evidence to support his claim. I note that the COVID-19 pandemic did not affect Canada until a few months after Mr. XXXX appeal record was perfected and several months after his hospital visit. I find it unreasonable that Mr. XXXX has not made additional efforts to obtain any official record of that visit, given its importance to his appeal in confirming the nature of his XXXX and XXXX addiction. Furthermore, I find it unreasonable that Mr. XXXX did not attempt to obtain any other type of medical evidence regarding his addiction, for example from a family physician or a psychiatrist. I find some medical evidence would be available to him with reasonable effort, given his access to the medical system, his actual testimony that he has engaged with the system, and his access to legal professionals who are familiar with processes for obtaining documentation and who are aware of the importance of such documentation. [40] I find that Mr. XXXX RAD testimony alone as to the effect of his XXXX and XXXX use on his ability to present his case at the RPD is insufficient to prove these alleged effects, on a balance of probabilities. I find that this testimony does not benefit from the presumption of truth, in part because it is largely opinion, and in part because it is reasonable to expect medical evidence to corroborate his claims about the effects of his XXXX and XXXX use on his ability to appreciate the nature of the RPD proceedings where such evidence ought to be reasonable available. Furthermore, his testimony at the RAD, which I will consider next, establishes that he did in fact appreciate the nature of the RPD proceedings and deliberately made decisions to present certain information there. Mr. XXXX testimony at the RAD [41] I find that Mr. XXXX was aware of the story he was choosing to tell to the RPD, that he was aware that it was not truthful, and that he understood the nature of the RPD proceedings. When asked at the RAD hearing how he was able to make the decision to put forward a claim, hire a lawyer and appear at the RPD, given this was during the period when he claims to have been using XXXX heavily, Mr. XXXX replied that he would make sure he was sober for a few days or even a week prior to going to his lawyers office, signing documents, or appearing for the RPD. Again, he provided no medical evidence explaining the length of time someone is affected after using XXXX. He testified that he told his lawyer about his hospitalization one week before the RPD hearing, yet his lawyer considered him well enough to testify at the RPD. There is no allegation of negligence of Counsel. All of this suggests, and I find, that Mr. XXXX was able to understand the importance and nature of the RPD proceedings and prepared himself accordingly. [42] Mr. XXXX Addiction Evidence provides a number of reasons why he falsified his RPD testimony, which suggest he was aware of his circumstances and made deliberate and calculated decisions in presenting his claim to the RPD: first, he was afraid the RPD would not accept his claim if the RPD knew about his use of drugs; second, he was careless in providing complete information to the RPD; third, he was afraid that telling the truth would hurt his claim; fourth, he did not want to contradict the information in his spousal sponsorship claim of 2016; fifth, he was advised by community members not to mention living outside of El Salvador; and sixth, he invented the story about being extorted by the MS-13 because he thought it would help his claim. He testified that he is regretful for being untruthful, and that he is now coming clean with his story, with the clarity of hindsight. None of these reasons reasonably explain how XXXX and XXXX so clouded his mind that he was unable to understand the nature of the RPD proceedings. When asked how these various reasons relate to his XXXX and XXXX usage, he replied that there were many people around him who were being deported, and that he felt alone, so he used XXXX and XXXX. This may explain why he used drugs, but it does not explain how the drugs affected his mind. [43] I find Mr. XXXX chose to falsify the information he told the RPD and to omit certain information, and that when he received a negative decision from the RPD, he sought a way to rectify his mistakes in judgment. I find his judgment was not impaired by XXXX and XXXX to the point of not understanding the nature of the RPD proceeding. He testified that his substance abuse resulted in a lack of sleep, which may have contributed to his poor decision-making. The refugee claim process is a stressful one. Lack of sleep is not sufficient proof of an inability to appreciate the nature of the proceedings. [44] I asked Mr. XXXX how he was able to testify relatively consistently at the RPD hearing as to the contents of his BOC form, which was completed 13 months before the RPD hearing, if he was using drugs heavily and they were affecting his mind. He replied that the events he witnessed in El Salvador are etched into his mind and that they marked his life, that they will be remembered and that they can not be erased. This suggests that his mind was not muddled or confused at the RPD with respect to events that occurred in El Salvador, and he would have been able to testify truthfully to them if he chose to. He testified that there were many times during those 13 months that he thought to correct his BOC form, but that he just did not do it. Again, this suggests, and I find, that Mr. XXXX was aware of the story he was choosing to tell to the RPD, that he was aware that it was not truthful, and that he understood the nature of the RPD proceedings. MR. XXXX FORWARD-FACING RISK Mr. XXXX XXXX addiction does not render him a Convention refugee nor a person in need of protection [45] As mentioned above, I accept Mr. XXXX testimony that he has used XXXX and XXXX in the past, and that he has been sober for a significant amount of time. I have considered his forward-facing risk based on that testimony. [46] Mr. XXXX argues in his Addiction Evidence and his appeal memorandum that his XXXX addiction itself puts him at risk if he returns to El Salvador, because the MS-13 controls the distribution of drugs in El Salvador. Given the large amounts of XXXX that he uses, the MS-13 would assume that he was not just consuming personally, but that he was distributing drugs to others. This would make him a target and put him at grave risk, as the MS-13 does not tolerate unauthorized drug dealing. [47] I cannot accept this basis of Mr. XXXX claim. Firstly, the evidence is, and I find, that Mr. XXXX does not use large amounts of XXXX, or any XXXX, at present. When asked why he was concerned about being targeted by the MS-13 for drug use given he was now sober, Mr. XXXX testified that he is now sober and intends to stay sober, and that he does not want to continue using drugs. He testified that if he returns to El Salvador, he has motivation for staying sober, as his parents are pastors in the church and he does not want them to see him using drugs. This suggests, and I find, that Mr. XXXX does not have an intention to use drugs in any amount if he returns to El Salvador. If he succeeds in staying sober, as intended, he will not be targeted by the MS-13 for drug use. [48] Additionally, Mr. XXXX testified that he used XXXX in the past in El Salvador, and that he did not experience any issues with the MS-13. When asked why he would now be targeted, he said that the situation in El Salvador is now different, and that the gangs are more numerous now. This general statement does not establish that Mr. XXXX particular situation has worsened. The unrefuted evidence in front of me is that Mr. XXXX was able to use XXXX in the past in El Salvador without running into problems. He has not provided evidence suggesting, for example, that the community where he lives has changed appreciably since he was last able to use XXXX without experiencing gang issues. [49] Mr. XXXX further testified that even small amounts of XXXX had a large effect on him the last few times he used the drug, which was some time after the RPD hearing. He has not argued that small amounts of XXXX would bring him to the attention of the MS-13, rather that large amounts would. Based on his testimony, I find he cannot tolerate large amounts of XXXX. This again suggests, and I find, that even if Mr. XXXX were to use XXXX on returning to El Salvador, given his current intolerance to even small amounts of XXXX, which intolerance appears to have developed relatively recently, there would not be a serious possibility or a likelihood of him using amounts that would bring him to the attention of the MS-13. Based on his evidence, I find that even if Mr. XXXX suffers a relapse on return, which he is determined not to, he has not established a reasonably possibility or likelihood that his experience with XXXX use will be different from what he experienced previously in El Salvador. Based on his evidence, he has not established that his XXXX use gives rise to a serious possibility of persecution or a likelihood of Section 97 Harm at the hands of the MS-13 if he returns to El Salvador. Mr. XXXX status as a returnee does not render him a Convention refugee nor a person in need of protection [50] Mr. XXXX argues at the RAD that he faces a serious possibility of persecution or a likelihood of Section 97 Harm based on being a returnee with perceived wealth. He argues that returnees to El Salvador are targeted by gangs, as they are presumed to have a certain level of wealth. He did not raise this argument at the RPD. He has not met his burden in establishing this claim. [51] Mr. XXXX claim as a returnee, if any, falls under section 97 of the IRPA. Mr. XXXX does not have a nexus to the Convention as a returnee. He argues that he is part of a Particular Social Group (PSG) with a nexus to the Convention, namely long-time returnees to El Salvador. I do not accept that this group of individuals, targeted for their perceived wealth, forms a PSG with a nexus to the Convention. In defining a PSG, the Supreme Court of Canada in Ward21 tells us that the designation of a particular social group must take into account the general underlying themes of the defence of human rights and anti-discrimination. The Court provides three classes of PSGs. The class of PSGs to which Mr. XXXX may belong is those associated by a former voluntary status, unalterable due to its historical permanence. Being a failed asylum seeker is not a voluntary status. Even considering the other two categories in Ward, being a long-time returnee is not an immutable characteristic akin to gender or sexual orientation, and it is not a group which Mr. XXXX chose to associate with, whose aims are associated with the defence of human rights or anti-discrimination. The United Nations High Commissioner for Refugees document referred to by Mr. XXXX in his appeal memorandum suggests that certain returnees may constitute a PSG, but does not suggest that all returnees form a PSG. [52] Therefore, Mr. XXXX must prove that he will face a Section 97 Harm, on a balance of probabilities, if he returns to El Salvador. Section 97 Harms encompass a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture. Furthermore, Mr. XXXX must establish that the MS-13 has somehow focused its attention on him such that he faces a personalized risk not faced by others. This requires a consideration of Mr. XXXX individual circumstances and background. However, as explained above, there is very little credible evidence to support his background in this case. I do not accept that every long-term returnee, regardless of their circumstances, is at risk such that they will face a Section 97 Harm on return, on a balance of probabilities. [53] In respect of personal evidence, I can accept the two death certificates of his uncles, which he presented at the RPD and which appear to be genuine and prepared by third parties. The death certificates indicate both uncles were shot. I can also accept the information that two of his siblings have been denied refugee protection in Canada, as the RPD commented that it had reviewed those decisions. These pieces of evidence do not establish that Mr. XXXX faces a personalized Section 97 Harm as a returnee to El Salvador. [54] Mr. XXXX has provided country condition evidence for El Salvador outlining the risks faced by Salvadorans who are forced to leave the United States (USA). He argues that the same risks apply to those who are returned from Canada. I disagree that those who return from Canada face the same risks as the risks purported to be faced by those returned from the USA. The articles submitted by Mr. XXXX, and in the NDP for El Salvador, indicate that people are often sent back to El Salvador from the USA without a fair chance to explain why they need protection.22 They explain that the plight of returnees from the USA arises because of policies of the USA government that have "eviscerated" the asylum process.23 That is not the case here. Mr. XXXX has been afforded, and will continue to be afforded, the full procedural accommodations that comprise the Canadian refugee protection system. His claim has been reviewed carefully and his forward-facing risk evaluated based on evidence he has provided, now at two levels within the Immigration and Refugee Board. [55] The NDP indicates that former gang members, people who arrive in the USA as children or adolescents and who are not familiar with life in El Salvador, people without ties to El Salvador, people with tattoos, and those who left El Salvador because they were previously extorted or threatened by gangs, face a higher risk of being targeted for violence.24 Mr. XXXX has not established that he falls into any of these categories. He has lived in El Salvador for most of his life, and has family members there, including his parents and siblings. The NDP also discusses the risks faced by those who might be extorted for their perceived wealth. Extortion is a common crime in El Salvador, and does not necessarily equate to a likelihood of Section 97 Harm. The NDP reports that 13 of approximately 200 returnees from the USA between 2013 to 2019 who were targeted on return faced extortion.25 Some of these returnees faced violence when they refused to pay the extortion. Furthermore, the NDP provides that the number of returnees from the United States between 2014 and 2018 was 111,000. Even if the count of 200 or 13 out of those 200 is low, this is far from establishing a risk of Section 97 Harm, on a balance of probabilities, when compared to the number of returnees, being more than 111,000 between 2013 and 2019. Furthermore, Mr. XXXX has not provided credible evidence to establish that he would be specifically and personally targeted as a returnee. He has therefore not met his burden under Section 97 of the IRPA. SUMMARY [56] Mr. XXXX has not provided sufficient credible evidence to establish his claim for protection. Mr. XXXX presented a narrative to the RPD, which the RPD rejected as giving rise to the need for international protection. At the RAD, Mr. XXXX testified that he was not truthful at the RPD. I accept that Mr. XXXX was not truthful at the RPD. As a result, there is very little credible or reliable evidence in front of me. The decision of Mr. XXXX to consciously perjure himself before the RPD, and then to attempt to rectify his perjury by claiming an impairment, is one that undermines the integrity of the refugee protection system, and results in my finding that his personal evidence is not reliable and therefore not generally credible. As explained above, I can accept very limited portions of his personal evidence. There is simply not enough credible and reliable evidence remaining to establish that Mr. XXXX is a Convention refugee or a person in need of protection. I must therefore reject his claim. CONCLUSION [57] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither Convention refugee nor a person in need of protection. (signed) Rita Aggarwala Rita Aggarwala February 23, 2021 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 (IRPA), S.C. 2001, c. 27, section 97. 3 Exhibit P-2, Apellant Record, at p. 18. 4 Exhibit P-2, Appellant Record, at p. 47. 5 Exhibit P-3, New Evidence Application dated January 6, 2021. 6 Exhibit P-4, New Evidence Applicatoin dated January 25, 2021. 7 Refugee Appeal Division Rules, SOR/2012-257, Rule 29: Documents or Written Submissions not Previously Provided. 8 Exhibit P-3, New Evidence Application dated January 6, 2021; Deported to Danger, at p. 25. 9 RPD transcript (October 25, 2019), at p. 47. 10 IRPA, section 110(4). 11 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 12 Alternatively, I give that evidence no weight. Later in these reasons, I discuss an alternative approach to the evidence, wherein the New Narrative is accepted but given no weight. Either approach leads to the same outcome. 13 IRPA, section 110(3) reads: Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and wirttten submissions from the Minister and the person who is the subject of the appeal... IRPA, section 110(4) reads: 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. IRPA, section 110(6): The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subjection (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. 14 IRPA, section 110(6). 15 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230, at para. 71. 16 A.B. v. Canada (Citizenship and Immigration), 2020 FC 61. 17 X(Re), 2019 CanLII 135124. 18 Exhibit P-2, Appellant Record, Affidavit of Mr. XXXX dated December 18, 2019, at par. 4. 19 IRPA, section 167(2). 20 Janvier v. Canada (Citizenship and Immigration), 2020 FC 142, at para. 30. 21 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 22 National Documentation Package for El Salvador (November 30, 2020), item 2.8: Deported to Danger: United States Deportation Policies Expose Salvadorans to Death and Abuse, Human Rights Watch, 5 February 2020. 23 Ibid. 24 Ibid. 25 Ibid. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-32987 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