MB5-01132

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. / No de dossier de la SAR : MB5-01132 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision October 16, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Stewart Istvanffy Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Guatemala, is appealing against the decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim by determining that he is not a "refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is requesting that the Refugee Appeal Division (RAD) set aside the determination rendered and grant him refugee status. [3] The appellant is not filing any new evidence on appeal under subsection 110(4) of the IRPA. He is requesting to be heard before the RAD. [4] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [5] Under subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [6] The appeal is dismissed. BACKGROUND [7] The appellant is a citizen of Guatemala and is originally from Chimaltenango. He stayed in Canada as a seasonal worker for varying periods between April 2009 and August 2014. He claimed refugee protection on September 10, 2014. [8] An initial Basis of Claim Form (BOC Form) was filed on September 11, 2014. The appellant alleges in this form that he began living with his spouse XXXX in December 2012. They opened an XXXX XXXX in XXXX 2013, where they also sold natural products. [9] One month after opening the business, XXXX XXXX, a former police officer and the leader of a notorious criminal gang, approached them and demanded that they pay him money on a regular basis. The appellant and his spouse agreed to pay the amount demanded, but over time, the amounts demanded increased and they were no longer able to pay. His spouse went to the police station to file a complaint, but a man named "XXXX" arrived, led his spouse away and threatened to kill her. [10] The appellant alleges that he cannot live safely anywhere in his country and that he cannot rely on state protection. He states that he left his country on XXXX XXXX, 2014, as soon as he realized that the state could not protect him. [11] On December 16, 2014, two days before the hearing, the appellant filed an amended BOC Form. [12] In this form, he indicates that, in XXXX 2013, he opened an XXXX XXXX, where he provided XXXX and XXXX services. [13] On XXXX XXXX, 2013, a man visited his business and demanded payment of 400 quetzals per month, threatening reprisals if he did not pay the amount demanded or if he informed the police. Fearing that something would happen to him, he paid the amount demanded for 10 months. Then, he closed his business because he could not live in peace. [14] He states that he has been in a common-law relationship with his spouse XXXX since December 20, 2013. Together, they opened a [translation] "XXXX XXXX XXXX" business, where they also sold natural products. [15] On XXXX XXXX, 2014, he received an anonymous call from someone who identified themselves as a member of MARA 13. This person demanded payment of 500 quetzals per month in exchange for protection. If he failed to pay this amount or if he or his wife informed the police of the situation, they would be killed. Fearing for his family's safety, he agreed to the unknown person's demand and paid the monthly amount demanded without informing his wife of the situation. Before leaving for Canada, the claimant hired an employee for his business who had to ensure payment of the amount demanded. [16] In late XXXX 2014, his spouse received a call from someone demanding payment of 15,000 quetzals within three days or there would be reprisals. [17] On September 3, 2014, two individuals entered his business and stole some devices and products. Following this event, his spouse began living with her parents and working at a private school in XXXX. She also requested protection by filing a complaint with the authorities, who needed evidence of the extortion demands. [18] On XXXX XXXX, 2014, his spouse turned to the Defensoria Indigena Wajaqib'no'j because, in their country, they do not have the same rights as other citizens by reason of their [translation] "indigenous condition." [19] Fearing for his safety, the appellant claimed refugee protection on September 10, 2014. [20] Lastly, he also alleges that [translation] "the simple fact that I came to work in Canada to earn money and that I returned, supposedly with money, made me a target for these criminals." Impugned decision [21] On February 10, 2015, the RPD rejected the refugee protection claim. According to the RPD, because the alleged facts had no nexus to one of the five Convention grounds, the refugee protection claim had to be analyzed under section 97 of the IRPA. The RPD was of the opinion that the refugee protection claimant's credibility was the determinative issue. In its decision, the RPD pointed out the following: - With regard to his business activities, the RPD noted that the claimant failed to indicate in question 8 of the IMM-5669 form his employment as a businessperson in Guatemala when he returned there after staying in Canada as a seasonal worker. According to the RPD, the inconsistencies in the evidence regarding his business activities seriously undermined his credibility because these were elements at the heart of his refugee protection claim. - The RPD was of the opinion that Exhibit P-11, eight photographs of scanned documents, did not establish that he owned a business or his other allegations. - The RPD did not believe that the claimant operated one or more businesses in Guatemala. Therefore, it did not believe that he was the victim of extortion or death threats in relation to these businesses. - The RPD noted other inconsistencies in the evidence regarding his marital status. - The RPD was of the opinion that the claimant's behaviour was inconsistent in that he stated that he has feared criminals associated with Mara 13 since March 2013 because of the extortion and death threats that he experienced and that led him to close his business because he could not live in peace, and yet he opened another business in the same city in February 2014. - The RPD was of the opinion that it was inconsistent for him, having closed a business in 2013 because of the extortion he claims he experienced and having been threatened and extorted again after opening a second business, to leave for Canada without informing his spouse of the extortion he experienced at the second business. - The RPD did not attribute any probative value to the letters filed in P-3A) as they could not compensate for the appellant's credibility problems. - The claimant stated that he has been threatened since March 2013; however, he returned to Guatemala after a stay in Canada. - Considering that the theft at his business on XXXX XXXX, 2014, is the factor that incited him to claim refugee protection, the RPD drew a negative inference from the omission of this fact in the initial BOC Form. - Finally, regarding his fear of the fact that he could be perceived as [translation] "rich" because of his trips to Canada, the RPD, having analyzed the documentary evidence, concluded that the risk to which he would be subjected is a "generalized risk" as the claimant did not establish that his risk would be different from that of other Guatemalans facing a similar risk. GROUNDS OF APPEAL Appellant's allegations [22] The appellant's allegations can be summarized as follows. Relying on the principle that sworn testimony is presumed to be truthful, he points out that the RPD erred in law by not taking into account all the evidence and by systematically dismissing, without a valid reason, a significant portion of the personal and documentary evidence submitted to establish his fear of persecution. According to him, the reasons for undermining his credibility are not valid in law. [23] It did not take into account his testimony that he was the victim of the botched work of an immigration consultant and that, to compensate for shortcomings, he had had to provide a second version of his story. Moreover, the RPD placed too much emphasis on the two versions of his account and did not seek the truth in his allegations. [24] The RPD failed to mention the corruption and impunity in Guatemala, as well as the particular situation of the indigenous peoples of Guatemala. [25] The appellant submits that he demonstrated that he was the victim of extortion and threats by a criminal group by reason of his business activities. THE RAD'S ROLE AND FUNCTIONS [26] The appellant did not propose any arguments as to the scope of the RAD's powers when reviewing an RPD decision. [27] Since an appeal before the RAD is a statutory remedy, its mandate and powers are defined in its home statute, the IRPA. [28] The statutory requirements precisely indicate the allowable grounds for appeal,1 as well as its "remedial powers." Parliament allows the RAD to confirm the determination, to set it aside and substitute a determination that, in its opinion, should have been made, or to refer the matter to the RPD, giving the directions to the RPD that it considers appropriate.2 [29] The Federal Court, in being called on to determine the appropriate type of review by the RAD of decisions rendered by the RPD, recognizes the RAD's "expertise" on refugee-related matters. The Court is of the opinion that broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of appeals,"3 and states that "the idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA."4 Despite these observations shared by a number of judges, the Federal Court is faced with two key lines of case law. [30] According to the proponents of the first line of case law put forward by Justice Shore: [27] ...the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts. ...5 [31] Justices Roy and Leblanc agree that an error must be "palpable and overriding...to succeed on appeal."6 Justice Roy points out that appeals before the RAD are intended to be generous, but he adds that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety."7 Justice Roy is of the opinion that "it will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4)." [32] A different approach is proposed by Justice Phelan in Huruglica.8 According to Justice Phelan, the "RAD is required to conduct a hybrid appeal." [33] 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."9 [34] In discussing the deference that the RAD owes to the RPD's findings, Justice Phelan states that it may be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative". Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [35] I have considered the Court's decisions to date, and it appears to me that the RAD, as a tribunal specialized in refugee protection matters, must assess all the evidence to determine whether the decision is well founded based on the evidence before the RPD and any additional evidence accepted by the RAD as new evidence under subsection 110(4) of the IRPA. [36] In reviewing the evidence, the RAD may show a measure of deference when the credibility of the refugee protection claimant is at the heart of the decision, or when the RPD is in an advantageous position compared with the RAD. Nevertheless, when findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, the RAD must intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [37] Regarding errors of law, Justice Shore states that "the RAD must be able to correct any error of law".10 MERITS OF THE APPEAL [38] Issues of credibility are questions of fact. Since the RPD has the advantage of seeing and hearing refugee protection claimants and witnesses, it is better positioned than the RAD to make a finding regarding their credibility. As the RAD generally proceeds on the basis of the record of the proceedings, it will have this advantage only in a limited number of cases. In this case, the RAD cannot allow the appellant's request to be heard before it. Because no new evidence was presented, the requirements of subsection 110(6) of the IRPA have not been met for a hearing to be held. [39] The RPD had serious doubts because of the inconsistencies in the evidence as to his business activities in Guatemala. [40] With regard to a witness's overall credibility, it is true that sworn testimony is presumed credible. However, the Federal Court recognizes that: ...it is open to the Board to draw negative credibility inferences from an unsatisfactorily explained contradiction between the PIF11 and the applicant's oral testimony.12 [41] In the case at hand, I am of the opinion that the inconsistencies relating to his business activities are sufficient to conclude that the appellant did not discharge his burden of proof in this regard. [42] As noted by the RPD, in response to question 8 of the IMM-566913 form, the appellant does not mention conducting business activities when he returned to Guatemala following his stays in Canada. Instead, he indicates that from November 2012 to April 2013 and from November 2013 to April 2014 he was unemployed in Guatemala. [43] This statement by the appellant, combined with the other inconsistencies between his first and second accounts as to when he allegedly starting living with his spouse, who is also his business partner, as well as the omission in the visa application that he was operating a business in Guatemala, lead to the conclusion that he did not discharge his burden of establishing, on a balance of probabilities, that he operated one or more businesses at the time he alleged or at any other time. Consequently, because he did not establish that he operated a business, it is not erroneous to conclude that he did not establish that he was extorted because of it. [44] I am of the opinion that the RPD was justified in drawing a negative inference from the inconsistencies raised regarding factors at the heart of his claim for refugee protection. By signing the various documents, the appellant attested to the truthfulness and accuracy of the information therein. [45] Also, I share the RPD's conclusions when it noted that the appellant did not refer in his initial account to the incident that incited him to claim protection in Canada, that is, the theft at his business on XXXX XXXX, 2014. I am of the opinion that this omission is significant considering his statements and that it leads to serious doubts as to his credibility. [46] It should also be mentioned that it is curious that the appellant, who claims to have received death threats since March 2013 and who alleges that his life is threatened because he is perceived as being wealthy, returned to Guatemala after staying in Canada in 2013 and 2014. This return contradicts his allegations in this regard. Invalid reasons for dismissing the personal evidence of the refugee protection claimant [47] The appellant submits that the RPD erred by dismissing the claimant's personal evidence and by failing to mention in its decision the corruption and impunity in Guatemala, as well as the particular situation of [translation] "the indigenous peoples of Guatemala." [48] The Board is presumed to have considered all the evidence before it and the failure to mention a specific piece of evidence does not amount to a failure to consider it.14 [49] In this case, I am of the opinion that the RPD's reasons are clear. Given the inconsistencies in the evidence, the RPD concluded that the claimant failed to establish his allegations on a balance of probabilities. The appellant was confronted with the shortcomings in the evidence and had the opportunity to explain them. When the RPD has serious doubts as to the credibility of a refugee protection claimant, it may conclude that this lack of credibility extends to all the documents presented, in this case, a letter from his spouse and a letter from the Defensoria Indigena Wajaqib'no'j that repeat the appellant's statements, about which the RPD had serious doubts. I am also of the opinion that the RPD did not err by concluding that Exhibit P-11 does not establish his allegations and cannot compensate for his lack of credibility. Generalized risk [50] The existence of documentary evidence cannot in itself be considered a basis for a refugee protection claim under section 97 of the IRPA. The claimant must still establish that the risk to which he would be subjected if he returned is different from the generalized risk faced by all or part of the population. In this case, the appellant did not discharge his burden of establishing that he was a businessman and that, consequently, he was or could be threatened. [51] With regard to the perception of wealth because he travelled to Canada to work here, the RPD's analysis takes into account the documentary evidence15 stating that [translation] "people who are wealthy or who are perceived as wealthy"16 are at risk in Guatemala. Race [52] With regard to this ground, which must be analyzed under section 96 of the IRPA, it should be noted that the appellant did not report any factors that would make it possible to establish that there is a serious possibility of him being persecuted in this regard, even on cumulative grounds. [53] In this regard, I note that, although the appellant travelled to Canada on an annual basis since 2009, he never claimed refugee protection. It seems to me that, if he were persecuted or feared persecution because of his ethnicity, he would have sought Canada's protection earlier. I base my conclusion on Justice Tremblay-Lamer's statements in Kamana17 to the effect that: The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition-subjective and objective-must be met. [54] These annual trips back and forth between Canada and Guatemala lead me to conclude that he did not establish the subjective element of his fear. Also, the objective evidence in this case is not sufficient to find in the appellant's favour based on this fact alone. [55] Having listened to the recording of the hearing and reviewed all the evidence, I agree with the RPD that the appellant is not a "Convention refugee" or a "person in need of protection" within the meaning of subsection 97(1) of the IRPA. CONCLUSION [56] For these reasons, having considered all the evidence submitted, I am of the opinion that the RPD rendered the appropriate decision in this case. Its conclusions are not perverse or capricious, and they take into account the applicable principles of case law. [57] Consequently, the RAD confirms the determination of the RPD, namely that XXXX XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" under section 97 of the IRPA. [58] The appeal is dismissed. Maria De Andrade Me Maria De Andrade October 16, 2015 Date IRB translation Original language: French 1 Subsection 110(1) of the Immigration and Refugee Protection Act (IRPA): "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 Subsection 111(1) of the IRPA. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 4 Idem. 5 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 6 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913; Lamia Aloulou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1236. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 8 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 9 Idem. 10 Supra, footnote 5. 11 Former title of the current Basis of Claim Form. 12 Grinevich et al. v. M.C.I., No. IMM-1773-96. 13 Refugee Protection Division (RPD) record, page 162; question 8 Personal history. 14 K.L. v. Canada (Minister of Citizenship and Immigration), 2009 FC 95. 15 National Documentation Package on Guatemala dated May 30, 2014, Tab 7.1; Transnational Organized Crime in Central America and the Caribbean: A Threat Assessment. United Nations. Office on Drugs and Crime. September 2012. RPD record, pages 59 to 89, Exhibits P-5 to P-10. 16 RPD record, page 11, decision at paragraph 38. 17 Kamana, Jimmy, v. M.C.I. (No. IMM-5998-98), Tremblay-Lamer, September 24, 1999. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-01132 2 RAD.25.02 (2014.09.11) Disponible en français