VC0-02491

RAD File / Dossier de la SAR : VC0-02491 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 Date of decision November 26, 2021 Date de la décision Panel Angus Grant Tribunal Counsel for the person who is the subject of the appeal Rahall Belail 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] These are my reasons for granting the appeal of XXXX XXXX XXXX XXXX, who is a citizen of Venezuela. Ms. XXXX XXXX (the Appellant) claims to fear persecution in Venezuela because of her political opposition to the current government. I substitute a decision granting her claim for refugee protection. [2] The Refugee Protection Division (RPD) rejected the Appellant's claim for refugee protection because it found that she was not credible with respect to core elements of her claim. I find that the RPD committed errors in its analysis. In weighing these errors, I conclude that the RPD also erred in rejecting the Appellant's claim for refugee protection. BACKGROUND Basis of Claim [3] Details of the Appellant's claim are provided in her amended Basis of Claim (BOC) form.1 In brief, the Appellant claims that she was mistreated in Venezuela over the course of several years because of her family's "vocal opinions" against the ruling XXXX regime in Venezuela. The RPD Decision2 [4] As noted above, the RPD rejected the Appellant's claim on the basis of negative credibility findings, consisting of the following: * The Appellant testified that the authorities visited her home on 10 occasions, whereas her BOC indicates only one visit. * The Appellant testified that she had advised and counselled others to protest against the government, which was also not mentioned in her BOC forms. * The Appellant provided inconsistent evidence as to her travel history, and her travel to Mexico and then back to Venezuela raised concerns. NEW EVIDENCE [5] On appeal, the Appellant has provided new evidence in the form of a witness statement from her spouse. This evidence is not admissible on appeal. The statement largely consists of a retelling of the basis of the Appellant's claim for refugee protection. It contains no new information. The only information in the statement that does not appear to have been presented to the RPD relates to why the spouse has not sponsored the Appellant. This is not relevant to the determination of this appeal. At other times, the statement amounts to arguments that the RPD decision was incorrect. This is a legal argument, not evidence. In short, the witness statement does not meet the criteria for admission on appeal and, as such, I will not admit it.3 ANALYSIS [6] The role of the Refugee Appeal Division (RAD) is to assess whether the RPD made the correct decision. While there may be instances that call for deference to the RPD decision, I see no reason for such deference in this case.4 Below I consider the RPD's findings, and the Appellant's arguments in respect of these findings, in order of their importance to the determination of this appeal. The RPD erred in its conclusions on the Appellant's travel history [7] I begin with the RPD's finding that the Appellant was inconsistent in recounting her travel history, and that she returned to Venezuela after she had left the country in late 2018. This finding was factually incorrect. The information provided by the Appellant in her BOC form, in her supporting immigration documents,5 and in her testimony was that she left Venezuela in 2018 and came to Canada. After her arrival in Canada, she visited Mexico and later returned to Canada, without returning to Venezuela. [8] In my review of the hearing transcript from the RPD hearing, I find that it was the RPD member, rather than the Appellant, who was confused about her travel history. Early in the hearing, the RPD member asked the Appellant if she had ever travelled outside Venezuela "before" coming to Canada. The Appellant indicated that she had not. Later, the member revisited the issue, but failed to remember the precise question that he had asked earlier, indicating that he had asked if the Appellant had travelled anywhere "besides" Canada. These are different questions, and in the Appellant's case, they yield different answers because while she had not travelled to any country prior to coming to Canada, she had visited a country (Mexico) besides Canada. There was no inconsistency in the Appellant's answers. [9] Moreover, the RPD member adopted an inappropriately dismissive tone over the Appellant's (wrongfully perceived) confusion, stating: "The question 'have you ever travelled to anywhere besides Canada?' that - that was confusing to you? That was ambiguous to you?" As noted above, the panel never put this precise question to the Appellant. The Member's questioning of the Appellant was misleading to her, so it was not at all surprising that it led to some confusion on her part. Worse still, this manner of questioning raises concerns over the fairness of the proceedings in that the Member put erroneous information to the Appellant, and then inferred that she was providing inconsistent answers to questions. This approach can have a disconcerting effect on witnesses, and unnecessarily raise stress levels within the hearing. [10] It is also clear from the RPD's reasons that it drew an incorrect inference from the Appellant's testimony, and that it erred in stating that she had returned to Venezuela after she had visited Mexico. The importance of this error should not be understated - return to a country of alleged persecution raises serious concerns with respect to both credibility and subjective fear. The RPD placed too much weight on the inconsistencies in the Appellant's testimony [11] The RPD was correct in pointing out that the Appellant's testimony differed somewhat from the details she provided in her BOC narrative. However, I disagree with the weight that the RPD placed on these inconsistencies. [12] As noted above, the first relates to the number of times the police searched for the Appellant at her home. In her BOC, the Appellant provided as follows with respect to the experience of repression she claims to have experienced in Venezuela: My family and I have been mistreated and threatened by the Venezuelan government or people politically aligned with the government for the past 7 years at the very least. This is because of my family's political orientation and my own vocal opinions against XXXX XXXX government. I have used my position as a XXXX as a platform to speak out against XXXX government and participated in street protests.6 [13] In addition to the above, the Appellant detailed in her BOC an incident in which security officials came to her house searching for her. When asked at the hearing how many times the police had come looking for her over the years, the Appellant replied that they had come about 10 times. In its reasons, the RPD found this to be a significant inconsistency. [14] While I agree that the Appellant did not state in her BOC that the police had come looking for her on 10 occasions, I note that the BOC is generally quite brief and, as noted above, she did specifically state that she and her family have been "mistreated and threatened by the Venezuelan government or people politically aligned with the government for the past 7 years at the very least." To my mind, this statement suggests that the Appellant has always maintained that her problems with Venezuelan authorities have been repeated and prolonged. As such, while the Appellant was somewhat inconsistent in her testimony about police visits, this inconsistency on its own did not provide a sufficient basis on which to find that she was not a credible witness. [15] The same can be said for the Appellant's testimony about her actions in encouraging others to protest the government. In her BOC form, the Appellant stated that: I have used my position as a XXXX as a platform to speak out against XXXX government and participated in street protests, I have been fired from jobs or not hired because of my political opinion.7 [16] At the hearing into her claim, the Appellant was asked about her activities and she stated as follows: I used my career, my profession as a platform. I used my skills as a professional to advise people on how to demonstrate or being against the government. I coordinated, organized the protests against the regime. I am constantly on the street protesting and that puts me at risk.8 [17] In its reasons, the RPD found that the Appellant's testimony on this point had a "serious negative effect on credibility." Once again, while it may be true that the Appellant's testimony was somewhat inconsistent with the BOC statement, the substance of the Appellant's narrative remained the same: she has long opposed the XXXX regime; she is a XXXX; and she used her platform to express her political opinions. Inherent in political expression is an intent to persuade others to join one's own political views. Understood in this sense, I take the Appellant's BOC statements as implicitly communicating what she expanded upon in her testimony. It follows that I disagree with the negative inferences drawn by the RPD in this aspect of the Appellant's testimony. Conclusions on credibility [18] The RPD's decision is based on three principal findings. As I have set out above, I disagree with each of these findings. As such, I find that the RPD did not have a basis on which to question the Appellant's credibility. I accept that the Appellant opposes the current government in Venezuela. I accept that she expressed this opposition prior to her departure from Venezuela. I further accept that were the Appellant to return to Venezuela and express her opposition to the current regime, there would be a serious chance that she would be targeted by state security officials. No State Protection or Internal Flight Alternatives [19] Given the nature of the Appellant's claim, namely that she fears government officials on account of her political opposition, it is clear that she could not rely on the state to protect her. On the contrary, the documentary evidence establishes that government repression of political opposition continues to be widespread. As the Appellant's fear relates to the Federal government who maintain effective control across Venezuela, it is also clear that there are no viable internal flight alternatives.9 As a result, I accept that the Appellant has a well-founded fear of persecution in Venezuela, and I accept her claim for protection on this basis. CONCLUSION [20] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) "Angus Grant" Angus Grant November 26, 2021 Date 1 Exhibit RPD-1, RPD Record, Exhibits 2-2.1, Basis of Claim Form and amendments, pp. 11-46. 2 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 3-9. 3 Immigration and Refugee Protection Act, s.110(4), Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, 2007 FC 385. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim Form, p. 14; Exhibit RPD-1, RPD Record, Exhibit 1, Schedule 12 Form, p. 63. 6 Exhibit RPD-1, RPD Record, Exhibit 2.1, Basis of Claim Form, p. 37. 7 Ibid. 8 RPD Hearing Transcript, p. 20. 9 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Venezuela (August 30, 2019), item 2.1, ?Venezuela. Country Reports on Human Rights Practices for 2018, United States. Department of State, March 13, 2019, pp. 1-18. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC0-02491 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français