MB5-01275

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. / No de dossier de la SAR : MB5-01275 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision October 14, 2015 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal Jamal Addine Fraygui Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of El Salvador, is appealing against the decision of the Refugee Protection Division (RPD) to reject his refugee protection claim. [2] The appellant did not submit any new evidence in support of his appeal, and did not request that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the RPD's determination that the appellant, XXXX XXXX XXXX XXXX, is not a "Convention refugee" under section 96 of the IRPA, or a "person in need of protection" within the meaning of section 97 of the IRPA. [4] The appeal is dismissed. FACTUAL BACKGROUND [5] The appellant alleged that he had left El Salvador in 1995 when he was XXXX years old because he had problems with his father as well as with the Mara Salvatrucha (MS) and the M-18, two notorious criminal gangs. These two gangs were attempting to recruit him. He alleged that he also feared the authorities working with the gangs. [6] A complaint was allegedly filed with the police to this effect, but it was the appellant who was questioned by the police regarding the gangs in XXXX 1994. [7] The appellant left El Salvador in 1995 and was living illegally in Mexico until 2001. He allegedly returned to El Salvador briefly to see his family but had realized that the gang situation had not changed. [8] He returned illegally to Mexico, where he lived from 2001 to 2007. From 2007 to 2013, he lived illegally in the United States. [9] In 2013, he entered Canada illegally. [10] On XXXX XXXX, 2014, he was arrested in Standstead, Quebec, while he was attempting to help a person cross illegally into the United States. He made a refugee protection claim when he was arrested. [11] Since the appellant did not have valid identity documents, he was detained. [12] He fears that he will be targeted by gangs if he returns because, according to his testimony, he is a [translation] "perfect target for gangs, because of how I speak and dress, and I could be killed because I am an unknown person, and they would realize that I come from another country." RPD DECISION [13] The RPD rejected the appellant's refugee protection claim for the following reasons: [14] The RPD drew a negative inference as to the appellant's credibility since he had neglected to state on his BOC Form (see the RPD record, pages 80 to 89) that he feared the MS and M-18 gangs. [15] The RPD then came back to this point, stating that it was possible, considering the [translation] "country profile," that the appellant had been recruited by the gangs but that he no longer feared being recruited now. Therefore, he would [translation] "not be a person targeted as a person to be recruited by gangs" (see the RPD record, page 7). Thus, the RPD found that his risk was not a personalized risk and, consequently, he feared a generalized risk, no different from the other citizens of El Salvador. [16] The RPD also drew a negative inference as to the credibility of the allegations in support of his claim because he waited seven years (illegal in the United States) before making a refugee protection claim. [17] The RPD explained that the appellant was not credible with respect to the time that he allegedly met his current wife-was it in the United States or in Canada, and on which date?-whom he married while he was being detained by the Canadian immigration authorities. However, the RPD found that it was not an essential element to his refugee protection claim but that [translation] "the fact that your testimony is constantly changing allows one to question the credibility of your allegations as to why you are in Canada and why you fear returning to your country. Therefore, I note this element and draw a negative inference on your credibility as to why you want to stay in Canada" (see the RPD record, page 5). THE APPELLANT'S MEMORANDUM [18] The appellant is appealing against the RPD's decision before the RAD on the following points: [19] The RPD erred with respect to its assessment of credibility (which had an impact on the decision): - The RPD should have considered the circumstances surrounding the completion of the BOC Form and given the appellant the benefit of the doubt for neglecting to mention the MARAS as the agent of harm. - The RPD should have considered the appellant's explanations for his delay in claiming refugee protection overall and, specifically, why he did not do so in the United States or before spending one year in Canada. [20] The RPD erred in finding that the appellant, despite the fact that he may already have been recruited by gangs, would not be recruited on his return although he argues that, for them, he is a potential candidate and that the gangs will still be interested in recruiting him. MINISTER'S INTERVENTION BEFORE THE RPD [21] The Minister intervened by submitting that the appellant is not credible and, in support of these assertions, by filing his detention review notes and his marriage certificate. ROLE AND FUNCTIONS OF THE RAD [22] The RAD is a newly constituted appeal tribunal for RPD decisions, whose role remains to be clarified. The IRPA does not expressly set out the standard of review and of intervention that must be applied during the appeal of RPD decisions. [23] To date, the Federal Court's decisions have established that the RAD is "a specialized (if not overspecialized) tribunal", see Alvarez,1 and that Parliament conferred "a true appellate function on the RAD...which sits on appeal of the decisions of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [24] The Honourable Justice Shore, in Alvarez,2 is of the view that "Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner." The appeals are not de novo, and the RAD can only hold a hearing where new evidence is submitted in accordance with subsections 110(3), 110(4) and 110(6) of the IRPA, limiting the scope of the appeal that the IRPA confers on the RAD. It is also not a judicial review with the sole purpose of determining whether the RPD's decision was reasonable. [25] In Eng,3 Justice Shore is of the view that although the RAD must show deference to the RPD-the tribunal of first instance with regard to findings of fact, being better situated, as it saw and heard the claimant-the RAD must nonetheless perform its own assessment of all of the evidence "in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error" (Eng).4 [26] In Huruglica, Justice Phelan states, "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." [27] Therefore, Huruglica advocates an approach where deference must be given to the RPD with respect to the assessment of credibility while conducting an independent analysis of it without limiting itself to "palpable and overriding error." As for the analysis of the documentary evidence, the Honourable Judge Phelan is of the view that the RAD has expertise that is equal to or greater than that of the RPD "in the interpretation of country condition evidence. Unlike a court and the supervisory nature of judicial oversight, there is no reason for the RAD to defer to the RPD on this type of assessment."5 [28] The Honourable Justice Roy in Spasoja, subsequent to Huruglica, expresses a different opinion from that of the Honourable Justice Phelan in Huruglica. His opinion is that the standard of review applicable to the RAD must be that of "palpable and overriding error" with respect to questions of fact, that the RAD must show deference to the RPD's findings of credibility and that with respect to questions of law, the applicable standard is correctness. That conclusion is in agreement with Alvarez and Eng. [29] In Alyafi,6 Justice Martineau is of the view that both positions, the first set out in Alvarez, Eng and Spasoja (palpable and overriding error) and the second in Huruglica (described by Justice Martineau as "a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a 'hybrid appeal'" (Alyafi, para. 16)) may be applied as long as the Federal Court of Appeal or the Supreme Court of Canada have not made a definitive ruling on the scope of the appeal. [30] It appears to me that the RAD must afford a degree of deference to the RPD's credibility findings in accordance with Huruglica, considering that the RPD had the opportunity to see, question and hear the appellant. [31] The RAD will consider in its analysis all the evidence, including the testimony of the appellant, and will conduct its own analysis while showing deference to the RPD on questions of credibility. [32] The RAD will intervene only if it is of the view that the RPD's findings on questions of fact or questions of mixed fact and law are erroneous or are not supported by the evidence in accordance with subsection 111(1) and 111(2) of the IRPA. As for errors of law, the standard of review that the RAD will apply is that of correctness (Spasoja).7 ANALYSIS [33] In its analysis, the RAD considered the entire record, including the recording of the hearing before the RPD. In the opinion of the RAD, the RPD made the correct decision. [34] The appellant stated several times during his testimony that his fear was due to the fact that if he were to return, no one would know or recognize him and, given the fact that he had spent much time abroad, he would dress and speak differently and would be the [translation] "perfect target for gangs." Then he stated that he was afraid of being killed, in relation to the delinquency pervading his country. According to the RAD, this does not correspond to a particular social group or any other Convention ground. [35] These statements are unequivocal, according to the RAD. The appellant had the opportunity to provide explanations, and it is clear from his testimony that what he fears is not related to or following his alleged past experiences. In other words, nothing in the evidence, including in the appellant's testimony, indicates that he fears forced recruitment by the MS or the M-18. He stated that he would be [translation] "an unknown person." The RAD notes in passing that the appellant was XXXX years old when the gangs wanted to recruit him and that since then (the appellant is now XXXX years old), nothing related to the gangs has transpired for the appellant personally. [36] In the circumstances, should he return to his country, the RAD shares the RPD's opinion that the appellant failed to demonstrate that he would face a personalized risk should he return to his country under paragraph 97(1)(b) or that he has a fear of persecution with a nexus to one of the Convention grounds under section 96. [37] Since this risk is not personalized or different from that faced by other individuals in that country, and given the evidence on the record, the RPD did not err in finding that the appellant's fear-specifically his fear of delinquency and being killed because of it-was a generalized risk. It is the same as that faced by the population in El Salvador, where gang violence is endemic and affects all strata of the population (see the RPD record, pages 37 to 63). [38] The fact that the RPD initially indicated that the appellant was not credible for failing to include in his BOC Form that he feared the MS and the M-18, yet then indicated that given the country profile he could have been recruited, is confusing and lacks clarity. However, this part of the analysis and its outcome has no impact on the decision. Indeed, whether the appellant is credible or not with respect to what happened when he was XXXX years old, from his own testimony the fact arises that there was a break between the incidents of 1995 and today since no one will recognize him. Accordingly, it is clear from the evidence that he based his fear only on his current appearance and what the criminals would deduce from it: that he is an outsider. [39] This reasoning also applies to the negative inferences drawn in relation to the appellant's contradictory testimony regarding when he met his wife. [40] The RAD is of the view that this fact has no impact on the RPD's decision that the appellant's fear is a fear of generalized risk. [41] With respect to the delay in making his refugee protection claim, which, in all, spans a period of 20 years (1995 to 2014), the RAD, like the RPD, is of the view that this demonstrates a lack of subjective fear and credibility associated with behaviour inconsistent with a fear. During all these years, the appellant took no significant steps, whether in Mexico, the United States or Canada, before he was arrested at the Canada-U.S. border while he was trying to help someone cross into the United States (the appellant had already been living in Canada illegally for one year). The explanations that he had allegedly asked acquaintances in the United States and a lawyer that he could not pay in Canada appeared not very serious and unsatisfactory to the RAD, to say the least. The RAD is of the view that if the appellant truly had a fear in his country, he would have taken concrete measures during these 20 years to regularize his situation, by seeking information from competent sources in order to avoid being deported at any time. [42] Given that the RAD considers the negative credibility inferences drawn by the RPD to be secondary, the finding that the appellant's fear is one of generalized risk is fundamental and determinative. The RAD is of the view that the RPD made the correct decision and did not err. REMEDY [43] For these reasons, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [44] The appeal is dismissed. Roxane Cyr Roxane Cyr October 14, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. 2 Idem, para. 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, para. 33. 5 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para. 38. 6 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, para. 46. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-01275 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB5-01275 2 SAR.25.02 (2014.09.11) Available in English