TB5-08324

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-08324 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (A.K.A. XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 21, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael F. Loebach Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX a.k.a. XXXX XXXX XXXX XXXX (the Appellant), a citizen of Guatemala, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant seeks and oral hearing in accordance to the IRPA section 110(6). The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that this Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he fears returning to Guatemala because he will be persecuted by his former wife's boyfriend, Mr. XXXX XXXX. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [4] The Appellant's application for refugee protection was heard on June 8, 2015. A negative decision was rendered in writing on July 17, 2015. The RPD found that the Appellant has failed to establish a serious possibility of persecution on a Convention ground or that he would be personally subjected to a risk of cruel and unusual treatment or punishment or a danger of torture if returned to Guatemala. [5] The Appellant submits that the RPD erred by not considering the totality of the evidence with respect to the Appellant's claim. (a) The Appellant submits that the RPD erred in assessing credibility (b) The Appellant submits that the RPD erred when it misstated relevant IRPA sections (c) The Appellant submits that the RPD erred by improperly applying change of circumstances in this case. ANALYSIS Role of the RAD [6] Counsel has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [7] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD as well as other findings where the RPD may have a particular advantage over the RAD. Re-submission of Rejected Evidence in Accordance to RAD Rule 3(3)(c) [8] When perfecting an appeal, an Appellant may submit as part of his Record of Appeal, any evidence which had been before the RPD, including evidence rejected by the RPD. It is for the RAD to peruse that rejected evidence and in its independent assessment decide whether or not to admit that evidence, so long as it complies with the rules and regulations. [9] The Appellant refers to the failure of the RPD to consider rule 43 of the Refugee Protection Division Rules. The Appellant outlines the rules;3 however, the RAD notes that there is no written reason provided from the RPD, explaining the rejection of these documents. Therefore it is impossible for the RAD to determine whether or not the RPD did apply rule 43 in its consideration. [10] The RAD takes note of rule 43 and sees that it is clear that the RPD, in deciding whether to accept an application for a late disclosure, must consider three factors; one of which is "whether the party [Appellant], with reasonable effort, could have provided the document as required by rule 34." It is clear to the RAD that this late disclosure to the RPD would have failed for that reason alone as it has already been stated that the documents were available to the Appellant earlier, as he testified to having knowledge of the Facebook pages at his hearing and his only reason for failing to present these documents in time for his hearing was that he could not afford to pay for the translations. Although understandable, that is not an acceptable reason to allow the documents in, later. [11] The RAD finds, after considering this, on a balance of probabilities, that the RPD did take rule 43 into consideration when it decided to disallow the disclosure. [12] The evidence4 being submitted by the Appellant are documents which were submitted to the RPD post hearing and rejected by the RPD at that time. The RPD, according to the Appellant's Memorandum,5 found the documents to be irrelevant as well as unsolicited. The Appellant argues that the documents were relevant because they were mentioned in the Appellant's counsel's post hearing submissions and that the documents substantiated the Appellant's testimony. The Appellant is correct in this instance. It is not correct to presume that only documents "solicited" by the Board can be disclosed, post-hearing. Any document submitted must be considered for its relevance, credibility and materiality and must be weighed accordingly. The RPD erred in rejecting the evidence without proper consideration. According to the Appellant, the Facebook documents were relevant if for no other reason than they had been mentioned in the Appellant's written submissions. [13] In reading the Appellant's statement,6 in paragraph 33 he writes "In regards to the documents I have submitted after the hearing, I could not have access to it before for this reason I submitted it after." The Appellant, in his application for late disclosure of evidence to the RPD, did say that he had insufficient funds to have the document translated in time for the hearing. The documents in question are "screen-prints" from Facebook pages allegedly belonging to XXXX. Although some may consider it to be unreasonable for the Appellant not to have had the translation done in time for his hearing, the RAD will take a broader view of the financial impacts placed on a refugee claimant with little support in his host country. The RAD finds that his explanation was reasonable and will accept that document as evidence. The RAD will peruse the document more closely and decide on the weight it will be given. [14] The document in question is a screen-print of pages from a Facebook account. It is argued by the Appellant, that this document confirms part of his basis of claim by showing that his wife and XXXX were involved with each other. The problem is that any person can actually go onto the internet and set up a Facebook account under anyone's name. There is no way for the RAD to know whether or not this particular Facebook account actually belonged to XXXX. The RAD has no way to confirm the identity of the person on Facebook (XXXX XXXX) as the Appellant's wife. As there is no way for the RAD to verify that this document is a screen-print of a genuine Facebook account belonging to XXXX, and no way for the RAD to verify that the person identified as "XXXX XXXX" is the Appellant's wife, the RAD will give this document no weight. The RPD's Findings [15] The Appellant argues that the RPD erred by not considering the totality of the evidence with respect to the Appellant's claim. [16] The Appellant argues that the RPD erred in assessing credibility. Specifically, the Appellant refers to the exchange between the panel and the Appellant during testimony, regarding the nature of the alleged threats against the Appellant. In the Appellant's BOC form, he has written that he was threatened by a person in Guatemala who was the leader of a gang. The Appellant did not elaborate on the nature of the threats but in oral testimony, made it clear that the threats he wrote of were death threats. The panel asked the Appellant about the threats and how they were made. The panel found inconsistencies between the BOC and testimony. The Appellant had written in his BOC that XXXX had continued to threaten the Appellant by phone (in Canada) after his first phone call; however, the Appellant testified that he only received one phone call in Canada. The RAD, having canvassed the BOC and the transcription of the hearing, finds that the entire exchange regarding the threats made and/or received to be confusing. The RAD finds that there was obviously a communication issue on this particular subject and accepts the explanation7 of the Appellant. Given the pressures under which claimants must testify, coupled with the language issues and cultural differences, the RAD finds the Appellant's explanation in this matter to be reasonable. [17] The Appellant argues that the RPD inferred negative credibility based on multiple re-availments to Guatemala after the initial telephone threat and on the Appellant's failure to claim protection upon his return to Canada in October of 2014. The Appellant argues that the panel has acknowledged that the panel's credibility concerns, considered individually, may be insufficient from which to draw a negative inference. [Emphasis Added] The Appellant argues that the panel failed to take into account the totality of the evidence. Specifically, the Appellant refers to the panel's comments8 describing the Appellant as "articulate and intelligent" and compares that comment to the transcript of the hearing declaring how the transcript shows "otherwise" with some of the Appellant's responses being misunderstood, some being considered confusing and even nonsensical. However, the RAD has already found that the entire issue of the threats, spoken of in that exchange, was confusing and in the opinion of the RAD, more of a communication/ language barrier issue than one of intelligence or articulation. The RAD has agreed with the Appellant on that particular issue and accordingly, has not drawn a negative credibility inference on that perceived inconsistency. However, the RAD does in fact infer negative credibility on the issue of return to Guatemala. The Appellant has testified that he returned to Guatemala after the initial telephone threat because he did not take the threat seriously. The RAD understands that and would not have an issue with that if it stood alone. It does not however. The Appellant re-availed to Guatemala and according to him, was threatened again on multiple occasions. The Appellant left and came back to Canada only to re-avail himself once again, after multiple death threats, according to him. The RAD does not find it probable that a man who is being threatened by a gangster who can find him anywhere in Guatemala, according to the Appellant, would risk returning to Guatemala for any reason, if he truly feared for his life. For that reason, the RAD concurs with the RPD in its credibility finding. The RAD finds that the re-availment, at least the second time, impugns the credibility of the claim. [18] The Appellant argues that the RPD erred when it misstated relevant IRPA sections. The Appellant is unclear in his Memorandum as to exactly what relevant sections of the IRPA he is referring to and how they were misstated. The Appellant argues that the RPD erred by improperly applying change of circumstances in this case. The Appellant does not clearly speak to this argument. The RAD, after canvassing the documents, finds absolutely no such application of this legal principal anywhere (improperly applying change of circumstance) in the RPD's Reasons and Decision. [19] The basis of this claim was that XXXX threatened the Appellant with harm because XXXX wanted to get the Appellant's wife from the Appellant for himself. The Appellant has complied in as much as he has divorced his wife and now has no relationship with her. The Appellant, in his statement, writes that XXXX does not know of his divorce. This too is speculation. According to the Appellant's statement, his former wife works in a different province from where they once lived together. XXXX apparently is in prison. Even if released, XXXX has no reason to be interested in the Appellant as the Appellant is no longer married to the object of XXXX' attentions. On a balance of probabilities and given that the Appellant is no longer perceived as an impediment to XXXX' relationship with the Appellant's ex-wife, the risk to the Appellant no longer exists. The Appellant has not presented sufficient evidence to convince the RAD otherwise. The Appellant has had no contact with XXXX since he left Guatemala. The RAD finds that the RPD properly assessed the risk of harm to the Appellant from XXXX given the divorce. Although the issue of internal flight alternatives (IFAs) is not listed by the Appellant, it is spoken to in the Memorandum. Therefore, the RAD will assess the IFA issue as well, considering the above as a part of the IFA analysis. [20] When considering an IFA, the Federal Court of Appeal, in Rasaratnam,9 has given the RAD guidelines for a two-prong test through which the RAD will determine whether an IFA is suitable in any particular case. [21] The first consideration is whether or not there is a serious possibility of persecution in the IFA, that is, there must be no serious possibility of persecution in the IFA. [22] The second consideration is that the IFA is reasonable in all circumstances. In other words, conditions in the IFA are such that it would not be objectively unreasonable (or unduly harsh), in all the circumstances, including those particular to the Appellant, for the Appellant to relocate. [23] Once an IFA is proposed, the onus is on the Appellant to show that he does not have an IFA. [24] In this case, the RPD proposed an IFA of Quetzaltenango. The Appellant argues that the panel did not ask the Appellant about his knowledge of the IFA and consequently, the panel did not properly apply the test for an IFA. The Appellant does not explain to the RAD how the lack of knowledge on the part of the Appellant, regarding the IFA, is relevant to the panel's application of the two pronged test. The Appellant simply re-iterates that Guatemala is small and the he believes that members of XXXX' gang will find him. The Appellant argues that the panel's assessment of the IFA was based on speculation and not on the evidence presented by the Appellant. However, the RAD has not found sufficient evidence to even substantiate the Appellant's basis of claim, yet alone evidence to convince the RAD that the alleged perpetrator could find the Appellant in the IFA. [25] The RAD has assessed the proposed IFA for this Appellant; specifically, keeping in mind who the Appellant is. The proposed IFA is Quetzaltenango, the second largest city in Guatemala, with a population of about 250,000. The city is predominantly a farming city with wheat, maize, fruits and vegetables being major exports. Livestock is a very healthy secondary industry. The Appellant has experience in farming, construction and cleaning. He has minimal education however that did not prevent him from finding his way through a complex refugee system in Canada and is unlikely to prevent him from finding work and accommodation in Quetzaltenango. The city also offers a transportation system internally and transportation connections to other parts of Guatemala through its bus system by road. As the Appellant is experienced in agricultural work and is obviously intelligent and resourceful, the RAD finds that the proposed IFA would be a reasonable IFA in this case. [26] The RAD finds that the RPD did not err in its assessment of the IFA and concurs with the RPD on the existence of a viable and reasonable IFA for this Appellant. [27] The issue of state protection is not on the Appellant's list; however, it is mentioned10 in the Memorandum and consequently it is open to the RAD to comment on. The RAD will only comment briefly to say that in no case has this Appellant tested the reliability, effectiveness or adequacy of state protection. According to his own evidence, he never approached authorities for help, for various reasons. However, in his BOC, the Appellant clearly writes that should he need help in Guatemala, he would seek state protection. [28] Regardless of the issue or non-issue of state protection, the issue of an IFA is a determinative one. The RAD has found that there is a viable and reasonable IFA for this Appellant in Guatemala. Disposition [29] The RAD has found that the RPD's decision can stand. CONCLUSION [30] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe October 21, 2015 Date 1 Exhibit P-2, Appellant's Record, at pp. 50-60. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit P-2, Appellant's Record, Memorandum, at p. 185, para. 45. 4 Exhibit P-2, Appellant's Record, at pp. 155-170. 5 Exhibit P-2, Appellant's Record, Memorandum, at pp. 185-186, para. 46. 6 Exhibit P-2. Appellant's Record, at pp. 41- 48. 7 Exhibit P-2, Appellant's Record, Memorandum, at pp. 183-184, paras. 39, 40, 43. 8 Exhibit P-2, Appellant's Record, at p. 7, para. 23. 9 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 10 Exhibit P-2, Appellant's Record, Memorandum, at p. 190, para 59. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08324