TB8-05165

RAD File / Dossier de la SAR : TB8-05165 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 / heard at Montreal, QC Appel instruit / entendu à Date of decision July 30, 2020 Date de la décision Panel Rouba Al-Salem Tribunal Counsel for the person who is the subject of the appeal Richard Wazana Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Appellant) is citizen of Venezuela. He is appealing a decision by the Refugee Protection Division (RPD), dated December 4, 2017, rejecting his refugee protection claim. Mr. XXXX XXXX was a minor at the time that the events central to his refugee claim had taken place, but had turned 18 at the time of the RPD hearing.1 He alleges that he fears persecution by Venezuelan national guards, police and the wider security apparatus for his political opinions and participation in anti-government demonstrations, after his detention by two members of the Venezuelan national guard for twenty-four-hours.2 In addition, MrXXXX XXXX XXXX alleges that two particular pro-government supporters by the name of XXXX XXXX and XXXX XXXX, have personally targeted him on the basis of his anti-government political opinion and evangelical Christian faith.3 [2] In its decision, the RPD established that the determinative issue is the lack of Mr. XXXX XXXX credibility with respect to key aspects of his claim.4 Firstly, the RPD found that there were material discrepancies between the Appellant's testimony and his Basis of Claim (BoC) form that were not reasonably explained by the Appellant, which rendered his testimony and evidence not credible,5 with respect to the following allegations: that he attended anti-government protests or even publicly expressed his opposition to the government in Venezuela;6 that he was threatened by pro-government supporters,7 or that he was detained by Venezuelan National Guards in May 2017 for 24 hours.8 Secondly, while the RPD did not draw a negative credibility finding from the Appellant's failure to request any support letters from family members or those he attended protests with, on the ground that his Counsel to the RPD had not advised him to do so,9 the panel drew a negative inference from the Appellant's failure to provide, without reasonable explanation, corroborating documentation with respect to the alleged injuries to his left hand, or the wounds that he suffered, following his alleged beating in detention.10 Thirdly, the RPD concluded that the Appellant does not face a serious possibility of persecution base on his Evangelical Christian faith in Venezuela.11 Fourthly, the RPD found that the Appellant would not, on a balance of probabilities, face a personal risk to life, risk of torture or risk of cruel and unusual punishment or treatment.12 Thus, the RPD made a general finding of the Appellant's lack of credibility, given the material inconsistencies which it found, go to the heart of his claim. In addition, the panel found that there is insufficient independent, credible or trustworthy evidence in this claim supporting a positive decision.13 [3] On appeal, Mr. XXXX XXXX alleges that the RPD erred in its credibility findings because it based its decision on findings that are minor, microscopic and not sufficient.14 According to the Appellant, the RPD's findings did not consider the fact that the Appellant was a minor when these events took place,15 and the objective evidence that anti-government protestors are persecuted by the Venezuelan regime.16 Secondly, Mr. XXXX XXXX alleges that there was a breach of natural justice as result of the incompetent advice provided to the Appellant by his former counsel with respect to the need to provide supporting documents from his family members, thereby denying him the right to a fair hearing.17 He also submits on appeal that Counsel did not advise him to see a doctor in Canada to provide medical evidence of the effects of the physical abuse while he was detained in Venezuela, which jeopardized his claim,18 given the RPD's conclusion that the evidence was insufficient.19 DECISION [4] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither Convention refugees nor a person in need of protection. NEW EVIDENCE [5] According to the law,20 I can only accept evidence that (i) arose after the RPD decision; or (ii) was not reasonably available at the time of the decision; or (iii) that you could not reasonably have been expected in the circumstances to be brought by the Appellant to the RPD before the decision was rendered. If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant as per the Raza/Singh factors before I can accept it.21 [6] The Appellant submitted the following: * Exhibit A: Letter by Appellant's Counsel to the Refugee Appeal Division (RAD), to the Appellant's former Counsel to RPD (dated February 13, 2017), notifying her that one of the grounds of this appeal is the incompetence of her as Counsel. The letter addresses her alleged instructions to the Appellant that there is no need for him to request any letter of support for his claim, including her failure to schedule a medical report to document he injuries to his left hand.22 Here, I note that in his Affidavit, the Appellant referred to this exhibit incorrectly as being the response of the RPD Counsel.23 * Exhibit B: Response of the Appellant's Counsel to the RPD concerning the allegations (dated February 20,2018); * Exhibit C: Medical report released based on the request of the Appellant's Counsel to the RAD, released by Cross-roads Clinic (in Canada) on February 28,2018.24 The report comes allegedly after his Counsel to the RAD requested that he sees a doctor.25 The report states as "current concerns" that the Appellant complains of constant pain in his left wrist, has a poor grip and that state police officers have bent it. * Exhibit D: two psychological reports from Venezuela provided by his father: (1) the first is a one-page letter in which the specialist in clinical psychology with children and adolescents (university of Buenos Aires) submits that the Appellant received psychological counseling online via Skype, four times between May 17-June 7, 2017 (letter not dated). (2) The second, is by a doctor at the Neurological Institute noting that the Appellant was evaluated on May 12, 2017, and got discharged in good condition but with difficulty in the left hand (letter not dated).26 [7] I find that all of the pieces of evidence submitted by the Appellant meet the criteria of section 110(4) of Immigration and Refugee Protection Act (IRPA) as well as the Raza/Singh factors and admit them therefore into evidence. They arose after the RPD's rejection of the claim (25 May 2018); were either not reasonably available (Exhibit A and B) or could not have reasonably been expected to be presented by the Appellant at the time of the rejection (Exhibit C and D). With respect to the Raza/Singh factors, I find that they are relevant, because they concern allegations of incompetence by Counsel and the reason why the Appellant did not provide corroborative evidence was that his right to procedural fairness was undermined, or they provide information regarding his alleged injuries, which he alleges he was not asked to submit. I find that they are new because it adds something new that was not available at the time of the RPD hearing. Lastly, I find that they appear on the face of it to be credible documents. I therefore admit the documents into evidence. [8] The Appellant also submitted that the RAD should hold a hearing.27 Although new evidence has been admitted in this appeal, I find that the RAD must proceed without a hearing. While I find that the exhibits submitted are relevant documents, but that they lack the materiality to justify either allowing or rejecting the refugee protection claim, and, as such, do not meet the requirements of 110(6). Each of the requirements in 110(6)(a) through (c) have to be met, and in this case, the requirement in 110(6)(c) is not met. As such, the RAD has no discretion to hold a hearing. I have explained my reasons for why they lack the materiality in the analysis section 5(a) and 5(b). ANALYSIS [9] My role is to look at all the evidence and decide if the RPD made the correct decision.28 1. The Appellant's Failure to credibly establish that, on a balance of probabilities, he attended anti-government protests or ever publicly expressed his opposition to the Venezuelan government and its policies [10] In its decision, the RPD found that the Appellant was not credible with respect to his allegations that he attended anti-government protests or even publicly expressed his opposition to the government in Venezuela.29 [11] Here, I find that the RPD's decision was correct with respect to its finding that he did not corroborate his allegations that he publicly expressed his opposition to the Venezuelan government authorities. When the RPD inquired with Mr. XXXX XXXX if he has ever posted his opinion on the Venezuelan government using social media applications, Facebook, or any other on-line tools, Mr. XXXX XXXX responded that he only had private conversations with friends and never sought to publish his views on the government. According to the Appellant, this is because he was scared that if he were to publish something, government authorities would come looking for him, given that they "control everything" and would be able to find him if he does.30 In response to further questioning by the RP, he also responded that he never belonged to any political party in Venezuela, because those who do, put themselves in danger.31 Moreover, the Appellant testified that since coming to Canada he has not posted or published anything to express his political views regarding the Venezuelan government and its policies, because he would not want them to look for him, particularly since his sister and parents still reside in Venezuela.32 Furthermore, he stated that even if he were to return to Venezuela, he would not continue participating in the protests, because of the "inconvenience" that happened to him in May 2017 (i.e. his detention). In this regard, the Appellant also stated that because of the event that took place, the guards took his ID and know who he is. Hence, if he participates, he fears that he would end up in prison for the rest of his life.33 Based on the Appellant's own written and oral testimony, I find that there is no evidence to suggest that he publicly expressed his political opinion against the government of Venezuela. [12] With respect to the RPD's findings that the Appellant has not credible established that he participated in anti-government protests, I find that the RPD has erred in its finding that the Appellant has, on a balance of probabilities, not participated in those protests. During the RPD hearing, Mr. XXXX XXXX testified that in 2013-2014, he began observing protests, either with his father or with friends, but that he did not participate in them at this stage.34 According to his written narrative, in early September 2016, he began attending classes at the XXXX XXXX XXXX XXXX XXXX and shortly thereafter, he began attending demonstrations with a friend (XXXX).35 He also states that after that first demonstration, he attended about 20-30 protests36 between 2016-2017.37 [13] Based on my analysis of the recording of the RPD hearing, the panel has not identified any inconsistencies, omission or discrepancies with regards to the Appellant's testimony about whether or not he in fact participated in anti-government demonstrations. Secondly, it is not clear from the reasons that the RPD provided how it reached the conclusion that the Appellant was not credible with regards to his allegation that he participated in those demonstrations. Thirdly, the RPD had specifically underscored that it would not draw a negative credibility inference from his failure to request any support letters from family members or those he attended protests with, on the ground that his Counsel to the RPD had not advised him to do so.38 [14] However, I do not find that this error by the RPD undermines the correctness of its overall decision that the Appellant's claim is not credible. This, is because, even if I accept that the Appellant did in fact participate in those demonstrations, I still do not find that he has corroborated his allegations that given his participation in those demonstration, or because of the anti-government political opinions that he expressed in private to friends, he had an anti-government political profile, that rendered him a person of interest for the Venezuelan authorities or their supporters. Nor, do I find that Mr. XXXX XXXX credibly established that he would be imputed an anti-government political opinion, that would result in a serious possibility of him being persecuted by Venezuelan government authorities or pro-government supporters. This is because, I find that the RPD was correct with respect to the other credibility findings that it reached, including that there were serious discrepancies between the Appellant's written and oral testimony with respect to his allegations that he was threatened by pro-government supporters and that he was detained by members of the Venezuelan National Guard in May 2017. 2. Discrepancies between the Appellant's written and oral testimony with respect to his allegations that he was threatened by pro-government supporters [15] According to Mr. XXXX XXXX, all of these incidences in which pro-government supporters ought to harm him, took place after he started his classes at the technical national institute in Valencia.39 In this regard, the Appellant identified two individuals in particular: XXXX XXXX and XXXX XXXX,40 with the first one being an old class mate of the Appellant and the second one being a fellow university student of his.41 [16] When the RPD inquired why the Appellant thinks he was targeted, he responded that it was because he, the Appellant, was always criticizing the lack of food and medicine in the country, and because he was Christian and talked about God.42 According to the Appellant, the pro-government supporters would sometimes listen on what he and his friends were saying and then focus on him.43 Subsequently, when the RPD panel inquired how it is that the Appellant knew that they were listening to what he had to say about the government, he responded that they were always around when he and his friend were talking and that they were seeking ways to attack him and his friends.44 [17] In its decision, the RPD found that there were numerous material discrepancies between the Appellant's testimony and his BoC form with respect to his allegation that he was threatened by pro-government supporters,45 particularly concerning the alleged incidences in which he was targeted by pro-government supporters.46 [18] On appeal, Mr. XXXX XXXX submits that the RPD did not consider the Appellant's age when these events took place, and that it relied on minor inconsistencies to undermine his credibility.47 [19] I find that the RPD was correct with respect to its findings. In his written narrative, the Appellant identified the following incidents in which XXXX and XXXX allegedly sought to harm him for expressing anti-government opinions and for his Catholic faith: * The first incident (mid November 2016): when the Appellant was stopped by three guys (including XXXX and XXXX) on his way to university. They allegedly pushed him around for a bit, took his valuables as contributions to the revolution and then left.48 * The second incidence (end of November 2016): when the Appellant was going to the cafeteria and four men, including XXXX, pulled a knife on him and took all his money from him.49 * The third incidence (a few days before Christmas 2016): when the Appellant and XXXX went to the store to get groceries and noticed that a group of approximately 8 men were following them. One of them demanded to talk to them, at which point they ran, hid under some cars and waited till the group left.50 * The forth incidence (February 2017): when the Appellant was riding a public bus on his wat to the music conservatory. Three men, whom he recognized as friends of XXXX, got on the bus searched him for money or any other valuable thing that they could take. The Appellant got off the bus and onto the following one.51 [20] However, when the RPD asked Mr. XXXX XXXX when his problems in Venezuela began, the Appellant's account of the incidents were different. According to his oral testimony: * The first incidence (end of October-early November 2016): during that incidence they bullied him and took everything that they had and threatened him with a knife.52 When the RPD asked him to elaborate on that incident, the Appellant testified that it happened when he went to the cafeteria to get food, and that it was then that they pulled the knife on him and took everything that he had on him, including his phone, money and chain.53 * The second incidence (end of November 2016): during that time, the Appellant was buying food with XXXX and that he saw them about 30 meters away with hoods on their faces. According to him when they saw them, they started calling out to XXXX. This is when they realized that they were going to steal their belongings and kill them so they ran and hid under a car until they left.54 [21] At this point, the RPD inquired with the Appellant if there were any other incidences where they allegedly tried to harm him, including during the time period between these two incidences. The Appellant responded that there were non, because he was always finding ways to hide from them.55 [22] However, when subsequently the RPD inquired with the Appellant how many times in total he was threatened by XXXX, he responded that there were three times.56 In this regard, he clarified that: * The first incidence was when they stole all his money.57 * The second incidence took place during his time in class as he was inquiring with the teacher about something. According to him, it was then that he saw XXXX come closer and starting to mock him so he ran away.58 * The third incidence was when he allegedly went to buy food (end of November 2017).59 [23] At this point, the RPD asks Mr. XXXX XXXX, why he did not mention the incidence in which the four men, including Freddy allegedly pulled out a knife on him, as a separate incidence from the first. He responded that during the first time the attackers took everything, but that the second time they did not taken anything. However, he still felt threatened and he forgot because he was feeling nervous.60 [24] I agree with the RPD that the Appellant did not provide reasonable explanations for why his inconsistent testimony. While the Appellant was 17 at the time of the alleged threat, he had turned 18 at the time that he prepared his BoC.61 In addition, I note that he was represented by Counsel and that he confirmed to the RPD that the BoC and its attachments are all true, complete and correct.62 While he was understandably nervous, I do not find that this explains the numerous material inconsistencies between his written and oral testimony. that I therefore I find that the RPD was correct in its decision that on a balance of probabilities, the Appellant was not threatened by pro-government supporters as alleged.63 3. Discrepancies between the Appellant's written and oral testimony with respect to his alleged detention by the Venezuelan National Guard in May 2017 [25] In its decision, the RPD concluded that the Appellant's testimony concerning the place of his twenty-four-detention suffered from material inconsistencies which undermine his general credibility with respect to his allegations that he was detained by the National Guard.64 [26] On appeal, the Appellant submits again that despite a plethora of objective evidence showing that that anti-government protestors are persecuted, the RPD relied on minor inconsistencies to undermine his credibility, and that this contradiction is not sufficient to conclude that this incident never took place.65 In addition, he submits that the interpreter interjected at the hearing and said that the word "patio" could be translated as "inside yard."66 [27] In his written narrative, Mr. XXXX XXXX stated that while participating in a protest in Barquisimeto on May 9, 2017, he was grabbed by two Bolivarian national guards, handcuffed and hooded. He was then taken in a vehicle to a location, where he was kicked and beaten with a stick. He also alleges to have received a blow to the palm of his hand which bend it backwards. In addition, "I was kept outside in the sun [...]. When I wanted to go to the bathroom they would take me."67 He also states that he was held in the patio of a white house.68 [28] However, in his oral testimony, there were several major inconsistencies concerning the Appellant's testimony of where he was held. The Appellant testified that he was held in a house, and that he became aware that he was in a house when they took the hood off.69 When the RPD inquired what it looked like, he responded that it was a normal house, where the government kept all their gear.70 Subsequently, when the RPD inquired how many other people were being held in the same "room" with the Appellant during the beating, he responded that he does not remember exactly, but that he was held there for twenty-four-hours and was left in the room the entire duration. Subsequently, the following conversation took place: RPD: So you were indoors during the entire detention? Appellant: Yes, from the time that they took me until they let me go in the street. RPD: How sure are you about that? Appellant: Very sure, because I can feel the pain in my hand when I move it. RPD: No, ok, I am asking you how sure are you that during the entirety of your detention you remained indoors? Appellant: They just moved me so I could...take care of my basic needs. RPD: And was this indoors? Appellant: No they would take me to do to do...to take care of my needs..to go like,,,to go to the bathroom to pee outside in the garden, RPD: And how long would you remain outside in the garden? Appellant: Just to take care of my needs and that they would take me back in. [29] Subsequently however, when the RPD inquired in what room in the house the Appellant was kept in, he responded that he was kept in the patio behind the house.71 The RPD panel then asked the Appellant why it is that in his written narrative, he stated that he was kept outside in the sun, but that when the panel had asked him if he had remained indoors during his detention, he had confirmed that he remained indoors.72 In response, the Appellant testified that the patio is inside, but that they would take him outside to take care of his needs.73 In response the RPD asked him again, why in his written narrative he had stated that he had been kept outside in the sun, to which he responded that it is because the patio is inside the house.74 [30] Afterwards, when Counsel asked the Appellant again to clarify where it is that he was held exactly,75 the Appellant testified that the place where he was held, was behind the house, part of the house but outside the walls of the house.76 He also stated that it was half-open so they were feeling the heat of the sun, and that they would take him to a corner in the patio to take care of his needs.77 I find that the RPD was correct in its finding that the Appellant was unable to testify in a consistent manner about where he was kept during his detention, which is a central element of his claim. I also find that it undermines the credibility of his allegations that he was detained by the National Guard as he alleges. [31] With respect to the Appellant's allegations on appeal that the interpreter had interjected saying that patio could be used be translated into the word "inside yard". After listening to the RPD recording, I agree with the Appellant that she did, and the RPD also confirms that in its decision.78 However, I note that when she was translating a segment of the Appellant's response in which he used the word "patio" in Spanish,79 she did not use the word "inside yard" in her translation of that segment. Instead she used the word "garden." In addition, I note that she never used the word "inside yard" to refer to the patio. In any event, I find that even if this were the case, this does not resolve the inconsistencies in the Appellant's testimony, as to why he had stated that he was held in-door in his oral testimony, while in his written testimony he mentioned that he was held under the sun in a patio. Nor does it resolve the inconsistencies concerning his testimony: that he offered a serious of different responses when asked for an explanation about how long he was kept outside and where it is that he was taken to attend to his basic needs. 4. The Appellant's Allegation that he was persecuted for his Christian faith [32] In its decision, the RPD concluded that there is a lack of objective basis that Evangelical Christians in Venezuela are targeted or discriminated against in a manner that rises to the level of persecution in Venezuela.80 I find that the RPD was correct in its finding. [33] I have consulted the sources available in the updated national documentation package (NDP) on Venezuela concerning government practices and the state of religious freedom. It states that an estimated 96 percent of the population is Catholic. The source indicates that the constitution provides for freedom of religion, on the condition that the practice of religion does not violate public morality, decency or public order. However, the source also indicates that there is government funding for Catholic Church run Schools. It also points out that government authorities continue to retaliate against church leaders and clergy members who made statements critical of the government and calling for attention to the country's humanitarian crisis.81 [34] I find that the Appellant has not persuasively corroborated his allegations that given his particular circumstances, he was targeted by the alleged agents of persecution for his Christian faith. The Appellant is not a member of the church or clergy member critical of the government. Moreover, when the RPD inquired with the Appellant why it is that he believed the pro-government supporters were allegedly seeking to harm him because of his faith, he responded that it is because they have close ties to criminals and atheist. When the RPD asked him to clarify further, the Appellant responded that he would sometimes hear them say that they do not believe in God and that he would sometimes see them with other people who sell drugs and other illegal things. In addition, he stated that he believes they targeted him in particular because they were Christians and talking about God.82 5. The Appellant's failure to provide corroborating documentary evidence with respect to his injuries and letter of support from his family and those he attended demonstrations with [35] In its decision, and with respect to the Appellant's furnishing of corroborative evidence, the RPD made two distinct findings. I will address these findings separately. (a) The Appellant's failure to provide corroborating medical evidence in support of his alleged hand injury and other wounds [36] In its decision, the RPD concluded that Appellant has not provided credible and trustworthy evidence to corroborate the alleged injury to his left hand or the wounds he suffered followed the alleged beating in detention, either in Venezuela or in Canada.83 It then found that it is reasonable to expect the Appellant to make efforts to obtain medical documentation corroborating his allegation, and that at the very least, he would see a physician in Canada, before drawing a negative inference.84 [37] On appeal, the Appellant submits that his Counsel to RPD did not advise him to see a doctor in Canada for the purpose of providing medical evidence documenting the effects of physical abuse he was subjected to during his detention, and that she did not ask him any follow up questions in relation to any medical evidence.85 [38] However, I do not find that the Appellant's allegations are corroborated by his own testimony, nor by the submission of Counsel to the RPD. During the hearing, when the RPD panel inquired about his injury and whether his hand was broken, Mr. XXXX XXXX testified that it was when he tried to shield his face from the blows with his hand, "they split my hand" and that he believes it was broken.86 Subsequently, when the RPD inquired if he tried to see a doctor about his broken hand, he responded that they did not receive any help to go see a doctor, and that in any case, the doctor would also ask for his ID and they are also the guards, so they could have arrested me.87 [39] Subsequently, when the RPD inquired with him if he attempted to consult a doctor in Canada about his broken hand, he responded that he does not think that the bone was broken and that it is only "muscle related.", but that he is thinking about going.88 Similarly, in response to further questions by the RPD whether he considered seeing a doctor in Canada to examine the wounds he allegedly sustained in detention (to his arms and thighs) he responded that he did not because they have healed already.89 Based on the Appellant's testimony, I d not find that he indicated that the reason why he did not provide medical documents to corroborate his efforts of receiving a medical diagnosis in support of his claim, was because he did not know that this was needed of him due to lack of advice from his lawyer or otherwise (as he alleges on appeal). [40] Furthermore, in response to a communication sent by the Appellant's Counsel before the RAD to the Appellant's Counsel before the RPD, (Exhibit A) asking for clarifications as to why she failed to advise him to consult a physician or to schedule a medical assessment for his scars on his body and the injuries on his left hand,90 the latter responded that these allegations are false. In this regard, Counsel to the RPD stated in her response that she had asked Mr. XXXX XXXX to provide corroborating evidence to support his claim including "medical evidence confirming his injuries."91 According to Counsel, "when I asked him to obtain medical confirmation of his wounds from a doctor in Venezuela he said that he would not be able to do it because he did not see any doctor there. When I proposed him to make a medical appointment to confirm his injuries in Canada, he told me that he preferred not to see a doctor without further elaboration."92 I find that Counsel's account is corroborated by statements made by the Appellant himself during his oral testimony, as well as his affidavit to the RAD,93 For the above reasons I do not find that the RPD erred in its decision to draw a negative inference from the Appellant's failure to provide corroborating medical evidence. [41] I have also analyzed Exhibit C submitted by the Appellant which concerns his medical records in Canada. The report indicates that the Appellant has difficulty using his left hand and that he suffers from pain in it. There is no indication in the report that a medical assessment has revealed that his hand had either been broken, has been injured because of forceful pressure applied to it. The report simply reiterates that the Appellant "states police officer in Venezuela bent his hand and since then it has hurt."94 It also makes a request to order a query into whether the Appellant suffers from carpal tunnel syndrome.95 I therefore do not find that this document corroborates the Appellant's allegations that the pain he suffers in his left wrist is the result of a traumatic injury and therefore, that on a balance of probabilities, it resulted from torture or ill-treatment. [42] With respect to the psychological reports in Exhibit D, the reports (1 and 2) indicate that the Appellant was medically evaluated in May and in June 2017 respectively. On appeal, the Appellant submitted that these reports were produced before the Board rendered its decision on the Appellant's refugee claim, but that due to the "incompetent advice" form his Counsel to the RPD, they were not submitted.96 However, I do not find that his statement is corroborated by previous evidence which he submitted to the RPD. In his oral testimony, the Appellant has testified that he has never consulted a doctor while he was in Venezuela. I find that the Appellant's oral testimony undermines the credibility of these reports. I therefore do not give them any probative weight. (b) The Appellant's failure to provide letters of support from his family members or persons he attended protests with [43] The RPD made a second finding with respect to the documentary evidence that the Appellant did not submit. It first underscored that Counsel to the RPD had acknowledged that she does not as a matter of practice to ask her clients to provide letters of support from their family because it is her experience that in similar experiences, these letters of supports are viewed as self-servicing and are not given much weight by the courts as corroborating evidence.97 The RPD stated that it was troubled by Counsel's submission, especially in light of the clear burden on the Appellant to establish his claim, and found that Counsel foreclosed this opportunity to her client.98 The RPD also concluded that as a result, it will not draw a negative inference from the Appellant's lack of support letters, or draw a negative inference as to his credibility on this basis. The RPD also underscored that to do otherwise, would be unfair to the Appellant especially given his age.99 [44] On appeal, the Appellant submits that the Appellant's right to procedural fairness was breached and that therefore, the RPD's decision cannot stand.100 In support of his allegations, he submits that in a federal court case, it has been highlighted that three requirements must be met for negligence of counsel to establish a breach of procedural fairness have been met and which are: (1) that the actual incompetence was established on a precise factual foundation; (2) that the Appellant demonstrates that incompetence resulted in prejudice, and that if it was not for the alleged incompetence the result of the original hearing would have been different; and (3) that the Appellant must provide that his former Counsel had an opportunity to respond to the complain or the matter has been referred to the appropriate body.101 [45] I find that the RPD did not err in its finding. In the federal court decision, cited by the Appellant, the Court underscored that: In proceedings under the Immigration and Refugee Protection Act, the incompetence of counsel will only constitute a breach of natural justice in "extraordinary circumstances." With respect to the performance component, at a minimum, the incompetence or negligence of the applicant's representative [must be] sufficiently specific and clearly supported by the evidence. It must also be exceptional and the miscarriage of justice component must be manifested in procedural unfairness, the reliability of the trial results having been compromised. In this regard, the Applicant must demonstrate that there is a reasonable probability that the result would have been different but for the incompetence of the representative.102 [46] While I find that the Counsel to the RPD's action of not advising the Appellant to seek letters of support from his immediate family on the ground that they are self-serving, constitutes incompetence, I do not find that the Appellant demonstrated that the results of the trial have been compromised or that there is a reasonable probability that the result would have been different but for the incompetence of the representative. [47] In Exhibit B, Counsel to the RPD acknowledged that "I did not request from Mr. XXXX XXXX statements from his family, because I did not consider that they were going to be given weight by the board since they would have been hearsay, and in any case, I preferred him to focus on the listed documents which in my opinion, would have had more weight as they have been issued by third parties with no interest in the outcome of the proceedings.103 However, I find that while she did not request documents from his immediate family (in Canada or in Venezuela), Counsel to the RPD did request that the Appellant submits the following documents: "Statutory declaration from his friend Saul Camacho to corroborate the problems they had with the other Chavista students, proof that he attended demonstrations such as pictures and letters from people who attended with him" amongst others.104 [48] Nevertheless, the Appellant did not make an effort to obtain the documents that she asked of him. Here, I note that in his testimony, the Appellant provided numerous reasons for not seeking to obtain them. When the RPD inquired with him if he ever considered asking his neighbor XXXX, with whom the Appellant allegedly attend some demonstrations,105 for a letter of support, he responded that he did not.106 When the RPD inquired why that was the case, the Appellant explained that he did not want anyone other than his parents to know that he had initiated a refugee protection claim process; that his aunt in Canada had taken the decision for him to apply for refugee status, and that advised him to keep it a secret.107 At no point in his testimony did Mr. XXXX XXXX mention that he was not aware that it was pertinent for him to seek those documents or that he was advised by Counsel not to do so. [49] Similarly, when the RPD inquired with the Appellant if he considered getting a letter from his aunt or his parents in support of his claim, to corroborate his allegations that he participated in protests, he responded that he did not. When asked to clarify why this was the case, the Appellant responded that he never thought of getting a letter because being part of protests in Venezuela is "not seen well at all," that it could mean years in jail and that he did not risk that.108 In addition, he explained that he worried that other people, who may be government supports, could have access to that letter, such as individuals printing out the letter or that it comes to the attention of government authorities who control the internet (if his family decides on sending the letter by email).109 It is not clear to me why the Appellant did not during his oral testimony indicate that one of the reasons why he did not make an effort to get letters of support from his family is because his Counsel had advised him not to, or that he was unaware that such letters of support were necessary to corroborate his claim. [50] Moreover, I note that Appellant was represented by a different Counsel to the RAD. While he submitted new evidence in the form of medical reports, he chose not to submit any letters of support form family or friends in support of his allegations, even though he had the time and opportunity to do so, and could have provided an explanation for why this evidence was not available before the RPD rendered its decision. [51] Finally, I note that I do not find that the Appellant has demonstrated that the RPD decision would have been different had these letters of support been submitted. As I noted earlier, I found that the RPD erred in reaching the conclusion that the Appellant had not, on a balance of probabilities, supported his allegations that he participated in anti-government demonstrations. However, I also found that the RPD was correct with respect to its other findings, namely that the Appellant has still not corroborated other central aspects of his claim: that there is a serious possibility that he was persecuted by Venezuelan authorities for his anti-government opinions or his Christian faith or that on a balance of probabilities he was subjected to harm by Venezuelan authorities or by pro-government supporters for these opinions or because of his faith. CONCLUSION [52] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither Convention refugee nor a person in need of protection. Rouba Al-Salem Rouba Al-Salem July 30, 2020 Date 1 Appellant's Schedule 12, item 2. RPD hearing November 14, 2017. Audio recording, from 0:09: 35 till end of 0:09:50. 2 Appellant's written narrative paras. 1 and 3. RPD hearing November 14, 2017. Audio recording, from 0:22:09 till end of 0:22:28 and from 0:25:22 till end of 0:27:01 as well as 0:29:17 and from 01:43:42 till end of 01:46:01. 3 RPD-1, RPD record, Exhibit 3, RPD decision at para. 10. RPD hearing November 14, 2017. Audio recording, at 01:13:29; 01:16:25; 01:18:48; 01:20:28. 4 RPD hearing November 14, 2017. Audio recording, at 0:05:19. 5 RPD-1, RPD record, Exhibit 3, RPD decision at para. 9. 6 RPD-1, RPD record, Exhibit 3, RPD decision at para. 34. 7 RPD-1, RPD record, Exhibit 3, RPD decision at para. 15. 8 RPD-1, RPD record, Exhibit 3, RPD decision at para. 23. 9 RPD-1, RPD record, Exhibit 3, RPD decision at para. 31. 10 RPD-1, RPD record, Exhibit 3, RPD decision at para. 25. 11 RPD-1, RPD record, Exhibit 3, RPD decision at para. 36. 12 RPD-1, RPD record, Exhibit 3, RPD decision at para. 37. 13 RPD-1, RPD record, Exhibit 3, RPD decision at para. 32. 14 Appellant's Memorandum of Appeal at para. 65. 15 Appellant's Memorandum of Appeal at para. 68. 16 Appellant's Memorandum of Appeal at paras. 31-33 and 76. 17 Appellant's Memorandum of Appeal at paras 4-13. 18 Appellant's Memorandum of Appeal at paras. 14-17. 19 Appellant's Memorandum of Appeal at paras 18 and 49. 20 Subsection 110(4) of the IRPA. 21 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385 22 Page 26 of the electronic RAD file. 23 Appellant's Affidavit submitted to RPD at para. 4. 24 Pages 40-55 of the electronic RAD file. 25 The Appellant's Affidavit submitted to the RAD at para. 8. 26 Pages 47-61 of the electronic RAD file. 27 Appellant's Memorandum of appeal at para. 64. 28 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 29 RPD decision at para. 34. 30 RPD hearing November 14, 2017. Audio recording, from 0:44:01 till end of 0:45:12. 31 RPD hearing November 14, 2017. Audio recording, from 0:55:44 till end of 0:56:39. 32 PRD hearing November 14, 2017. Audio recording, from 0:45:35 till end of 0:46:26. 33 RPD hearing November 14, 2017. Audio recording, at 0:58:25. RPD decision at para. 34. 34 RPD hearing November 14, 2017. Audio recording, from 0 :32 :24 till end of 0:37:48. 35 Appellant's written narrative at para. 5. 36 Appellant's written narrative at para. 6. 37 RPD hearing November 14, 2017. Audio recording, from 0:38:38 till end of 0:39:52. 38 RPD-1, RPD record, Exhibit 3, RPD decision at para. 31. 39 Appellant's written narrative at para. 5. 40 RPD hearing November 14, 2017. Audio recording, at 01:20:28. 41 Appellant's written narrative at para. 8. 42 RPD hearing November 14, 2017. Audio recording, at 01:18:48 43 RPD hearing November 14, 2017. Audio recording, at 01: 19:10 44 RPD hearing November 14, 2017. Audio recording, at 01:19:27. 45 RPD-1, RPD record, Exhibit 3, RPD decision at para. 15. 46 RPD-1, RPD record, Exhibit 3, RPD decision at para. 10. RPD hearing at 01:13:29 and at 01:18:48. 47 Appellant's Memorandum of Appeal at para. 68. 48 Appellant's written narrative at para. 8. 49 Appellant's written narrative at para. 9. 50 Appellant's written narrative at para. 10. 51 Appellant's written narrative at para. 13. 52 RPD hearing November 14, 2017. Audio recording, at 01:14:43. 53 RPD hearing November 14, 2017. Audio recording, from 01:20:41 till end of 01:23:54. 54 RPD hearing November 14, 2017. Audio recording, from 01:24:40 till end of 01:26:15. 55 RPD hearing November 14, 2017. Audio recording, from 01:28:18 till end of 01:30:26. 56 RPD hearing November 14, 2017. Audio recording, from 01:31:07 till end of 01:31:22. 57 RPD hearing November 14, 2017. Audio recording, from 01:31:27 till end of 01:32:15 58 RPD hearing November 14, 2017. Audio recording, at 01:32:15 and from 01:35:55 till end of 01:37:06. 59 RPD hearing November 14, 2017. Audio recording, from 01:32:51 till end of 01:34:05. 60 RPD hearing November 14, 2017. Audio recording, from 01:37:25 till end of 01:39:26. RPD decision at para. 13. 61 RPD decision at para. 14. 62 RPD-1, RPD record, Exhibit 3, RPD hearing November 14, 2017. Audio recording, at from 0:04:53 till beginning of 0:05:19. 63 RPD-1, RPD record, Exhibit 3, RPD decision at para. 16. 64 RPD decision at paras. 23-24. 65 Appellant's Memorandum of Appeal at paras. 69-72 and 76. 66 Appellant's Memorandum of Appeal at para. 71. 67 Appellant's written narrative at paras. 15-16. 68 Appellant's written narrative at para. 17. 69 RPD hearing November 14, 2017. Audio recording, from 01:48:56 till end of 01:49:15. 70 RPD hearing November 14, 2017. Audio recording, from 01:49:19 till end of 01:49:38 71 RPD hearing November 14, 2017. Audio recording, at 01:02:11 till end of 02:02:28. 72 RPD hearing November 14, 2017. Audio recording, at 02:05:35. 73 RPD hearing November 14, 2017. Audio recording, at 02:07:47. 74 RPD hearing November 14, 2017. Audio recording, from 02:07:59 till end of 02:08:30. 75 RPD hearing November 14, 2017. Audio recording, at 02:17:34. 76 RPD hearing November 14, 2017. Audio recording, at 02:21:05. 77 RPD hearing November 14, 2017. Audio recording, at 02:20:04 and from 02:23:04 till end of 02:23:16. 78 RPD-1, RPD record, Exhibit 3, RPD decision at para. 19. RPD hearing at 02:10:27. 79 RPD hearing November 14, 2017. Audio recording, at 02:00:09. 80 RPD-1, RPD record, Exhibit 3, RPD decision at paras. 34-35. 81 United States Department of State, "Venezuela: International Religious Freedom Report 2018:, (21 June 2019), which is item 12.1 of the updated NDP on Venezuela (31 March 2020). 82 RPD hearing November 14, 2017. Audio recording, from 01:16:25 till end of 01:18:48. 83 RPD-1, RPD record, Exhibit 3, RPD decision at paras. 25-28. 84 RPD-1, RPD record, Exhibit 3, RPD decision at paras. 27-28. 85 The Appellant's Memorandum of Appeal at para. 14. Appellant's affidavit at paras. 7, 11 and 14. 86 RPD hearing November 14, 2017. Audio recording, from 01:51:34 til end of 01:52:19. 87 RPD hearing November 14, 2017. Audio recording, from 01: 52:28 till end of 01:52:56. 88 RPD hearing November 14, 2017. Audio recording, from 01:53:24 till end of 01:53:57. 89 RPD hearing November 14, 2017. Audio recording, from 01:55:19 til end 01:57:06. 90 Exhibit A submitted to the RAD (February 14, 2018) 91 Exhibit B submitted to the RAD (February 20, 2018) at p. 1. 92 Exhibit B submitted to the RAD at p. 2. 93 Appellant's Affidavit submitted to the RAD at para. 6. 94 Page 42 of electronic RAD file. 95 Page 43 of the electronic RAD file. 96 Appellant's Memorandum of Appeal at para. 52. 97 RPD hearing November 14, 2017. Audio recording, at 02:30:11. 98 RPD-1, RPD record, Exhibit 3, RPD decision at para. 30 99 RPD-1, RPD record, Exhibit 3, RPD decision at paras. 28-31. 100 Appellant's Memorandum of Appeal at para. 6. 101 Appellant's Memorandum of Appeal at para. 5 citing Brown v. Canada (Citizenship and Immigration) 2012 FC 105 at para. 30. 102 Brown v. Canada (Citizenship and Immigration) 2012 FC 105 at para 56. 103 Exhibit B submitted to the RAD at p. 2. 104 Exhibit B submitted to the RAD at p. 1. 105 RPD hearing November 14, 2017. Audio recording, from 0:59:56 till end of 01:01:08. 106 RPD hearing November 14, 2017. Audio recording, from 01:04:55 till end of 01:05:27. 107 RPD hearing November 14, 2017. Audio recording, from 01:05:11 till end of 01:07:58. 108 RPD hearing November 14, 2017. Audio recording, from 01:08:23 till end of 01:09:52. 109 RPD hearing November 14, 2017. Audio recording, from 01:100:23 till end of 01:12:01. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-05165 RAD.25.02 (January, 2020) Disponible en français 2 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 (January, 2020) Disponible en français