TC2-10614

RAD File / Dossier de la SAR : TC2-10614 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 Date of decision December 19, 2022 Date de la décision Panel N. Ferguson Tribunal Counsel for the person who is the subject of the appeal Terry S. Guerriero 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] I dismiss this appeal for the reasons that follow. [2] XXXX XXXX XXXX XXXX (the Appellant) is 45 years of age and a citizen of Guatemala. He alleges that he fears various members of his extended family because of a long-standing feud in which several family members were jailed, killed and/or injured. [3] The Refugee Protection Division (RPD) rejected his claim because he did not credibly establish a forward-looking fear of persecution from the agents of harm. Although the RPD considered the Appellant to be credible in describing the historical feud, the panel considered a lack of risk going forward determinative. [4] The Appellant disagrees with the RPD's decision and asks that the Refugee Appeal Division (RAD) substitute a decision that he is a Convention refugee or person in need of protection or refer the matter to the RPD for redetermination by a differently constituted panel. The Appellant submits no new evidence and does not request an oral hearing. DECISION [5] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. I agree with the RPD that the Appellant failed to establish a forward-looking risk of harm at the hands of his extended family. The absence of a forward-looking risk is determinative of this claim. [6] I find that the Appellant's account of events is generally credible and do not rely on the RPD's negative credibility inference regarding the timing of his request for his mother's death certificate and his reasons for making this claim.1 This is not related to any issue central to the Appellant's claim and has no bearing on his overall credibility in my view. Notice to parties regarding new issues [7] In considering this claim, on November 14, 2022, the RAD sent a notice to the Appellant and the Minister of Immigration, Refugees and Citizenship Canada (the Minister) welcoming submissions regarding state protection and internal flight alternative (IFA) which were discussed at the RPD hearing but not written about. The parties were provided 14 days in which to provide submissions. The Appellant provided supplemental submissions on November 25, 2022.2 No reply was received from the Minister within the timeframe provided, or subsequently, as at the date this decision was signed. On further review, I agree with the RPD that the absence of forward-looking risk is determinative of this claim and therefore do not address IFA or state protection. BACKGROUND [8] The Appellant alleges that his family is engaged in a decades-long feud. Several of his family members were kidnapped, harmed, accused, incarcerated and killed in the ongoing dispute between 1986 and 1988. To the best of the Appellant's knowledge, one family member was incarcerated for a period of 20 years. The Appellant argues that while he was not harmed by his family for many years, recent events demonstrate that extended family now seeks to harm him if he returns to Guatemala. There is no dispute that the Appellant's claim has no nexus to a Convention ground.3 ANALYSIS [9] My role is to look at all the evidence and decide if the RPD made the correct decision.4 As noted above, I agree with the RPD that there is no forward-looking risk in this instance. The Appellant did not establish a forward-looking risk [10] The RPD concluded that this feud was historic and there was no credible evidence that it was likely to continue in the future. The Appellant argues that this is a veiled plausibility finding and having found the Appellant's account, the letter from his daughter and an incident in which his brother was shot credible, the RPD ought to have accepted that there is a forward-looking risk because of the family conflict.5 [11] I do not agree with the Appellant for three essential reasons. First, the Appellant was not contacted or threatened by any member of his family for over 30 years. While he argues that this may be attributed to his continual movement, or hiding, to avoid detection by his extended family, I note that he returned to Guatemala regularly and his family continued to reside in the same general area. I find that he has not established that he was living in hiding. [12] Second, the corroborating evidence that the Appellant provided does not establish the identity of the agents of persecution. The Appellant testified that he fears several extended family members who reside in a small community in Guatemala and repeats this fear in his memorandum.6 None of these individuals is identified in the corroborating evidence that he provided. [13] The Appellant's brother, who I will refer to as "O", was treated after being injured by gunshot in XXXX 2021. In a report dated XXXX XXXX, 2021, O is quoted as reporting that "a man" shot him while he was working in a field.7 A statement from O was not obtained at the time of his initial injury, but a witness stated that he was hit by a "stray bullet" fired by a man called "XXXX" with whom the Appellant's family had "no problems".8 XXXX is not a family member identified by the Appellant, nor is any of the agents of persecution he identified named XXXX. [14] The Appellant also provided a letter from his daughter which states that she received several phone messages in XXXX2020 asking when the Appellant intended to return to Guatemala.9 The Appellant's daughter considered the messages frightening and changed her phone number as a result. There is no indication that she received any additional calls or communication after changing the number. The individual, or individuals, that left the messages were not identified, nor was any reference to the family dispute made, nor were any threats communicated. There is no evidence that establishes that the phone messages were made by the agents of persecution that the Appellant identified, or that these are related to the family conflict. [15] Third, and finally, I find the evidence insufficient to conclude that the incidents described by the Appellant relating to his brother's gunshot wound and his daughter's phone messages are related to the family conflict. The individuals involved were not identified aside from the first name of the shooter, XXXX. There is no evidence that these individuals are members of the Appellant's family, or that they were engaged by his family to perform these acts. In addition, the evidence indicates that the gunshot wound was the result of a "stray bullet" such that it was not targeted at the Appellant's brother at all, or in any event, was shot by an individual with no previous dispute against the Appellant. With respect to the phone messages, I acknowledge that tone may convey much more than words alone, but the content of the messages did not include any threat or reference to the family dispute. These were described as inquiries as to when the Appellant would return to Guatemala. [16] The Appellant was able to travel to and from Guatemala annually from 2013 until 2019. He was never threatened or harmed by any member of his extended family. He has never received any communication regarding the familial conflict or the intent of any of the alleged agents of persecution to harm him. Several of his close family members continue to reside in Guatemala and while he argues that they have relocated for safety, there is no evidence that any has been threatened or harmed by the agents of persecution since the 1980s. The Appellant testified that he was unaware of any evidence linking the phone calls or gunshot injury he described to the agents of persecution. [17] In light of this, I find that the RPD was correct to conclude that the Appellant did not credibly establish a link between his alleged fear of harm should he return to Guatemala and the family dispute that caused such tumult in the 1980s. I accept that he genuinely believes the events are related, but find this conclusion is speculative and relies on assumptions that are not supported by evidence. I do not agree with the Appellant that this is a plausibility finding, but rather an insufficiency of evidence to establish forward-facing harm on a balance of probabilities. [18] I agree with the Appellant that the RPD erred in making a negative inference regarding his overall credibility as a result of the timing of his request for his mother's death certificate as compared with the timing of his claim.10 I find that this is not central to the issues in dispute and has no bearing on his overall credibility. This does not alter my conclusions. [19] A lack of forward-looking risk is determinative of this claim. The RPD's decision is correct. The Appellant's claim fails on this basis. CONCLUSION [20] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Nathan Ferguson Nathan Ferguson December 19, 2022 Date 1 Exhibit RPD-1, RPD Record, RPD Decision, at paras 18-21. 2 Exhibit P-3, Appellant's submissions in response, dated November 25, 2022. 3 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 18. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 28-29. 6 Exhibit P-1, Appellant's Record, Appellant's Memorandum, at para. 30. 7 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 146. 8 Exhibit RPD-1, RPD Record, Exhibit 5, at pp.138-141. 9 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 147-149. 10 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 34-36. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC2-10614 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français