TB5-11675

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 : TB5-11675 TB5-11676 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 9, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Leonardo Jose Di Leone Velasquez 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 (the principal Appellant) and XXXX XXXX XXXX XXXX (male Appellant), citizens of Venezuela, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have not submitted new evidence in support of their appeals. The Appellants ask the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that these Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be returned to the RPD for a new hearing under a differently constituted panel. [2] The RAD notes that this appeal has not been properly perfected. The Refugee Appeal Division Rules, at Part 1, specify the requirements for perfecting an appeal. Included in those requirements is the need for the Appellant to provide a written statement as follows: 3(3)(d) a written statement indicating (i) whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act, (ii) whether the appellant is requesting that a hearing be held under subsection 110(6) of the Act, and if they are requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing, and (iii) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and the appellant needs an interpreter; [3] The Appellants have not provided the statement referred to in Part 1, section 3(3)(d) of the RAD Rules; however, as the Appellants are entitled under law to an appeal and have requested an appeal, the RAD will conduct an independent assessment of the claim regardless of the deficiencies of the record of appeal. Determination [4] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. Background [5] The principal Appellant alleged before the RPD that she fears returning to Venezuela because she will be persecuted by government forces due to her political activism. Greater details may be found in the principal Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [6] The Appellants' application for refugee protection was heard on August 10, 2015. A negative decision was rendered orally the same day with a written decision as a follow up on August 19, 2015. The RPD found that the Appellants were not credible witnesses and that they failed to provide sufficient credible evidence to substantiate the core of their claims. [7] The Appellants submit that the RPD erred in its assessment of the Appellants' credibility because the RPD's assessment was based on the timing (delay) of the request for protection, on the manner of the Appellants' testimony, and on the lack of supporting documentary evidence. ANALYSIS Role of the RAD [8] 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". [9] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellants are Convention refugees or persons in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [10] The Appellants argue that the RPD erred in its assessment of the Appellants' credibility because the RPD found that the delay in filing a claim for protection was unreasonable. The Appellants had been in Canada for almost a year on student visas before applying, inland, for refugee protection. The Appellants argue that they had no previous intention to seek refugee protection and had intended on returning to Venezuela up to the point of a phone call to the principal Appellant's father during which time the Appellants were informed that the government was looking for them. At this time, believing it to be unsafe to return to Venezuela, the Appellants decided to apply for protection. The Appellants argue that Canadian legislation "...does not provide with a time limit to claim for refugee."3 [11] The RAD, in canvassing the evidence presented previously by the Appellants, notes that they were in possession of valid student visas for most of their time in Canada and consequently, had no fear of being returned to Venezuela during that time period. It is logical to presume that only after the phone call to the principal Appellant's father, during which the Appellants learned of the threatening phone calls, and with the expiration of their student visas imminent, they would then begin to fear returning to Venezuela. The RAD finds that the delay in requesting protection is explained in a reasonable manner. The RAD does not infer any negative connotation based on that delay. The RAD finds that the RPD did err by inferring a negative credibility based on a delay in claiming. [12] The Appellants argue that the RPD's negative inference was based on the principal Appellant's manner of testimony. The principal Appellant is a person who has been under psychological and medical treatment due to the stress generated by the persecution suffered in Venezuela. That stress has caused visible physical problems including severe weight loss which is corroborated by photos,4 which were dismissed by the RPD as having no probative value. The principal Appellant was under great stress brought on by the requirement to testify at the hearing, but even then testified in a straightforward manner. [13] The RAD has looked at the evidence disclosed including the psychological report5 and the photos mentioned above. The psychologist's report is of little probative value. It is a very basic one paragraph letter which advises the reader that the principal Appellant is "...suffering of depressing crisis with anxious symptomatology related to stress, panic disorder, crying spells and propensity to isolation, probably associated to the political harassment she was victim...." The RAD recognizes that the psychologist may be qualified to make a diagnosis; however, the cause of the diagnosed ailment, given by the psychologist, is less straightforward. The psychologist couches her reasons with the word "probably" and has not made a clear determination that the symptoms are a result of political harassment. It appears from the translation that the principal Appellant was advised by someone (but who is unknown) to leave Venezuela for a while to escape her stressors. The RAD has seen a great many psychological reports over the years and has never seen one so brief and without sufficient information as this one. The RAD cannot assign much weight, if any, to this report. The RAD concurs with the RPD on this issue and dismisses the psychological report. [14] Regarding the photographs mentioned, they appear to be pictures of the principal Appellant taken at different times. There is an obvious difference in the weight of the Appellant between the two pictures; however, there is insufficient evidence presented to help the RAD to determine the actual dates on which the pictures were taken or what caused the weight loss or gain, depending on when the photos were taken. Although the Appellants have marked dates on the page on which the photos appear in the record, the photos themselves are not date-stamped, nor is there any clear identifier to tell the RAD where the photos were taken (ie. a sign in the background in Spanish or English which might assist in identifying the location of the photo). As the RAD has no credible means of determining where or when these photos were taken, the RAD cannot assign any weight to them. The RAD concurs with the RPD on this issue. [15] The RAD has listened to the audio recording of the hearing, with special care to try to determine just how straightforward or not the principal Appellant's answers to the panel's questions were. The principal Appellant alleged that she was a XXXX of a XXXX XXXX group (numbering XXXX XXXX XXXX people) for a period of almost XXXX years; however, when asked by the panel for a name for the group, she could not provide a logical answer. The principal Appellant testified that this XXXX group had no name, held no bank account, had no office out of which it operated, and did not even have a telephone number. However, the principal Appellant did testify that the group had over XXXX XXXX XXXX members just in her area of Venezuela alone. She also testified that she XXXX XXXX XXXX XXXX XXXX. The RAD finds that on a balance of probabilities, an organization claiming to have in excess of XXXX XXXX XXXX members, would at least have a name and would likely have some sort of office, bank account, and telephone number. The RAD has great difficulty with this issue. It is either a gross exaggeration of the real situation and size of the alleged XXXX group, or the principal Appellant did not play any XXXX role in the group XXXX XXXX XXXX XXXX XXXX. It is not logical that a person who is a XXXX XXXX XXXX XXXX of a group of XXXX XXXX XXXX people would not have a name for that group, if nothing else. The RAD concurs with the RPD on this issue and infers negative credibility as a result of this testimony. [16] The principal Appellant argues that a credibility finding should not be made based only on a lack of supporting documentation. This is basically correct; however, in preparing for this refugee claim, these Appellants who are obviously educated and in fact were in Canada on student visas, knew enough to prepare, or cause to be prepared, many hundreds of pages of documentary evidence to present to the panel at the hearing. The documents included such items as a psychologist's report, alleged "before and after" photos, and even boarding passes for their flight to Canada. However, there is not one single piece of documentation to support the allegations that the principal Appellant was a XXXX of XXXX XXXX XXXX protesters for up to XXXX years. The documents might include such items as photographs of the Appellants taking part in any protests, photographs of the principal Appellant XXXX XXXX XXXX XXXX XXXX XXXX XXXX, posters showing times, dates, and locations of the protests, newspaper articles about the XXXX in which her name (XXXX XXXX XXXX) might appear, emails to her "XXXX" to rally support for the XXXX, other social media documents doing the same (such as a Facebook or Twitter account), and so much more; but the Appellants disclosed no proof of their participation in such events, yet alone proof that the principal Appellant was XXXX XXXX XXXX of such events. In light of the documentation that was disclosed by the Appellants, the RAD does infer a negative finding based on a total lack of documentation in support of the central issue of the claim. The RAD concurs with the RPD. [17] As the only issues brought forward for this appeal is the issue of credibility, the RAD will not look at other possible issues such as state protection or internal flight alternatives. The RAD must deal only with the issues on which the claim is being appealed. As such, the RAD concurs with the RPD that there is a major credibility issue with the basis of the claim, specifically in regards to the principal Appellant. She has failed to produce clear and convincing evidence that she would be in danger of torture, or that her life would be at risk, or that there is more than a mere possibility that she would suffer persecution should she return to Venezuela. [18] In regards to the male Appellant, the Appellants' Memorandum makes no submissions of any kind regarding his claim. Consequently, the RAD will presume that the male Appellant's appeal depends entirely upon that of the principal Appellant. Therefore, his claim shall fail for the same reasons as that of the principal Appellant. Disposition [19] The RAD has found that the RPD's decision will stand. CONCLUSION [20] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe December 9, 2015 Date 1 Exhibit RPD-1, RPD's Record, pp. 7-19. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit P-2, Appellants' Record, Memorandum, p. 8, item 4 (c). 4 Exhibit RPD-1, RPD's Record, pp. 179-181. 5 Exhibit RPD-1, RPD's Record, pp. 176-178. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-11675 TB5-11676