VB4-03436

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: VB4-03436 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 April 10, 2015 Date de la décision Panel Tribunal Counsel for the person(s) who is (are) Linda Mark 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") from a decision of the Refugee Protection Division (the "RPD") refusing his claim for refugee protection. [2] The claim was heard by the RPD in October 2014 and dismissed following the oral hearing. Written reasons were issued in early November 2014. The appellant was not represented by counsel at the RPD hearing but is represented by counsel in this appeal to the Refugee Appeal Division (the "RAD"), which is brought pursuant to subsection 110(1) of the Immigration and Refugee Protection Act (the "Act").1 The Minister intervened at the RPD hearing in writing with information from a CBSA interview and criminal records history from the USA. The Minister did not intervene in this appeal to the RAD. ISSUE [3] The RPD Member considered Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the "Act")2 and concluded that the appellant was not a Convention refugee3 or a person in need of protection. The RPD Member identified Internal Flight Alternative (IFA) in Tegucigalpa, the capital city of Honduras, as the main issue in the claim and refused the claim on that basis.4 [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. DECISION [5] For reasons set out below, the appeal is dismissed. ANALYSIS Background [6] The Appellant is a citizen of Honduras. He traveled from that country to the United States of America (USA) in the year 2000 when he was around 18 year of age. He remained in the USA until 2010, returned briefly to Honduras, and then traveled to Canada in November 2011. In August 2014 he was arrested and detained by immigration officials and made this claim for refugee protection at that time. [7] At the outset of the RPD hearing the Member gave meticulous instructions about the process, confirming the participants and the documentary evidence, and that appellant understood the interpreter. The RPD Member adjourned to permit the interpreter to translate the BOC (Basis of Claim) to the claimant because it had not been signed. The Appellant amended and was forthcoming about incorrect dates in the BOC. He confirmed that he was deported from the USA and returned to Honduras in 20105 and not 20146 as indicated in the BOC. He confirmed that he had been in Canada since December 20117 and amended related evidence about an attack against him in Honduras,8 confirming that this happened about one year before leaving Honduras in November 2011.9 Discussion [8] The Appellant's submissions for this appeal are brief and to the point: his counsel submits that the RPD member was wrong to find that the Appellant had an IFA in Tegucigalpa because Honduras is a small country and Tegucigalpa is only 2.5 hours away from the town where the Appellant lived and was threatened. The Appellant's counsel submits that the findings of the RPD Member were therefore in error and should be overturned. The Appellant did not present new evidence to the RAD or request it to conduct an oral hearing.10 He asked the RAD to set aside the RPD determination and substitute a determination to allow the claim, or to refer the matter back to the RPD for redetermination.11 [9] The RAD is in many respects an appeal de novo, that is, an appeal designed to consider the case anew. That description equates generally to the review for 'correctness' sought by the Appellant. The RAD is uniquely constrained in respect of gathering new evidence and conducting oral hearings because it is expected, generally, to make decisions based on the record of the RPD proceedings and without an oral hearing. 12 This sets it apart from other de novo proceedings where new evidence is generally gathered by way of in-person hearings. Notwithstanding those limits, when the words of the RAD's enabling legislation are considered in context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the objects of the Act,13 and the intention of Parliament,14 it is evident that the RAD is a de novo appeal in material ways. For example and notably, the RAD must consider the relatively unlimited evidence that may be presented by the Minister in any appeal at any time15 and it may convene an oral hearing in prescribed circumstances,16 with the same power as other divisions of the IRB to do all things necessary to provide a full and proper hearing, including summoning witnesses to testify or to produce documents.17 The RAD may hear and determine all questions of law and fact including questions of jurisdiction; it must deal with all proceedings informally and quickly within the boundaries of fairness and natural justice;18 it is to operate unbound by any legal or technical rules of evidence and with authority to accept additional evidence that meets prescribed tests for admissibility. The RAD has remedial jurisdiction to set aside the RPD determination and substitute its own decision on the merits of a claim.19 This description of the RAD process is consistent with the Federal Court jurisprudence of late exhibiting general agreement that the RAD's mandate is to conduct an independent assessment of the merits of a claim.20 [10] In assessing the merits of this case I have taken into consideration the applicable law and jurisprudence, the RPD decision, submissions to the RAD, and the documentary evidence including the RPD Record and the Appellant's testimony by way of the audio recording of the RPD hearing. [11] At the outset of the RPD hearing, the Member confirmed the claimant's identity based on his passport and birth certificate21 and there is no evident basis to interfere with that finding. Similarly, the RPD Member confirmed that in every refugee claim credibility is an issue and found that the claimant's testimony was credible in material areas. A person's affirmed or sworn testimony is presumed true unless there is reason to doubt its truthfulness.22 In this case, there is no apparent reason to doubt that the Appellant's evidence was credible in material areas. His testimony was consistent with information in the BOC and did not reveal internal inconsistencies, unresolved discrepancies with objective documentary evidence, or embellishments. [12] The appellant was recently married and is a father to two young daughters, and he is the primary breadwinner for the family unit in Canada. It appears that he has, through hard work and entrepreneurial endeavour, supported himself and others for many years in both Canada and previously in the USA despite lack of legal status. He embarked on the challenge of travelling from Mexico three times after deportation from the USA before successfully making his way through the USA to Canada in December 2011. There is no doubt that the Appellant desires to remain in Canada and does not want to return to Honduras. However, a refugee claim is not based on humanitarian and compassionate considerations. [13] In his BOC, the Appellant stated that he feared harm from a man (the "persecutor") in his town of origin, who had tried to kill him.23 The Appellant described the man as part of a family of criminals who are dangerous.24 At the RPD hearing, the Appellant explained that he was targeted by this persecutor on two or three occasions because of problems between their two families that began long ago. A cousin of the Appellant's father, whose mother had raised the appellant from the age of nine, killed the persecutor's father and thus the families remained enemies. [14] The original events occurred before the appellant left Honduras for the USA in 2004. At the hearing the Appellant testified that there was another attempt on his life from this persecutor in 2011, before he left for Canada. An immediate and material question arising is why the Appellant did not make a claim for asylum sooner in Canada, or previously in the USA. His failure to do so detracts from finding that he has subjective fear because he did not provide a reasonable explanation for that failure. The Appellant testified that he made the claim in 2014 after he was arrested and detained, which occurred because he was a passenger in his brother's car when it was detained. Upon identifying himself to peace officers his lack of status in Canada was disclosed and reported to immigration authorities. [15] The Appellant has many siblings, including three brothers in Canada. The Appellant's parents live in Honduras, as do five brothers and one sister. Another brother lives in the USA.25 The family members in Honduras live in his town of origin except for his sister who lives in a town nearby. The Appellant testified that his father, uncle and a brother have had problems with the person he fears but continue to live in the same town. Furthermore, the Appellant's cousin who began this intra-family dispute also continues to live in the same town. The Appellant indicated in his documentary information that three of his brothers have had negative determinations on claims for refugee protection and two had positive immigration outcomes in Canada, although from his testimony at the RPD hearing it appears that those may not have been based on refugee claims. [16] In order to be successful in the refugee claim, the Appellant had to show that there is a serious possibility of persecution or that he would, on a balance of probabilities, personally be subjected to danger of torture or face a risk to his life or of cruel and unusual treatment or punishment if he returns to Honduras, and in particular, if he relocates to its capital city of Tegucigalpa. [17] The RPD Member did not make findings or analysis about nexus to a Convention ground and the facts do not give rise to such a nexus. The claim is therefore properly assessed pursuant to section 97(1) and the determinative issue arising from that assessment is Internal Flight Alternative (IFA). Internal Flight Alternative (IFA) [18] International refugee protection is intended to benefit only those persons who are deprived of the protection that is 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, then they should do so. [19] The test for IFA is two-pronged: firstly, the IRB must be satisfied, in this case, on a balance of probabilities that the claimant would not 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."26 In Ranganathan, the Federal Court of Appeal stated that the test is to show that the IFA is unreasonable,27 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.28 [20] 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 safe and not unreasonable. [21] The Appellant confirmed that he has never lived in Tegucigalpa but does have some cousins living there. He confirmed that he fears not only the persecutor but the general conditions in Tegugicalpa because of gangs and general crime, and he testified that he believes it is not a safe place for anyone. He testified that he feels the persecutor would find him there through others because the Appellant communicates with and is part of a family that has ongoing trouble with the persecutor.29 [22] An IFA is often more likely to be available in larger urban centres, thus the city of Tegugicalpa, which has a population over one million, is viable on its face. Furthermore, the Appellant has not established that an IFA in Tegucigalpa is not safe or reasonable and has not provided evidence to support that the persecutor is likely to pursue and harm him there on a balance of probabilities. The Appellant's alleged fear that the persecutor will pursue him is not consistent with the fact that many of the Appellant's family members have been and continue to live in the same locale as the persecuting family. The Appellant confirmed that they reside in a small town where everyone knows each other and that his own family forms a relatively large part of its population. When that was put to the Appellant, he replied that they [the persecutor and his family] "try and do things in a discreet way so as not to be found out"30 and that they have made attempts to harm the family. That suggestion was anecdotal in nature and does not, on a balance of probabilities, reasonably resolve the question of why or how the persecutor or his family would pursue the Appellant if he lived in Tegucigalpa. Furthermore, the Appellant's reasons for fearing harm in Tegucigalpa include concerns about that city generally, which is not sufficient to show specific and individualized risk of harm to the Appellant should he live there. [23] The totality of the circumstances in this case does not establish that the Appellant is a Convention refugee or a person in need of protection. It is apparent that the Appellant would prefer to remain in Canada with his wife and children and it is noteworthy that he did not embellish his evidence about concerns and circumstances in Honduras despite the understandable desire to remain with his young family in Canada. The Appellant, who was credible and forthcoming with respect to his circumstances, may have other avenues by which to seek admission to Canada that are not within my jurisdiction to assess. CONCLUSION [24] For reasons set out above, the appeal is dismissed. The determination of the RPD is confirmed. (signed) "Maryanne Kingma" April 10, 2015 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 S.C. 2001, c. 27. 3 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 4 RPD determination, Refugee Protection Division Record (RPDR) pp. 3-6. 5 RPD hearing 00:22:00. 6 RPDR p. 19 & 26. 7 RPD hearing 00:14:57. 8 RPDR p. 8. 9 RPD hearing 00:19:30. 10 Appellant's Record (AR) p. 8. 11 AR p. 9. 12 110(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. 13 For example in subsection 3(2), which sets out the objectives concerning refugees. 14 E.A. Driedger in Construction of Statutes (2d ed. 1983), at p. 87. 15 171 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; ... 16 110(6) Hearing - The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 17 165 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. 18 162 (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. 19111(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. 20 See for example, Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, paragraphs [54] & [55]. 21 RPD hearing 00:34:51. 22 Maldonado v. M.E.I., [1980] 2 F.C. 302, 31 N.R. 34 (C.A.). 23 RPDR p. 8. 24 RPDR p. 9. 25 RPDR pp. 13-14. 26 Kumar v. Canada (Minister of Citizenship and Immigration), 2004 FC 601 (CanLII), para 21. 27 Ranganathan v. Canada (Minister of Citizenship and Immigration) [2001] 2 F.C. 164 (C.A.). 28 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.). 29 RPD hearing 1:18:00. 30 RPD hearing 1:19:35. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-03436