VB7-03251

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 : VB7-03251 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 at Vancouver, BC Appel instruit à Date of decision January 10, 2018 Date de la décision Panel Richard Jackson Tribunal Counsel for the person(s) who is(are) Peter Edelman 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 [1] XXXX XXXX XXXX XXXX (the "appellant"), a citizen of Guatemala, appeals a decision of the Refugee Protection Division (the "RPD"), dated May 2, 2017, rejecting his claim for refugee protection. DETERMINATION [2] Under section 111(1) of the Immigration and Refugee Protection Act (the "Act" or "IRPA"),1 the Refugee Appeal Division (the "RAD") dismisses the appeal and confirms the determination of the RPD, namely, that the appellant is not a refugee under section 96 or a person in need of protection within the meaning of section 97 of the IRPA. BACKGROUND AND SUMMARY OF THE APPELLANT'S APPEAL [3] In XXXX 2007 the appellant worked as a XXXX for the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, a government agency in Guatemala. He worked with a friend XXXX who was also his XXXX. The appellant and XXXX were invited to lunch by XXXX XXXX who owned the XXXX XXXX where the appellant and XXXX XXXX. XXXX tried to persuade them to use the government vehicle driven by the appellant to distribute illegal drugs. When they refused the offer XXXX made a second offer but the appellant and XXXX again refused. On XXXX XXXX, 2007, XXXX again approached the appellant and XXXX to work for him. The appellant refused once again threatening to call police if XXXX persisted. XXXX became enraged and began to fire gunshots at the appellant and his friend in an encounter that took place on the street in the appellant's neighbourhood although no one was injured. The appellant fled the scene. XXXX returned to the neighbourhood later that evening looking for the appellant and his friend without success. [4] The appellant moved to his father's home outside the city to avoid XXXX. However, in XXXX 2007 he noticed a car following him. In XXXX 2008 the appellant was laid off from the job with XXXX. In XXXX 2008 the appellant was chased by XXXX in his vehicle when XXXX spotted the appellant at a market. The appellant again fled to his father's home but was followed by XXXX who could not enter the gated residence. [5] In XXXX 2008 the appellant travelled to the U.S.A. on a U.S.A. visa. He entered Canada where his brother resides in October 2008 without reporting at a Canadian port of entry and he has remained in Canada since that time. The appellant was apprehended by Canadian immigration authorities and made a refugee claim in February 2017. He fears that if he returns to Guatemala he will be harmed or killed by XXXX. [6] The RPD found that the appellant was a credible witness. The RPD also found that there was a personalized risk to the appellant in Guatemala but that it was "dated."2 The RPD maintained that the appellant was speculating that XXXX has maintained an interest in him and found, on a balance of probabilities, that the appellant did not face a forward looking risk. The RPD also maintained that there was no evidence that XXXX had looked for the appellant either at his father's home or in the neighbourhood where the appellant had resided earlier and where he had been threatened at gunpoint. The RPD did acknowledge that the appellant had received information from his brother that XXXX may have been looking for him but this was some years ago and the appellant could not be sure about the source of this information. [7] The RPD noted in its review of the documentary evidence that there is a high level of violence and criminality in Guatemala. However, the RPD also found that while the appellant was credible and forthright in his answers to questions, his belief that XXXX was part of a criminal cartel that had connections throughout Guatemala was speculative. In conclusion the RPD found that given that the personalized risk from XXXX was not established, the risk of harm the appellant would face in Guatemala is of a "generalized nature" and that the appellant is not in need of protection pursuant to section 97(1)(b)(ii). [8] The appellant argues that in preparing for his refugee claim he focused only on his past history with XXXX and did not understand the need to address the current risk. He seeks to introduce new evidence in this appeal that he maintains will establish that he continues to be at risk from XXXX or his associates in Guatemala. ANALYSIS Determinative issue in this appeal [9] The determinative issue in this appeal is whether the RPD erred in its findings and determination. Admissibility of new evidence [10] The appellant submitted the following new evidence with his Appeal Record on October 16, 2017:3 i. An affidavit from the appellant;4 ii. A letter from the appellant's friend XXXX XXXX XXXX dated June 20, 2017;5 iii. A letter dated May 11, 2017 from XXXX XXXX XXXX XXXX who currently occupies the house where the appellant resided when he lived in Guatemala;6 iv. A letter dated May 14, 2017, from XXXX XXXX XXXX a former neighbour of the appellant in Guatemala;7 v. A letter dated May 11, 2017 from XXXX XXXX XXXX a former friend and neighbour of the appellant in Guatemala;8 vi. An undated online news article in regard to four murders;9 vii. A news article dated April 16, 2016 from the publication Prensa Libre;10 and, viii. Several magazine articles about the XXXX family criminal drug activities in Guatemala.11 Translations of these articles were submitted on July 13, 2017. [11] The appellant submits that this new evidence "establishes" a forward looking risk to the appellant and should therefore be admitted. The appellant also argues that the documents are relevant as they go to the issue of the appellant's continuing fear of harm in Guatemala. [12] In reading the affidavit and the evidence noted above I find that none of these materials meet the requirements of section 110(4) of IRPA. [13] While the letters are dated after the rejection of the appellant's refugee claim, the material contained in them was reasonably available to the appellant prior to the RPD hearing. The letter from XXXX XXXX XXXX XXXX, the person who occupied the appellant's former residence, states that the most recent incident of someone asking about the appellant occurred in September 2016, well before the rejection of the appellant's refugee claim and I find this evidence could reasonably have been available to the appellant prior to the hearing. Similarly, the letter from the appellant's friend XXXX XXXX XXXX discusses an incident in XXXX 2015 well before the rejection of the RPD's rejection of the claim and could have reasonably been available to the appellant before the rejection of his claim. The letter from XXXX XXXX XXXX XXXX, a former neighbour and friend also raises an incident that took place well before the rejection of the appellant's refugee claim. In this letter the author states that "it is said" the alleged agent of persecution "belongs" to a drug trafficking organization. I do not find that this speculative evidence is probative and does not meet the requirements of either section 110(4) of the Act or the modified Raza12 factors. I do not find that the appellant's failure to seek these letters prior to the rejection of his refugee claim as a satisfactory explanation that would qualify the evidence as "new" for the purposes of section 110(4). [14] I make the same finding in regard to the media articles which are either undated or predate the rejection of the appellant's refugee claim. I also find that these articles are not relevant to the appeal given they do not directly tie the agent of persecution to a criminal organization but simply describe the nature of a criminal organization in Guatemala and identify its leadership, none of which are named XXXX XXXX. [15] The appellant's affidavit or written statement makes an argument in regard to his not having submitted the letters and media materials sooner and outlines steps he took to search for additional evidence post rejection of his claim. The affidavit also discusses phone conversations the appellant had with those who later wrote letters. However, given this document addresses matters that could reasonably have been brought forward prior to the rejection of the appellant's refugee claim I also find that the affidavit does not qualify as new evidence in the context of section 110(4) of the Act or the modified Raza factors. [16] While I sympathize with the appellant in regard to his having misconstrued the forward looking nature of the claim in regard to both sections 96 and 97 of the Act, I do not find that section 110(4) of the Act enables me to accept these documents as new evidence. Given I have not accepted the documents submitted by the appellant as "new evidence" it is not necessary for me to consider whether to conduct a hearing under section 110(6) of the Act. ROLE OF THE RAD [17] With respect to questions of fact or mixed fact and law, I have applied the standard of correctness as per Huruglica.13 In assessing issues involving credibility of oral testimony, I have applied the RAD's modified standard of reasonableness.14 In this appeal, I find that the RPD did not have any real advantage in assessing the credibility that would lead to deference to its finding regarding it. The RPD does not state that there were any difficulties with the appellant's testimony where the RPD would have been in a better position than the RAD to judge it. ARGUMENTS ON THE APPEAL [18] While accepting the appellant's account of events that happened to him in Guatemala in 2007/2008, the RPD did not find that the appellant had established that a risk from XXXX or his associates, the agents of persecution, continues to exist in Guatemala. The appellant submits that he has now submitted sufficient evidence to establish that he continues to be at risk. He also submits an affidavit to explain why he did not submit this evidence earlier. I find that in this appeal, in lieu of making arguments on any RPD errors, the appellant is merely submitting new evidence to strengthen his claim. [19] After reviewing the record, including the new evidence submitted by the appellant, I do not agree with the appellant's submissions nor do I accept his explanations for not having submitted this evidence to the RPD. I note that in his Basis of Claim form, which he completed with the assistance of the same counsel who is also representing him at this appeal, there is a clear instruction that includes the following question: "If you returned to your country do you believe you would be harmed, mistreated or threatened by any person or group?"15 It is implicit in this question, as well as in the definition of a Convention refugee, and a person in need of protection under IRPA, that the refugee claim will in part be determined by assessing the risk to the person if they should return to their country of origin. It was open to the appellant to bring forward documentary evidence to support any allegation he may have in answering "yes" to this question but he has failed to do so. ISSUES REGARDING THE RPD DECISION [20] The IRPA provides that the appellant 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."16 [21] The appeal must therefore be understood as being filed against the RPD's decision, and must comply with the Refugee Appeal Division Rules (the "RAD Rules").17 [22] The RAD Rules require the appellant to provide, in his memorandum, "full and detailed submissions regarding the errors that are the grounds of the appeal," and where those errors are located in the RPD's decision. The appellant has not pointed out any errors in the RPD decision. Instead, he has submitted new evidence to establish his claim as a part of the appeal. The appellant only challenges the RPD based on information that was not before the RPD. [23] The Federal Court has described the statutory configuration of an appeal to the RAD. In sum, the appeal before the RAD (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision, and, (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD has made.18 [24] In seeking judicial review of the RAD's decision, the applicants in that matter argued that the RAD erred by failing to consider a certain risk factor associated with a proposed internal flight alternative (IFA), even though they had not raised that issue on appeal. The court, in dismissing the application for judicial review, concluded that "it is not the RAD's function to supplement the weaknesses of an appeal before it, or, for that matter, of the refugee protection claim presented in the first place."19 (my emphasis) [25] In Siliya,20 the Federal Court considered a matter where the appellants did not challenge the RPD's IFA finding in their appeal to the RAD. The Federal Court concluded, "The RAD's decision should not be disturbed because the applicants never challenged the dispositive finding of the RPD as to an IFA and, thus, there was no basis for any appellate intervention by the RAD."21 [26] The appellant here has not challenged the RPD's determinative finding of failure to establish a forward looking risk except for the submission of new evidence that was not before the RPD at the time it made its decision. As such, there is no basis for the RAD's intervention, and this appeal must fail. [27] I have carefully reviewed the RPD's decision as well as the evidence in the RPD record. It is clear to me that the determination made by the RPD stands on its own. CONCLUSION [28] Pursuant to section 111(1)(a) of the IRPA, 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 therefore dismissed. (signed) "Richard Jackson" January 10, 2018 Date 1 Immigration and Refugee Protection Act (the "IRPA"), S.C. 2001, c. 27. 2 Appellant's Record (AR), Refugee Protection Division Reasons, p. 6. 3 AR, Tab 3. 4 AR, p. 9-12. 5 AR, p. 13-15. 6 AR, p. 21. 7 AR, p. 24. 8 AR, p. 28. 9 AR, p. 32-33. 10 AR, p. 36. 11 AR, Tab 3, pages not numbered. 12 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 13 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 14 As per X (Re), 2017 CanLII 33034 (CA IRB). 15 Refugee Protection Division Record, Basis of Claim form, section 2(b). 16 IRPA, section 110(1). 17 Refugee Appeal Division Rules, SOR/2012-257, section 3(3)(g). 18 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, para. 18. 19 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, para. 20. 20 Siliya v. Canada (Citizenship and Immigration), 2015 FC 120 21 Siliya v. Canada (Citizenship and Immigration), 2015 FC 120, para. 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB7-03251 RAD File No. / N° de dossier de la SAR : VB7-03251