VB4-03203

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: VB4-03203 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person(s) who is (are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Appel instruit à - Date of decision March 2, 2015 Date de la décision Panel Tribunal Counsel for the person(s) who is (are) Robert Kincaid Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] These are my reasons and decision in the appeal of XXXX XXXX XXXX XXXX (the "appellant"), a 39 year old citizen of Guatemala, from a decision of the Refugee Protection Division (the "RPD") that refused his claim for refugee protection. [2] The claim was heard by the RPD in September 2014 and dismissed orally following the hearing. Written reasons were issued in October 2014. The appellant was represented by counsel at the RPD hearing and by different Counsel in this appeal. The Minister did not intervene in the RPD process or in this appeal, which was perfected on August 21, 2014. ISSUE [3] The appellant appealed to the Refugee Appeal Division (the "RAD") pursuant to subsection 110(1) of the Immigration and Refugee Protection Act (the "Act").1 [4] The matter to be decided is whether the RPD determination should be confirmed or set aside. If set aside, the RAD may substitute its own determination on the merits, or refer the matter back to the RPD for re-determination.2 DECISION [5] For reasons set out below, the appeal is dismissed. The decision of the RPD is confirmed. ANALYSIS Background [6] The appellant alleged that he has a well-founded fear of persecution by the Mara gang in Guatemala. The appellant left Guatemala in 1998 and then lived without status in the United States of America (USA) for 15 years. He traveled to Canada in November 2013 because of a voluntary Departure Order from the USA following a domestic assault charge in 2013. He testified that he obtained a travel document and purchased a ticket for travel to Guatemala to show immigration authorities but, instead of using the ticket, he crossed the border into Canada with help from smugglers/agents. He and the smugglers were detected and arrested shortly after arriving in Canada and then the appellant made this refugee claim. [7] The appellant was targeted by the Maras (MS-13) in 1994-1995 because his brother criticized gang members in their region on public radio and reported gang leaders to the police after the appellant and his brother were beaten. The appellant alleged that he was forced to flee to Guatemala City, where he lived from 1995 until 1998. His wife and one year old son remained in their small town of about 3000 residents and another son was born in 1997. [8] In 1998 the appellant traveled to the USA. His now ex-wife eventually joined him there and they subsequently separated and divorced. She currently lives in the USA. Their sons live with the appellant's mother in Guatemala. The appellant also has a daughter who was born in 2000 in the USA and lives there with her mother. The appellant's brother has lived in Canada for many years, and the whereabouts of another brother who was in the USA are not known. [9] The appellant alleges that the Mara is still looking for him and will find him through their connections no matter where he lives in Guatemala. [10] The RPD member identified the determinative issues as Internal Flight Alternative (IFA) and credibility. The RPD member confirmed the appellant's identity and found much of the appellant's evidence credible, including his allegations of being targeted by members of the Mara (MS-13) gang in 1994-1995. The RPD member did not disbelieve the appellant's evidence about events in Guatemala and in the USA since 1998, and about the circumstances of traveling to Canada. [11] In making this decision I have taken into consideration the arguments filed for this appeal and the Record, including the transcripts of interviews and the transcript of the RPD hearing, and relevant jurisprudence. [12] The appellant did not make arguments regarding the scope of the RAD's authority and jurisdiction, which has been addressed in numerous Federal Court decisions of late. Although jurisprudence about the role of the RAD and its processes is in an evolving state, the Federal Court decisions indicate agreement that the RAD is to conduct an appeal on the merits rather than a more limited review for reasonableness. For clarity, I have included the following overview of the scope and function of a RAD appeal. (a) The relevant provisions of the Act direct the RAD to arrive at its own conclusions regarding the merits of a claim. Although somewhat shrouded in details that define access and limits on new evidence, the essential functions of the RAD are discernible upon reviewing relevant sections of the Act for ordinary meaning and in harmony with the overall scheme of the legislation. (b) The role of the RAD is similar in many ways to that of the Immigration Appeal Division (the "IAD"), the other and older appellate division of the Immigration and Refugee Board (the "IRB"). The RAD and the IAD may hear appeals from decisions specified in the legislation, and each performs essentially similar tasks of allowing or dismissing an appeal,3 with authority to substitute a determination on the merits or refer the matter to the appropriate decision-maker for reconsideration.4 (c) The most significant differences between the process of RAD and the activity of other divisions of the IRB relates to unique limitations for gathering or accepting new evidence. The following provisions of the Act indicate that the RAD is expected, for the most part, to make decisions without an in-person hearing and based on the evidence of the RPD record of proceedings: 110(3) Procedure - Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a Panel of three Members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. 110(4) Evidence that may be presented - On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. (d) Because the RAD does not engage in the same de novo gathering of evidence as occurs at the IAD, for example,5 there may be necessary deference to factual or credibility findings of the RPD where the RPD member was in an advantaged position to assess evidence. This has been confirmed by the Federal Court in cases such as Huruglica.6 (e) The RAD may accept new evidence as indicated in the provisions noted above and is instructed to accept and consider relatively unlimited evidence that may be presented by the Minister in any appeal at any time.7 The RAD has authority to convene a hearing in prescribed circumstances and, when it does so, has the same power as other divisions to do all things necessary to provide a full and proper hearing, including summoning witnesses to testify or to produce documents.8 The RAD is not bound by any legal or technical rules of evidence; it may accept evidence that is considered credible or trustworthy in the circumstances;9 it has authority to hear and determine all questions of law and fact, including questions of jurisdiction and, it is to deal with all proceedings informally and quickly within the boundaries of fairness and natural justice.10 The RAD is not vested with the powers of a superior court as ascribed to the IAD,11 but is authorized to take judicial notice of facts and general notice of facts and information or opinion within its specialized knowledge.12 Finally, an appellate function is also reflected in broad remedial powers to make its own determination on the merits and in the legislated designation of precedential value to three-member panel RAD decisions.13 [13] In summary, notwithstanding limitations regarding the gathering of new evidence, the scope of the RAD and its essential functions are appellate in nature. Discussion [14] The appellant asked the RAD to set aside the RPD decision and to refer the matter back to the RPD for re-determination.14 [15] The appellant did not submit new evidence or request an oral hearing in this case but challenged the RPD member's determination about IFA. [16] International refugee protection is intended to benefit only those persons who are deprived of the protection normally expected from their own country against persecution or other serious harm. The concept of IFA is premised on the principle that a claimant may have a well-founded fear of persecution or fear of harm in one part of the country but if there is another place within that country where they would be safe and where it would be reasonable to expect them to relocate there, then they should do so. [17] The test for IFA is two-pronged: firstly, the IRB must be satisfied on a balance of probabilities that there is no serious possibility that the claimant would be persecuted in the proposed IFA or face a section 97 risk of harm; secondly, the conditions of the proposed IFA must be such that it is not unreasonable or unduly harsh for the claimant to seek refuge there. It is not enough for a claimant to say that they "do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. If it is objectively reasonable to live in these places, without fear of persecution or other harm, then IFA exists and the claimant is not a refugee."15 In Ranganathan, the Federal Court of Appeal stated that the test is to show that the IFA is unreasonable,16 which requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimant in relocating to a safe area. Actual and concrete evidence of adverse conditions is required. A claimant's preferences and conveniences are not relevant nor is the determination to be based on humanitarian and compassionate considerations. However, a claimant should not have to undergo great physical danger or undue hardship in travelling or staying in the proposed IFA.17 [18] The appellant agreed with this legal test for IFA but disagreed with the factual conclusions that led the RPD member to find that the suggested IFA was not unreasonable. Because the arguments reflect, to some extent, anticipation that the RPD determination will be reviewed by the RAD for reasonableness, I refer to the findings of the RPD member in my analysis. However, this is not a case where a high level of deference is owed to the RPD determination because the facts and evidence, including the appellant's testimony, are before me and it is not evident that the RPD member had an advantaged position to make material findings. [19] In order to establish that there is no IFA in Villa Nueva, the appellant had to show that the alleged dangers from the agent of persecution, i.e. the Mara, would persist despite the many years that have passed since their efforts to harm him in 1995 and despite living in a city of 700,000 persons rather than the small town of 3000 where he was targeted many years ago. [20] In his Memorandum for this appeal, the appellant's counsel argued, in essence, that the city Villa Nueva is not a reasonable IFA because when he lived in nearby Guatemala City for 3 years before going to the USA the appellant had to move and change jobs constantly to avoid the Mara. The appellant's counsel alleges that the Mara is still interested in the appellant's whereabouts, will find out if he returns to Guatemala and will locate and harm him even in the relatively large city of Villa Neuva. The appellant's counsel argued that the member failed to consider relevant material evidence from the country documents and from the claimant's evidence and that this led the RPD to make factual conclusions without regard to the totality of the evidence before it.18 The appellant's counsel submits that there is evidence that points to a contrary conclusion about the reasonableness of the IFA, namely: the combination of country conditions and the appellant's evidence of moving from job to job and place to place while living in Guatemala City to avoid the Mara. In support of this position, the appellant's counsel cited Federal Court jurisprudence about a reviewing court's willingness to infer that an agency made a finding of fact "without regard to the evidence".19 In both submissions to the RPD20 and for this appeal, the appellant's counsel referenced selections from a March 2010 UNHCR Guidance Note relating to victims of organized gangs21 and pointed out the report's confirmation that, once an individual or family has been targeted for retaliation by a gang, the gravity of the threat does not diminish over time.22 [21] The country conditions information referred to by the appellant's counsel does show the possibility of a continuing threat where the Mara have identified and targeted a family but the type of circumstances that might generate undiminished targeting is not detailed in the documents, nor is there indication of how long an 'undiminished' threat may continue. That is alluded to somewhat in a discussion in the Guidance Note about IFA, which suggests that the scope of retaliatory targeting is evidenced by appearances of gang members at a person's home, work, or the homes of family members, as follows:23 Experiences of individuals fleeing gang violence often reveal that the victim may have sought protection internally within his/her country or relocated in the region, in order to escape the gangs. Such attempts have often been unsuccessful as gangs can locate the individual in urban as well as in rural areas, appearing at the applicant's home and place of work as well as near the homes of family members. ... [22] I agree with the appellant's counsel that in the decision the RPD member did not refer to the country conditions information about countrywide networks and undiminished retaliation targeting by Mara. By itself, that is not a fatal error because there is a presumption that an RPD member has considered all of the evidence before her. The need to refer to specific evidence correlates with findings of fact whose relevance to the analysis of material issues makes specific documentary references more or less necessary. In this case, the RPD focused on evidence of the past events of targeting, and also considered the limited anecdotal evidence of ongoing threats, to assess the likelihood of future targeting if the appellant returns to Guatemala and lives in the relatively large city of Villa Nueva. The member considered that the failure of the Mara to locate the appellant between 1995-1998 while he lived in Guatemala City was a strong indication that gang members would not be interested in or motivated to find him if he returned now, in 2014.24 The RPD member pointed out that the source of targeting in 1995-1998 appeared to be limited to gang members in the appellant's locale, indicating by implication that a larger Mara network was not engaged at that time. The member examined the available evidence and engaged in a factual inquiry to determine the extent of targeting, including in Guatemala City from 1995 to 1998, and found that it showed lack of motivation to find the appellant then or now and also concluded that "it is not clear how the Mara in [name of village omitted] would have any knowledge that you had returned to the country if you were outside of the small town ... and residing in Villa Vueva".25 [23] The assessment by the RPD member reflects mindfulness of the information about countrywide networks. Furthermore and in any event, my own analysis of the country conditions information and the evidence in this case leads me to the same conclusion reached by the RPD member regarding IFA. I agree that the country condition documentation confirms that many gangs such as the Mara have regional or country-wide reach that may leave no realistic IFA. However, there must be evidence that the organizational structure has been engaged or is likely to be engaged such that the claimant falls within the scope and interest of that network, to show that an IFA is unreasonable. [24] The appellant testified that in 1994-1995 his brother publicly denounced gang members and identified some by name in the police report after the two of them were beaten. The retaliation by the Mara was, according to the available evidence, essentially due to the actions of the appellant's brother. The documented information concerning retaliation practices indicates that extended family members fall within the usual ambit for such retaliation, which is consistent with the appellant's experience in 1994-1995 when he was beaten and hospitalized, and inspired to flee to Guatemala City and later to the USA to avoid further retaliation.26 According to his account of the events between 1995 and 1998, the Mara located and approached the appellant's wife despite her own move with their son to a different place in their home town and his wife communicated to him approximately 6-8 months after he moved that they knew he was in Guatemala City. [25] The appellant was, on balance, a credible witness who responded directly to questions at both the interview with CBSA and at the RPD hearing, and did not add notably inconsistent evidence at the hearing or embellish what he had described in the BOC. He even gave information that was, in the final analysis, contrary to his own interests. Appellant counsel's position relies on the argument that the RPD member misstated or failed to consider the appellant's explanation for why the Mara did not locate him in Guatemala City, which counsel suggested was as follows: that the appellant moved around in Guatemala City from 1995 to 1998 to avoid the Mara. That is not, however, a complete statement of the appellant's evidence on that point. In his BOC, the appellant wrote that they 'found me' in Guatemala City27 but at the hearing he spoke about his wife telling him that they knew he was in Guatemala City and did not refer to any occasions where he was specifically located there by Mara members. At the hearing the appellant gave several reasons for moving about in Guatemala City: he initially lived with his aunt but she moved after 8 months so he had to find elsewhere to live; he moved to find work, and he moved because of his wife told him the Mara knew he was there.28 The appellant told the CBSA officer during his initial interview that the Mara extorted him and his mother for money related to operation of his business before he left the region and that since ending the business they left his family alone.29 [26] I have examined the evidence for ongoing appearances by the Mara over time that would indicate undiminished retaliatory interest in the appellant and his family and thus give rise to a serious possibility that the Mara will also seek out the appellant if he returns to Guatemala. The fact that the Maras did not find the appellant in Guatemala City does not necessarily indicate that gang members did not look for him. However, even accepting that the Mara may have looked but were unable to locate him there between 1995-1998, it is not reasonably explained or self-evident why retaliation was not inflicted, for example, on the appellant's wife and child, whose whereabouts were known to the Mara. The available evidence is that, despite knowing where his wife lived from 1995 to 1998, she was not harmed, nor is there evidence of undiminished targeting efforts against the appellant's mother and his two sons whose whereabouts have remained known to the local Mara for over 15 years since the appellant and his wife left for the USA. That evidence is not consistent with the allegation of an undiminished interest to target the appellant. It is also not reasonably explained or self-evident why there would be efforts by local Mara to engage country wide networks to find the appellant, 19 years after his departure from that locale, when it has not targeted his family on an ongoing basis despite knowing their whereabouts. [27] I acknowledge the appellant's testimony that by word of mouth connection he has heard that the Mara remains interested in retaliation against him but that anecdotally based belief is not supported by or consistent with objective and reliable evidence sufficient to establish that likelihood on a balance of probabilities. The appellant also referred to hearing about a person who was killed a few months after returning to the locale but that evidence is not sufficient to indicate that he was a similarly situated person who has suffered the kind of harm that the appellant fears. [28] The appellant's counsel pointed out documentation indicating that the MS 13 are one of the main sources of violence in Guatemala and that Villa Nueva is one of the "high crime areas" targeted by the government for a pilot project given the reach of the Mara gangs in that city.30 That circumstance confirms a general risk but not the specific targeting that is alleged in support of this claim. [29] Another important consideration in this claim that it is inconsistent with ongoing fear of the Mara is that the appellant did not pursue a claim for asylum during his more than 15 years of residing in the USA. He told the CBSA officer that he did not pursue a claim because he thought it was harder to do so in the USA and that he expected to live there indefinitely as he was.31 That explanation does not overcome or reasonably explain the failure to seek asylum in the USA. The appellant's brother successfully claimed refuge in Canada but the appellant did not make efforts to join his brother in Canada until after a removal order was issued in the USA. In the circumstances, the appellant's failure to seek asylum in the USA or make an effort to travel to Canada earlier detracts from finding that he remained in fear of returning to Guatemala since 1998. [30] Taking into consideration all of the available evidence, the appellant has not established that he remains at risk of persecution or harm from the Mara if he relocates to Villa Nueva. It is not established that it would be unreasonable or unduly harsh for the appellant to seek refuge in that city. He has demonstrated skills to support himself in both Guatemala and in the USA. The appellant has not provided objective evidence of great physical danger or undue hardship in travelling to or staying in the proposed IFA. CONCLUSION The appeal is dismissed. The RPD decision is confirmed. (signed) Date 1 S.C. 2001, c. 27. 110(1) Appeal - Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. 2 111(1) Decision - After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. 3 Supra, note 2 and the Act Section 66. 4For the RAD: 111(2) Referrals The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. For the IAD: 67(2) Effect - If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration. 5 175 (1) Proceedings - The Immigration Appeal Division, in any proceeding before it, (a) must, in the case of an appeal under subsection 63(4), hold a hearing; (b) is not bound by any legal or technical rules of evidence; and (c) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances. 6 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, paragraphs [54] & [55]. 7 171 Proceedings -. In the case of a proceeding of the Refugee Appeal Division, ... (a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal; (a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister's appeal or intervention in the appeal; ... 8 165 Powers of a Commissioner - The Refugee Protection Division, the Refugee Appeal Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing. 9 171 Proceedings - In the case of a proceeding of the Refugee Appeal Division, ... (a.2) the Division is not bound by any legal or technical rules of evidence; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; ... 10 162 (1) Sole and exclusive jurisdiction - Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. (2) Procedure - Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. 11 174(1) Court of record - The Immigration Appeal Division is a court of record and shall have an official seal, which shall be judicially noticed. (2) Powers - The Immigration Appeal Division has all the powers, rights and privileges vested in a superior court of record with respect to any matter necessary for the exercise of its jurisdiction, including the swearing and examination of witnesses, the production and inspection of documents and the enforcement of its orders. 12 171 - Proceedings - In the case of a proceeding of the Refugee Appeal Division, ... (b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge; 13 171 - Proceedings - In the case of a proceeding of the Refugee Appeal Division, ... (c) a decision of a Panel of three Members of the Refugee Appeal Division has, for the Refugee Protection Division and for a Panel of one Member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a trial court. 14 AR paragraph 12, p. 228. 15 Kumar v. Canada (Minister of Citizenship and Immigration), 2004 FC 601 (CanLII), para 21. 16 Ranganathan v. Canada (Minister of Citizenship and Immigration) [2001] 2 F.C. 164 (C.A.). 17 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. M.E.I. [1994] 1 F.C. 589 (C.A.), (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 18 AR paragraphs 10 & 11, pp. 227-228. 19 Ibid, Bains v. Minister of Employment and Immigration (1993) 63 F.T.R. 312 (T.D.) et al. 20 RPD hearing transcript, pp. 31-36, RPDR pp. 39-44. 21 AR Tab 5, p. 161. 22 Ibid p. 165, paragraph 6. 23 Ibid p. 182. 24 RPD decision, p. 3, lines 22-28, AR p. 4. 25 RPD decision, p. 3, lines 22 to 32, AR p. 4. 26 RPDR pp. 81-84. 27 BOC questions 2(c) and 2(d), RPDR pp. 9 & 10. 28 RPD hearing transcript, pp 12-13, AR pp. 20-21. 29 Transcript of November 20, 2013 interview with CBSA. RPDR pp. 52-53. 30 AR p. 226, paragraph 7. 31 Transcript of November 20, 2013 interview with CBSA, RPDR p. 52. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-03203