TB9-17394

RAD File / Dossier de la SAR : TB9-17394 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 Toronto, ON Appel instruit / entendu à Date of decision March 3, 2021 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal Alfonso Mejia-Arias 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 allow this appeal. The Appellant, XXXX XXXX XXXX XXXX, is a citizen of Venezuela. Summary of narrative [2] The Appellant states that he is at risk because his participation in many protests against the government of President Nicolas Maduro after he began to study XXXX XXXX at a university in El Tigre in 2011. These were peaceful protests which were broken up by thugs known as "collective groups" (colectivos). He participated in a demonstration in XXXX 2014 with two friends which was attacked by the colectivos. Although he escaped, his friends were arrested, verbally abused, and kept in cells without food or sleep for several days. The Appellant applied for a Canadian student visa in XXXX 2017, at the request of his parents who were concerned about his safety. He received a study permit upon his arrival in Canada on XXXX XXXX XXXX 2018, which was valid for seven months. He waited until June 2018 to make a refugee claim because he hoped that the situation in Venezuela would improve. Refugee Protection Division reasons for decision [3] The Refugee Protection Division (RPD) identified credibility as being the determinative issue. It rejected the claim for the following reasons: i) The Appellant did not provide sufficient credible and trustworthy evidence to support his fear of returning to Venezuela; ii) The RPD identified inconsistencies between the Appellant's oral testimony, his Basis of Claim (BOC) narrative, and supporting documents concerning when he participated in a demonstration at which two of his friends were arrested; iii) The substantial delay in leaving Venezuela is inconsistent with what one would reasonably expect of a person in the Appellant's particular circumstances; iv) The Appellant's delay in claiming refugee status in Canada further undermines his overall credibility; v) The Appellant testified that he participated in approximately 20 to 30 protests, but his testimony about the role he played was vague. This raised serious credibility concerns for the RPD; vi) Supporting letters from the Appellant's two friends were given no weight because they were transmitted by email attachment with no accompanying proof of identity; vii) The RPD concluded that the Appellant was not an anti-government student activist, and he never openly expressed opposition to the Bolivarian revolution, nor did he ever participate in any protests or marches against the government; and viii) The Appellant's fear of returning to Venezuela for political reasons is not well-founded, because he is not a person of interest to authorities. Grounds of Appeal [4] Counsel submits that the RPD erred for the following reasons: i) No viable internal flight alternative (IFA) is available to the Appellant, and objective evidence depicts an adverse political environment in Venezuela; ii) The RPD failed to assess properly the Appellant's delay in claiming asylum. There was no reason for the Appellant to claim asylum before he left the country. However, the situation in Venezuela deteriorated in 2018. An ex-police officer, Oscar Perez, was murdered in January 2018, and President Maduro was re-elected in May 2018. This event caused him to make a refugee claim in June 2018; iii) The RPD failed to consider that the Appellant is a member of a particular social group because of the innate characteristic of being a Venezuelan whose political views differ from the government of President Maduro; iv) The RPD failed to consider how the state may act as an agent of persecution by means of colectivos which exercise de facto control over the population in collusion with the National Bolivarian Police State; v) The RPD erred by failing to conduct an assessment pursuant to section 97 of the Immigration and Refugee Protection Act (IRPA); vi) The RPD failed to consider all testimony and documentary evidence; vii) The RPD used a rigid and highly subjective standard to conclude that the Appellant's evidence was insufficient. Summary of Refugee Appeal Division decision [5] The determinative issue for the appeal is credibility. The RPD had insufficient reasons to rebut the presumption that the Appellant's sworn testimony is true and to conclude that the supporting documents are likely inauthentic. The Appellant likely participated in numerous demonstrations against the government. Given that this is a matter of freedom of political expression as a fundamental human right, he cannot be expected to stop in order to be safe. Continued opposition to the Maduro's administration would put him at serious risk of detention and mistreatment. In addition, he would be subject to social sanctions which, on a cumulative basis, amounts to persecution. Given that the government is the agent of persecution, state protection is not available and the risk is present throughout the country. DECISION [6] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee.1 NEW EVIDENCE The evidence presented by the Appellant is accepted [7] According to the law,2 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 [9] Counsel has applied to submit a New York Times article dated August 13, 2019, which confirms that individuals who are critical of the Maduro's administration are actively sought and many are killed.4 This document is new in the sense that it was published two and a half months after the RPD decision was signed on June 3, 2019. It confirms information in the National Documentation Package (NDP), and shows that there has not been an improvement in country conditions. It comes from a reliable source and has sufficient probative value to add to information in the NDP. It is admissible as new evidence. [10] Counsel makes submissions with respect to the consequences of COVID-19 on the Venezuelan health-care system and on the humanitarian crisis by citing documents from the March 31, 2020 NDP version.5 The Appellant is entitled to rely on the current NDP in making submissions without making an application pursuant to subsection 110(4) of the IRPA. [11] The application for a hearing is denied because the new evidence does not concern the Appellant's credibility. ANALYSIS [12] My role is to look at all the evidence and decide if the RPD made the correct decision.6 Inconsistencies between oral testimony, BOC narrative and supporting documents [13] The Appellant testified that his friends, C.R. and J.H.7 were detained by police at a protest in 2016.8 He confirmed that this was the same incident as mentioned in the BOC narrative.9 The RPD drew and adverse inference from the fact that the BOC indicates that this incident took place in XXXX 2014, not 2016. The RPD did not accept the explanation that he was confused because of the significance of the event and the fact that it is the only one in the narrative. [14] The BOC narrative and the letter from C.R. agree that the incident took place in XXXX 2014. It is plausible that the Appellant misspoke at the hearing because he became confused. Given that he participated in between 20 and 30 demonstrations, including some in 2016, turning his mind the wrong year in the context of a hearing is not as significant as alleged by the RPD. It is not reasonable to expect memory to be perfect all of the time, especially in stressful situations. This issue alone is insufficient to warrant an adverse credibility inference in the absence other factors which could support it. [15] The Appellant testified that protesters were arrested by the police, whereas his BOC states that they were detained by colectivos. The RPD did not accept the Appellant's explanation that the police and colectivos work together. Documentary evidence shows that they are separate entities. The Appellant should have included this important information in his BOC. [16] The Appellant filed three letters, one from his mother and two from friends. The RPD erred by failing to mention the one from his mother. She states that the Appellant participated in different peaceful demonstrations which were attacked by the colectivos in conjunction with the National Guard.10 [17] A statement from his friend, C.R., asserts that he participated in a demonstration with the Appellant in XXXX 2014, during which the colectivos started to shoot at them and chase them. He was caught, detained and kept without food or water.11 The letter from J.H. states that he and the Appellant have been demonstrating against the government and are being targeted for arrest.12 [18] The Appellant stated in his BOC narrative that the XXXX 2014 demonstration was attacked by the colectivos, However, he testified that the police tried to disperse the group and started throwing tear gas.13 When asked to explain this inconsistency, the Appellant replied that the police often dress in civilian clothes and arrest people.14 He later stated that he was speaking about the colectivos when he was referring to the police, as both are paid by the government.15 The mission of the colectivos is to disperse protesters in conjunction with the police. [19] A Congressional Research Service report confirms the Appellant's testimony on this issue.16 One source refers to deaths and arbitrary detention attributed to the use of force by State security forces and the colectivos. Another source refers to extrajudicial killings by security forces, including the colectivos. [20] A European Asylum Support Office report refers to three types of colectivos: some who fight crime, those who deliver government services, and others who act as paramilitary or para-police shock troops for the government.17 Chapter 5 in the report presents a comprehensive overview of this group.18 Low-profile targets of the government are often monitored by armed colectivos who have access to government databases. Security forces have engaged in violent acts against demonstrators with the assistance of armed colectivos. Those who resist the colectivos can be detained or killed. The colectivos are "para-police" or "paramilitary" groups which engage in joint operations with the police. Members of the colectivos include elements of the security services, including the Bolivarian militia of the armed forces. The colectivos use tear gas which is only available to security forces, and they possess firearms licenses issued by law enforcement agencies or by President Maduro personally. They carry automatic pistols and submachine guns, together with radios which they use to communicate with security services. They also carry official credentials to display at checkpoints. The colectivos use firearms and hard objects to disperse crowds with the support of security forces. Police and the colectivos participate in the joint arrest of protesters. [21] The Appellant's reference to the colectivos in his BOC narrative is consistent with the terminology used in letters from the two friends who were with him at the XXXX 2014 demonstration. His reference to the police during oral testimony is reasonable in light of the documentary evidence. The RPD had no good reason to draw an adverse credibility inference from the Appellant's use of this term. Delay in leaving Venezuela [22] The Appellant testified that he waited until the situation in Venezuela became truly dangerous before leaving the country at the request of his parents. The RPD did not accept this explanation because he waited until XXXX 2018 to do so, despite an alleged history of participation in protests, including the one in XXXX 2014, during which his friends were arrested. [23] The Appellant testified that he participated in between 20 and 30 demonstrations against the government, but he was never detained. There is no evidence that state authorities became aware of his activities. However, the deterioration in country conditions led his parents to send him to Canada to study for his safety. The fact that the Appellant was running a risk every time he participated, in a demonstration is not indicative of a subjective lack of fear for purposes of refugee protection. Many Venezuelans participated in these demonstrations with the knowledge that they were putting themselves at risk, but did so to promote political interests which they believed to be important for the good of the nation. The fact that the Appellant exposed himself to the possibility of persecution in these circumstances, is not indicative of a lack of subjective fear, which could justify the rejection of his refugee claim. Courage should not be confused with indifference to danger. Delay in making a refugee claim in Canada [24] The Appellant arrived in Canada on XXXX XXXX XXXX 2018 and claimed asylum on June 19, 2018. Given the current human rights situation in Venezuela, the RPD did not accept the explanation that he waited to see if conditions in his country would improve before making a refugee claim. [25] Counsel submits that the Appellant decided to monitor the situation in Venezuela before deciding whether or not to claim asylum. The murder of the ex-police officer Oscar Perez, in January 2018, and the re-election of President Maduro on May 20, 2018, triggered his decision to make a refugee claim on June 19, 2018. [26] The Appellant was admitted to Canada for a seven-month period until XXXX 2018. He testified that he completed his studies in Canada in XXXX.19 He had lawful immigration status as a student who was in compliance with the conditions of his study visa. The fact that he decided to wait for the outcome of the election and then decided to claim asylum in the context of post-election violence is not indicative of a lack of subjective fear. Was testimony about anti-government activism vague and ambiguous? [27] The Appellant testified that he participated in about 20 to 30 protests since entering university in 2011. The RPD concluded that the Appellant provided vague generalities when asked what he did in them. The RPD expected more detailed testimony from someone who participated in this many protests. [28] The Appellant was asked a few open-ended questions about his role in demonstrations. He spoke about the protests he attended while at university, but mistakenly referred to the XXXX 2014 incident as having taken place in 2016.20 He later spoke about the role of the colectivos in suppressing demonstrations.21 When specifically asked about his role in the protests, the Appellant stated that he went to protect the humanity of Venezuela. They protested in support of the basic needs of the population, including food, medication and electrical power. There is a long list of things that are in short supply in Venezuela. Their movement grew and even included the elderly. After hearing this response, the RPD moved on to ask questions in other areas. [29] Given that the RPD only asked one open-ended question about his role in the demonstrations, the Appellant provided a reasonable description of who they were and why they were demonstrating. If the RPD was not satisfied with this response, it should have asked additional questions. This general response was reasonable in light of the vague nature of the question. The panel had insufficient grounds to draw an adverse credibility inference. Lack of reliable documentary evidence [30] The RPD erred in its assessment of the to statements from the Appellant's friends. The RPD gave them no weight because they were sent to him by means of an attachment to an email from his mother with no identity documents included. These are scanned letters which were signed by their authors. This factor alone is insufficient to conclude that the documents are likely not genuine. Although this consideration could be used in conjunction with other factors to support such a conclusion, the RPD made no reference to problems on the face of the letters. The means of transmission alone provides insufficient grounds to reject the authenticity of the documents. In addition, the RPD erred by ignoring the letter from the Appellant's mother which confirms the essential facts of the claim. [31] Apart from the issue of the misstatement of the year of the demonstration (2016 instead of 2014), there are no meaningful inconsistencies in the record. In light of the totality of the evidence, there are insufficient grounds to rebut the presumption that the Appellant's sworn testimony is true. His testimony is supported by three witness statements, and it is also consistent with country condition documents. [32] The facts as recounted by the Appellant are likely true. Counsel's submissions about nexus, generalized risk in the context of a section 97 analysis, and IFA do not respond to issues which were raised by the RPD. In addition, they do not concern a determinative issue in this appeal. As a result, they do not need to be addressed. Country conditions [33] A report by the United Nations High Commissioner for Human Rights provides an objective basis for the Appellant's subjective fear of persecution.22 Security forces continue to arbitrarily arrest and unlawfully detain opponents of the government in order to repress political dissent. Detentions of political activists are becoming more selective than was the case during previous mass protests. Security services have been using excessive force against demonstrators since 2012. At least 12,320 political opponents were arbitrarily detained from January 2014 to April 2018. Social activists were accused of engaging in terrorism and were attacked in 2017 and early 2018. They have been harassed, intimidated, stigmatized, threatened and physically assaulted by government supporters and security officials. Some were arbitrarily detained, mistreated, or tortured without lawful cause. [34] A Human Rights Watch report, provides additional information.23 Tens of thousands of Venezuelans held demonstrations in April 2017, to protest the Supreme Court's attempt to subvert the powers of the legislature. Demonstrations spread throughout the country and lasted for months. The government responded with violence and brutality. Repression in 2017 reached a level which had not been seen in the country in recent memory. Thousands of demonstrators and bystanders were arrested and subject to severe beatings, asphyxiation, electric shocks and other forms of torture. Abuses were committed by various security services, as well as by the colectivos. [35] The United States, Department of State 2019 report, describes the systematic failure to respect fundamental human rights in Venezuela.24 Significant issues include unlawful or arbitrary killings by security forces and the colectivos, forced disappearances, torture, arbitrary detention, life-threatening prison conditions and lack of judicial independence. Peaceful demonstrations were violently repressed and participants were subject to serious criminal charges. One report places the number of protests in the first six months of 2019 at 10, 477, twice the number for the same period in 2018. About 66 people were killed in demonstrations between January and June 2019, as a result of the excessive use of force by security forces and armed colectivos. The Maduro's administration expanded the use of the identity card known as the carnet de la patria which was introduced in 2017. Government services are denied to those who do not have one, including food, gas subsidies, and pensions. In order to obtain one, the applicant must include proof of political affiliation and disclose person information. The card is used by the Maduro administration for purposes of social control. [36] A more detailed overview of the Orwellian nature carnet de la patria programme can be found in a Dutch Ministry of Foreign Affairs report.25 It is possible to apply for a card online by answering 30 questions. The card gives authorities access to personal information, including income, work, property, medical history, state benefits, political party membership, and voting practices. Authorities are able to verify the truthfulness of the stated voting history because fingerprints taken at the polling station are linked to the voting machine and allow the government to know who the person voted for. The state is also able to track people who move from one house to another by means of this card. It is not possible to do business with the government or its partners without one. [37] A former general said that the government has spies everywhere who are known as patriotas cooperantes (cooperating patriots). They monitor the population and provide information to the government about "enemies of the state." Government informants have also infiltrated the military and civil society, including universities. A dedicated team of about 150 intelligence officials have placed some opponents under surveillance at all times. The state has purchased software from Germany and China to monitor human rights activists and other opponents with the assistance of Cuban intelligence advisers. Some informants have left the country to join Venezuelans in the diaspora in order to provide information about them to the government. In addition, intelligence officers posted to Venezuelan embassies abroad have the responsibility of monitoring citizens in the diaspora. Risk assessment [38] The Appellant testified that he is active within the Venezuelan diaspora community in Toronto. He meets regularly with compatriots at a Venezuelan restaurant in order to organize humanitarian assistance to send back to his country. He was not aware of any protests which have been held in Toronto.26 This conduct does not put him at risk in Venezuela. [39] The Appellant opposed the government of Hugo Chavez in 2011 and that of Nicolas Maduro when he came to power in 2013. He participated in about 20 to 30 demonstrations against the government between 2011 and 2017. Although never arrested, he put himself at significant risk in doing so. The government's intolerance to any form of opposition is expressed through the violent suppression of demonstrations. The Appellant is not required to renounce his political beliefs and practices in order to be safe. The level of government surveillance is such that he would put himself at risk by criticizing the Maduro administration within any organization which may have been infiltrated by informants, including his Toronto group dedicated to humanitarian assistance. [40] The Appellant's passport expired in 2020. According to the Embassy of Venezuela in Canada, it would be very difficult for him to obtain a new one from abroad.27 Authorities would want to know why he let his passport expire and what he has been doing in Canada. If authorities suspect that he made a refugee claim, he could be imprisoned upon return to Venezuela. Those who have not demonstrated their loyalty to the government would not be able to find work or integrate into the public sector. In addition, they would likely be monitored. This would be facilitated by use of the carnet de la patria if the Appellant were to obtain one. [41] The Appellant's history of public opposition to the Maduro administration puts him at serious risk of persecution for political reasons if he returns to Venezuela and continues to either protest or to speak against the government. As a matter of conscience and political rights, which are fundamental to human dignity, he is not expected to keep silent in order to avoid problems. Given that government authorities are the agents of persecution, state protection and IFA are not available to him. Political opinion creates a nexus between this risk and the definition of a Convention refugee. The Appellant has a well-founded fear of persecution in Venezuela. CONCLUSION [42] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, I substitute my own decision that the Appellant is a Convention refugee. (signed) H. Shepherd H. Shepherd March 3, 2021 Date 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended, at para. 111(1)(b). 2 Subsection 110(4) of the IRPA. 3 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, as endorsed in Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230. 4 Exhibit P-3, Supplementary Appellant's Record (August 15, 2019), pp. 42-45. 5 Exhibit P-4, Addendum Appellant's Record (July 15, 2020), citing National Documentation Package (NDP) for Venezuela, (31 March 2020), item 2.11. 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 7 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 8 Transcript of May 28, 2019, RPD Hearing, p. 4. 9 Ibid., p. 6. 10 Exhibit RPD-1, RPD Record, Exhibit 4, pp. 107-108. 11 Ibid., p. 109-110. 12 Ibid., pp. 112-113. 13 Transcript of May 28, 2019, RPD Hearing, p. 4. 14 Ibid., p. 6. 15 Ibid., p. 7. 16 Exhibit RAD-1, National Documentation Package (NDP) for Venezuela, (30 September 2020), item 1.4. 17 Ibid., item 1.6. 18 Ibid., pp. 97-108. 19 Transcript of May 28, 2019, RPD Hearing, p. 13. 20 Ibid., p. 4. 21 Ibid., p. 11-12. 22 Exhibit RAD-1, NDP for Venezuela, (30 September 2020), item 2.9. 23 Ibid., item 2.10. 24 Ibid., item 2.1. 25 Ibid., item 1.7. 26 Transcript of May 28, 2019, RPD Hearing, p. 14. 27 Ibid., item 14.3, Response to Information Request VEN106031.FE. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-17394 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