TB8-06987

RAD File / Dossier de la SAR : TB8-06987 TB8-06988 / TB8-06989 / TB8-06990 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision May 15, 2019 Date de la décision Panel Harold Shepherd Tribunal Counsel for the person(s) who is(are) the subject of the appeal James Stephen Schmidt Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX (Principal Appellant) and XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX (Associate Appellants), are citizens of Venezuela who appeal a decision of the Refugee Protection Division (RPD), dated February 22, 2018, that rejected their claims for refugee protection. DETERMINATION [2] The RAD dismisses the appeal and confirms the decision of the RPD. BACKGROUND AND OVERVIEW OF APPEAL [3] The Appellants constitute a family of four with two parents and their two children. The mother of the minor Appellants, XXXX XXXX XXXX XXXX, has been designated to represent them, in accordance with subsection 167(2) of the Immigration and Refugee Protection Act (IRPA). [4] The Appellants seek to introduce three new documents pursuant to subsection 110(4) of the IRPA. They also seek to admit one article that postdates the RPD decision in accordance with rule 29 of the RAD rules. They have not requested an oral hearing. [5] The applicable standard of review for appeals to the RAD is that of correctness, unless deference should be shown to the RPD because it had a meaningful advantage over the RAD. No issue was identified to which deference should be shown on this basis.1 [6] All four Appellants rely on the narrative of the Principal Appellant, XXXX XXXX XXXX XXXX. She is XXXX XXXX XXXX by profession who worked for XXXX XXXX XXXX, a XXXX company that specialized in XXXX XXXX through its various subsidiaries. Her boss was XXXX XXXX XXXX. One of her projects involved working as the supervising XXXX for a XXXX project that drew funds from the bank on the basis of progress reports. She refused to sign a report that falsely said that work had been completed when it had not been. As a result of her refusal to comply with an illegal request, she was dismissed from her employment when she was pregnant. Her husband also lost his job with the same company. She filed a complaint under Venezuela's labour laws that prohibit employees from been dismissed when they are pregnant. Her complaint was upheld and the company was ordered to rehire her and pay back wages. She states that she received about seven threatening calls after her complaint was made. The last was received about one month before she came to Canada with a temporary resident visa. She fears returning to Venezuela because she is at risk from Mr. XXXX who is upset with her complaint. She states that political opinion is involved because of the connection of the company and its bank and to the government. The Appellants also state that they are at risk on the grounds of religious opinion as Jehovah's Witnesses. [7] The RPD notes that the adult male Appellant's parents were born in Colombia and, as a result, he probably has a right to apply for citizenship in that country by completing forms and provided easily-obtainable documents. No further mention was made of it because it was not considered to be the determinative issue. Although the Appellant's object to this finding, the question is moot because the RPD never actually concluded that Colombia is a country of reference for him. The RPD conducted an analysis of his right to obtain Colombian citizenship and concluded that he could likely obtain it through a simple administrative process. This, in itself, could justify a finding that Colombia is a country of reference for the adult male claimant and that no risk has been alleged against this country. However, no such finding was actually made. [8] The standard of review for appeals to the RAD is that of correctness, unless deference should be shown to the RPD because it enjoyed a meaningful advantage over the RAD. No issue was identified to which deference should be shown on this basis.2 NEW EVIDENCE New Evidence [9] The Appellants seek to file three new documents in support of their appeal: i. Resolution of the Inter-American Commission on Human Rights about Forced Migration of Venezuelans, issued March 2, 2018. ii. Press Release by Inter-American Commission on Human Rights, dated March 14, 2018. iii. News Article entitled, "Crisis of Refugees! Santos asks to restore democracy in Venezuela to stop mass migration", dated March 18, 2018. [10] The Notice of Decision from the Refugee Protection Division is dated March 7, 2018. Given the publication dates, the documents were not reasonably available for disclosure before the RPD's decision in accordance with subsection 110(4) of the IRPA. The Federal Court of Appeal's Singh decision applies to the interpretation and application of subsection 110(4) of the IRPA and mandates its narrow interpretation on the basis of credibility, relevance and newness.3 [11] First, these documents are insufficiently relevant to be admitted as new evidence. The risk advanced in the refugee claims related to threats from the head of a private XXXX company, not risk due to the current adverse social, political and economic situation in the country. Second, these adverse conditions are well-documented in the National Documentation Package. The three documents date to the same month as the RPD decision, so do not show a significant change in country conditions. In addition, they do not contradict a finding made by the RPD. These documents are inadmissible pursuant to the Singh factors. The Post-Perfection New Evidence is Admissible pursuant to Rule 29 [12] A newspaper article published on XXXX XXXX, 2018 was filed after the appeal was perfected. Counsel submits that this article came to his attention in September 2018 and has significant probative value in rebutting the RPD's conclusion that the XXXX company is not an agent of the state. This is a Spanish-language newspaper with an internet site. The original Spanish copy of the article was not provided, nor was a certified English translation provided in accordance with rule 28 of the RAD rules. The English text is of poor quality with a number of serious grammatical errors that suggest that it may be an internet translation. The source of this translation has not been disclosed. Furthermore, the article refers to the Principal Appellant as being the resident XXXX of the work, suggesting that it was written when she was still working for the company. There are serious technical problems with the way the Appellants provided this document. [13] According to this document, a private XXXX company, XXXX, was awarded a public XXXX XXXX project by the government in 2012. Two years later, the work was assigned to XXXX XXXX XXXX. The XXXX were to be allocated by the government. The fact that the XXXX project concerned government-funded XXXX XXXX was not challenged. The RPD's conclusion that XXXX XXXX XXXX is a private XXXX company is confirmed by this article. The RPD concluded that "the fact that some or even all of the company's XXXX projects were financed by a government-run bank is not sufficient to make the XXXX company a part of the government." Although this document does not challenge the RPD's finding that the XXXX project was publically funded, it adds details about the government control of the allocation of the XXXX units. It clarifies that the project concerned XXXX XXXX. Given the date of publication and the fact that it adds some details to the facts, it is admissible as new evidence, despite the fact that the original Spanish version was not provided, nor was a reliable translation filed in accordance with the RAD rules. [14] According to this document, the XXXX project began in 2002 as a private XXXX XXXX by the private XXXX company "XXXX XXXX XXXX XXXX" that was "attached to the Government of Bolivar." Work was stopped when it was declared to be a scam. President Chavez visited in 2012 and promised to expand the project. A private XXXX company called "XXXX" took over the project with financing from Banco XXXX. The project was then assigned to XXXX XXXX XXXX in 2014 for the XXXX XXXX XXXX that would benefit 72 families who had previously been scammed. The article indicates that the XXXX Institute awards the units. The document shows that the project involved the policy or machinery of the state in allocating XXXX XXXX. In fact, it was a government agency that made these decisions. The RPD did not err in its assessment of the Principal Appellant's testimony about the reasons why she did not complain to the police. [15] The Appellants submit that the RPD erred at paragraph 33 of its reasons for decision when it stated that the Principal Appellant testified that she would have more fear if she complained to the police, but did not specify why. The Appellants first refer to lines 76 to 78 of the Basis of Claim (BOC) narrative in support of the submission that she did, in fact, specified why. In it, she states that she began receiving threats in XXXX 2014 that indicated that Mr. XXXX would send people after her if she continued to seek justice for herself. Her husband was asked to make her stop trying to seek justice. Paragraphs 88-90 state that a man called her husband in XXXX 2014 who had heard that the Principal Appellant was trying to seek justice from her former employer. Her husband was warned of the danger of pursuing her case. The Appellants feared because of the company's connections to the government. The Principal Appellant mentioned at paragraphs 98-97 of the BOC narrative that she retained the services of a lawyer in XXXX 2015, but this person quit in XXXX 2015 because of fear of confrontation with the government. As a result, the Appellants submit that the RPD knew why they feared the government. [16] Paragraph 33 of the reasons for decision is part of the section that deals with state protection. It refers to part of the Principal Appellant's testimony that can be found at page 19 of the transcript. The issue dealt with by the RPD was state protection in general and failure to complain the police in particular. The passages cited from the BOC narrative concern threats against her if she pursued her wrongful dismissal complaint with the Labour Ministry. An indirect response for why she did not complain to the police can be found in the statement that nobody can offer protection from someone like Mr. XXXX. The implication is that the police would not offer adequate protection. When asked during the hearing why she did not file a police report, she stated the police are a centralized, national force. She would be at greater risk if she complained to the police. The fact that she made a complaint to the civil authorities brought about the threats. In Venezuela, no entity can protect a person who has made a denunciation against a person like her former employer.4 [17] The RPD was referring to this testimony when it stated that she did not specify why a complaint would put her at greater risk. A review of the BOC narrative and oral testimony indicates that the RPD was technically correct in this conclusion. She made a broad statement that they could not protect her from such a powerful person without specifying why she believed this to be true. The Appellants' submissions suggest that the RPD should have been able to extrapolate reasons from her statement that nobody could offer adequate protection from Mr. XXXX. In particular, the fact that a lawyer withdrew from the case out of fear indicates the influence of her former employer. This addresses the question of subjective fear, but not why she did not believe that the police would have been able to respond adequately to the situation. The RPD did not say that she failed to address the issue, but rather that she did not provide specifics. The RPD did not err in this finding. The RPD did not err in its conclusion that there is no nexus between the risk and the definition of a Convention refugee [18] The Appellants submit that XXXX XXXX XXXX is a private XXXX company that was using public funds from a government bank to XXXX XXXX XXXX. Her dismissal and threats for having taken actions against the interests of this private company would reasonably be perceived as expressing a political opinion against the government. The RPD concluded that the Principal Appellant was a credible witness with respect to her former employment, the circumstances that led to her dismissal, and threats received over the phone that began after she filed a complaint against the company with the Ministry of Labour. These included the threat that Mr. XXXX would harm her or make her disappear if she persisted with this complaint. After reviewing the reliable evidence, the RPD concluded that the XXXX XXXX XXXX is not likely a government-controlled entity, nor is it a public institution. The RPD accepted that the funds for the XXXX project were advanced by a bank that was run by the government and that the company was on good terms with the bank's director. New evidence shows that the XXXX project concerned XXXX XXXX administered by the state. The RPD concluded that this is a private XXXX company that does not engage the policy or machinery of the state for purposes of establishing a nexus with the Refugee Convention. The new evidence confirms that XXXX XXXX XXXX is a private company. [19] The RPD did not err in this conclusion. Mr. XXXX wanted the Principal Claimant to falsify a document that would have permitted the company to draw public money from the bank on the basis that work had been completed on one phase of the project. Her employer was likely trying to appropriate funds from the government to which it was not entitled. In this situation, the Principal Appellant was protecting the interests of the state against a private company which was attempting to engage in crime. Her actions could not reasonably be interpreted as criticism of the state, even though the project in question concerned public XXXX funded by the government. The fact that the state was the intended victim of the crime does not involve the policy or machinery of the state for purposes of establishing nexus with the Refugee Convention because the state is not complicit in the criminal activity, nor would it likely support it. On the contrary, the state would have an interest in taking action against such a criminal. Although state actors could potentially become involved through corruption, the RPD was correct that the evidence did not support this possibility. [20] The Appellants submit that the Ministry of Labour refused to implement its order to reinstate her employment and pay back wages. The documentation concerning the wrongful dismissal case demonstrate that her complaint was received by the government and dealt with promptly and fairly. The letter from her lawyer explains that problems with enforcement of these decisions lies with shortcoming in with the rule of law in Venezuela. The lawyer provides a systemic institutional explanation that does not specify that challenges to enforcement are attributable to government displeasure with her complaint. In fact, the state did make this complaint mechanism available to her through the Ministry of Labour. The decision reveals no interference or injustice. The RPD did not err in concluding that there is no nexus between events surrounding the termination of her employment and the definition of a Convention refugee. The RDP did not err in stating that her employer never harmed or attempted to harm the Appellants physically [21] The Appellants submit that the RPD erred in stating at paragraph 27 of its reasons for decision that her employer never harmed them physically in any way, nor did he attempt to do so. The reason for this is that the Principal Appellant stated at paragraphs 138 and 139 of her BOC narrative that she feared threats and physical abuse from him and his government affiliates. [22] Paragraph 27 of the RPD's reasons refers specifically to attempting physical harm or carrying out threats. This was in the context of the allegation that her threatened to damage her career as XXXX XXXX. She testified that no complaint had been made against her with her professional licencing body and she was not prejudiced in seeking further work as XXXX XXXX. The point made by the RPD is that her employer did not follow through with his threat to damage her career, nor were there any attempts to harm her. Lines 137 and 138 of her BOC narrative indicate that she fears threats of physical and psychological abuse from her previous employer and his government associates. The RPD was referring to past actions of her employer, not to fear of future harm. The RPD did not err in its understanding of the facts, nor of their interpretation. Did the RPD err in concluding that evidence does not establish that threats would likely be carried out? [23] The RPD concluded at paragraph 29 of its reasons for decision that some of the evidence concerning threats from former employer lack credibility. The panel noted that no attempts were made to harm her. The Principal Appellant suggested that her former employer may be waiting to carry out the threat in order to allow more time to pass from the date of the complaint so that he would not be suspected. In response, the RPD stated that there is no persuasive documentary evidence that indicates that the company suffered significant financial damage because of her complaint to the Labour Ministry. According to a newspaper article, the company began to experience financial problems as early as XXXX 2013. Although she testified that her lawyer had resigned out of fear, no mention is made of this in her lawyer's letter. The RPD did not accept her explanation that people in Venezuela are afraid adequately accounts for this omission in evidence from her lawyer. The RPD concluded that the Principal Appellant was likely embellishing her testimony on this point. When asked why she did not complain to the police, she replied that they will not protect a complaint against someone who is from the government. The RPD noted that the XXXX company is not a government or public entity, despite any connection that her former employer may have had with an influential public bank official. Given the private nature of the company, the RPD did not accept as being reasonable her explanation for not having brought the threats to the attention of the police. [24] The Appellants submit that the RPD erred in this reasoning. The issue is not whether her former employer could murder her publically with impunity, but rather whether he could take advantage of corruption to ensure that impunity would also involve covering up the details so that he would not be publically implicated. The Appellants rely on documents relating to country conditions to establish that corruption is a serious problem in Venezuela. They also submit that the issue of significant financial damage to the company is an irrelevant consideration, given that the threats resulted from her refusal to cooperate, not on financial consequences to the company. [25] I disagree with these submissions. When the RPD asked the Principal Appellant why her former employer had not carried out his threat to kill her, she stated that he was waiting for things to calm down. She then said that he was waiting for the complaints to stop and for the pressure go away so that he would not be linked to the murder."5 The RPD correctly summarized this testimony in its reasons for decision. The RPD was aware that this was her explanation, not impunity from the accusation of murder, as alleged by the Appellants. The RPD then went on to consider the question of motive. This was fair because the Principal Appellant provided this explanation twice during her testimony. In the same context, the Principal Appellant attributed her former employer's anger to her having "torched his pocket."6 She later stated that her colleague, XXXX XXXX, told her that he heard Mr. XXXX say over the phone that he was going to eliminate her because she made him lose money.7 The submission that this is an irrelevant consideration do not accurately reflect her testimony on this issue, given that it was the Principal Appellant herself who provided this explanation for the reason why her former employer wants to kill her. The RPD responded to this explanation for Mr. XXXX motive in wanting to harm her. The RPD considered the documentary evidence and concluded that the company was having financial problems before she was dismissed. In addition, the evidence does not indicate that the company experienced further losses as a result of her conduct. The RPD did not err in this conclusion. No evidence was presented with respect to who succeeded her in her position, whether this XXXX signed the documents and what impact her decision may have had on the future financial status of the company. In short, the RPD was correct in stating that the evidence filed does not support her testimony that the company lost money as a result of her conduct. [26] The Appellants also submit that the RPD erroneously characterized the issue as being one of credibility when, in reality, it concerns an estimation of future risk. The significance of this is that an adverse credibility finding can affect the overall assessment of credibility. The fact that she does not know why she was never attacked should not be counted against her. The relevant question is whether the risk is real, not why it was not acted on in the past. The documentary evidence establishes the risk to which those who oppose the interests of the government are exposed. [27] The RPD did not err as alleged by the Appellants. The RPD drew an adverse inference about the credibility of the alleged threats from the fact that she did not provide supporting evidence. A former colleague, XXXX XXXX, was part of her team and he also lost his job. There is no mention to threats in his statement.8 Her lawyer wrote a letter on XXXX XXXX, 2017 that outlines the wrongful dismissal complaint, but does not refer to any threats that the Principal Appellant received, nor to her ceasing to represent her because of threats made against her.9 The decision in favour of the Principal Appellant dates to XXXX XXXX, 2014. Failure to enforce the decision was attributed by her lawyer to the deficiencies in the rule of law in Venezuela. She does not explain what steps were taken to enforce it and, in particular, what may have impeded its enforcement in this particular case. Given that the order had already been rendered by the Ministry of Labour, threats could not reasonably have attempted to discourage her with proceeding with the complaint before the Ministry that had already been decided. Although it could reasonably apply to attempts to prevent her from enforcing the judgment against the company, her lawyer does not provide an explanation of what, if anything, was done to try to enforce the Order, nor does she mention any threats directed against her or the Principal Appellant. In addition, the Principal Appellant did not provide evidence with respect to what steps she took to obtain this information. [28] The Principal Appellant called XXXX two weeks after her arrival in Canada on XXXX XXXX, 2017. When she asked him if he still worked for the corrupt company, he said that he left last XXXX. She then told him that a man named XXXX asked him to tell her that she could not move forward because her former employer said that he would "screw her and her family over" and that he wanted to make her look bad in the eyes of the College XXXX XXXX. XXXX then declines her request for a statement because he does not want any problems.10 According to this exchange, her former employer was not pleased with her decision to pursue a complaint against his company with the Ministry of Labour. As a result, he threatened to make her look bad in the eyes of the XXXX licencing body and also to "screw over" the Principal Appellant and her family. This is a vague statement that, as a minimum, refers to attempts to prejudice the Principal Appellant and her family by damaging her professional standing and employability. It does not specifically refer to threats of violence. [29] The RPD did not accept her explanation that her lawyer did not mention the threats in her letter out of fear. Given the fact that the Principal Appellant had already made her refugee claim in Canada when the letter was written, the RPD did not err in concluding that the Principal Appellant had not provided a reasonable explanation as to why the legal professional who assisted her in obtaining a favourable decision from the Ministry of Labour would be afraid to mention threats and her resignation in a statement that was sent to the Principal Appellant in Canada. [30] Rule 11 of the RPD Rules entitles the RPD to draw an adverse credibility inference from the failure to provide important supporting evidence, if the explanation provided for not having done so was not reasonable under the circumstances and if there are valid reasons to doubt the person's credibility on other grounds.11 Rule 11 also requires that a claimant explain what steps were taken to obtain the supporting documents. This rule places the onus on a claimant to take reasonable steps to obtain and disclose available supporting evidence. The RPD did not err in drawing an adverse credibility inference from the fact that the Appellants failed to provide an adequate explanation for the absence of evidence that substantiates any threats. The RPD did not err in confusing the assessment of future risk with adverse credibility findings. I agree with the RPD that the Principal Appellant likely embellished her testimony on the question of the threats. The RPD did not err in its assessment of the availability of state protection [31] The Appellants submit that the RPD erred in its conclusion that they have not rebutted the presumption that adequate state protection is available to them in Venezuela. In particular, the RDP failed to consider the documentary evidence that establishes that corruption and impunity are a problem within the Venezuelan state apparatus which significantly weakens the ability of authorities to respond to crime, especially for those who oppose the interests of the government. The Appellants repeat their nexus arguments that the XXXX company is associated with the state. [32] The state protection analysis undertaken by the RPD is somewhat confusing. It begins by dealing with the issue of the credibility of the Principal Appellant's allegations that Mr. XXXX threatened to kill her. The first part of the section led to the conclusion that she likely embellished her testimony on this issue and that there is no persuasive evidence to corroborate this threat. In addition, the fact that no steps were taken against her when she was in Venezuela was cited in support of the conclusion that her former employer did not likely threaten to kill her. A state protection analysis is only necessary if a specific risk has been identified that requires the intervention of the state to protect against. After the RPD concluded that the Appellants were not at risk as alleged, no state protection assessment was required because there was nothing that they required protection of the state against. Nevertheless, the RPD went on to conclude that the Appellants had not rebutted the presumption that state protection is available to them. [33] The RPD had already concluded that the company is a private one whose activities do not create a nexus to the Refugee Convention on the basis of political opinion and that the Appellants are not at risk of serious mistreatment at the hands of the company or of its agents. The RPD looked at the question of threats made against the Principal Appellant's professional career and concluded that there was no evidence that steps were taken to do so. The RPD noted that the Principal Appellant did not begin to seek work until XXXX 2016. However, they applied for Canadian visa for their children in the same month and left Venezuela in XXXX 2017. No complaint had been made against her to the College XXXX XXXX. [34] The letter from the Principal Appellant's lawyer shows that she was willing and able to bring a wrongful dismissal action against the XXXX company. She was able to hire a lawyer to help her in the process. The fact that the Principal Appellant was successful in her claim against the company shows that the company either did not try or was unable to subvert justice. The lawyer indicates that enforcement of the judgment is difficult due to problems with the rule of law in Venezuela. [35] Given that that enforcement is unlikely due to systemic shortcomings with respect to the rule of law, I agree with the RPD that there is no apparent reason why the company would have an interest in taking further action against the Principal Appellant in the future. The claim has been decided against the company, but it is likely unenforceable. Any threats made to induce her to drop her complaint to the Ministry of Labour do not represent a serious possibility or a likelihood of future risk. When all of the evidence is taken together, I agree with the RPD that the Appellants were not likely threatened with death or other serious mistreatment, nor is there a serious possibility of persecution or a likelihood of death, torture or cruel or unusual treatment or punishment should they return to Venezuela. [36] Although the Appellants also based their refugee claims on the fact that they are Jehovah's Witnesses, the finding of the RPD that there is no evidence that they have been persecuted or mistreated in Venezuela in the past, nor is there a serious possibility that this would occur in the future was not challenged in this appeal. CONCLUSION [37] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither a Convention refugees, nor persons in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "H. Shepherd" H. Shepherd May 15, 2019 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII). 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII). 3 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), at para. 35. 4 Exhibit RPD-1, RPD Record, RPD Hearing Transcript, at p. 19. 5 Exhibit RPD-1, RPD Record, Transcript, at p. 27. 6 Ibid. 7 Ibid., at p. 31. 8 Exhibit RPD-1, RPD record, pp. 414-416. 9 Ibid., at p.424. 10 Ibid., at pp. 439-441. 11 Amarapala v. Canada (Minister of Citizenship and Immigration), 2004 FC 12, at para. 10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-06987 TB8-06988 / TB8-06989 / TB8-06990 RAD.25.02 (September 18, 2018) Disponible en français 16 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 (September 18, 2018) Disponible en français