VB5-02271

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 : VB5-02271 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Appel instruit à Date of decision January 22, 2016 Date de la décision Panel Gordon C. McRae Tribunal Counsel for the person(s) who is(are) Jane G. Rukaria Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX (the "appellant"), a citizen of Honduras appeals the decision of the Refugee Protection Division (the "RPD") issued verbally on June 23, 2015 with the written Notice of Decision being issued on July 16, 2015, denying his claim for refugee protection. New evidence has been submitted and pursuant to section 110(4) of the Immigration and Refugee Protection Act (the "Act")1 and the appellant seeks to have the new evidence entered in his appeal to the Refugee Appeal Division (the "RAD").2 The appellant also seeks a hearing pursuant to section 110(6) of the Act.3 [2] The appellant asks the RAD to allow the appeal.4 I take this to mean that the appellant requests that the RAD set aside the determination of the RPD and find the appellant to be a Convention5 refugee as per section 96 of the Act, or a person in need of protection as per section 97 of the Act. In the alternative, I take it that the appellant asks that the decision of the RPD be set aside and the matter be returned to the RPD for re-determination by a differently constituted Panel. [3] A copy of the appellant's record was provided to the Minister on September 2, 2015. The Minister has not responded and so it is deemed that the Minister is not intervening in this appeal. DETERMINATION [4] Pursuant to section 111(1)(a) of the Act, the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND [5] The appellant is a thirty-three year old citizen of Honduras. Prior to fleeing Honduras he lived in the village of Aldea la Guacamaya in El Progresso Yoro. [6] On XXXX XXXX, 2013 at approximately 7:00 pm, he was walking on the street and observed a hooded man on a motorcycle shoot and kill the appellant's friend, XXXX XXXX XXXX. [7] Upon realizing the appellant had witnessed the murder the assailant turned his gun and fired at the appellant who was fleeing the scene on foot. [8] The appellant jumped a fence of a private residence and fell into a hole in the yard where the owner had removed a tree. He broke his leg as a result of the fall. [9] The owner of the house discovered him in her backyard. He advised her that he had witnessed a murder and that the culprit was chasing him. She took him into the house for his safety. He was in such pain as a result of his broken leg that the husband took him to the hospital. [10] The appellant made a declaration to the police but was told they could not help him because he did not know the identity of the killer. [11] Unknown persons were enquiring about the appellant's whereabouts and he concluded these were members of the Mara criminal gang. The appellant moved to San Pedro Sula in ordered to avoid being found by the gang members. [12] The appellant left Honduras in XXXX 2014 and made his way to the United States (U.S.). On XXXX XXXX, 2014 he attempted to enter illegally but was immediately caught by U.S. officials and returned to Honduras. He entered the U.S. illegally again on XXXX XXXX, 2014. This time he was not detected by U.S. authorities. He remained in the U.S. living and working illegally until coming to Canada on or about XXXX XXXX, 2015. [13] He claimed refugee protection in Canada on or about April 24, 2015. ISSUES [14] The appellant has identified the following issues in support of his application to have the RAD set aside the RPD decision. [15] The appellant lists whether or not the new evidence being proposed is accepted pursuant to section 110(4) of the Act as an issue, as well as whether or not a hearing will be held pursuant to section 110(6)6. These are not "issues" regarding alleged errors in the RPD determination but rather matters that this RAD must determine prior to analyzing the appellant's argument(s) as to why the RPD decision should be set aside. [16] This RAD has reviewed the appellant's memorandum7 and has determined that the appellant is putting forward the following issue in support of his argument to set aside the RPD determination: 1) Did the RPD err in finding that the appellant had an Internal Flight Alternative (IFA) in Honduras? NEW EVIDENCE [17] The appellant has submitted the following new evidence and seeks to have it entered as evidence in this RAD appeal: * Affidavit of XXXX XXXX XXXX XXXX (mother of the appellant) dated XXXX XXXX, 2015.8 THE ROLE OF RAD [18] The appellant's counsel made submissions with respect to the standard of review the RAD should apply to the assessment of the RPD decision. Counsel submitted that the RAD should make its own assessment of the evidence.9 I agree, my reasons are as follows: [19] While the Act sets out grounds for appeal, as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the RPD. The first Federal Court (the "Court") review of a RAD decision was in May 2014 (Iyamuremye).10 Since that time there has been a number of the Court decisions rendered. It is fair to say that, to a large extent, the Court is not of one mind as to the standard of review that the RAD should apply. The majority of decisions have made one thing clear, however, and that is the RAD should not apply "reasonableness" as its standard of review. Until such time as the Federal Court of Appeal (the "FCA"), brings more clarity to the standard of review I take the Court's direction on this issue and do not apply the standard of reasonableness to this appeal. [20] I have examined the various Court decisions regarding the role of the RAD and I agree with counsel that the process of a hybrid appeal proposed by Mr. Justice Phelan in Huruglica11 is consistent with the common thread found in the majority of the Court decisions that state the RAD must comprehensively review the available relevant evidence when assessing the RPD's findings and come to an assessment of the appellant's refugee claim. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [21] Mr. Justice Phelan determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error". [22] In keeping with the majority of the Court's findings, I undertook to examine and review all the evidence in the RPD Record and conducted my own independent assessment of the evidence and came to my own conclusion based on that evidence. ANALYSIS Admissibility of New Evidence Presented On Appeal [23] Section 110(3) states the RAD may accept documentary evidence and written submissions from the Minister and the person who is subject of the appeal. Section 110(4) of the Act directs that the person subject of the appeal may only present evidence that arose after the rejection of their claim or evidence that was not reasonably available, or that the person could not have reasonably been expected in the circumstances to have presented at the time of rejection. [24] Madam Justice Gagné found in the matter of Singh12 that section 110(4) of the Act must be applied by the RAD with sufficient flexibility so as not to hinder the full fact-based appeal the RAD is mandated to conduct. Mr. Justice Barnes strongly endorsed this finding in Sow.13 [25] The law is unsettled on this issue as well. Madam Justice Strickland found in the matter of Deri:14 [60] By contrast, s 110(4) offers the RAD no discretion to refuse to apply its explicit admissibility requirements for new evidence. The provision enumerates the factors that the RAD must apply, thereby determining the result based on the facts of the case. If the new evidence meets the requirements of s 110(4) then the RAD must accept it. Conversely, if it does not, then the RAD must reject it. While there is an element of subjectivity in assessing whether the evidence was reasonably available or if an applicant could not reasonably been expected to have previously presented it, this is a factual assessment, it does not alter the character of the ultimate decision as to admissibility. Accordingly, in my view, the RAD's interpretation of s 110(4) was reasonable. [26] Many RAD Members have applied the criteria as set out in Raza15 as the standard for the acceptance of new evidence. The Court has, in some of their reviews of the RAD decisions, determined that the factors set out in the Raza decision do not apply to the RAD in its capacity of an appeal division. [27] Raza dealt with a pre-removal risk assessment (PRRA) but the wording in the legislation enshrines the same legal test as set out in section 110(4). In Raza the FCA identified credibility, newness, relevance, and materiality as issues to be considered. As with the RAD standard of review issue, there is no comity within the Court regarding following the jurisprudence as set out in Raza. Mr. Justice Mosley stated in Denbel:16 [42] In Khachatourian above17 at para 37, Justice Simon Noël expressed reservations about the propriety of transposing Raza to the RAD context, referring to the analysis of Justice Gagné in Singh . . . . Once again I respectfully disagree. [43] When interpreting legislative intent, the Court must give priority to the written text in the absence of any lexical ambiguity. The Court's opinions on best policy cannot supplant the text of the law; nor can select passages from the Hansard. In my view, Parliament intended these two provisions to enshrine the same legal test. If Parliament had intended to establish more flexible admissibility rules in RAD appeals, it would not have replicated the restrictive language which governs PRRAs. [28] Competing findings such as those identified above, all binding on the RAD, place RAD Members on the "horns of a dilemma". [29] Until such time as the FCA brings clarity to this issue, when applying the conditions for new evidence as set out in section 110(4) of the Act and section 29(4) of the RAD Rules,18 I will consider whether exclusion of the proposed evidence would hinder a full fact based review of the appeal and at the same time, will respect and apply the legislation that governs the acceptance of new evidence. The factors as identified in Raza will be used as a guide and will be applied with flexibility. If applied properly I do not find these guiding principles to be mutually exclusive. [30] In this case the appellant has put forward an affidavit of his mother, XXXX XXXX XXXX XXXX, as new evidence. The affidavit was sworn on or about XXXX XXXX, 2015. The confusion regarding the date it was sworn arises from the Notary dating the document XXXX XXXX, 2015 and Ms. XXXX XXXX dating it XXXX XXXX, 2015. I do not find this discrepancy significant and find that the affidavit was sworn after the appellant's refugee claim was rejected. [31] Simply submitting an affidavit that was sworn after the rejection of the claim, is insufficient to meet the statutory requirements set out in section 110(4). The information contained in the affidavit must have arisen after the claim was rejected or was not reasonably available to the appellant or the circumstances were such as the appellant could not have reasonably been expected to produce it before his claim was rejected. [32] The significant information in this affidavit is that on XXXX XXXX, 2015, XXXX XXXX, 2015 and XXXX XXXX, 2015 armed men, unknown to the appellant's mother, came to her house looking for the appellant. These alleged incidents took place after the rejection of the appellant's refugee claim on XXXX XXXX, 2015.19 The information contained in the affidavit is relevant and material to the Internal Flight Alternative (IFA) analysis. I find that the proposed new evidence meets the criteria set out in section 110(4) of the Act and therefore accept it as new evidence in this appeal. Weight Placed on the New Evidence [33] In keeping with the RPD's decision to accept the evidence of the appellant for the purposes of the IFA analysis, this RAD will accept that the information contained in the affidavit of XXXX XXXX XXXX XXXX, is credible. RAD HEARING [34] Section 110(3) of the Act directs the RAD, with certain exceptions, to proceed without a hearing on the basis of the record of proceedings from the RPD. Section 110(6) states the RAD may hold a hearing if, in its opinion, the documentary evidence referred to in section (3): a) raises a serious issue with respect to the credibility of the person who is subject of the appeal; b) is central to the decision with respect to the refugee protection claim and, c) if accepted, would justify allowing or rejecting the refugee protection claim. [35] The new evidence proposed by the appellant has been accepted and establishes someone is still looking for the appellant in Honduras. Although the RPD raised many credibility concerns with the evidence of the appellant, it put those concerns aside and accepted the appellant's evidence as credible for the purposes of the IFA analysis. Part of that evidence accepted by the RPD was that around XXXX 2013, unknown persons were enquiring of his neighbour as to the whereabouts of the appellant.20 The new evidence establishes that someone is still looking for the appellant. [36] That is certainly a consideration in a fulsome IFA analysis but, in and of itself, would not justify allowing this claim. The issue central to the IFA analysis is not whether or not the culprits are still looking for the appellant, although that is an important consideration, but rather will they, on the balance of probabilities, be able to locate him in the IFA? [37] The circumstances of this matter do not meet the requirements as set out in section 110(6) of the Act. For the reasons stated above there will be no hearing ordered in this matter. Nexus [38] The RPD did not do an analysis of the evidence specific to sections 96 or 97 of the Act but mixed the two together. It did acknowledge in its Reasons that the appellant was making his claim under both sections 96 and 97(1). This RAD is not sure where that information came from. Nonetheless the RPD appears to come to a finding under both sections of the Act. The RPD states: ". . . I find that you will not face a serious possibility of persecution or a risk to your life under s. 97(1) of the Act if you return to Honduras and relocate to the capital of Tegucigalpa".21 [39] It is not clear what the RPD is saying in its Reasons. This wording suggests that the RPD made a finding under section 96 of the Act without specifically identifying section 96, or combined it a serious possibility of persecution with a risk of harm under section 97 of the Act. [40] Although the availability of an IFA is fatal to both section 96 and 97 claims, the standard of proof is different, i.e., a serious possibility versus balance of probabilities, hence it is advisable to clearly establish whether or not a nexus exists when conducting an analysis. The RPD did not do this and so it is left to the RAD to conduct a nexus analysis. [41] For the appellant to be a Convention refugee, his fear of persecution must be "by reason of" one of the five grounds enumerated in the Convention refugee definition. In other words he must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. [42] In this case the appellant is alleging that he is being targeted by unknown individuals because he witnessed the murder of his friend XXXX XXXX XXXX also known as "XXXX". Neither the RPD nor counsel deal with what section(s) the claim is being advanced under but appellant's counsel states in her memorandum that there is enough credible evidence to support a claim under section 97. She does not refer to section 96.22 [43] There is nothing in the evidence nor has the appellant suggested that he is alleging persecution under section 96 of the Act. Having conducted an independent review of all the evidence presented on this appeal I conclude that the appellant has not established an objective basis to support a claim under section 96 of the Act. [44] I find that the harm feared by the appellant is not by reason of one of the five grounds enumerated in the Convention refugee definition. I therefore find that the appellant is not a Convention refugee as defined under section 96 of the Act. Section 97(1)(a) [45] Having found that the appellant is not a Convention refugee, I then considered whether the harm allegedly feared by the appellant would amount to a risk to life or a risk of cruel and unusual treatment or punishment, or a danger of torture as per section 97(1)(a) of the Act. [46] In order to qualify as a person in need of protection under section 97(1)(a), the appellant must be subjected to pain or suffering that is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. No allegations were made that the culprits were acting under the direction of legal authority and therefore I determine that no claim under section 97(1)(a) has been established. THE PANEL'S FINDING REGARDING IFA - Section 97 (1)(b) [47] The appellant states that the RPD erred when it concluded that the individual or group that was responsible for the killing of XXXX XXXX and subsequently targeted the appellant would no longer be interested in him if he was to relocate to Tegucigalpa. The RPD states: ".....I find that if you are to relocate to Tegucigalpa, you will not face a serious possibility of persecution or a risk to your life. This is because I find that the unknown individual who killed your friend XXXX in XXXX 2013 would not have the means, the interest or the motivation to look for you if you are to relocate to the capital city. . . ."23 [48] The RPD then goes on to conduct an analysis that focuses on the ability of the culprits to locate the appellant. It does not deal with the level of motivation of the culprits to find the appellant. [49] The RPD accepted the evidence that two men enquired of his neighbour as to his whereabouts, and does not identify any evidence that would lead to the conclusion that they have lost interest in locating the appellant. [50] It is not clear what evidence brought the RPD to form the conclusion that the culprits would not have the motivation or interest to seek the appellant. Additionally this RAD has accepted evidence that was not before the RPD of unknown individuals attending at his mother's house on three occasions in XXXX 2015 looking for the appellant. [51] The RPD finding, that the person(s) responsible for the murder of his friend XXXX XXXX XXXX would no longer be interested in locating the appellant, is not supported by the evidence and cannot be a consideration in the IFA analysis. I find, however, that the removal of this finding from the analysis is not fatal to the IFA analysis for this claim. My reasons are as follows. [52] In spite of the fact that the appellant was living in a small community, he estimates the population to be approximately one thousand people,24 the culprit(s) did not show up at his house for the first time until XXXX XXXX, 2015 some twenty-seven months after the murder. If they knew where he lived before this it is reasonable to conclude that they would have attended at his place of residence long before this. I conclude from the fact it took them so long to discover his place of residence, in such a small community, that the culprit(s) have limited capacity to obtain information on the appellant. [53] According to the affidavit of XXXX XXXX XXXX XXXX,25 the culprit(s) asked the whereabouts of the appellant on XXXX XXXX, 2015 and upon being told by the appellant's mother that he was not there and that she did not know where he was, they left only to return five days later telling her that they knew he was in Canada. They then proceeded to search the house for the appellant. Ms. XXXX XXXX states that "They seemed sure that XXXX was in the house." [54] If the culprit(s) were able to establish that the appellant was in Canada in XXXX 2015, (which he was), then there would have been no reason to search the house. The only reason they would have to search the house for the appellant would be that their information source was not viewed as reliable. [55] Ms. XXXX XXXX further states that the culprits returned on XXXX XXXX, 2015. This is further indication that they are not well placed to obtain information of the appellant's whereabouts as he was still in Canada at this time. [56] On this occasion the family was on the patio. The appellant's eighteen year old (at that time) brother XXXX26 was part of the family group. They grabbed XXXX and pointed their guns at him thinking he was the appellant. The family all shouted at the culprits that this was not the appellant. Ms. XXXX XXXX told them they had made a mistake and they released him. [57] The fact that the culprits mistook XXXX for the appellant clearly indicates that they do not know what the appellant looks like. This is a strong indicator that they are not well placed to even identify the appellant. [58] The evidence is that the appellant does not know who is behind the murder of XXXX XXXX, or what group, or even if the murder was part of a gang action. He speculates that it was the Mara criminal organization that was behind the murder however, he offers little evidence to support his subjective belief. The only evidence the appellant offers is his opinion the Mara were behind the killing because of the mode of execution and the way the killer was dressed. The appellant offers no evidence of any specific attire worn by Mara nor does he give any detail as to how this murder was unique to murders committed by members of the Mara gang as opposed to murders committed by individuals who are not part of a gang, or murders committed by other gangs. His opinion is speculative and I give it little weight. [59] Notwithstanding the fact that the appellant did not establish on the balance of probabilities that the murder was committed by the Mara criminal organization, the RPD conducted an analysis regarding the "reach" of the Mara gangs. I too have conducted an analysis of the chance of any potential co-operation between Mara gangs. It is not necessary for me to restate in different words what the RPD adequately explained in its decision.27 The RPD clearly set out it's rationale for concluding that the Mara operate independently and are not organized to the extent that one group will share information and/or assist another group to locate someone they are looking for. I too have reviewed the applicable evidence and considered both documentary evidence and the culprits apparent lack of knowledge of the appellant i.e., where he lived, what he looked like, and where he was living after the murder, outlined above, and I too come to the conclusion that if this murder was committed by members of the Mara gang (an allegation that has not been established to my satisfaction) that they do not have the necessary capacity to allow them to find the appellant should he return to Honduras and relocate to Tegucigalpa. [60] Having conducted an independent review of the evidence in this appeal I too find that the appellant could relocate to Tegucigalpa and live safely. Suitability of the IFA [61] The RPD correctly identified that an IFA analysis consists of two parts. The first consideration in the matter before me is whether, on the balance of probabilities, there is a risk to the appellant's life or that he would be subjected to cruel and unusual treatment or punishment in a different part of Honduras and, second, whether it would be unreasonable, in his particular circumstances, to relocate there.28 [62] It is not a question of whether in normal times the appellant would, on balance, choose to move to a different, safer part of the country after balancing the pros and cons of such a move to see if it is reasonable. Nor is it a matter of whether the other, safer part of the country is more or less appealing to the appellant than a new country. Rather, the question is whether, given the risk of harm in the appellant's part of the country, it is objectively reasonable to expect him to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. Stated another way for clarity, the question to be answered is, would it be unduly harsh to expect this person, who faces harm in one part of his country to move to another less hostile part of the country before seeking refugee status abroad?29 [63] The Federal Court of Appeal examined the question of reasonableness of an IFA. The FCA has determined that the test requires nothing less than the existence of conditions that would jeopardize the life and safety of the appellant in relocating to a safe area. Actual and concrete evidence of adverse conditions is required.30 [64] These elements do not exist in this case. I too have considered the reasonableness of the appellant moving to Tegucigalpa taking into consideration his particular set of circumstances and the jurisprudence regarding IFA. I agree with the RPD's analysis that Tegucigalpa is a suitable IFA for this appellant. [65] For the above reasons this appeal fails. DECISION [66] Pursuant to section 111(1)(a) of the Act, the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed (signed) "Gordon C. McRae" Gordon C. McRae January 22, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Refugee Appeal Division (RAD) Exhibit 3, Appellant's Record (AR), p. 163, para. 8. 3 RAD Exhibit 3, AR, p. 165, para. 13. 4 RAD Exhibit 3, AR, p. 171, para. 31. 5 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 6 RAD Exhibit 3, AR, p. 163, para. 9. 7 RAD Exhibit 3, AR, pp. 162, 163, para. 7, 164 to 171. 8 RAD Exhibit 3, AR, pp. 26 to 28. 9 RAD Exhibit 3, AR, pp. 170 and 171, paras. 29 and 30. 10 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 11 Huruglica v Canada (Citizenship and Immigration), 2014 FC 799. 12 Singh v Canada (Citizenship and Immigration), 2014 FC 1022. 13 Sow v Canada (Citizenship and Immigration), 2015 FC 295. 14 Deri v. Canada (Citizenship and Immigration), 2015 FC 1042, September 2, 2015. 15 Raza v Canada (Citizenship and Immigration), 2007 FCA 385. 16 Denbel v. Canada (Citizenship and Immigration), 2015 FC 629. 17 Khachatourian v. Canada (Citizenship and Immigration), 2015 FC 182. 18 Refugee Appeal Division Rules, SOR/2012-257. 19 Refugee Protection Division Rule 69(1)(a). 20 RAD Exhibit 1, Refugee Protection Division Record (RPDR), p. 232, para. 9. 21 RAD Exhibit 1, RPDR, p. 4, lines 26 to 28. 22 RAD Exhibit 3, AR, p. 170, para. 28. 23 RAD Exhibit 1, RPDR, p. 5, lines 7 to 11. 24 RAD Exhibit 2, RPDR, Compact Disc of oral hearing, 00:31:50. 25 RAD Exhibit 3, AR, pp. 26 to 28. 26 RAD Exhibit 1, RPDR, p. 227, question 5, line 7. 27 Denbel v Canada (Citizenship and Immigration), 2015 FC 629. 28 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 29 Thirunavukkarasu v Canada (Minister of Employment and Immigration), [1993] FCJ No. 1172 (CA) at Para 13. 30 Ranganathan v. Canada (M.C.I.), [2001] 2 F.C. 164 (C.A.) --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB5-02271