TB8-31980

RAD File / Dossier de la SAR : TB8-31980 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 July 29, 2020 Date de la décision Panel Rouba Al-Salem Tribunal Counsel for the person who is the subject of the appeal Krishanthan Cathiresan 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] XXXX XXXX XXXX XXXX (Appellant) is a citizen of Venezuela. He is appealing a decision by the Refugee Protection Division (RPD), dated November 27, 2018 rejecting his claim for refugee protection. [2] Mr. XXXX XXXX alleges that he fears returning to Venezuela because of his anti-government ideology and participation in anti-government protests and demonstrations,1 mainly between April 1-May 31, 2017,2 and for having been subjected to intimidation and threats by the National Guard, the police, and pro-government military groups.3 He states that staying in Venezuela would be slow suicide,4 and that he fears detention and possibly torture if he were to return to Venezuela.5 In addition, he alleges that he would be persecuted if he returns to Venezuela because he refuses to obtain the Homeland Card, introduced by the Venezuelan government, and which the government is allegedly forcing citizens to obtain for the sake of purchasing food and medicine. According to the Appellant, obtaining it would result in his automatic enrolment as a member of the ruling party, the United Socialist Party of Venezuela (PSUV), which runs against his values and political ideology.6 In light of his refusal to apply for the card, the Appellant alleges that he does not have access to prescription medication for his medical condition in the same way that someone who has obtained it, and that this forces him to purchase food and medicine from private outlets at a much higher prices.7 [3] In its decision, the RPD concluded that the Appellant is neither a convention refugee in accordance with section 96 of the Immigration and Refugee Protection Act (IRPA), nor a person in need of protection in accordance with section 97(1)(a) and (b) of the same act.8 In this regard, the panel found that the determinative issues in this claim are credibility and well-foundedness9 regarding which it made a number of findings. The first finding is that the independent documentary evidence on Venezuela, while containing detailed information on the Homeland Card in the form of an Response for Information Request (RIR), does not mention that obtaining this card would automatically render the card-holder a member of the ruling party.10 The second finding is that, even though the Appellant may have felt intimidated by the presence of security and police forces in the area, there is no evidence that the Appellant was personally identified or targeted by Venezuelan security forces at any of the demonstrations that he allegedly participated in.11 [4] On appeal, Mr. XXXX XXXX submits that the RPD erred in its decision, in fact and in law, that he had embellished his testimony to bolster his claim. This is because, according to the Appellant, the RPD focused on absence of information regarding the Homeland Card in the independent documentary evidence on Venezuela and did not consider the Appellant's documentary evidence which allegedly corroborates his allegations.12 Secondly, the Appellant argues that the RPD erred because it ignored and/or misconstrued evidence, or based its conclusions on speculations, and that it failed to consider the evidence in its entirety.13 Thirdly, the Appellant argues that it is not clear how the RPD concluded that his refusal to apply for a Homeland Card may have been a political statement and does amount to persecution, but then concludes that this was a personal choice that could otherwise have been avoided.14 Fourthly, the Appellant contests the RPD's findings that his participation was minimal and that he never experienced any consequences.15 [5] The Appellant did not seek to submit new evidence or request an oral hearing.16 DECISION [6] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither Convention refugees nor a person in need of protection.17 ANALYSIS [7] My role is to look at all the evidence and decide if the RPD made the correct decision.18 For the following reasons, I find that the Appellant has not persuasively established the credibility of central allegations of his claim, including that he has a well-founded fear of persecution. (1) Regarding the Appellant's Allegations that he refused to apply for the Homeland Card on the ground that in doing so, he would automatically become a member of the ruling Venezuelan party. [8] In his oral and written testimony, the Appellant stated that he never sought to obtain the Homeland Card, because it is issued by the government for the purpose of controlling the people, and that once you receive it, you automatically become a member of the ruling party,19 something that he refuses to do because it goes against his political beliefs. During the hearing, the RPD inquired with the Appellant why he believes that, when in the RIR concerning the Homeland Card, there is no mention of his allegation that the card holder becomes automatically a member of the ruling party. [9] In addition, the RPD informed the Appellant that although the documentary evidence which the Appellant submitted to the panel does indicate that people have complained that the card represents a way for the government to control people, it does not contain information that persuasively establishes his allegations that acquiring this card forces one to enroll in the ruling party.20 [10] The Appellant responds that he does not know why the RIR does not contain this information.21 He also states that nevertheless, he remains certain that this is the case, because in every single election that has been held, and after casting their votes, card-holders stop at the table where representatives of the ruling party are seated, who then write their names down and scan their cards.22 Furthermore, he testified that without presenting this card, one would not have access to the benefits which the government is offering, from food to medication, at moderate prices.23 [11] In its decision, the RPD found that, in the absence of information in the National Documentation Package (NDP) on Venezuela to the Appellant's allegation that, by accepting the card, the card holder would become a member of the ruling party, the Appellant has embellished his testimony in order to bolster his claim. It also established that any hardships he suffered from a result of not obtaining the card were the result of his personal choice.24 The panel also drew a negative inference from the Appellant's failure to explain why the NDP on Venezuela, more specifically, the RIR,25 did not state that by obtaining the card one would automatically become a member of the ruling party.26 [12] On appeal, Mr. XXXX XXXX submits that the RPD ignored the documentary evidence which is supportive of the Appellant's claim.27 In this regard, he pointed out that several articles and letters which he had submitted, and which contradict the RIR, were not considered.28 This includes a newspaper article in which the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Venezuela, XXXX XXXX XXXX XXXX, is quoted to have stated that "it is disrespectful that an ill person has to be registered in a political party in order to be attended," because it violates the patient's constitutional rights.29 According to the Appellant, it also ignored that the RIR contains a disclaimer which states that it does not purport to be conclusive as to the merit of any particular claim for refugee protection and that it does not reflect the reality of what Venezuelans face on the ground.30 [13] I have analyzed the aforementioned RIR as well as the documentary evidence submitted by the Appellant. According to the sources cited in the RIR which is part of both the version of the NDP that was available to the RPD in May 2018 and the current updated NDP on Venezuela (March 2020), the Homeland Card was launched in 2017 as an identity document for the delivery of social programs by the government,31 and to allow the card-holders access to various government benefits including food, medicine32 and healthcare. It also must be used if the individual wants to be appointed to government jobs, register at public universities, withdraw from public banks and obtain services from notaries.33 In addition, a mode of payment called Mobile Wallet has been launched the following year (2018), linked to the card, which allows the card-holder to purchase goods and services as well as food from local committees for supply and production, and which can be recharged at public banks.34 [14] To obtain it, an individual has to produce a copy of his/her national ID card; be 15 years or older, provide general personal data and have his/her picture taken.35 And while Transparency International has highlighted that some questions are asked of the person applying for this card, such as whether he/she has a social media account, what his/her monthly income is and whether he is a member of a political party, social movement or community council, there is no indication that the person must provide proof of being a supporter of the ruling party or that he is a member thereof.36 However, I also note that the same source states that it appears that public servants have been forced to obtain it, while a newspaper outlet (El Nacional) reported that people working at mayor and governor offices, legislative bodies, municipal and community councils, and also employees of state-owned companies, pensioners and university students have been "pressured" to obtain it.37 Nevertheless, I do not find that, given his past work-related experience, this information is relevant to the Appellant as he did not belong to any of the aforementioned categories above.38 Moreover, according to a sociologist based in Venezuela and quoted by Spain's newspaper El Pais, "Venezuelans view the [homeland card] as something that will allow them to receive what the government is distributing and it is not necessarily related to a citizen's political affinities."39 [15] I now address the Appellant's allegations that he is certain that obtaining it means that card-holders are registered as ruling party members because during elections, they are required to stop at tables where representatives of the ruling party are seated and who write down the card-holder's name, and scan it after the person had cast his/her vote. Here, the same RIR provides a different explanation. Sources indicate that according to the Minister of Communication and Information, during the municipal elections of December 10, 2017, those who cast their ballots are asked to scan their cards at designated kiosks near the polling stations set up by the ruling party, in order to track the movement of voters.40 I therefore do not find that the Appellant has established, on a balance of probabilities, his allegations that the card-holder is being registered automatically as a member of the ruling party. [16] As the Federal Court of Appeal has stated, the presumption that a refugee claimant's testimony is true is always rebuttable by the failure of the documentary evidence to mention what one would normally expect it to mention,41 and the fact that the documentary evidence does not confirm that claimant's testimony may be grounds for rejecting his or her testimony.42 While I agree with the Appellant that the RIR does not purport to be conclusive as to the merits of every refugee claim, I do not find that the Appellant has credibly established that the information in the RIR does not reflect the reality of what Venezuelans face on the ground, as he alleges,43 or that given his particular circumstances, him obtaining the Homeland Card would result in his forceful registration into the ranks of the ruling party. [17] In addition, the panel is presumed to have taken all of the evidence into consideration, unless the contrary is shown.44 Here, while I find that it was open for the RPD to reject the documentary evidence of the Appellant, it should nevertheless have provided a more detailed overview of why it has done so with respect to this claim.45 In addition, I find that it was not clear from the wording of the RPD's decision whether or not the panel decided to draw a negative inference from the Appellant's failure to explain why the information that he alleges about the Homeland card did not feature in the RIR. In any case, I find that this would be an error because it would be akin to asking the Appellant to speculate about the reasons why the IRB's Research Department did not include this information. [18] At the same time, I do not find that these errors by the RPD are serious enough to undermine the overall correctness of its decision. This is because I have also conducted my own independent assessment of all the documentary evidence submitted by the Appellant. I have also, in analyzing the credibility of central allegations of the Appellant's claim, refrained from drawing a negative inference from his failure to explain why the RIR does not make that aforementioned reference. I still find that the RPD was correct in its conclusion. [19] According to one source within the documentary evidence submitted by the Appellant to the RPD, the Homeland Card has been released by President Maduro to regulate the purchase of food and basic essential items.46 Another source alleges that the card will end the shortage of medicine and distribute medicine to people in need.47 A third source states that according to the governor of the State of Miranda, registering for the card will not only allow the acquiring of food at local committees of supply and production, but is also about an inscription in the PSUV, and that it is the same as a census of the party.48 However, this article does not provide more details as to the basis for the governor's claims or how that is the case. I therefore give the document little probative weight. [20] A fourth source submitted by the Appellant mentions that the regime can, using this card, monitor the needs and location of the card holder, as well as their use of social media, which will allow the regime to control people.49 Here, I note that RPD did indeed underscore during the oral hearing that the some of the sources submitted by the Appellant do suggest that the card is being used as a mechanism of control.50 A fifth news article reiterates that a tool for the electronic payment of food through the Homeland Card will be made available, which corroborates the information in the RIR concerning the Mobile Wallet Application, and that this is perceived as a tool to enhance the public system of food bag distributions.51 [21] With respect to the last news source included in the documentary evidence of the Appellant, I note that it does quote XXXX XXXX XXXX XXXX as expressing his belief that it is disrespectful that a sick person has to be registered in a political party to be attended to. He also rejected the distribution of medicine using the Homeland Card because it encourages the creation of a parallel system.52 However, I do not find that his statements specifically corroborate the Appellant's allegations that registering for the card can be akin to registering in the ruling government's political party.53 This is because he speaks of "a political party," and not does specifically mention the ruling party or reference the PSUV. This, I find, is corroborated by the information in the RIR (which I have mentioned previously) that applicants are asked if they are members of a political party. I therefore give the document little probative value. [22] Finally, I agree with the Appellant that it is unclear from the RPD decision how the panel concluded that the refusal of the Homeland Card may have been a personal and voluntary political statement, and then conclude that the hardships endured indicate persecution on the part of authorities.54 From my reading of the RPD decision in its entirety, and my own independent analysis of the reasoning of the RPD, I find that on a balance of probabilities, this was a typo by the RPD: throughout the decision, the panel pointed out that there is nothing in the independent documentary evidence to establish that, on a balance of probabilities, the Appellant was being forced to become a member of the ruling party if he registers for the card, and that the Appellant embellished in his story. In light of that, I find that it is reasonable to conclude that the RPD meant to state that the use of the homeland card does not indicate persecution on the part of authorities. [23] Given the above, I find that the RPD was correct in its conclusion that the Appellant has failed to establish that, on a balance of probabilities, acquiring the Homeland Card enrols him automatically as a member of the Venezuelan ruling party, and that on a balance of probabilities, his decision not to apply for this card was personal and voluntary. (2) The Appellant's allegations that he would be persecuted by Venezuelan security forces because of his participation in anti-government demonstrations and protests [24] In its decision, the RPD found that there was no evidence that the Appellant was personally identified or targeted by Venezuelan security forces at any of the demonstrations that he allegedly participated. In this regard, the RPD pointed out that the Appellant had testified that he did not suffer any consequences as a result of his participation in these demonstrations.55 It also found that letters from the Appellant's friends confirm that his participation in these demonstrations was minimal, and that the photographs which he submitted are as an observer and not as a participant.56 [25] On appeal, Mr. XXXX XXXX submits the reason he had not experienced any consequences is because he and his friends would leave the demonstration whenever they became violent and that the letters corroborate his allegations with respect to that. In addition, and given that he knew that people were getting killed during the protests, he submits that it would have been unreasonable for the Appellant to remain at the protests. Moreover, he claims that the letters which he submitted as evidence confirm that he was present at all of the demonstrations, that he and others marched together and that the photographs don't show him because he was the photographer. Hence, there is nothing in these letters to underscore that his participation was minimal.57 [26] During the hearing, the RPD asked the Appellant to clarify how specifically, the security and law enforcement authorities were repressing and persecuting him. In response, the Appellant testified that police identified all people who participated in these demonstrations.58 He also stated that afterwards, police showed up in his neighborhood and kept an eye on the individuals who participated, and that this is how they identified where he lived.59 [27] Subsequently, the RPD panel inquired how it is that the Appellant became aware he had been identified as one of the protestors by the security guard and police, and to describe how he had been subjected to threats because of his political ideology by them.60 In response, the Appellant testified that he knew he had been identified because every time he would enter and exit his residence to go to work, the police would be there watching him.61 However, according to the Appellant, even though he did not suffer any consequences, he feels that they can at any point detain or incarcerate him.62 Moreover, he stated that he would talk to the police at the demonstrations and in front of his building; that they knew where he lived and that he started to feel intimidated because he would see the informants and pro-government militia walking around in his neighborhood dispersing the demonstrators.63 He also testified that police would always point firearms at the buildings, and would fire bullets and tear gas.64 In addition, he claims that they would approach him and intimidate him by calling him a derogatory word for opposition telling him that they know where he lives and that they would hurt him and is family, but that he would not be dragged into a fight with them because he knew they would use this as a justification to shoot him or to call the police on him.65 [28] I am prepared to accept the Appellant's statement on appeal that, given that he was aware that people were allegedly getting killed at these demonstrations, it would have been unreasonable for him to remain at the protests. I am also prepared to accept that his involvement in the demonstrations may have been that of a participant and not merely an observer. However, I have also analyzed the letters submitted by the Appellant's friends with whom he allegedly participated in the demonstrations, and the photos that he submitted to the RPD.66 Based on my analysis of the documentary evidence of the Appellant, and his oral and written testimony, I find that the RPD was correct in its finding that the Appellant has not persuasively established that, given his particular circumstances and evidence, he had been personally targeted or identified by Venezuelan forces as a result of this participation.67 At no time does the Appellant allege that he was stopped, interrogated, detained or arrested for his alleged involvement in demonstrations, or that the individuals, who allegedly threatened him and his family with harm, acted upon those threats. Nor do I find, based on the independent documentary evidence, that there is a serious possibility that similarly situated individuals would be persecuted. In this regard, sources in the updated NDP on Venezuela point out that individuals that have been identified by government authorities as having taken part in demonstrations are detained, often without a search warrant, on their way to, at, or after a demonstration. Dozens of civilians detained in connection with protests are reportedly being tried or sentenced by military courts that do not meet the requirement for independence and impartiality.68 In addition, there were reports of ill-treatment by officials during arrests of protestors, as part of a broader effort to silence dissent.69 However, I note that the Appellant's situation is not similar to those individuals, as he has not been identified by government authorities as having participated in such demonstrations and targeted for that participation. [29] Looking at the totality of the evidence, I do not find that the Appellant has established that he would face a serious possibility of persecution from Venezuelan security and law enforcement officials or pro-government militias, or that, on a balance of probabilities, he would be personally subjected to a risk to life or a risk of torture or of cruel and unusual treatment or punishment if he were to return to his country of nationality. CONCLUSION [30] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither Convention refugee nor a person in need of protection. Rouba Al-Salem Rouba Al-Salem July 29, 2020 Date 1 Exhibit RPD-1, RPD Record, Appellant's written narrative attached to his BoC, at lines 19-26. Exhibit P-2, RPD Record, RPD Reasons, at para. 4. 2 Exhibit RPD-1, RPD Record, Appellant's written narrative, at lines 68-151. 3 Exhibit RPD-1, RPD Record, Appellant's written narrative attached to his BoC, at lines 44-63. 4 Exhibit RPD-1, RPD Record, Appellant's written narrative attached to his BoC, at lines 153. 5 RPD hearing of November 15, 2018, from 0:53:17 until 0:55:05. Exhibit P-2, RPD Record, RPD Reasons, at para. 10. 6 Exhibit RPD-1, RPD Record, Appellant's written narrative attached to his BoC, at lines 10-12. Exhibit P-2, RPD Record, RPD Reasons, at para. 3. 7 Exhibit RPD-1, RPD Record, Appellant's written narrative attached to his BoC, at lines 6-9 and from paras. 37-42. 8 Exhibit P-2, RPD Record, RPD Reasons, at para. 5. 9 Ibid. at para. 7. 10 Ibid. at para. 9. 11 Ibid. at paras 11-12. 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 10. 13 Ibid. at pp. 11-12. 14 Ibid. at p. 13. 15 Ibid. at pp. 14-15. 16 Ibid. at p. 7. 17 Exhibit P-2, RPD Record, RPD Reasons, at para. 12. 18 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 19 RPD hearing of November 15, 2018, from 0:14:48 until 0:16:37. 20 Ibid. from 0:26:34 until 0:28:02. 21 Ibid. from 0:17:10 until 0:18:18. 22 Ibid. from 0:18:56 until 0:21:00. 23 Ibid. from 0:22:20 until 0:23:01. 24 Exhibit P-2, RPD Record, RPD Reasons, at para. 9. 25 NDP for Venezuela (May 2018), item 3.2 : "The Homeland Card (Carnet de la Patria), including Issuance Procedures, Usage and Physical Characteristics, extent to which Homeland Cards have been distributed (2016-May 2018)," (May /8, 2018), RIR (VEN106113.E), which represents item 3.2 of the NDP on Venezuela (May 2018) which was before the RPD, and which continues to be part of the updated NDP on Venezuela (March 31, 2020). (Homeland Card). 26 Exhibit P-2, RPD Record, RPD Reasons, at para. 9. 27 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 12. 28 Ibid. at p. 10. 29 Exhibit RPD-1, RPD Record, exhibit 5, C-5, newspaper article entitled "Doctors refuse to distribute the medicines through the Card of the Nation," (November 28, 2017). Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 10. 30 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 10. 31 Homeland Card, supra note 25, at pp. 1-2. 32 Homeland Card, supra note 25, at p. 5. 33 Homeland Card, supra note 25, at p. 6. 34 Homeland Card, supra note 25, at p. 3. 35 Homeland Card, supra note 25, at p. 3. 36 Homeland Card, supra note 25, at p. 4. 37 Homeland Card, supra note 25, at p. 5 38 Exhibit RPD-1, RPD Record, The Appellant's Schedule A, item 8. 39 Homeland Card, supra note 25, at p. 7. 40 Homeland Card, supra note 25, at p. 6. 41 Adu v. Canada (Minister of Employment and Immigration), 1995 No. 114. See also Bodokia v. Canada (Minister of Citizenship and Immigration), 2001 FCT 227, at para. 24. 42 Boateng, Ewurama v. M.E.I. (F.C.T.D., no. 92-A-6524). 43 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 10. 44 Zhou v. Canada (Minister of Employment and Immigration), 1994 F.C.J. No 1087. 45 Agranovsky v Canada (Minister of Citizenship and Immigration), 68 ACWS (3d) 713, at para 12. 46 Exhibit RPD-1, RPD Record, exhibit 5, C-5, cartoon dated January 5, 2017, at p. 124 of the electronic RPD file. 47 Exhibit RPD-1, RPD Record, exhibit 5, C-5, article (not dated), at p. 129 and 131 of the electronic RPD file. 48 Exhibit RPD-1, RPD Record, exhibit 5, C-5, article dated January 21, 2017, at pp. 133-134 of the electronic RPD file. 49 Exhibit RPD-1, RPD Record, exhibit 5, C-5, article dated July 24, 2017, at p. 137-139 of the electronic RPD file. 50 RPD hearing of November 15, 2018, at 0:26:54. 51 Exhibit RPD-1, RPD Record, exhibit 5, C-5, article dated November 24, 2017, at p. 143 of the electronic RPD file. 52 Exhibit RPD-1, RPD Record, exhibit 5, C-5, article dated November 28, 2017, at p. 145 of the electronic RPD file. 53 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 10. 54 Ibid. at p. 13. 55 Exhibit P-2, RPD Record, RPD Reasons, at para. 11. 56 Ibid. at para. 12. 57 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 15. 58 RPD hearing of November 15, 2018, from 0:38:16 until end of 0:39:38. 59 RPD hearing of November 15, 2018, at 0:41:06. 60 Ibid. at 0:42:44 and from 0:47:06 until 0:47:28. 61 Ibid. at 0:43:09. 62 Ibid. from 0:43:50 until 0:44:26. 63 Ibid. at 0:43:29, from 0:44:48 until 0:46:00 and from 0:47:50 until 0:48:07. 64 Ibid. from 0:46:00 until 0:46:24, 65 Ibid. from 0:48:35 until 0:50:00. 66 Exhibit RPD-1, RPD Record, exhibit 5, C1 and C3 as well as C6 submitted by the Appellant to the RPD. 67 Exhibit P-2, RPD Record, RPD Reasons, at para. 12. 68 NDP on Venezuela (31 March 2020), item 2.5: Organization of American States, "Democratic Institutions, the Rule of Law and Human Rights in Venezuela: Country Report," (December 31, 2017), Organization of American States. It features under the same item in the NDP version on Venezuela available to the Appellants (May 2018) 69 NDP on Venezuela (31 March 2020), item 2.2: Amnesty International, "Venezuela Amnesty International Report 2017/2018: the State of the World's Human Rights," (February 22, 2018). It features under the same item in the NDP version that was available to the Appellants on Venezuela (may 2018); Amnesty International; NDP on Venezuela (31 March 2020), item 2.7: UN Office of the High Commissioner for Human Rights, "Compilation prepared by the OHCHR in accordance with paragraph 15(b) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21," UN Office of the High Commissioner for Human Rights (OHCHR), (August 2016). It features under the same item in the NDP version on Venezuela that was available to the Appellants (May 2018). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-31980 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