VC0-00249

RAD File / Dossier de la SAR : VC0-00249 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 11, 2020 Date de la décision Panel Derek Vermette 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 a citizen of Venezuela. She is appealing a decision of the Refugee Protection Division (RPD) that found that she was neither a Convention1 refugee nor a person in need of protection. [2] XXXX came to Canada seeking protection because she feared authorities who were threatening her because of her involvement with a political opposition party. [3] The RPD found that there was insufficient credible evidence to support that XXXX was politically active in Venezuela at even a low level, or that she holds a genuine anti-government opinion. The RPD therefore found that she would not face a risk if she were to return to Venezuela. [4] XXXX argues on this appeal that the RPD erred in its credibility assessment, and in its determination of the risk faced by XXXX in returning to Venezuela. [5] I find that XXXX has demonstrated sufficient political activity to support a finding that if she were to return to Venezuela there is a serious possibility of persecution, and, on a balance of probabilities, a risk of torture or risk to life or risk of cruel and unusual treatment or punishment. I therefore allow XXXX's appeal. DECISION [6] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee and a person in need of protection. BACKGROUND [7] XXXX started to participate in demonstrations in Venezuela in XXXX or XXXX 2014. She became a member of the Voluntad Popular party in XXXX 2015. [8] As a member of Voluntad Popular she participated in street activities and visited homes to encourage others to participate in the peaceful protests organized by Voluntad Popular and other political parties opposed to the government. [9] After a protest in Puerto La Cruz on May 20, 2018, demonstrating against the fraudulent presidential elections, XXXX received phone calls threatening to put her in jail if she continued to encourage people to protest. [10] On XXXX XXXX, 2018, XXXX brought food to protestors who had been detained in jail. A police officer took XXXX's national identification card, and then came back to tell her to stop meddling with the revolution, otherwise, things would turn nasty for her. XXXX was frightened by this threat. [11] In order to see if things would calm down, XXXX went to visit a friend in Puerto Ordaz for a few days. She protested with her friend in Puerto Ordaz, and then received a threatening phone call telling her that they knew where she was and that she should not continue with the disturbances, otherwise, things would turn bad for her. [12] XXXX returned to XXXX XXXX XXXX, and a neighbor told her that the national guard had been around inquiring about her whereabouts. Apparently, they had an order to detain and interrogate her. She contacted her daughter - who was in Calgary with her husband after having their refugee claims accepted - and asked her daughter for help. Her daughter purchased her an airplane ticket, and XXXX already had a visa in place from a holiday she had previously planned, but had cancelled due to health reasons. [13] XXXX arrived in Canada on XXXX XXXX, 2018. She filed a Basis of Claim (BOC) for refugee status on or about XXXX XXXX, 2018. [14] XXXX had a hearing before the RPD on June 13, 2019. However, that hearing was adjourned as XXXX was having difficulty giving evidence and it was decided that an assessment should take place to determine if XXXX was a vulnerable person that needed accommodations when the RPD hearing resumed. [15] XXXX was assessed on or about July 20, 2019. Another RPD hearing took place on December 6, 2019, before a different RPD Member. XXXX was declared a vulnerable person for that hearing, and accommodations were provided to XXXX at the hearing, including a female Panel Member, holding the hearing in an informal setting as opposed to a traditional hearing room, and the ability to take frequent breaks during testimony. [16] The RPD Member rendered her decision on December 19, 2019, and it is that decision which is the subject of this appeal. ANALYSIS [17] The RPD accepted that XXXX joined Voluntad Popular, a rival political party, in 2015. The RPD also accepted that opponents of the Maduro government, including activists from Voluntad Popular, are threatened, arrested and detained frequently in Venezuela, and that even lower level activists and protestors face mistreatment. Because of various credibility concerns, the RPD did not believe that XXXX was politically active in Venezuela even at a low level, or that she holds a genuine anti-government opinion. The RPD therefore determined that XXXX would not face risk if she returned to Venezuela. [18] XXXX submits that the RPD erred in determining the risk faced by XXXX if she were to return to Venezuela. She argues that the RPD erred in its credibility assessment, by engaging in a microscopic analysis of the evidence and failing to consider relevant factors that interfered with XXXX's ability to testify (e.g., age, high levels of distress when dealing with authority figures and avoidance of traumatic events). XXXX submits that these factors were referenced by a clinical counsellor's report, which the RPD failed to give proper weight. XXXX argues that despite her limitations, she ultimately provided sufficient information to establish her claim. XXXX argues that the RPD decision failed to consider the risk that she would face if she were to return to Venezuela given that she has been identified as an active opponent to the regime and having now spent significant time away in Canada. [19] My role is to look at all the evidence and decide if the RPD made the correct decision.2 After conducting an independent assessment of this file, I have determined that the RPD decision is incorrect. My reasons are as follows. [20] As stated previously, the RPD accepted that XXXX joined Voluntad Popular in 2015, and also accepted that opponents of the Maduro government, including activists from Voluntad Popular, face risk in Venezuela. The RPD found that even lower level activists and protestors face mistreatment. I have determined that the issue before me is therefore whether the RPD was correct in concluding that XXXX was merely a member of Voluntad Popular in name only, or whether she was actually active and held a genuine anti-government opinion. [21] I find that the RPD was not correct in concluding that XXXX was not politically active in Venezuela, and in concluding that she did not hold a genuine anti-government opinion. The RPD based its decision on various credibility concerns that the RPD found rebutted the presumption of truth afforded XXXX. The RPD found that XXXX's inability to testify to several aspects of her claim were due to the fact that the events did not occur as alleged, and not because of any issues with her capacity to testify. [22] However, I find the credibility concerns relied upon by the RPD are not sufficient to rebut the presumption of truth. I will deal with each of the RPD's credibility concerns. [23] The RPD found that XXXX was asked general questions about details not included in her BOC form, such as her political opinion, including the motivating factors that propelled her into political activism in 2014, and she was unable to articulate clear answers. I have reviewed the transcript, and there were times XXXX was unclear in some of her answers. XXXX seemed to have difficulty focusing on the question of what prompted her to become active in 2014, and she may have been overly eager to tell the Member about subsequent events, rather than listening carefully to the question. This made for a difficult hearing as evidenced by the transcript of the hearing. However, there may have also been confusion around the interpretation of the questions. For example, at one point, the following exchange took place: MR. XXXX XXXX: -- (indiscernible) why I'm intervening in the hearing. Okay. Now -- now I'll do it in Spanish. That's fine. Okay, there's a wee bit of a confusion here. She's talking about the year 2014. What reason caused you or motivated you to become active? It's really good that you listen carefully to what the question is. Now, I said English, but (indiscernible). So, I think we are using some words like (indiscernible). She's using some word like they -- PRESIDING MEMBER: Mm-hmm. MR. XXXX XXXX: or they or then and it is clear -- I say clearly because I know the case and I have a few interviews with the claimant so, and sometimes she said like, I hear now, she said that they seek or look for us, or look or seek for me and but she's talking about the event happen -- PRESIDING MEMBER: Yes. I (indiscernible) agree. MR. XXXX XXXX: -- she was participating. PRESIDING MEMBER: (Indiscernible) MR. XXXX XXXX: Yeah. And sometime that create a confusion, Madame Member, (indiscernible) understand and even sometime she's in the year 2014 when everything happened to her. So, just I wanted to clarify this. PRESIDING MEMBER: (Indiscernible), I agree, and maybe I'll rephrase my questions (indiscernible). MR. XXXX XXXX: I (indiscernible) want to suggest to the -- the Madame Interpreter, sometime not to expand too much the question because it may confuse her. INTERPRETER: Okay. PRESIDING MEMBER: What do you mean by expand the question? MR. XXXX XXXX: Like explain it to (indiscernible) INTERPRETER: Because I will ask if you say in the year 2014, so I will say in the 2000, like at XXXX XXXX of the year 2014 (indiscernible) in 2014, at XXXX XXXX of 2014. So, I will add something to make sure that she understands. PRESIDING MEMBER: Mm-hmm MR. XXXX XXXX: Yes, but -- INTERPRETER: But I'm repeating exactly what you're saying, -- PRESIDING MEMBER: Mm. INTERPRETER: -- just using different words to make sure she understands. PRESIDING MEMBER: Okay. INTERPRETER: And that's probably what is confusing. PRESIDING MEMBER: Okay. MR. XXXX XXXX: Yeah. So, that's -- that's why.3 [24] Another contributing factor to the difficult hearing was the fact that the participants were apparently speaking at the same time. I base this on the transcriber's note indicating, "There was also a lot of overtalking amongst everyone, so this also contributed to a lot of (indiscernible) portions throughout the transcript." [25] I find that XXXX's unclear answers on this point during the start of the hearing were also more likely attributable to the stress of dealing with an authority figure, rather than being intentionally evasive. I make this finding for two reasons: (1) the clinical consultant who examined XXXX to determine if she was a vulnerable person for the purpose of these proceedings indicated in her report of July 20, 2019,4 that dealing with authority figures is a stressor for her. Therefore, despite the comfortable manner in which the hearing process was set up and the professionalism shown by the RPD Member, nonetheless, XXXX might still have been subject to a high degree of stress; and (2) near the end of the hearing, XXXX's Counsel asked her the same questions in an attempt to clear up the confusion created by her initial testimony. During that exchange between her and her Counsel (i.e., someone XXXX was more comfortable with than the authority figure of an RPD Member), XXXX gave a more coherent answer. That exchange - which I find contains clear and plausible answers by XXXX - is as follows: MR. XXXX XXXX: Yes. I just have -- just a few questions that were not clearly answered by the claimant today. INTERPRETER: Sorry, that they weren't? MR. XXXX XXXX: So, I want just to reclarify this. QUESTIONS BY MR. XXXX XXXX: Q So, the thing is about the reason, the motivation. And the question is: why did you begin to participate in -- on this process of protest? A Because I want to live in democracy. I want to live in a country with freedom. I want everything to change, so that it could be how it used to be before. That, you know, medicines that one could find medications. (Indiscernible) shortage of food, because right now we're going through, you know, scarcity. We're going through very -- a lot of need in our country. And I'm going to have a democracy. I -- I want there -- a change to come about, that there to be a change. Q And my next questions is: I want to repeat the question that the Member made before the break, the Madame Member asked you what the revolution term means. However, before you reply -- you -- you answer, I want to tell you that I think we know that you are not a politician, you are a citizen worried about the situation. So, in your own words, just tell us what -- what revolution means? What is that for you? A The revolution is the regime of Nicolas Maduro. Q And can you just shortly describe what's your opinion about this regime? A Well, my opinion is that he's not governing in a proper manner. We're going through a lot of scarcity and need in our country. MR. XXXX XXXX: I have no more questions.5 [26] The RPD Member found that XXXX's vague testimony about the platform of the party did not demonstrate a level of knowledge which would be expected of a political activist who was involved in the party to the extent alleged. I reviewed the transcript of the hearing, and XXXX explained that she decided to join Voluntad Popular because it promoted freedom and the human rights of Venezuelans. When asked whether there was something she liked better about Voluntad Popular as opposed to another party, XXXX stated: A Yes. I mean, I liked its Chairman, its President, Leopoldo Lopez and I liked its leader, Juan Guaido and you know, I like the fact that it was like close to my house and we would get together there with some friends and it was really easy to go out and go and participate in demonstrations.6 [27] I find XXXX's answers to be reasonable and plausible given the level of her involvement. In other words, XXXX has not suggested that she is a high-level member of the party of Voluntad Popular. Her description of her activities has always been in the nature of a lower level member who, for example, is engaged in demonstrating or bringing meals to those members who have been detained, etc. Given her level of involvement, her very practical considerations for joining Voluntad Popular seem very reasonable. [28] The RPD had a credibility concern with respect to why XXXX chose to continue to protest when she went to Puerto Ordaz, a city where she fled to after being told by a police officer in XXXX XXXX XXXX to stop meddling with the revolution. In reviewing the transcript, I note that the RPD Member asked XXXX why she would protest in Puerto Ordaz with her friend if she was attempting to lay low. XXXX's answer was that her friend was involved with protesting, and so they went out.7 Her friend that she stayed with in Puerto Ordaz provided a written statement that indicated that they engaged in protests while XXXX stayed there because they wanted to continue fighting against the government that had taken away their ability to live in peace.8 I am satisfied that XXXX's decision to protest in a different city than the city in which she had been scolded by an officer, while perhaps risky, is not a sufficient credibility concern to rebut the presumption of truth. In short, she believed in her cause, she wanted to continue advancing it, and she was in a different city that was approximately a five hour drive away from the city where she had been scolded. [29] Likewise, I am not persuaded by the RPD's negative credibility finding based on the RPD's assessment that it was unlikely that XXXX was targeted by an officer when she attempted to bring food to detainees at the police station. XXXX indicated that when she, along with other ladies in her neighbourhood, were bringing food to detainees at the police station, a police officer stopped her, checked her identification and told her not to meddle anymore. The RPD Member found that it did not make sense that XXXX was solely targeted by the officer, given that she displayed a similar level of activism as the neighbours she was with at the time. While there may be a lack of evidence with respect to how XXXX was chosen by the police officer, or whether the other ladies were also questioned by the officer, I find that this lack of evidence is not so significant as to justify rebutting the presumption of truth. [30] The RPD drew a negative credibility finding on the basis of XXXX's testimony concerning a letter dated XXXX 2019, from the Voluntad Popular that documented her membership with the party. The RPD indicated that XXXX's inability to recall whether she received the letter in Venezuela in 2015, or in Canada in 2019 cast significant doubt on her credibility. The RPD also drew a negative credibility inference based on the fact that XXXX did not produce her membership card in Voluntad Popular. XXXX testified that she did not take the card with her when she left Venezuela in case she was checked over, which could cause her problems when travelling to Canada. [31] I find the evidence regarding the letter and membership card from Voluntad Popular to be of a peripheral nature given that that the RPD had already accepted that XXXX had joined the party in 2015. In other words, the letter and card might be more relevant if the RPD had been in doubt as to whether XXXX was even a member of Voluntad Popular, and then the membership letter and card would be relevant to establish whether or not she was a member. The RPD Member indicated that the letter was the only document confirming XXXX's activities with Voluntad Popular. However, there are other documents on file in the form of statements from witnesses that support XXXX's activities with Voluntad Popular. [32] The RPD Member drew a negative credibility inference from the failure of XXXX's daughter or son-in-law to personally appear at the hearing to give testimony. The RPD Member asked XXXX at the hearing whether she considered having them come to the hearing to testify. XXXX's Counsel indicated, "I'm want to bring a fair point in this regard. Is that her son-in-law he's having a serious -- have situation now in Canada and that's why we didn't consider him." The RPD Member responded, "No problem. Just asking.".9 Based on this exchange, it is not clear to me whether there was a reasonable explanation for the daughter or son-in-law failing to appear at the hearing, and I am therefore unwilling to draw a negative credibility inference from their absence at the hearing. [33] Based on the analysis above, I find that there is not sufficient reason to rebut the presumption of truth afforded XXXX, who the RPD accepted was a member of the Voluntad Popular. Therefore, I accept the evidence she provided in her BOC narrative and the testimony she gave at the hearing regarding her activities with Voluntad Popular. Specifically, I accept that she has an anti-government opinion, that she was involved in protests and demonstrations, and that she brought food to detainees. This activity was supported by witness statements on file as well. Even if this activity were to be considered low-level, the RPD accepted that even low-level activists face the risk of harm. [34] Therefore, I find that XXXX is sufficiently politically active to support the conclusion that if she were to return to Venezuela, there is a serious possibility of persecution, and, on a balance of probabilities, a risk of torture or risk to life or risk of cruel and unusual treatment or punishment. CONCLUSION [35] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee and a person in need of protection. (signed) "Derek Vermette" Derek Vermette March 11, 2020 Date 1 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. 2Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Hearing Trasncript, p. 12, line 21 to p. 13, line 39. 4 Exhibit RPD-1, RPD Record at p. 106. 5 Hearing Transcript, p. 28, line 40 to p. 29, line 32. 6 Hearing Transcript, p. 8, line 22 to p. 9, line 6. 7 Hearing Transcript, p. 23, line 19 to 38. 8 RPD-1, RPD Record, Exhibit 4, Statement of XXXX at p. 73. 9 Hearing Transcript, p. 28, Line 12 to 35. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-00249 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