VB9-09135

RAD File / Dossier de la SAR : VB9-09135 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 Calgary, AB Appel instruit / entendu à Date of decision March 2, 2021 Date de la décision Panel M. Kingma Tribunal Counsel for the person who is the subject of the appeal Karen Klouth 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 (the Appellant) is appealing against a Refugee Protection Division (RPD) decision that denied his refugee claim. [2] For the reasons explained in this decision, his appeal is dismissed. [3] The Appellant is a citizen of El Salvador who has a professional degree in XXXX and worked in that field before coming to Canada. He lived in San Juan Opico, where members of the Mara Salvatrucha (MS-13) gang beat him and extorted him for money in 2012 and 2013. For a time, the Appellant paid monthly sums because of threats to his personal safety and that of his mother, brothers, and daughter. When the gang's demands increased, the Appellant moved to Santa Tecla until acquiring a two-year work visa for Canada. He arrived in XXXX 2014. [4] In Canada, the Appellant worked as a XXXX in a XXXX XXXX XXXX XXXX but after about one year he suffered work injuries leaving him with XXXX XXXX XXXX and a XXXX XXXX to his XXXX. The Appellant was dismissed from the employment and then subsisted for a time through the kindness of others. The Appellant met and started to live with his current partner, XXXX. Between 2015 and 2016, the Appellant looked for legal help to secure legal status in Canada but the people he spoke with advised him that his circumstances at that time would not support a humanitarian and compassionate application. [5] In XXXX 2017, the Appellant wrote a letter to the Canadian Border Services Agency (CBSA) explaining his lack of status in Canada and his circumstances.1 He described his work history in Canada and told of his experiences in El Salvador including extortion and gang recruitment efforts. He said that he is afraid to return and perceives that the authorities in El Salvador cannot protect citizens like him. He described his commitment to his partner XXXX in Canada who was pregnant at the time, and that he wants to provide for their child and for his family members in El Salvador who depend on his support, including his daughter who is now a young adult. XXXX gave birth to their twins in 2018. [6] At the October 21, 2019 RPD hearing, there were no concerns about the Appellant's identity. His evidence about what happened in El Salvador was credible. The claim was refused, however, because the Appellant did not show a serious possibility of persecution on a Convention2 ground, and the risk faced by him is a generalized rather than personalized risk. The RPD pointed out that under the paragraph 97(1)(b) of the Immigration and Refugee Protection Act3 (IRPA), protection is limited to those who face a specific risk that is not generally faced by others in or from that country. Therefore, the RPD concluded that the Appellant is neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97(1) of the IRPA. [7] In this appeal, the Appellant has not raised arguments against the adjudicative conclusion of his claim. Rather, his current representative argues that the RAD should order a re-hearing at the RPD due to a breach of fundamental justice and procedural fairness because the Appellant "did not have proper representation and was clearly unfamiliar with Canada's complex refugee system".4 ISSUE [8] Based on the appeal arguments, the issue I must decide is this: was there a breach of procedural fairness in the RPD process that should cause me to set aside the RPD decision and refer the matter back for re-determination? ANALYSIS The law [9] A person may appeal a decision of the RPD to the Refugee Appeal Division (RAD) on the grounds that it is wrong in law, fact, or mixed law and fact.5 The remedies within the RAD's jurisdiction are set out in IRPA section 111(1). The RAD may: a) confirm the RPD's decision; b) set aside the RPD's determination and substitute a determination that, in the RAD's opinion, should have been made; or c) refer the matter back to the RPD for redetermination, with or without directions. A referral is only allowed if the RPD decision is wrong and if the RAD cannot make a decision under (a) or (b) without hearing evidence that was presented to the RPD.6 [10] A breach of fundamental justice or procedural fairness is a question of law and is thus a basis for addressing this appeal. ANALYSIS The procedural fairness arguments fail [11] I find that there was no breach of fundamental justice or procedural fairness in this case. My review of all the information, including the transcript of the RPD hearing and the RPD processes generally, leads me to conclude that the Appellant had a fair opportunity to present his case to the RPD and that there was no breach of procedural fairness. [12] The Appellant's representative points out that the refugee process is not easy to understand and can be complex for claimants unfamiliar with the process and the substance of a refugee claim, which may be true. However, the RPD process is designed to guide claimants through the process and to facilitate presentation of their claim. The RPD uses an inquisitorial approach that is reflected in both the Basis of Claim (BOC) documents and at hearings. Both are designed to gather relevant evidence and to understand the claimant's arguments for seeking refugee protection. [13] The Appellant's representative argues that, at the hearing, the RPD had a duty but failed to explain the fatal consequences of not exercising a right to counsel and suggests that a proper legal representative would have provided evidence to sustain the case and would have produced submissions.7 This argument is rejected for two reasons: 1) the Appellant had a fair opportunity to provide evidence and arguments to the RPD, and 2) the argument is theoretical only, submitted to the RAD without any new evidence or arguments about the merits of the case. The Appellant had a fair opportunity to provide evidence and arguments to the RPD [14] The Appellant's representative implies that no evidence was presented to the RPD but that is incorrect. The RPD gathers evidence about a claim through questions in the BOC forms and later at a hearing if there is one. The Appellant, with help from his common-law partner, answered the specific questions in the BOC that are designed to elicit information about his claim. That information helps the RPD determine if there is a well-founded fear of persecution because of race, religion, nationality, membership in a particular social group, or political opinion,8 or is a person in need of protection because of a specific risk to life or risk of cruel and unusual treatment or punishment.9 When a hearing is held, as in this case, the RPD has an opportunity to gather additional evidence by asking for details about the BOC information and giving a claimant opportunity to add to the BOC evidence. The Appellant did not need to know legal specifics about sections 96 and 97 to provide his evidence or arguments because that is the foundation that guides the questions in the BOC and the RPD member during the hearing.10 [15] In his claim documents, the Appellant identified his common-law partner as his unpaid representative.11 She helped him fill out the claim documents and was with the Appellant at the Immigration and Refugee Board on the day of the RPD hearing. However, she did not come into the hearing room, and the Appellant's representative suggests that this was a breach of procedural fairness. The Appellant's representative in this appeal acknowledges that the RPD told the Appellant about his right to have a representative but suggests that the RPD "consciously persuaded"12 the Appellant to proceed without representation by telling him that many claimants go ahead without any help. The representative suggests that the RPD was not open about the seriousness of proceeding without assistance and maliciously gave the impression of fairness but without explaining the fatal consequences of proceeding without counsel. [16] I have included the following excerpt from the hearing transcript to show what happened at the beginning of the hearing when the Appellant chose not to seek counsel or have his common law partner participate in the hearing:13 MEMBER: Thank you; please be seated. Sorry about that. Okay, so sir, before the hearing you had notified us that you were going to be helped by XXXX XXXX XXXX who you described as your common-law spouse. Now, I am told by the support staff here that you do not want Mrs. XXXX in the hearing room, is that correct? CLAIMANT: If it is necessary for her to be present, I have no problems with that. MEMBER: Okay, just a minute please. Sorry, it is just the ... I am having trouble with the set-up here, so just a minute please. CLAIMANT: Mrs. XXXX is the one who helped me fill out all the documents. MEMBER: Okay, just a minute please. Okay, so there are two separate things, the fact that she helped you fill out the documents, okay, so her name appears in your Basis of Claim Form as someone who helped you complete it. CLAIMANT: Okay. MEMBER: So, that is not going to change. Now, you are allowed to have someone assist you, someone who is not a lawyer assist you with the hearing but they cannot help you answer the questions ... just a minute please ... just a minute please ... (speaking to support staff re her tablet). Just a minute sir please. Okay, my apologies for that interruption. CLAIMANT: Okay. MEMBER: Okay, so a representative without a fee cannot help you answer the questions, okay and she cannot give evidence, but she can help you to try and present your case, okay, by saying you know it is important to mention this or you have to understand that or something like that. Okay, so it is not for me to decide whether you want Ms. XXXX XXXX in the room or not, okay, so that is entirely up to you. Okay, we have a lot of claimants that go ahead just by themselves. CLAIMANT: Let us do it that way then please. MEMBER: Okay. So, I am just going to make a note CLAIMANT: Because she has two little babies so she will have to have the babies here with her. MEMBER: Okay, so we have a lot of hearings with little kids that scream and cry and claimants who ... and claimants who cannot find or cannot afford babysitting, okay, as long as we are able to talk and hear one another it is not a problem. So, again, it is up to you to decide ... CLAIMANT: No, please, I would rather we proceed just like this. MEMBER: Okay. Okay. Okay, so just a minute please. Okay, now another question is that you have the right to be represented by legal counsel at your expense. Okay, are you okay with proceeding today without a legal counsel? CLAIMANT: Yes. MEMBER: Okay, so are you sure about that, you understand that you did have a right? CLAIMANT: Yes, yes ... no, I am. MEMBER: Okay, very good. Okay. So, do you have anyone else in the room apart from you and madam interpreter? INTERPRETER: No, Madam Member there is nobody else besides the claimant and myself. MEMBER: Okay. Were you hoping sir to have someone come in as a witness or call in as a witness, to help to explain your story or to back-up your story? CLAIMANT: No. MEMBER: Okay. Okay, do you have your file with you? CLAIMANT: Yes. MEMBER: Okay. So, did they give you when you arrived at the office in Calgary did they give you a list of documents? INTERPRETER: Yes, they did Madam Member. MEMBER: Very good. Okay. So, I just want to confirm do you have the forms from the Canadian immigration offices? It is a whole bunch of forms about you and your age and where you lived and ... [17] The Appellant's representative relies on jurisprudence that talks about the factors that should be considered when deciding if a hearing should be postponed so that a claimant can seek representation. Those principles do not apply to this case because the Appellant did not ask for such a postponement nor is the argument supported by the evidence of what happened at the hearing. In addition, this case was not complex as suggested by the Appellant's representative. There is, for example, no dispute about the Appellant's allegations or any credibility concerns in his evidence. The question for the claim was simply whether the circumstances meet the definitions for a Convention refugee or a person in need of protection. The representative has not identified evidence that is missing or presented new evidence to the RAD in support of the claim. [18] The jurisprudence offered by the Appellant's representative does not stand for the principle that every case with an unrepresented claimant must be adjourned so that they can seek legal advice. The Appellant's representative erroneously suggests that the RPD somehow proceeded "knowing that there was no evidence provided to support the reasons of the claim" and that this was a "clear sign" that the Appellant was not familiar with the procedure and thus uninformed regarding the provision of evidence.14 For reasons already explained, it is incorrect to suggest that there was no evidence to support the claim. The RPD found, and I agree, that the Appellant was forthcoming and honest about what he experienced in El Salvador and accepted the detailed, straightforward information about his history in El Salvador and his circumstances in Canada. [19] As in many cases where a claimant is unrepresented, the RPD member guided the hearing process using simple and clear language that gave the Appellant the opportunity to participate in a meaningful way. The RPD asked relevant questions and gave the Appellant a chance to add any additional evidence or comments at the end of the hearing. My own review of the transcript indicates that the Appellant, with the help of an interpreter, responded to questions and had a full opportunity to present his case. The representative has not pointed out how the RPD process failed to give him that opportunity. [20] The Appellant's representative argues that the RPD had a duty to defer the hearing and give the Appellant opportunity to obtain legal counsel because the case was complex and the Board was going to determine the Appellant is not a Convention refugee or a person in need of protection.15 That argument is faulty for two reasons: firstly, the RPD does not have a duty to force a person to obtain counsel: it has a duty to ensure a fair hearing. Secondly, the fact that the claim was denied is not a basis to find that the case is complex and that the RPD should have declined to proceed without counsel. The claim was correctly adjudicated by the RPD [21] Based on the available evidence, the RPD adjudicated the claim correctly. The Appellant does not have a nexus to a Convention ground and he faces generalized risk in El Salvador so is not a person in need of protection. I adopt the reasons of the RPD and concur regarding the adjudication of his refugee claim. [22] The Appellant is a hardworking man who seeks economic opportunities to support his family in Canada and his family members in El Salvador. He has young twins in Canada with his common-law partner, and a daughter in El Salvador who is now a young adult, as well as his widowed mother in El Salvador. The Appellant has supported his families to the best of his ability and wants to provide for them in the future. He credibly suggests that economic opportunities in Canada will give him the best ability to do so. He is concerned about limited economic opportunities in El Salvador and about leaving his Canadian family without his emotional and economic support. [23] As acknowledged by the RPD, the Appellant unfortunately suffered a workplace injury at the meat processing plant where he worked after arriving in Canada and was therefore unable to obtain status in Canada through that employer's sponsorship. The Appellant's common-law spouse was not able to sponsor him for permanent residence because she was not legally divorced. [24] The Appellant has been honest with immigration officials and has not intended to live in Canada without status. He sought legal help in 2015 after his employment ended and approached immigration authorities about his circumstances in XXXX 2017, which led to the refugee claim referral. [25] According to the information before me, a humanitarian and compassionate application was not considered or processed but that is not a matter that can be addressed by the RAD. CONCLUSION [26] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) M. Kingma M. Kingma March 2, 2021 Date 1 Exhibit RPD-1, RPD Record, Exhibit 4 - Affidavit of Principal Appellant, at pp. 105-107. 2 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. 3 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 97(1)(b). 4 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 6, para. 4. 5 IRPA, section 110(1). 6 IRPA section 111(2). 7 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 8, para. 20. 8 IRPA, section 96. 9 IRPA, section 97(1). 10 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 9, para. 23. 11 Exhibit RPD-1, RPD Record, Use of a Representative form, at p. 100. 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 8, para. 19. 13 Transcript of RPD Hearing on October 21, 2019, at pp. 2-4. 14 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 8, para. 19. 15 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 10, para. 28. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-09135 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