TB8-29764

RAD File / Dossier de la SAR : TB8-29764 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 / heard at Montreal, QC Appel instruit / entendu à Date of decision June 12, 2020 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Penny Yektaeian Guetter Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I grantthis appeal for the reasons that follow. [2] XXXX XXXX XXXX XXXX is a citizen of Honduras. He fears that he would be killed or seriously harmed by members of the Mara 18 gang because he was targeted by them because of community/social work/evangelism that he conducted in 2006/2007. In 2006, Mr. XXXX XXXX started to repair his grandmother's house where he lived in Tegucigalpa. The Mara 18 demanded extortion payments from him and beat him when he confronted them in May 2007. Mr. XXXX XXXX left Honduras for the United States in XXXX 2007 but he was deported back to Honduras. The Maras increased the extortion fees they demanded and assaulted Mr. XXXX XXXX in January 2008 when he was on his way home to his grandmother's house. He fled to another town in XXXX 2008 but gang members allegedly came by the place where he was working in that town to look for him. He left Honduras for the United States again and lived there from XXXX 2008 until he crossed the border into Canada in XXXX 2017. In June 2017, gang members who were extorting Mr. XXXX XXXX mother told her that "Mara never forgets" and to tell Mr. XXXX XXXX they are waiting for him. [3] The RPD found that Mr. XXXX XXXX allegations did not have a nexus to any of the grounds contained in the refugee Convention. It also found that he was not credible due to certain embellishments in his testimony, his two-month delay in leaving Honduras, his failure to claim asylum the first time he went to the United States, his return to stay with his grandmother when he was deported from the United States, his delay in seeking legal advice the second time he went to the United States, certain omissions from his written narrative and the fact that his grandmother continued to live safely in the same house after he left Honduras. Mr. XXXX XXXX challenges these findings. DECISION [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 I find that the RPD erred with respect to most of the reasons that it gave for finding Mr. XXXX XXXX not credible. Therefore, it erred in finding that the presumption of truthfulness was rebutted in this case. For the reasons set out below, I find that Mr. credibly established that he is a person in need of protection. PROPOSED NEW EVIDENCE The evidence presented by Mr. XXXX XXXX is rejected [5] According to the law,2 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [6] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 [7] Mr. XXXX XXXX seeks to submit the following as new evidence: a psychiatric report obtained after the RPD hearing; two medical reports dated May 5, 2007 and January 28, 2008 respectively; a document that discusses the low success rate for Honduran asylum claims in the United States. [8] I find the psychiatric report admissible as new evidence as it meets both the statutory and case law requirements for the admission of new evidence. Even if I find that the report is admissible, I find that the opinions in the report have no relevance to most of the credibility issues identified by the RPD as these issues did not center on Mr. XXXX XXXX testimony at the RPD hearing but on his past actions which the RPD found to be incompatible with the risk he alleged. [9] The two medical reports are inadmissible as new evidence on appeal. The reports predate the RPD hearing in this case and therefore Mr. XXXX XXXX reasonably could have submitted the reports to the RPD before it denied his claim. I cannot accept counsel's argument that the reports should be admitted because Mr. XXXX XXXX had provided them to his previous counsel who omitted to file them as an error. [10] The RAD has a process that must be followed in situations where a person is alleging inadequate representation by a former counsel, including providing notice to former counsel in order to provide them with a chance to respond to the allegations made against them. Mr. XXXX XXXX stated in his affidavit that did not file a complaint against his former counsel because he believes that she omitted to submit the reports as a mistake and not on purpose. The RAD's process must be followed in all cases of inadequate representation, whether intentional or negligent. Given that this process was not followed, I cannot accept Mr. XXXX XXXX argument as to why he did not ensure that the documents were submitted to the RPD. [11] The document relating to the low success rate of Honduran asylum claims in the United States is also inadmissible as new evidence. The document was released in 2014 and therefore it predates the RPD decision. I do not agree with either of counsel's arguments as to why Mr. XXXX XXXX could not reasonably be expected to submit the document to the RPD. First, the fact that Mr. XXXX XXXX counsel had already filed evidence about the low success rate of Honduran claims does not justify the failure to file the 2014 document. Second, Mr. XXXX XXXX assumption that the Member had specialized knowledge of the low rate of acceptance of Salvadoran claims in the United States is also not a valid reason for not filing the document that Mr. XXXX XXXX now seeks to file. ANALYSIS OF MERITS No error in finding no nexus to refugee Convention [12] Mr. XXXX XXXX counsel argues that the RPD erred in finding that his allegations did not have a nexus to the refugee Convention. I disagree. [13] I agree with the RPD that there was insufficient evidence to establish that Mr. XXXX XXXX allegations had a nexus to any of the grounds found in the refugee Convention. In the appeal memorandum, counsel argues that the RPD erred in finding that Mr. XXXX XXXX was not an evangelist as he had claimed. Even if I were to accept that Mr. XXXX XXXX is a religious person who worked with youth and offered them a different option to a life in gangs, the targeting that Mr. XXXX XXXX alleged in this case related to his work on his grandmother's house and his confrontation of gang members after they had assaulted his grandmother. At the hearing, Mr. XXXX XXXX himself testified that the gang began extorting him because they thought he had a lot of money due to the work on the house. Although he claims that he was targeted by the gang due to his religious work, I find on a balance of probabilities (that is, that it is more likely than not) that Mr. XXXX XXXX was targeted by the Maras for extortion and threats due to their perception that he had enough money to pay the extortion fees demanded from him. Therefore, I agree with the RPD that the evidence does not establish that Mr. XXXX XXXX allegations have a nexus to any Convention ground. Credibility No embellishment regarding religious activities [14] I agree with counsel that the RPD erred in finding that Mr. XXXX XXXX had embellished by claiming to be an "evangelist." In his written narrative, Mr. XXXX XXXX alleged that he was an active member of his Evangelical church and that he would preach the word of God in high-risk areas to offer youth a different option to life on the street or in gangs. At the hearing, Mr. XXXX XXXX testified that he preached to people to ask them to leave the Maras and join the church. He never actually referred to himself as an "evangelist." It was the RPD who introduced this term to describe what Mr. XXXX XXXX had said in his evidence. The problem with using this term is that it connotes a much more formal role than the one described by Mr. XXXX XXXX which his counsel had described as a social worker who worked with young people. In my view, the RPD erred in finding that he had embellished his testimony by presenting himself as an evangelist. [15] I also find that the reasons that the RPD gave for finding Mr. XXXX XXXX religious conviction not credible were erroneous. For example, the RPD erred in relying on the fact that Mr. XXXX XXXX had not belonged to a church in the United States because Mr. XXXX XXXX had testified that he had gone to many churches in the United States even if he did not belong to one in particular. It was an error in those circumstances to find that he lacked a connection to religious institutions while he was in the United States. The RPD also made no mention of the letter that Mr. XXXX XXXX had submitted from the pastor of his church which discussed the work he did in trying to convince youth to leave gangs and join the church. [16] For these reasons, I find the RPD erred in finding that Mr. XXXX XXXX had embellished his claim by alleging that he had a profile as a religious person. As found above, the RPD was correct to find that the evidence does not support Mr. XXXX XXXX claim that the targeting by the Maras that led to his departure from Honduras had a nexus to his religious activities. However, in my view, the fact that he made this allegation was not an embellishment that would affect his credibility. Failure to claim asylum in United States in 2007 [17] I agree with counsel that the RPD erred in finding that Mr. XXXX XXXX credibility was adversely affected by his failure to make a defensive claim for asylum before being deported by United States authorities. [18] While the RPD was correct to note that the evidence in the National Documentation Package for the United States does indicate that persons facing deportation have a right to make defensive asylum claims. However, the RPD did not discuss or appear to take into account Mr. XXXX XXXX evidence that he had told the American authorities that he would be killed if they deported him back to El Salvador and that an immigration officer and a judge told him that he was not entitled to claim asylum because he had entered the country illegally. [19] In these circumstances, it was an error to find that Mr. XXXX XXXX had not tried to claim the protection of the United States and therefore that his credibility was negatively affected as a result. Delay in seeking legal advice upon return to United States in 2008 [20] I agree with counsel that the RPD erred in finding that Mr. XXXX XXXX credibility was negatively affected by his delay in seeking legal advice about regularizing his status when he returned to the United States the second time. [21] The RPD erred in refusing to accept Mr. XXXX XXXX explanation that he was simply trying to keep a low profile given that, legally, he was barred from the United States for 10 years since he had been deported. In my view, this provides a satisfactory explanation for why he would not have consulted a lawyer to regularize his status. Return to live with grandmother [22] I do agree with the RPD that Mr. XXXX XXXX return to live with his grandmother when he was deported from the United States in 2007 does raise concerns about the credibility of the risk to his life that he claimed to face there. Mr. XXXX XXXX did seek to explain this choice by saying that he had no other option. While it is true, as noted by the RPD, that his mother, brother and sisters lived in the same city, the RPD did not ask Mr. XXXX XXXX whether he could live with any of them. I note that Mr. XXXX XXXX evidence was that his mother had given him to her mother to raise at a very young age. This would support his claim that he had nowhere else to go. In addition, given that his other family members lived in the same city, it is not clear that living with them would provide a much safer option due to their geographic proximity to the location of Mr. XXXX XXXX problems before he left Honduras. [23] Finally, the RPD erred in suggesting that Mr. XXXX XXXX could have stayed in a shelter without properly considering the documentary evidence in the National Documentation Package which in fact speaks to the relative lack of shelters for returnees to the country. In light of the above, I find that the RPD was correct to have concerns about Mr. XXXX XXXX credibility due to his return to his grandmother's house upon being deported to the United States. However, on balance, I find that such concerns are mitigated to a large extent by the explanations he gave for his return to that location. Delay in leaving Honduras [24] I agree with counsel that the RPD erred in finding that Mr. XXXX XXXX credibility was diminished by his two-month delay in leaving Honduras the first time. In my view, the RPD erred in not accepting as valid Mr. XXXX XXXX explanation that it was difficult to think about leaving the country overnight. I agree with counsel that this explanation was satisfactory in Mr. XXXX XXXX situation as a person of little means who would have to leave his elderly grandmother behind and undertake a long and dangerous journey to the United States. In this context, I agree with counsel that a two-month delay is not unreasonable and does not negatively affect the credibility of Mr. XXXX XXXX account of events. Omission of allegations from written narrative [25] The RPD was correct to find that Mr. XXXX XXXX appeared to have embellished his account of events when he testified that a neighbour had been murdered because he had come to his aid when he was assaulted by the gang. Mr. XXXX XXXX did not mention this information in his written narrative but instead only mentioned it when the RPD asked him whether the gang had retaliated against the neighbours for assisting him. I agree with the RPD that this was likely an embellishment but, as noted below, I do not find that this embellishment was sufficient to reverse the presumption of truthfulness that applies in this case. Treatment of documentary evidence [26] I agree with counsel that the RPD erred in granting limited weight to the police complaint and other documentary evidence submitted by Mr. XXXX XXXX. However, even if these documents are granted limited weight, I find that there were insufficient reasons to rebut the presumption of truthfulness in this case. Overall assessment of credibility [27] It is well established that claimants are presumed to be telling the truth unless there are valid reasons to doubt their truthfulness. I found that the RPD was correct to have concerns about the credibility of Mr. XXXX XXXX account of events due to his return to his grandmother's house when he was deported from the United States in 2007. However, on balance, I found that such concerns were mitigated to a large extent by the explanation he gave for his return to his grandmother's place. I also found that Mr. XXXX XXXX likely embellished when he said that his neighbour was killed by the Maras because they had assisted him. However, I have found that the RPD erred with respect to the other reasons it gave for finding Mr. XXXX XXXX not credible. In my view, the factors relied correctly relied upon by the RPD are insufficient to rebut the presumption of truthfulness that applies in this case. Therefore, I find that Mr. XXXX XXXX account of the events that led him to leave Honduras must be accepted as credible. Forward-looking personal risk that differs from the risk faced by others [28] I have considered whether there is sufficient evidence to establish that Mr. XXXX XXXX would likely face a forward-looking risk of any of the kinds of serious harm that would make him a person in need of protection if he returns to Honduras. In my view, this was the key issue and concern in this case. [29] The first part of this issue is whether Mr. XXXX XXXX faced a risk of serious harm that differed from the risk of harm faced generally by others in or from that country. Mr. XXXX XXXX was not only subject to extortion but he was threatened with death, brutally beaten by the Maras and followed to another town where he fled before leaving Honduras. For these reasons, the risk to his life or of cruel and unusual treatment or punishment he faced before leaving Honduras differed from the risk faced generally by others in or from that country. [30] The next part of the issue is whether Mr. XXXX XXXX would face a forward-looking risk - that is, whether his risk would have disappeared due to the passage of time or for some other reason. Indeed, a lot of time has passed since Mr. XXXX XXXX lived in Honduras. He spent eight years in the United States before arriving in Canada. He has now been away from Honduras for twelve years. In some cases, there may be valid reasons to believe that the Maras may no longer have the interest or motivation to harm someone that they once had in the past. However, Mr. XXXX XXXX submitted an affidavit and police complaint from his mother saying that she has continued to be extorted by the Maras who mockingly tell her to greet her son on their behalf and tell him that the Maras never forget. I note that the RPD did not raise any concerns about the credibility of the information in the affidavit and police complaint. After having carefully considered the evidence, I find that it is sufficient to establish that Mr. XXXX XXXX would be subjected personally to a forward-looking risk of harm to his life or a risk of cruel and unusual treatment or punishment if he returns to Honduras. State protection and internal flight alternative [31] Based on the information contained in the NDP for Honduras, I find that Mr. XXXX XXXX likely would not have the benefit of adequate state protection to protect him from the Maras in Honduras. I also find that there is no viable internal flight alternative for him in Honduras given the ability of gang members to track people across the country and the evidence in this case that the gang members had tracked him down to a different town before he left the country. CONCLUSION [32] For the above reasons, the appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. "Jo-Anne Pickel" Jo-Anne Pickel June 12, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Subsection 110(4) of the IRPA. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, FC 385. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-29764 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français