MB6-03719

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 : MB6-03719 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX Appelante Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision October 2, 2017 Date de la décision Panel Roxane Cyr Tribunal Counsel for the appellant(s) Me Gisela G Barraza Conseil de l'appelante Designated representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Chile, is appealing the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She did not present any new evidence or request that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" under section 97 of the IRPA. ALLEGATIONS [4] The appellant outlined the reasons she is claiming protection in Canada in her account in the Basis of Claim Form (BOC Form). They are summarized as follows: [5] In the appellant's extended family, there are criminal and dysfunctional individuals whose behaviour is sometimes primitive. [6] That is how a dispute erupted one evening in March 2013 between Aunt XXXX's family and a certain XXXX XXXX (distant relative), who had disrupted the meal by showing up drunk and high and letting loose a stream of abuse at the guests, especially XXXX, the host. The troublemaker was taken to task by XXXX's son, XXXX XXXX, and left, firing shots left and right, while shouting abuse at and threatening everyone, including XXXX XXXX. After numerous incidents, including shots fired at the appellant's grandmother's house, XXXX XXXX was finally arrested for murder in another case and is currently in prison. [7] At the same time, some of the appellant's cousins (Aunt XXXX's children) had purchased some bad drugs from XXXX XXXX's wife, XXXX. Seeking revenge, they shot and injured her. [8] Since then, the appellant claims that the family has been persecuted by the investigations police of Chile (PDI), who show up and search the family's home without a warrant. Her father was arrested without being shown an arrest warrant. Some cousins' homes were searched without a warrant. [9] Shots were fired at the appellant's house (her grandmother's house) and her father had his car riddled with bullet holes. A young cousin was assaulted by XXXX XXXX's daughter, XXXX. She teamed up with someone named XXXX and they shot at a cousin on February 8, 2016. [10] XXXX, a known criminal, is currently living in Miami with XXXX. [11] The appellant left Chile and arrived in Canada on XXXX XXXX, 2013, on a temporary visitor's visa. She married a Canadian citizen in XXXX of the same year. He had filed a sponsorship application for the appellant. [12] In March 2015, he withdrew that application, stating that he was initiating divorce proceedings against her. [13] The appellant made a claim for refugee protection on April 20, 2016. RPD DECISION [14] The RPD did not believe the appellant's story and found that she was not credible. [15] The RPD noted a number of omissions and/or contradictions in the BOC Form: * In her testimony before the RPD, the appellant stated that the cause of the dispute between the two families was [translation] "that they were drug dealers and thieves...and that it was a feud over territory." This is not written in her BOC Form, where it instead states that the dispute began one night in March 2013. The RPD drew a negative inference from this. * The appellant stated before the RPD that she had filed a report with the authorities against her in-laws for drug trafficking. This is not in the BOC Form. * She received direct death threats in April or May 2013. This is not in the BOC Form. * In June 2013, she was directly threatened at her job by one of her aunt's in-laws, who was armed. This is not in the BOC Form. * The appellant stated that she is afraid of her cousins and had been threatened and mistreated by them in Chile, and that they had gone back to live in her grandmother's house. This is not in the BOC Form. * The appellant claimed to have been a victim of rape at the hands of another cousin when she was five years old. This is not stated in the BOC Form. [16] According to the RPD, all these factors undermined the appellant's credibility. [17] The appellant arrived in Canada in XXXX 2013. She stated that she has feared being killed by her in-laws since March 2013. She filed her claim for refugee protection in April 2016. The RPD did not accept the appellant's explanations regarding her delay in claiming protection in Canada and drew a negative inference. [18] For these reasons, the RPD did not believe the appellant's story. [19] In addition, the RPD found that, even if it had believed the appellant, she had not discharged her burden of proof regarding the presumption of protection in her country. MEMORANDUM [20] For her part, the appellant is of the opinion that the RPD erred in fact and in law and this tainted its decision. * The RPD erred in drawing a negative credibility inference regarding the fact that the appellant had not written in her BOC Form that the source of the dispute between the two families was a feud over territory in connection with crime: the BOC Form provides a detailed description of the blood feud that had been going on and the drug dealing that had been taking place there. The appellant did mention that members of the family were known criminals. The RPD erroneously rejected the appellant's explanations that she had written her account on her own. * Her testimony is corroborated by evidence, namely, photographs showing the impact of bullets on the vehicle of one of the appellant's family members. * The RPD erred in taking issue with the appellant for not having written in her BOC Form that she had been raped when she was five years old. The RPD misidentified the problem associated with this type of assault and the fact that it is often difficult to talk about. It erred in that regard. * The RPD erred in failing to take into account the claimant's explanations as to why she had not claimed refugee protection until 2016, even though she had arrived in Canada in 2013. The RPD failed to consider the fact that the appellant believed she would be able to become a permanent resident and [translation] "since at that time she had not made any inquiries in that regard, and simply thought she could visit her son...and that she was not fluent in English or French...all of this explains why the appellant was unable to take steps in 2013 to regularize her status." * With regard to the issue of state protection, the appellant submits that the RPD erred with respect to questions of fact because it did not take into consideration the appellant's testimony and the inherent evidence to the effect that she was associated with this family of criminals and, in the past, had never been able to obtain the protection of the authorities. ROLE OF THE RAD [21] The RAD is an appeal tribunal for RPD decisions. [22] Federal Court decisions have established that the RAD is "a specialized (if not overspecialized) tribunal" see Alvarez,1 and a hybrid appeal. The RAD "also has the authority to investigate, an authority that the Federal Court judge...does not have." [23] Paragraph 103 of Huruglica (2016 FCA 93) specifies the standard of review to be applied by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. [24] The Federal Court of Appeal determined in Huruglica2 that the RPD may have an advantage as regards credibility, having heard the testimony. [25] A recent decision by a panel of three members of the RAD3 regarding deference found that: "Where the RPD enjoys a meaningful advantage in making a particular finding, the RAD may assess that finding using a standard of reasonableness, modified to apply to the RAD context."4 [26] However, even where deference is warranted to an RPD finding, the RAD is required to undertake an independent review of the evidence upon which its finding is based.5 [27] "Where the RAD finds that deference is warranted, it is obligated to explain how the RPD enjoyed a meaningful advantage with respect to the finding in question."6 [28] "The RAD will consider the refugee determination on a standard of correctness, even where it has deferred to some or all of the findings upon which that determination is based."7 [29] The RAD will conduct its own analysis. The RAD will consider all the evidence, including the testimony. It will determine whether the RPD's decision contains errors of fact, of law, or of mixed fact and law, and whether such errors are determinative to the outcome of the case and are such that the decision cannot be upheld. ANALYSIS [30] The RAD considered all the evidence, including listening to the recording of the session before the RPD on May 19, 2016. The rape [31] The rape: the RAD agrees with the appellant's arguments that the RPD did not take into account the nature of this type of crime and the possible consequences, including shame, of being the victim of such a crime. [32] The appellant had valid reasons for not mentioning it in her BOC Form. [33] While the RPD saw and heard the appellant, the RAD finds that it erred in the assessment of credibility regarding the failure to have mentioned a rape that occurred when she was five years old. [34] The RAD carefully listened to the appellant's testimony in that regard. In its opinion, this incident is not central to her refugee protection claim in that, while unfortunate, whether or not it happened or was mentioned, it has no impact on the appellant's prospective fear: that incident allegedly happened 35 years ago. In addition, the RAD finds that a rape that took place at a young age can have significant consequences and that it is difficult for victims to talk about. In the appellant's case, and having listened to the recordings, the RAD believes that this incident was provided as supplementary information, in the course of the testimony, by the appellant who was describing her relationships with her cousins. The RAD believes it was brought to the panel's attention to identify previous problems in her family. It is acceptable in this context that the appellant did not state it in her BOC Form, as it was not central to her refugee protection claim. The RAD disagrees with its reasoning. The RPD erred. [35] However, the RAD is of the opinion that this error had no impact on the RPD's final decision. In other words, the fact that the RPD made such a finding has no impact on the rest of its analysis. [36] The RPD found that the appellant was not credible because it found that significant omissions in her BOC Form and a considerable delay in claiming refugee protection had cumulatively and irreparably undermined her credibility. Omissions and delay [37] The RAD notes that the appellant did not indicate any abuse, threats or attacks against her integrity or personal safety in her account and BOC Form (see pages 13 to 26, RPD record). She describes the problems in her extended, even distant, family and the insidious conflict between two parties, in a context of crime and drug use that appears to have heightened tensions and lowered moral standards. In all of that, the authorities intervened; XXXX XXXX is in prison for something else and the police arrested the father, among other things. There also appears to be an investigation into the shooting of XXXX XXXX. [38] The RAD is of the opinion that the RPD correctly assessed credibility in finding that the appellant was not credible, namely, because she never mentioned any incidents in her BOC Form and account that concerned her personally. Everything indicated therein concerned her extended family and the disputes between the two families-disputes that appear to have been exacerbated by various factors including that evening in March 2013 and the purchase of bad (or fake) drugs by two cousins, XXXX and XXXX XXXX, from XXXX XXXX and the shooting that followed. The backdrop being crime and a feud over territory. [39] In this regard, the RAD is of the same opinion as the appellant in her memorandum: the account mentions several times the presence of drugs and crime in these families. The RAD is of the opinion that the RPD, which, on this matter, drew a negative inference from the fact that the appellant had not specifically indicated it in her BOC Form as being the root of the problem, erred. The RAD is of the opinion that even though the appellant had started her text (account) with the incident at supper in March 2013, the fact remains that the text states several times that crime was part of the lifestyle of these families. However, this error does not affect the final determination. [40] However, the RAD is of the opinion that the RPD correctly analyzed and found that the appellant was not credible because she did not indicate in her BOC Form any facts that had happened to her personally in connection with her fear. [41] When asked about this, the appellant answered that she had written her account on her own. With regard to the fear of her cousins expressed at the hearing (which is not in the BOC Form), the appellant replied that she had not thought of it and that she had focused on [translation] "how things had started." [42] The RAD does not accept this explanation. Even though the appellant, as argued by her lawyer in the memorandum, wrote her BOC Form and account on her own, with the support of her lawyer, the fact remains that she had her lawyer's support. In addition, it is clearly indicated in the BOC Form instructions (in many places) that you must specify your personal fear and steps taken. [43] The RAD is of the opinion that the appellant is not credible and the RPD was correct in not accepting her explanations. If she had really received death threats in April or May and June 2013 and, in October 2013 had filed a report with the authorities against her own family in connection with their criminal activities, the RAD is of the opinion that it would have been indicated in her BOC Form and account. The appellant is not credible and the RPD did not err. [44] Furthermore, the RAD is of the opinion that if the appellant had really feared for her life since March 2013, she would not have waited until 2016 to claim protection in Canada, when she had been here since September 2013. [45] The appellant clearly testified that, at that time, when she came to Canada, she did not believe that it was necessary and she had come to visit her son. [46] Although the appellant had a sponsorship application filed for her by her spouse (they were married in Canada in XXXX 2013), which could have kept her safe from returning to Chile, the fact remains that the spouse withdrew the sponsorship application in March 2015 because of divorce. As a result, the appellant knew that her status in Canada was becoming precarious and she ended up being without status as of XXXX XXXX, 2015 (see pages 69 to 79, RPD record). Therefore, the explanation that she had not claimed refugee status at that time seems inconsistent with respect to the fear and account presented. [47] This behaviour greatly undermines the appellant's credibility: the RAD is of the opinion that if she really feared for her life, the appellant would not have waited until April 2016 to claim refugee protection, when her status had been expired since XXXX 2015. Furthermore, the fact that the appellant stated that she did not think it was necessary for her to claim refugee protection in 2013, when she alleges that she came here to see her son, is also behaviour that diminishes the claims that she is at risk in her country. The appellant's behaviour is not that of someone who fears for her physical safety in her country of origin. Her credibility is irreparably undermined. [48] For all these reasons, the RAD is of the opinion that the appellant is not credible. The RAD is of the opinion that the appellant may have a dysfunctional family involved in crime, but it does not believe that the appellant had a personal fear in that regard, or that she was personally targeted by the problems affecting the two families. [49] The RAD will not address the arguments in the memorandum regarding protection as the appellant was found not credible with respect to her allegations. [50] The RAD is of the opinion that the RPD rendered the correct decision. REMEDY [51] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" pursuant to section 97 of the IRPA. [52] Her appeal is dismissed. Roxane Cyr Roxane Cyr October 2, 2017 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. 2 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93, para. 70. 3 X (Re), 2017 CanLII 33034 (CA IRB). 4 Idem, para. 116(b). 5 Idem, para. 71. 6 Idem, para.116(c). 7 Idem, para. 116(e). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (September 11, 2016) Disponible en français RAD File No. / N° de dossier de la SAR : MB6-03719 10