TB4-05626

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 : TB4-05626 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 12, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dunstan Munro Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, a citizen of Trinidad, is appealing his decision of the Refugee Appeal Division (RPD) denying his claim for refugee protection. The Appellant has not submitted new evidence in support of his appeal, however he has requested that the Refugee Appeal Division (RAD) conduct an oral hearing. Further, the Appellant is requesting that the RAD set aside the decision of the RPD or, in the alternative, that the matter be referred back to the RPD for re-determination by a newly-constituted panel. DECISION [2] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. Background: [3] The Appellant fears his ex-girlfriend's former boyfriend, who is allegedly a member of a notorious gang. These gang members threatened the Appellant at gunpoint to end his relationship. Three days later they assaulted the Appellant's mother. [4] Although the Appellant and his mother attempted to report the incidents to the police, their attempts were allegedly unsuccessful and the perpetrators discovered that they had gone to the police, which then caused the Appellant to be branded an informant. [5] As a result of his fears of this gang, the Appellant made arrangements to leave the country. ROLE OF THE RAD [6] A recent Federal Court decision in Huruglica1 has provided the RAD with guidance, which the RAD will follow. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision. 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." SUBMISSIONS BY COUNSEL [7] Did the RPD err in failing to undertake a separate s. 97 analysis? [8] Did the RPD err in rejecting the Appellant's entire claim on the basis of an unreasonable plausibility finding? [9] Did the RPD err when it found that the Appellant did not rebut the presumption of state protection? ISSUES TO BE DETERMINED [10] The issues to be determined are credibility and state protection. Omission of the Date of the Alleged Incident from the Appellant's Basis of Claim Form (BOC) [11] The RPD found that the omission of the date of the alleged incident in the Appellant's BOC lead to a negative inference. It made this finding in the absence of a reasonable explanation from the Appellant. The RPD did not accept the Appellant's explanation that, although the incident coincided with his godson's birthday, he was so traumatized that, at the time, he was not able to recollect the date. [12] The Appellant submits that at the time he completed his BOC he was traumatized and this had affected his memory. (paragraph 4 of submissions) [13] The Appellant further submits that the RPD erred in its finding that it was not reasonable to believe that he was unaware that the question pertained to those who actually confronted him. (Reasons, para 19) The Appellant testified that three gang members confronted him; two approached and the other remained in the car. This was stated in both his BOC and affidavit and was further clarified at the hearing, that one remained in the car. The Appellant submits that this should not change the basic foundation of the Appellant's story in his BOC. [14] The RAD concurs with the RPD's credibility finding with respect to the date of this significant incident.. After listening to the audio recording of the proceedings, the RAD further finds that counsel's concerns with respect to the BOC were considered by the RPD before rendering its decision in this regard. Counsel had asked the RPD for clarification of the difference between the BOC and the former Personal Information Form (PIF) under the previous legislation. In light of concerns raised by counsel, the RAD finds that the RPD correctly states that, while the BOC is intended to be an abbreviated version of events, dates may still be relevant and significant to an Appellant's claim. Omission that the Gang Members pointed a Gun at his Mother's Head: [15] In the Appellant's BOC, he does not indicate that his mother was held at gunpoint, threatening that her son would be a "dead man" if he continued to see XXXX XXXX The RPD did not accept the Appellant's explanation that, since his family were not violent individuals, he was frightened to mention this even though he was in Canada. [16] The Appellant submits that, in his testimony, he was elaborating on his BOC, wherein he stated that his mother was roughed up. [17] The RAD finds that this is significant information and therefore concurs that the RPD's finding in this regard was absent of any error. Moreover, the explanation provided by the Appellant, in the RAD's opinion, was unreasonable, i.e. that he was frightened when he was, in fact, safe in Canada. Moreover, the audio recording reveals that this was the incident that caused the Appellant to put into motion the visa application and, therefore, the use of a weapon should have been a significant detail to be included in the BOC. Travel Documents to come to Canada: [18] The RPD found that the actions from the time of the foregoing incident and the Appellant's departure from Trinidad were not consistent with persons being personally targeted as victims of a killing by a gang. The RPD made this finding based on the Appellant's ability to continue his employment during this time period of two to three months as he would have been vulnerable to further actions by the gang. The Appellant also testified that he was unaware if his mother had encountered any problems during this timeframe. The RPD further found that it was unreasonable that his mother would not have informed him had she suffered any consequences during this period. In totality, the RPD found that it was not reasonable that the perpetrators had not targeted either the Appellant or his mother, as the RPD did not believe that his mother would have kept this information from him. [19] The Appellant submits that the RPD ignored the fact that the High Commission of Canada in Trinidad and Tobago has their list of requirements an application for a visa must meet, including financial ability. In light of this, the Appellant submits that it was necessary to continue his employment to meet the financial demands. [20] The RAD concurs with the RPD that, after listening to the audio recording of the proceedings, on a balance of probabilities, neither the Appellant nor his mother were being targeted, as he had broken off the relationship with his girlfriend, the former girlfriend of the alleged leader of the XXXX Gang. The Appellant believes that, because he went to the police and he is now considered an "informant", he has become a target for that reason. However, in the absence of any problems towards the Appellant, his mother, or any member of his family, the RAD finds the audio recording reveals that the RPD findings are absent of any error. Lack of corroborating documents from the Mother: [21] Although the Appellant made no submissions in this regard, the RAD concurs that the Appellant did not provide a reasonable explanation for not submitting a corroborative document from his mother. He testified that he has not seen or spoken to his mother since he left Trinidad on XXXX XXXX, 2014 and she left for the U.S. He had no idea if his mother had been in touch with his aunt, with whom he resides in Canada. The RAD concurs with the RPD that this is not reasonable, given that he resided with his mother in Trinidad, and given the fact that the threats against her were so significant that this lead to both the Appellant's departure to Canada and her departure to the United States (U.S.) The RAD further concurs with the RPD that his mother is the only person who has first-hand knowledge, and, therefore, it is significant that she has proffered no evidence to support the Appellant's allegations. Rebuttal of State Protection: [22] The RPD found that the Appellant had not rebutted the presumption of state protection in that he had not followed up subsequent to his and his mother's approach to the police. The RPD found that the Appellant could have approached another police officer. Moreover, following the second incident involving his mother, he failed to report this to the police. The RPD acknowledged the presence of corruption within the police force, however also made its findings based on the Appellant's own testimony in which he stated that there are some police officers you can trust, others you cannot. The audio recording reveals that, although asked, the Appellant could not cite any personal experiences that would have given him the impression that the police could or would not assist. [23] The RPD noted in its Reasons the contradictory evidence with respect to the police and their efforts to curtail gang violence. However, it concluded that, in the absence of a formal report, the police were not in a position to conduct an investigation. [24] The Appellant had testified that he was discouraged from following through with a full report and, moreover, when he discovered that the police, in his opinion, had reported this to the perpetrators, he was then placed in an untenable position to further pursue this matter. [25] The Appellant submits that the RPD erred when it found that the Appellant had not rebutted the presumption of state protection, since he did not follow through with the filing of a report. The Appellant submits that the National Documentation Package,2 on page 5 of 8, Section 4, Corruption and Lack of Transparency, as well Exhibit 5, state that corruption in the police and immigration services continued to be a problem. He further submits that good intentions by the government are insufficient to make this finding, and that the process in place must be effective.3 The Appellant further submits that the RPD relied on section 5.3, when it stated that not all the police force is engaged in corrupt activities (Reasons, para 40). [26] The Appellant further argues that the RPD erred when it found that the Appellant failed to approach the police under circumstances where it would have been reasonable to do so. (Reasons para 40) [27] The RAD finds that the RPD canvassed the foregoing issue thoroughly and was not satisfied as to why the Appellant had not sought further intervention by a government authority, particularly following the incident against his mother. It noted the Anti-Gang Act banning membership in criminal gangs and gang-related activities as well as the strengthening of police patrols. The RAD finds that it is noteworthy that the most recent US Department of State Report indicates not what the government is going to implement, but rather what they have implemented. The RAD also notes that the RPD examined the other agencies, specifically the Police Complaints Division, where the Appellant could have but chose not to turn for assistance. The RPD concurs that it would have been reasonable for the Appellant, in a democracy where the state is not in a complete breakdown, to have followed through before seeking refuge in another country. [28] The RAD finds that the RPD thoroughly canvassed the issue of "state protection" and carefully considered all documentary evidence, along with the Appellant's testimony before reaching its conclusion that the Appellant had not rebutted the presumption of State Protection. The RAD concurs that the RPD properly assessed this evidence. [29] After examining the entire record, including the RPD reasons, the RAD finds that the RPD's findings are absent of any error. The RAD concurs that the Appellant is not a Convention refugee or a person in need of protection. [30] Accordingly, this appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. (signed) 'Roslyn Ahara' Roslyn Ahara November 12, 2014 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 2 Exhibit 3, National Documentation Package, Trinidad and Tobago, item 2.3 3 D'Mello v. MCI (1998) FCJ No. 72 9T.D.); Elcock (Milkson), Joan Theresa v. M.C.I. (F.C.T.D., no. IMM-2985-98), Gibson, September 20, 1999, (1999) FCJ No. 1438 (T.D.); and Molnar v. MCI (2005) FC 399 and Richards, Elaine Michelle v. M.C.I. (F.C., no. IMM-1794-11), Mosley, November 25, 2011, 2011 FC 1363 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05626