VB3-01506

RAD File No. / N° de dossier de la SAR : VB3-01506 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal (a.k.a. XXXX XXXX XXXX XXXX) XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Appeal considered / heard at Appel instruit à Date of decision November 26, 2013 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) Moses Kajoba Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Garett Toporowski Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX, a.k.a. XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX, a.k.a. XXXX XXXX XXXX XXXX (the "appellants"), nationals of El Salvador, appeal the June 18, 2013 determination of the Refugee Protection Division (the "RPD") rejecting their claims for refugee protection. The claims were heard by the RPD on May 27, 2013 and a written decision was rendered on June 5, 2013. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA" or the "Act"),1 the Refugee Appeal Division (the "RAD") confirms the determination of the RPD that the appellants are neither Convention refugees pursuant to section 96 of IRPA nor persons in need of protection pursuant to section 97 of that Act. Their appeals are dismissed. BACKGROUND [3] Given the similarity between the appellants' compound names, I will, as did their counsel and the Member at the RPD, refer to the appellant, XXXX XXXX XXXX XXXX as the "appellant XXXX" or "XXXX" and the appellant XXXX XXXX XXXX XXXX as the "appellant XXXX" or "XXXX". I do so for the purposes of clarity and ease of reference. No disrespect is intended. [4] The appellants are represented at the RAD by the same counsel as they were before the RPD. Likewise, the Minister's representative has been the same individual before both Divisions. The Minister's participation at the RPD was by documents only. [5] The Minister has intervened before the RAD.2 The Minister has also filed a memorandum in support of its intervention.3 A certified transcript of the RPD hearing has been included in the Appellants' Record (AR).4 Basis of the Claims [6] XXXX (age XXXX) and XXXX (age XXXX) are brothers from XXXX XXXX, El Salvador. They entered Canada together in XXXX 2012 and subsequently made claim for refugee protection in March 2013. The brothers continue to have close family members who live in the family's hometown of XXXX XXXX and in the capital of the country, San Salvador. The appellants' particular stories are somewhat different but they share the primary focus of persecution, risk or danger presented by gangs ("maras") in El Salvador. XXXX Claim [7] XXXX operated an XXXX XXXX in XXXX XXXX. As of 2002, he began to be extorted by the Maras Salvatrucha 13 (MS-13). The amounts demanded by them increased over time. If he was unable to pay, he would be beaten. In a confrontation in XXXX 2003, he was stabbed in the hand and his side. He closed his shop for one month and, after reopening, worked behind closed doors and only for people he knew. In XXXX 2003, the gang came to the shop and forced their way in. XXXX managed to flee but two of his employees were beaten. They were told that if XXXX did not pay the money he owed to the gang, he would be killed. [8] In response, XXXX closed his shop and moved to the United States (U.S.) in XXXX 2004 where he lived and worked in various places until 2010. He never obtained authorized immigration status in the U.S. XXXX never made a claim for asylum in the U.S. as he heard that he would not have a good chance of success and that he and XXXX concluded that they "were fine since they were already in the US". In 2010, he was charged with a criminal offense and was given an order to voluntarily depart the U.S. by XXXX XXXX XXXX 2012. Shortly before that date, he and his brother, the appellant XXXX, entered Canada. [9] The appellant XXXX alleged that after he left El Salvador in 2004 the MS 13 continued to harass his family members by phone and with visits to the family home. Extortion demands were allegedly made against the family. XXXX Claim [10] XXXX suffers from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX said to be attributable to his being a witness to a weapons attack on another brother 18 years ago. [11] XXXX knew many gang members since he was very young as he had attended school with a number of them. XXXX testified that XXXX was made fun of by everyone at school between the ages 14 and 17. XXXX became socially isolated. XXXX testified that the gang members were well aware of his social and mental difficulties but, nonetheless, he insisted that the gang would never leave him alone and would even kill him. [12] It is alleged that when he was around 27 or 28 the gang relentlessly targeted him for recruitment into the gang and that, when he refused, they would use foul language against him and sometimes hit him. [13] At the time of these recruitment attempts, XXXX worked at a XXXX XXXX and he would be accosted on his way to work. He alleged that on two or three occasions he reported these incidents to the police but he never received any copies of his statements to them and no action was taken. [14] XXXX alleged that about one month before he left El Salvador, three gang members attacked him. He received two knife wounds. He sought medical treatment at a local house staffed with first aid volunteers. He received five or six stitches in his scalp and four or five to his side. [15] XXXX left El Salvador in late 2008 and went to live with his brother, XXXX, in the U.S. until XXXX 2010 when the two came to Canada. XXXX too did not have lawful immigration status in the U.S. and never made a claim for refugee protection there. [16] The appellants claim that if they were to return to El Salvador they fear that they would be persecuted by the gangs and/or suffer section 97 IRPA risks and danger in that country. [17] Additionally, the appellants claim that if they fail in their claims for protection in Canada and are returned to El Salvador, they would be persecuted as such or face risk or danger in El Salvador because they would be perceived to have money or other financial means having lived for years in North America. RPD DECISION [18] The RPD made separate findings with respect to each of the two appellants. Briefly stated, the RPD found that XXXX was not credible and that XXXX, while credible, had a viable internal flight alternative (IFA) in El Salvador. [19] With respect to both appellants, the RPD found that neither had a claim under section 96 of the Act in that no nexus had been established to one of the Convention grounds of race, religion, nationality, political opinion or membership in a particular social group.5 Rather, the RPD found that the allegations of the appellants concerned criminal threats of extortion and violence from gangs which should be analyzed pursuant to section 97 of the Act. The appellants did not allege on this appeal that the RPD Member made an error in that regard but maintain that the RPD failed to properly consider their claims based on their returning to El Salvador as persons who had lived in North America. RPD Decision on XXXX [20] In its conclusion with respect to the appellant XXXX, the RPD found: In view of the credibility findings made, I find that there is insufficient reliable evidence on which to find that the claimant faces, on a balance of probabilities, a personalized and forward-looking risk to his life or a risk of cruel and unusual treatment or punishment at the hands of gang members in El Salvador. [21] The RPD found that XXXX was not credible for a number of reasons, the more important of which are set out in the following. [22] XXXX was not credible with regard to the risks he allegedly faced (in addition to being indicative of his lack of subjective fear) arising from his testimony as to his reasons for his not having claimed protection in the U.S. and for seeking protection in Canada. Even though he testified that he had gone to the U.S. in 2004 to join another brother who had successfully obtained asylum there, XXXX did not look into making a claim himself, as well as not urging XXXX to do so. Once in Canada (XXXX 2012), he found it difficult to find work without immigration status. It was after he was directed by a relative to a non-government organization that he ultimately made a claim for refugee protection (March 2013). The RPD made a negative inference on credibility from XXXX testimony in regard to these matters.6 [23] The RPD did not find credible XXXX allegations that the MS-13 gang that had been bothering him since 2004, tried to extort his family back in El Salvador. To synopsise, the RPD noted that: * The gang phoned the family home demanding $500 US they said XXXX owed them and that they knew he lived in the U.S. and should send money. After two such calls, XXXX sister no longer answered the phone. Then, members of the gang knocked on the family door and police were called to attend at the home. The police said that without names, they could not do anything but recommend that the family should change their telephone number. His sister informed XXXX that these events took place about one and a half years ago (i.e. before the RPD hearing in May 2013) and that no further calls had been received since. * XXXX testified that the family still gets knocks on the door at night but that due to pervasive crime, no one answers their doors at night unless for a friend who had called earlier. * The RPD found XXXX testimony to be vague in regard to threats made against the family after he left the country. He did not know the frequency or timing of the extortion demands and, when asked if anyone in his family had direct contact with gang members since the phone numbers were changed, he responded that, "They haven't told me anything". Given XXXX testimony about threats to his family arising from his former business operations and altercations with gang members, the RPD Member found that XXXX lack of knowledge about events reflected "both a lack of interest and a lack of concern, causing me [RPD] to draw a negative inference as to the reliability of this evidence". * The RPD found that even if it did find the evidence about the family's problems to be credible, it only amounted to two answered phone calls, some unanswered calls and an unanswered door knock over the course of about nine years which the RPD found would not demonstrate that the gang had the means or motivation to collect XXXX alleged extortion debt if the gang could be deflected by a refusal to answer the phone or the door.7 [24] A "significant credibility issue" (in the RPD's words)8 arose from inconsistencies between what XXXX had written in his Basis of Claim form (BOC)9 about what had happened at his shop in December 2003 and an interview he had with the Canada Border Services Agency (CBSA) on May 21, 2013,10 six days before the RPD hearing. I summarize the question of these inconsistencies as follows: * In his BOC, XXXX had written that he was in the back of the shop when MS-13 gang members forced open the closed doors of the shop and spoke with two employees who were working XXXX XXXX. They demanded to know where XXXX was and that they needed the money he owed them. XXXX ran away before the gang members found him. The BOC states that the employees were "badly beaten up" and then told to give XXXX the message that if he did not give the gang the money the next day, he would be killed.11 * On the other hand, in his CBSA interview,12 XXXX denied that the gang members had forced open the door to the shop. The gang tried to do so on occasion but they never could. He said he encountered the gang members on the sidewalk but they were not looking for him. When asked by the CBSA officer if his employees were ever injured by the gang while they were in the shop he stated, "I don't know if they had any problems with gang members but because of me they didn't get hurt". The CBSA officer read XXXX BOC statement to him but XXXX twice re-iterated that his workers were not hurt because of him. * When asked about the contradictions, XXXX told the RPD that he misunderstood the CBSA's question and that XXXX was describing events surrounding his first confrontation with the MS-13 earlier that same year (i.e., apparently when he was stabbed in XXXX 2003), not the one at the shop in XXXX 2003. When asked to explain his statement that his workers were never harmed in his shop, XXXX said this arose from the interpreter using a word in a different context than he understood it. I will deal with this specific alleged interpretation problem in the Analysis portion of these reasons. [25] Finally, the RPD found that with regard to the XXXX 2003 event which allegedly resulted in XXXX being injured, the medical evidence of an injury to his hand does not state the cause of the injury and, even if it occurred as described, the RPD found that, "I do not find that this constitutes sufficient credible evidence to establish, on a balance of probabilities, that he would face a serious risk of harm at the hands of gang members a decade later". RPD Decision on XXXX [26] The RPD noted XXXX BOC comments that he anticipated difficulty in testifying and in relating to persons in positions of authority. XXXX provided a January 16, 2013 letter from a psychiatrist in San Salvador attesting that XXXX suffered from XXXX XXXX XXXX XXXX XXXX". The RPD also noted that, given that XXXX had not been in El Salvador for 4 1/2 years, the psychiatrist's report was not a current evaluation of XXXX psychological health. As well, the psychiatrist's letter was deficient in not identifying a prognosis date, treatment regimes or dates and does not name the medication prescribed. Nonetheless, the RPD accepted that XXXX was traumatized by witnessing violence and was treated for XXXX XXXX in the past. XXXX was not now taking medication and there was no evidence of a more current psychiatric evaluation. Although represented, no application was made that XXXX be deemed a vulnerable person or for any specific accommodations for him at the RPD hearing. Nonetheless, the RPD stated that his testimony and demeanour were "evaluated in light of his identified challenges". The RPD found that XXXX was generally able to give clear and detailed testimony in response to questions.13 [27] The RPD noted a number of inconsistencies in XXXX's testimony and some differences between this testimony and that of XXXX about XXXX past. In particular, the RPD found that XXXX's failure to mention his two knife wounds in his BOC was "a very material omission". Nonetheless, the RPD found that XXXX was "very credible in his testimony". In particular, the RPD found that on a balance of probabilities, attempts to recruit him began from about the age of 27.14 [28] The RPD considered the fact that the gang members who attempted to recruit him knew him for a long time and were aware of his social and mental challenges. The Member concluded on a balance of probabilities that XXXX was: ...the object of opportunistic harassment and bullying by the gang members under the guise of recruitment, but was not a serious target for forcible recruitment by the gang. His age, his disabilities and the circumstances of his encounters with the gang members support a finding that he was perceived to be a vulnerable individual, and the gang members in his locality exploited his vulnerability whenever they happened upon him. [29] The RPD also found that, while XXXX did not face forcible recruitment into the gang in XXXX XXXX, he did face repeated harassment and assaults from local gang members there. The RPD found that he had a subjective fear of harm from those particular individuals and that there is objective evidence that he did, and may again face harm from the same individuals. However, the RPD also found that no reliable evidence to support a finding that those gang members possess either the motivation or the means to seek out XXXX in other parts of El Salvador for any purpose.15 [30] As the determinative issue with respect to XXXX, the RPD found that he has an internal flight alternative (IFA) in the capital of El Salvador, San Salvador. Given his personal circumstances, the RPD found that XXXX would likely need some financial and emotional support from family members indefinitely. XXXX has no fewer than XXXX siblings, living in two family groupings in San Salvador who are acknowledged to have provided financial support to family members in the past. XXXX has previously visited his family in San Salvador and is familiar with the location. His work prospects there are at least equal to his prospects in XXXX XXXX. The RPD concluded that it would be reasonable for XXXX to seek safety in San Salvador from the local gang members who had targeted him in XXXX XXXX.16 GROUNDS OF APPEAL [31] Neither the appellants nor the Minister seek to present new evidence to the RAD pursuant to subsection 110(4) of IRPA nor do they seek a hearing before the RAD pursuant to subsection 110(6) of that Act. [32] In correspondence of September 11, 2013, counsel for the appellants forwarded five documents to the RAD requesting that the RAD accept them. On October 11, 2013, the RAD registry faxed a letter to counsel advising that because the documents had not been included in the AR, Refugee Appeal Division Rule (the "Rules")17 29 stipulated that the appellants would have to make an application under RAD Rule 37 if they wanted the documents to be considered and that the application to do so should be received by the RAD within seven days of counsel's receipt of the RAD letter. No such application has been received by the RAD. Accordingly, the five documents have not been considered in this appeal. [33] The Minister intervened in this appeal. Its Notice of Intention dated August 2, 2013 was limited to stating that: "The Minister intends to rely only on the documentation in the Appellants Record of Appeal and will not be submitting any further documentary evidence. The Minister is of the opinion that a hearing is not required to dispose of this appeal".18 However, the Minister subsequently filed submissions by way of a memorandum (or, Intervener's Record [IR]) on October 16, 2013,19 a copy of which was faxed on that date to counsel for the appellants. The appellants have not filed any Reply Record to the Minister's IR within the time provided under RAD Rule 5(5), or at all. [34] As stated above, with the exception of the claim that the appellants have a well-founded fear of persecution as members of the particular social group of failed refugee claimants returning to El Salvador from North America (about which the appellants submit the RPD erred by not dealing with the claim in its reasons), the appellants do not contest the RPD's determination that the appellants did not establish a nexus with a Convention ground. Appellant's Grounds [35] The appellants raise five primary grounds of appeal:20 1) The RPD erred "in law and in fact, and breach the principles of natural justice" by admitting as a late disclosure a transcript of the appellants' May 21, 2013 CBSA interview with the appellants: i) having been advised of interpretation problems at the interview, yet relying on that interview in making credibility findings regarding XXXX and; ii) when the interview included a vulnerable person (i.e. XXXX) and the appellants had no counsel or other representative to assist them; 2) The RPD erred "in law and in fact, and breached principles of natural justice" by making a microscopic examination of issues and evidence that were either irrelevant or peripheral when making a negative finding of credibility regarding XXXX; 3) The RPD failed to take into account the appellants' age, cultural background, levels of education or lack thereof, prior social/life experiences, and lack of sophistication when assessing the testimony of the appellants, especially with regard to XXXX who's XXXX XXXX XXXX conditions were accepted by the RPD; 4) The RPD "erred in law and in fact" in determining that XXXX had an IFA in the capital city of San Salvador despite evidence that the MS-13 and Gang 18 have members everywhere in El Salvador; and, 5) The RPD failed to address the appellants' fear of returning to El Salvador from North America which "is a separate legal basis aside from credibility findings" amounting to "a denial of natural justice and constituting a failure to address jurisdiction over an issue that was reasonably and clearly raised". REMEDY SOUGHT [36] The appellants seek an order from the RAD that the RPD decision be set aside and either: (a) the appellants be found to be Convention refugees and persons in need of protection; or (b) in the alternative, the matter be referred back to the RPD for re- determination by a different panel.21 [37] The Minister seeks an order confirming the RPD's decision. STANDARD OF REVIEW [38] Neither the appellants nor the Minister made submissions as to the appropriate standard of review the RAD should apply when considering the determinations of the RPD. [39] When considering such standards with regard to the judicial review of administrative tribunal determinations, the Supreme Court of Canada (SCC) in Dunsmuir22 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a specific issue before a review court is well settled by past jurisprudence, a reviewing court may adopt that standard of review. It is when that search proves fruitless that a reviewing court must undertake a consideration of factors comprising the standard of review analysis. [40] The RAD is a new appellate administrative tribunal about which, to the best of my knowledge, the Federal Court has yet to comment on the question of what standard of review the RAD should apply under various circumstances that might come before it. Accordingly, a standard of review analysis must be undertaken in this case. [41] While there are similarities between the role of the RAD vis-à-vis the RPD and a court of judicial review with respect to administrative tribunal determinations, there are a number of important differences. Some of the more important of these are: * An appeal may be taken to the Federal Court only with leave of the court, while an appeal of right to the RAD from the RPD is available for those who fit one of the legislative categories of potential appellants, albeit with certain determinations of the RPD not being subject to appeal. * A judicial review by the court is not with respect to the substantive merits of a case but, rather, considers the legality of the tribunal's decision and process. While both a reviewing court and the RAD will consider questions of law, fact or mixed fact and law, the RAD also considers the substantive merits of the matter and may make final decisions as to whether or not an individual should have refugee protection. * With rare exceptions, new evidence is not permitted on a judicial review whereas there are provisions in the IRPA which provide limited circumstances whereby new evidence may be introduced before the RAD by an appellant and, in some specific situations, oral testimony may be taken by the RAD. The scope of new evidence which might be presented to the RAD by the Minister is not restricted. * The remedies available upon judicial review are, generally speaking, limited to a dismissal of the judicial review or, if successful, the referral of the matter back to the tribunal for a redetermination. In contrast, the RAD may confirm the RPD determination, set the determination aside and substitute its own determination, or, in limited situations, may refer the matter back to the RPD for redetermination with, or without, directions. [42] Although both the RPD and the RAD may make determinations on refugee protection, there are notable differences between the two Divisions. [43] A review of the legislation regarding the RAD makes it clear that an appeal from the RPD to that Division is not a de novo or new hearing. The appeal is based on the RPD Record with restrictions on the new evidence that may be presented by a claimant, and there are oral hearings only in limited circumstances. Such an appeal is not a re-litigation of the entire case nor is it intended to duplicate the work of the RPD. In my view, this distinction provides a basis for the RAD, which does not generally conduct hearings, to show deference to the findings of the RPD, particularly with respect to findings of fact or of mixed fact and law. [44] Generally, the subject matter of such an appeal is party-driven. An appellant has the onus of demonstrating how and in what way the RPD might have erred. The RAD also plays the wider administrative function of promoting the consistency and quality of RPD decision-making by way of three-person panel determinations which have legislated precedential value over the RPD and single Member RAD panels. [45] As the law has developed over the years with respect to the judicial review of determinations of tribunals, the courts have, generally speaking, determined that with respect to questions of fact and issues concerning mixed fact and law, the standard of review is "reasonableness". On questions of alleged errors of law (which includes questions of fairness and natural justice) the issue is not completely settled in all respects but, often, the courts will apply a standard of "correctness". [46] The RPD finding that XXXX was not credible concerns questions of fact, thus attracting a standard of review of reasonability. [47] The SCC in Dunsmuir23 stated that any analysis of the standard of review must be contextual and is dependent on a number of relevant factors including: * the presence or absence of a privative clause; * the purpose of the tribunal as determined by the interpretation of the enabling legislation; * the nature of the question at issue; and * the expertise of the tribunal. It is important to note the particular context of this appeal as the SCC in Dunsmuir stated that it will not be necessary to consider all of the four factors in every case, as only some of them may be determinative in the application of the reasonableness standard in a specific case. [48] With respect to XXXX, the nature of his appeal concerns the RPD's treatment of the issue of IFA. [49] Regarding judicial review, the courts have found that the determination of a viable IFA is a question of mixed fact and law. [50] As was set out in a brief synopsis of the law concerning IFA by Justice Heneghan in Fatoyinbo:24 [4] The determination of a viable IFA is a question of mixed law and fact, reviewable on the standard of reasonableness; see the decision in Agudelo v Canada (Minister of Citizenship and Immigration), 2009 FC 465 (CanLII), 2009 FC 465 at para 17 and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 (CanLII), [2009] 1 SCR 339. [5] The test for a viable IFA was set out in Rasaratnam v Canada (Minister of Employment and Immigration), reflex, [1992] 1 FC 706 (FCA) at 710-711. It is a two-pronged test, as follows: first, the Board must be satisfied that there is no serious possibility of a claimant being persecuted in the IFA and second, it must be objectively reasonable to expect a claimant to seek safety in a different part of the country before seeking protection in Canada. [6] In order to show that an IFA is unreasonable, the Applicant must provide evidence to show that conditions in the proposed IFA would jeopardize her life and safety in travelling or relocating to that IFA; see Thirunavukkarasu v Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589 (FCA) at 596-598. [51] In this case, is there any substantial reason why a similar standard of reasonability should not be applied by the RAD to the RPD determination on IFA regarding such matters as to whether or not the gang that bothered XXXX would find him in San Salvador if they would have the motivation or means to attempt to do so or if XXXX's life or safety would be jeopardized in that city? As discussed below, I find there is no such reason. [52] The jurisprudence concerning the question of whether a correctness or reasonableness standard should be applied on judicial review turns on the amount of deference that should be given to the decision under appeal. With respect to findings of fact or mixed fact and law, deference is shown inasmuch as a tribunal, unlike the reviewing court (or, as noted above, the RAD in its legislative scheme) has had a full opportunity to directly hear the entire case, including the oral testimony of the claimants and apply their adjudicative and administrative expertise to the questions of fact before them. [53] In my assessment, the RAD must be differentiated from other administrative appellate tribunals which do hold de novo hearings where the courts have determined that a non-deferential approach by those appellate tribunal reviews of lower tribunal decisions is appropriate, i.e., a correctness standard is more likely applied.25 The RAD is not such a tribunal. [54] In considering the appropriate standard of review I should apply to RPD findings of fact or of mixed fact and law, I have considered the guidance offered by the Alberta Court of Appeal (the "Court") in Newton v. Criminal Trial Lawyers' Association26 with respect to an appellate administrative tribunal which has some similarities to the RAD. I find the discussion by that Court, including the way in which it tied into its determination the decision of the SCC in Dunsmuir, to be helpful and instructive. [55] In Newton, the Court reviewed an administrative appeal tribunal's decision regarding a first-instance administrative body's ruling concerning the discipline of a police officer. This appellate tribunal was the Law Enforcement Review Board. The Court stated that: [1] This appeal concerns the basic structure and interrelationship of the tribunals in Alberta that review the conduct of police officers when that conduct is called into question in disciplinary proceedings under the Police Act, R.S.A. 2000, c. P-17. The specific issue is the extent to which the Law Enforcement Review Board may conduct a fresh hearing based on fresh evidence when an appeal is launched from the decision of a presiding officer in a disciplinary matter. [56] The Court's ultimate determination in Newton was as follows: [96] The appeal is allowed, and the decision of the Board set aside. The answers of [sic] the three questions on which leave was granted are as follows: 1) The Board did err in law by conducting a de novo hearing, and by allowing the Criminal Trial Lawyers' Association to call evidence which was called or available at the disciplinary hearing, without requiring it to meet the legal test for new evidence; 2) The Board did fail to apply the correct standard of review to the decision of the Presiding Officer; 3) The Board did err in failing to consider the exhibits tendered, including the transcript of the hearing before the Presiding Officer. [57] When assessing the appropriate standard of review for findings of fact or mixed fact and law made by the RPD, it is useful for the RAD to consider the factors outlined in Newton,27 which also have regard to the list of factors listed in Dunsmuir.28 The Newton factors include: * the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; * the nature of the question in issue; * the interpretation of the statute as a whole; * the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; * the need to limit the number, length and cost of appeals; * preserving the economy and integrity of the proceedings in the tribunal of first instance; and * other factors that are relevant in the particular context. [58] As mentioned earlier, the SCC in Dunsmuir noted that all of the factors it had listed would not necessarily feature in every case. As well, that same court in Khosa29 noted that the factors used to decide the standard of review are not a checklist of criteria but that a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD in this case concerning the RPD's findings of fact having regard to the Newton factors, the following three are the most significant: * the respective roles of the RPD and RAD in the context of IRPA; * the nature of the question in issue; and * the expertise and advantageous position of the RPD Member compared to that of the RAD arising from the RPD's full hearing of all issues and all of the evidence as compared to the RAD's more limited role on appeal. [59] All Divisions of the Immigration and Refugee Board (IRB) derive their jurisdiction from, and they interpret, the same statute: the Immigration and Refugee Protection Act. Section 162 of IRPA gives each Division the same powers, (including the RPD and the RAD), "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." [60] While the powers of the RPD and the RAD are similar, their roles are not identical. The primary role of the RPD is to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on, for the most part, the Record of the RPD proceedings in light of the allegations of error formulated by the parties to the appeal. Even so, the fact that the RAD may substitute a different determination than that made by the RPD does make its role similar to the RPD in that both Divisions are engaged in refugee determination. [61] The mere presence of a right of appeal in and of itself does not warrant a correctness standard of review, given the relationship between the RPD and RAD I describe below, and the limits imposed on RAD in IRPA. [62] The RPD is a tribunal of first instance which has been given the authority under IRPA to make a decision to accept or reject a claim for protection.30 RPD Members have expertise in interpreting and applying IRPA and, as well, expertise in assessing claims based on country conditions. The RPD must conduct a hearing31 and assesses the totality of the evidence, including evidence related to the credibility of the appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses and other evidence. [63] In contrast, IRPA limits the RAD's ability to gather and consider evidence. The RAD is not a tribunal of first instance and its primary role is to review the decision made by the RPD. As stated earlier, the RAD must generally proceed without a hearing and on the basis of the Record, submissions by the parties, and, on occasion, new evidence.32 The RAD's authority to consider new evidence and hold hearings is limited to evidence that arose after the rejection of the 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.33 As well, oral hearings are limited to circumstances where the new documentary evidence raises a serious credibility issue.34 [64] Given the RPD's role noted above, and the legislative limitations of the RAD process, I conclude that the RPD is in the best position to assess the credibility of the appellants and to make findings on issues of fact and mixed law and fact, related to the claims. This position is consistent with Newton where the Court found that, with respect to the appellate Board: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".35 [65] Newton also concluded that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".36 [66] I consider that the analysis of the Alberta Court of Appeal is cogent, well reasoned and assists me in coming to my determination that in the case before me, the errors alleged by the appellants are ones of fact or mixed fact and law and, in either case, the RPD determination on that question is to be given deference and be reviewed on a standard of reasonability. [67] In assessing reasonability, the SCC in Dunsmuir noted in paragraph 47 of its decision: In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [68] The SCC made it clear that on judicial review a court should not lightly interfere with a decision, even when the decision may not have been the one which the reviewing court would have reached on its own. As the SCC noted further in its subsequent decision in Khosa:37 There may be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. ANALYSIS OF THE MERITS OF THE APPEAL CBSA May 21 Interview of the Appellants [69] Counsel submits, inter alia, that the RPD erred in allowing into evidence the transcript of the CBSA interview of the appellants. The interview took place approximately one week before the RPD hearing. In so doing, counsel submits that the RPD breached principles of natural justice. As noted earlier, I found that the assessment of a breach of natural justice attracts the standard of review of correctness. [70] First, I must determine what did, and did not, happen with regard to the CBSA interview at the RPD hearing. A review of the transcript indicates that counsel did not object to the interview being accepted into evidence, although he did raise some concerns about the quality of the interpretation services used at that interview. No argument was raised by counsel at the hearing that the interview transcript should be rejected in its entirety. [71] The RPD hearing transcript reveals the following interplay between the RPD Member and counsel: Member: All right. Counsel, you will also note that Minister's made an application for late disclosure on the 22nd May. Counsel: Yes, I've seen that. Member: Do you have any objections to the admission of this evidence? Counsel: Well, other than to point out--and I know we've gone through that with the claimants, and they tell me there were some issues as to how the interpretation came out on a few things. But other than that, it's something which happened. Member:If there's difficulties or objections to the interpretation, that's something that can come out under questioning. Counsel: And that's what I was going to say. Because it's something which happened, so a recording of what happened, so I'm not going to (indiscernible) object to it but I'm only saying that there's some--there might be some areas which might need clarifying. Member: Okay. So you can do that under questioning. Rule 34(3) requires that such documents, in general, be disclosed 10 days in advance or five days prior, filed in response to another document. However, in keeping with Rule 36, the evidence contained in this document is relevant and as counsel has graciously conceded, it is an event that has occurred and in view of the fact that the Minister disclosed it as quickly as possible, following the interview, I'm going to accept this disclosure into evidence as Exhibit 7.38 [72] No objection whatever was raised at the hearing; either at the outset, during questioning or in submissions regarding the topic of the appellants not having counsel or other representation to assist them during the CBSA interview. [73] Neither counsel nor the RPD Member asked any questions of the allegedly vulnerable appellant, XXXX, as to whether any interpretation issues might have affected any responses he gave during the interview. Likewise, the alleged lack of representation was also not raised with him. In fact, the entire circumstance of the CBSA interview was never a topic raised during any of XXXX's testimony before the RPD.39 [74] Again, no testimony was elicited from XXXX by either counsel or the Member with respect to a lack of representation at the CBSA interview. [75] During the course of her questioning, the RPD Member specifically advised XXXX that she was concerned about discrepancies as between his testimony and his BOC as compared to what he stated in the CBSA interview. The Member put the apparent contradictions to him for clarification.40 During the course of the Member's questioning the following was said with regard to interpretation:41 Member: So this does form a significant contradiction in your evidence and this is why I've given it to you in some detail. And at this time, I'd like you to, to the very best of your ability, try to clarify, for me. But before you do, I want to make sure, you clearly understand the contradiction I'm referring to? XXXX: Yes. Member: Okay. Then do please explain it for me. XXXX: Before -- before everything, I would like to apologize for miss -- for not interpreting myself correctly in the interview on the 21st. Because when I was asked on the 21st, I associated with -- directly with that first time when -- when they hurt me, when they injure me. Member: Okay. Just let me catch up for one moment. "When they interviewed me on the 21st of May", you said you confused it or you automatically -- I didn't quite hear the last thing you said. XXXX: So when--what I'm saying is that when that interpreter used certain terminology, when she was speaking, that I would use when I speak, I misunderstood the question and I expressed the previous problem. Member: And when you refer to the previous problem, what are you referring to? XXXX: To the question of when I was assaulted the first time. Member: Oh, I see. Going back to May? XXXX: Yes. Member: Okay. But parts of your Basis of Claim Form were clearly read out to you, large parts, and you were given a couple of opportunities to clarify at that time. So did you, at that time -- I'm just going to take a moment to read out the transcript (indiscernible). I think the question that the CBSA officer asked you was fairly straightforward. They stated, "Were you or your employees ever injured by the gang while they were at your shop?" So which one of those words did you not understand? XXXX: No. That I did understand. I did understand. But that was also stated with a brutal beating and which I would -- which I would say that somebody is left badly injured, but if they were being left in a serious condition. So that's what I understood when I asked that question. So they had been beaten, but they have never been serious -- in a serious condition. Member: but the next statement you say is, "No. Because of me? I don't know whether they had any problems with the gang members but because of me, they didn't get hurt." XXXX: They were never injured, but they were beaten to intimidate, but not in front of me. That's what they told me and that's what I expressed. [76] As counsel indicated he would in his initial discussion with the Member at the outset of the hearing, counsel did ask questions of XXXX after the Member's questioning was completed about the interpretation provided during the CBSA interview:42 Counsel: Now, you had an interview last week at the Canada Border Services Agency, and I note you've been asked about that interview you said you had some problems with some terminology? XXXX: Yes. Counsel: Can you give us some of the terminology you think you have difficulty with it? XXXX: When they talk about the beating, I don't use that word. So someone that is punched twice, I don't use that term. Counsel: So to you the term "golpiza" refers to more than a punch? XXXX: Yes. Yes. Counsel: Okay. So what term would you use for punches? XXXX: Just to beat, "golpa" (phonetic). Interpreter: So there is a difference between "golpiza" and "golpa"? XXXX: When you talk about the "golpiza", to me is when a person is -- is left unconscious or unable to respond. [Member has word spelled for her] Member: I almost had it. And that's when someone is unconscious? XXXX: Yes. Member: Okay. XXXX: Or at least badly or severely injured. Counsel: So your evidence is that -- at least am I correct to say your evidence is that your workers were beaten, where you have like punches thrown at them, but not severely injured (indiscernible). Interpreter: The last part? Counsel: To the extent of "golpiza". Interpreter: Okay. XXXX: Yes. [77] In the course of soliciting counsel's final submissions, the Member specifically asked, inter alia, for representations regarding credibility issues arising from the Minister's submissions and contradictions with other evidence.43 [78] Counsel did so,44 commenting on the interpretation provided at the CBSA interview, in particular, focusing on the difference between "golpiza" and "golpa" in an effort to explain why there may have been contradictions in the evidence. [79] In any event, the following extract from the first page of the CBSA transcript touches on both issues counsel has raised on this appeal:45 CBSA officer: Okay so first of all, do you have any problems understanding our interpreter today? XXXX: Yes. Interpreter: Yes. Officer: They understand? They don't have any problems? Interpreter: They understand perfectly, yes. Officer: Okay and your lawyer is aware that you're here today? XXXX: I believe so. Officer: Yeah I called him. You're okay with proceeding with the interview without your lawyer present? XXXX: Yes. Officer: [to XXXX] Normally when we do these interviews, we do them separately. But after reviewing [BOC] I understand that you've been diagnosed with XXXX XXXX XXXX XXXX XXXX? XXXX: Yes sometimes it's difficult for him to understand or make himself understood. [XXXX has not spoken since entering the interview room, and appears passive and not present] Officer: Okay for that reason we will do the interview with both of you together in the same room today. Okay? XXXX: Thank You. [80] Given all of the above, I find that an objection was not made to the RPD to the introduction of the CBSA interview transcript but, rather, counsel wished to draw attention to and make submissions with respect to some discrete aspects of that interview and whether there was confusion among the appellants in answering questions at that time. Counsel was provided a full opportunity to solicit testimony from the appellants with respect to this matter and, additionally, an unrestricted opportunity to make representations on these points. [81] I also find that counsel did not raise in any way the complaint he now raises in this appeal with regard to the appellants not having representation during their CBSA interview. The evidence is that counsel specifically stated that he and the appellants had gone through the CBSA transcript prior to the RPD hearing and no reason has been provided to the RAD as to why counsel could not have raised the representation question before the RPD itself if it was of any concern. As well, in particular the question of the "vulnerability" of XXXX in the context of the representation issue is of little moment inasmuch as it was the evidence of XXXX from the CBSA interview that formed the basis of the credibility inquiry during the RPD hearing, contributing to the negative credibility finding regarding XXXX and not the answers provided by XXXX to the CBSA. [82] Upon reading the decision of the RPD, it is very clear that the Member dealt at length with the question of what she determined to be the discrepancies between the CBSA interview and the other evidence. The Member took into account the evidence and submissions of counsel. Specifically, the RPD stated the following with regard to the question of the use of the word "golpiza" and XXXX credibility: [22] The most significant credibility issue arose in XXXX evidence, over time, concerning his second and last confrontation with gang members, which is alleged to be the incident which caused him to flee El Salvador. In his Basis of Claim (BOC) form, he stated that in XXXX 2003, MS-13 gang members came to his shop, and forced open the doors. He fled out another door before they could find him. The gang members told his employees that the claimant owed them money; that it was overdue and that he must have it ready next day or he would be killed. The gang members beat the two workers badly at that time. [23] Both claimants attended an interview with Canada Border Services Agency (CBSA) personnel on May 21, 2013 and an application was made by the Minister for Public Safety for late admission of the statements made by the claimants into evidence. It was accepted and entered as Exhibit 7 at the hearing. [24] In this interview, the claimant denied that the gang members had forced the door to his XXXX open. He stated they tried on occasion but never could. He stated that the gang members encountered him on a sidewalk but were not looking for him. Asked if his employees were ever injured by the gang while they were at his shop, he stated "I don't know if they had any problems with gang members but because of me they didn't get hurt" His BOC statement was read to him and he twice re-iterated that his workers were not hurt because of him. [25] This contradiction was put to the claimant to explain at the hearing. He stated that he misunderstood the question and was describing the events surrounding his first confrontation with gang members earlier that same year. Asked to explain his statements that his workers were never harmed in his shop, he stated that this resulted from the interpreter's use of a word in a different context than he understood it. A central question from the CBSA interview was read back to him: "But were your employees ever injured by the gang while they were at your shop?" to which he had replied in the negative. [26] XXXX was asked to explain what part of this question he had misunderstood. He stated that the interpreter used the word "golpiza" which he understood to mean "very badly injured, to a state of unconsciousness", and so he denied that this had ever happened to his employees. He testified that "they were never injured but they were beaten to intimidate them - that's what they told me and that is what I expressed." I do not find the claimant's explanation to be persuasive in this regard. His BOC form statement says that his employees were "beat up badly" and were instructed to give him a message. I find, on a balance of probabilities, that his subsequent statements to CBSA that his employees were never hurt because of him and were never injured by the gang while at his shop cannot be plausibly accounted for by his explanation, and that the likely explanation for this contradiction is that the claimant forgot a crucial aspect of his narrative because it was a fabrication. [83] I find that the Member did not breach the principles of natural justice in accepting into evidence the CBSA interview. The Member was correct in doing so. The Member took into account the evidence and representations of the appellants concerning the interview in coming to her conclusions. Moreover, even though the Member explicitly asked if the appellants objected to the introduction of the Minister's evidence, no objection was raised by the appellants to the interview being accepted into evidence, with their focus being just on certain specific issues. The Member dealt with the alleged interpretation problems and reasonably found, as she did in the last paragraph quoted above, that XXXX could not explain away the discrepancies. Microscopic Examination [84] Counsel submits that the RPD erred in its credibility assessment of XXXX evidence by rying out a microscopic examination of issues and evidence that were either irrelevant or peripheral in coming to its negative conclusions. I disagree. In this regard, the appellants rely on the 1989 authority of Attakora46 which stated: Not all inconsistency or implausibilities will support a negative finding of credibility. Adverse credibility findings should not be based on microscopic examination of issues irrelevant or peripheral to the claim. [85] The appellants submit that the discrepancies noted by the RPD between what XXXX wrote in his BOC as compared to what he stated in his CBSA interview amounted to focusing on irrelevant and/or peripheral matters which should not have been the basis of determining XXXX credibility. [86] The events which occurred at XXXX shop were the final straw which led to his leaving his country for the U.S. It was a seminal event and could not at all be fairly described as irrelevant or peripheral to the claim. In my assessment, establishing what had happened on that occasion was essential for XXXX to be considered credible. Whether the maras managed to force their way into the shop, or not, and whether XXXX employees were injured, or not, were not minor details. In my assessment, being clear on such matters would be reasonably expected for one who was, in large measure, basing their claim on that event. In my further assessment, the findings of the RPD in this regard do not depend upon the nuances of the translation of one word (i.e. "golpiza") inasmuch as the RPD's findings do not depend upon the severity of any attack inasmuch as the employees being "beat up badly" cannot be reconciled with the statement that the employees had never been hurt. [87] It was acceptable for the RPD to rely on XXXX CBSA interview in making its credibility findings when that interview was at odds with his BOC and testimony.47 [88] Moreover, the RPD's conclusion on XXXX lack of credibility was not based solely on the above noted discrepancies. The RPD also found that the vagueness of XXXX testimony about what had happened to his family since he left the country contributed to the negative credibility finding. Inasmuch as that evidence was offered to demonstrate an alleged ongoing interest by the gang to do XXXX harm in the future should he be returned to the country, credibility findings in that regard too are neither irrelevant nor peripheral. [89] As noted earlier, it has been established that credibility findings are primarily findings of fact which should attract the standard of review of reasonability. I find that the RPD's finding that XXXX was not credible was reasonable as that term has been defined by the SCC in Dunsmuir. The RPD Failed to Take Into Account Characteristics of the Appellants [90] While the appellants raise as a specific ground of their appeal the RPD's alleged failure to take into account the appellants' age, cultural background, levels of education, social/life experience and lack of sophistication when assessing their testimony (especially with respect to XXXX and his XXXX XXXX XXXX), no portion of the appellants' memorandum provides details as to how or where the RPD committed these failures or the consequences arising therefrom. [91] In my assessment, the RPD was mindful of XXXX's limitations and took steps, such as having XXXX's counsel question him before the Member, to accommodate him while he provided his testimony. To the extent that XXXX's difficulties might have an impact on the viability of an IFA, that will be discussed later in the following portion of this decision. Regarding XXXX, without being directed to anything in particular by counsel, I fail to ascertain how or in what way the RPD's ultimate conclusion that XXXX was not credible was impacted by any of the personal characteristics listed by the appellants not having been taken into account. This ground of appeal does not provide a sound basis for setting aside the RPD's decision. The Finding of an IFA for XXXX [92] Counsel submits that the evidence before the RPD was that the gang that had bothered XXXX in his hometown is active throughout El Salvador, including in the IFA, San Salvador. That being so, it is submitted that the first prong of the IFA test, i.e. would XXXX be safe in San Salvador, was not met. [93] The appellants claim under section 96 failed before the RPD and such finding, (with the exception to be discussed in the following section of these reasons) was not challenged on this appeal. The allegations of the appellants concerned their being victims of crime and not persons suffering persecution for one of the five Convention grounds. Accordingly, when reviewing an IFA, one must consider the claim under section 97 which, inter alia, requires that an individual would be personally targeted such that it could not be said that the risk they might face in the future would be one faced generally by others throughout their country. [94] Judging from the following submissions made before the RPD, it is clear that counsel did not understand the nature of section 97 or the fact that a generalized risk will not give rise to a successful claim for protection: Counsel: .... And I think the last issue the panel raised was respect to nexus. Member: Yes. I don't see one. Do you? Counsel: And in my submission, they should fit in the, I guess, what I would call (indiscernible) special group, being, I guess, the members who are being targeted by -- people who are being targeted by gangs. Because as the panel knows, special group is a fairly revolving [sic] ground that people -- once there's an identifiable group, which in this situation is that they should be able to fit in that. But they should also be able to fit in the s. 96 and 97, when you look at the generalized risk which they face if they were to return and the fact the government is incapable of protecting them because the government is part of the -- by government I mean the police, are part of the people who are persecuting them, using the gangs. Member: I'm not sure I entirely understand your submission on generalized risk. Can you rephrase that for me? Counsel: Well, in my submission, I'm saying that there's the generalized risk in--if they were to return to El Salvador because they have--you have all these gangs which are everywhere. They are putting people like them at risk, they are targeted them and you have a government which is incapable of protecting them from these criminals. And so that's what I'm saying that they fit (indiscernible) a generalized risk because their fear is real. Because when you cross the gangs, the end result could be your life. And that's what the claimants fear in this situation. That's what I'm saying, that they should fit in that, if they don't fit anywhere else. So unless there is something else the panel would like me to address, those are my submissions and I would ask that they be found to be Convention refugees. [95] The RPD quite carefully considered XXXX's testimony about his contact with gangs in his hometown. The RPD found that, while he had faced repeated harassment and assaults from local gang members who were fully aware of his personal challenges, such treatment was in the nature of bullying and the like and he had not faced forcible recruitment into the gang in XXXX XXXX. The RPD concluded that, while the local gang who knew XXXX from when he was a child, harassed him in XXXX XXXX XXXX that particular gang had neither the motivation nor the means to seek him out if he should move to live with his family members in San Salvador. [96] It is true that, even if he moves to San Salvador, XXXX could, like others who live in that city, run afoul of gangs. However, there is no indication that the specific gang who personally targeted him in XXXX XXXX would seek him throughout the country and, if successful in finding him in San Salvador, would travel there to do him harm. There was no evidence presented by XXXX that, because the gangs which operated in XXXX XXXX may have shared the same name with gangs in San Salvador or, indeed, may have even been members in the same national gang, a nationwide attempt would be undertaken by those who harassed him at home to locate XXXX anywhere in the country. In my assessment, the RPD's finding that the XXXX XXXX gang would not seek out XXXX was a reasonable conclusion which means that any risk XXXX would face in San Salvador from maras would be that faced generally by others in El Salvador. [97] Counsel submits that because the RPD found that although there were certain material omissions in his testimony, XXXX evidence about what had happened to him "had a ring of truth", carries with it the supposition that his testimony with respect to the absence of an IFA in El Salvador should also be believed and accepted as credible. Again, I disagree. [98] The RPD's conclusion that XXXX was credible in telling his story of what happened to him before he left El Salvador led to findings regarding specific historical facts, not properly serving as the basis for global conclusions that would overcome the need to demonstrate a risk in San Salvador that was not generalized. Moreover, if the RPD had not found that XXXX had established a claim under section 97, there would have been no need for the RPD to conduct an IFA analysis at all. In concluding that he faced section 97 risks in XXXX XXXX does not mean that the RPD has also accepted XXXX allegation that he would face personalized risk in San Salvador. [99] XXXX had previously gone to San Salvador on a number of occasions and was not followed there by those gang members from XXXX XXXX XXXX Upon a review of the transcript, the RPD Record and the Appellants' Record, there is no sufficient evidentiary base that would suggest that those gang members are currently looking for him throughout the country or that they would do so if he returns to live in San Salvador. [100] Justice de Montigny commented as follows in Garcia Guevara48 with respect to the onus on the claimant when a potential IFA is identified: [20] On the other hand, I am of the view that the panel could consider the possibility of an internal flight alternative for the applicant in Mexico City. It is settled law that the onus is on refugee claimants to establish that they cannot find refuge in their country of origin. For the purposes of this analysis, it is important to apply the two-stage test developed by the Court of Appeal in Rasaratnam v Canada (Minister of Employment and Immigration), reflex, [1992] 1 FC 706. The applicant therefore had the burden of proving, on a balance of probabilities, that she faced persecution everywhere in Mexico and that it was objectively unreasonable for her to avail herself of an internal flight alternative. [21] In this case, the panel noted that the applicant had always lived in the same city and that it would not be unreasonable for her to relocate to a large city like Mexico City. On the other hand, the panel found that there was nothing to indicate that she could not establish herself there; it is true that she has no family there, but she does not have any in Canada either. In this respect, it should be reiterated that it is important to adduce concrete evidence showing that it would be unreasonable to seek refuge in her own country: We read the decision of Linden J.A. for this Court as setting up a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. Ranganathan v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164 at paragraph 15. (my underlining) [101] The RPD took into account XXXX XXXX XXXX XXXX issues when it concluded that he would have the benefit of family members in San Salvador who, based on their previous conduct, would likely assist him in living in that city. XXXX provided insufficient evidence that he would face conditions that would jeopardize his life and safety in San Salvador, other than those risks that might generally face others there. I find that the conclusion of the RPD that XXXX has a viable IFA in San Salvador is reasonable. Fear of Persecution as Failed Refugee Claimants [102] The appellants raise the recent decision of the Federal Court in Nadarasa49 in support of their proposition that the fear of returning by a failed refugee claimant by itself creates a separate legal basis for a claim, aside from credibility findings, which must be addressed by the RPD. The appellants allege that they fear returning to El Salvador "as they would be persecuted by reason of having been in Canada and the United States. They stated that they would be targeted by the gangs because they are deemed to have money having come from North America".50 [103] The only direct submission counsel made to the RPD with respect to this topic was as follows: And it doesn't help that they're coming from North America. As they have indicated, for people who are coming from North America, then they think you come with dollars. And so then you are even bigger targets by these gangs.51 [104] Counsel made no reference to country documents in this regard to support the proposition that, in El Salvador, persons who return from North America face a higher risk of being a target of criminal gangs. [105] While the RPD did not make direct findings on the proposition, the RPD clearly found that the claim as posited by the appellants did not involve section 96 because it was a question of threats of criminal activity against them as opposed to persecution for one of the five Convention grounds. Persons who face the prospect of robbery in their home country because they had lived for a time in a country where some might presume they had earned money has not been found to constitute a particular social group under section 96. [106] Even if one assumes that persons who spent time in North America would attract the criminal attention of the gangs for that reason, the authorities have found that such a subgroup of citizens does not mean that the risk they face is not generalized. The leading case in this regard is the 2008 Federal Court decision in Prophete52 regarding a claimant who alleged that, because he was perceived to be wealthy, would face a particular risk not faced generally by others in Haiti. The court there found: Based on the recent jurisprudence of this court, I am of the view that the appellant does not face a personalized risk that is not faced generally by others in or from Haiti. The risk of all forms of criminality is general and felt by all Haitians. While a specific number of individuals may be targeted more frequently because of their wealth, all Haitians are at risk of becoming the victims of violence. [107] In their testimony and submissions before the RPD, the appellants testified that the gangs in El Salvador are rife and that most people in that country face the prospect of becoming their victims. Their own counsel spoke of generalised risk. The appellants did not present evidence to corroborate their proposition that those returning from North America face a greater risk than others living in that country of being victims of robbery because of perceived wealth. Even if they had provided such evidence, I find that the principles enunciated in Prophete would apply such that, even an increased prevalence of being targeted for theft, robbery or extortion against those who have spent time in North America would not alter the generalized risk these appellants would face in a fashion similar to others in El Salvador who had not left the country. CONCLUSION [108] For these reasons I confirm the determination of the RPD that XXXX XXXX XXXX XXXX, a.k.a. XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX, a.k.a. XXXX XXXX XXXX XXXX, are not Convention refugees, nor are they persons in need of protection within the meaning of section 96 and section 97 of the Act and their appeals are dismissed. (signed) "" November 26, 2013 Date 1 Immigration and Refugee Protection Act ("IRPA"), S.C. 2001, c. 27. 2 RAD Exhibit 3. 3 RAD Exhibit 6. 4 RAD Exhibit 2, Appellants' Record (AR), Tab 2 (89 pages). 5 RAD Exhibit 2, AR, Tab 1, Refugee Protection Division (RPD) Reasons at paras. 13, 14 and 45. 6 RAD Exhibit 2, AR, Tab 1, RPD Reasons at paras. 16 and 17. 7 RAD Exhibit 2, AR, Tab 1, RPD Reasons at paras. 18-21. 8 RAD Exhibit 2, AR, Tab 1, RPD Reasons at paras. 22-27. 9 RAD Exhibit 4, RPD Record (RPDR), p. 31 at para. 8. 10 RAD Exhibit 4, RPDR at pp. 194-210. 11 RAD Exhibit 4, RPDR, p. 31 at para. 8. 12RAD Exhibit 4, RPDR at pp. 203-205. 13 RAD Exhibit 2, AR, Tab 1, RPD Reasons at paras. 30-33. 14 RAD Exhibit 2, AR, Tab 1, RPD Reasons at paras. 35-44. 15 RAD Exhibit 2, AR, Tab 1, RPD Reasons at paras. 45-48. 16RAD Exhibit 2, AR, Tab 1, RPD Reasons at paras. 47-55. 17 Refugee Appeal Division Rules (the "Rules"), SOR/2012-257. 18 RAD Exhibit 3. 19 RAD Exhibit 6. 20 RAD Exhibit 2, AR, Tab 4, at para. "B". 21 RAD Exhibit 2, AR, Tab 4, at para. "D". 22.Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 23.Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. 24 Fatoyinbo v. M.C.I. 2012 FC 629. 25 For example, see Castellon v. MCI 2012 FC 1086 concerning the Immigration Appeal Division; Paul v. Bitish Columbia (Forest Appeals Commission) 2003 SCC 55; and Murphy v. Canada (Attorney General) 2007 FC 905 concerning the Veterans Review and Appeal Board. 26 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 27 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, at paragraph 44. 28 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 29 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12. 30 IRPA, section 107. 31 IRPA, section 170. 32 IRPA, subsection 110(3). 33 IRPA, subsection 110(4). 34 RAD Rule 57. 35 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, at para. 82. 36 Ibid, paragraph 95. 37 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, at para.59. 38 RAD Exhibit 2, Tab2, at pp. 9-10. 39 RAD Exhibit 2, Tab2, at pp 12-36. 40 RAD Exhibit 2, Tab2, at p. 60, lines 15-40 to p. 71 lines 1-2. 41 RAD Exhibit 2, Tab2, at p. 62, lines1-40 to p. 63, lines 1-10. 42 RAD Exhibit 2, Tab2, at p.71, lines 13-40 to p. 72, lines 1-29. 43 RAD Exhibit 2, Tab2, at p. 77, lines 36-40. 44 RAD Exhibit 2, Tab2, at p.78, lines 21-40 through p.81, lines 1-30. 45 RAD Exhibit 4 RPDR, at p.194. 46 Attakora v. M.E.I. [1989] F.C.J. 444. 47 Divas v. M.C.I. 2013 FC 182. 48. Garcia Guevara v. Canada (Citizenship and Immigration),(F.C. no. 5522-11) 2012 FC 125. 49 Nadarasa v. Canada (Minister of Citizenship and Immigration),(F.C. no. IMM-6022-11) 2012 FC 752. 50 RAD Exhibit 2, AR, Tab 4, at p. 10. 51 RAD Exhibit 2, AR, Tab 2, at p. 83 lines 16-18. 52 Prophete v. M.C.I. 2008 FC 331. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB3-01506 RAD.25.02 (April 9, 2013)