TB5-06204

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 : TB5-06204 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX (A.K.A. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 12, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Alesha Green Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX, (aka XXXX, the Appellant), a citizen of Venezuela, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to allow the appeal, to find that the Appellant is a Convention refugee or, in the alternative, that the matter be sent back to the RPD to be heard by a different panel. DETERMINATION [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant alleged before the RPD that as a student leader of a political organization in Venezuela, he organized and participated in protests against the government. The Appellant alleges that he has been tortured physically and psychologically by the Bolivarian regime because he is actively opposed to "the [dictatorship] of Nicolas Maduro Moro, who through the National Guard, National Police, and Tupamaro collective persecutes the student[s] [opposed to his regime]." The Appellant's uncle, XXXX XXXX XXXX and his wife were accused of being spies for the American government resulting in those two fleeing Venezuela. [4] On XXXX XXXX, 2014, after being involved in a protest, the Appellant was arrested and was beaten with a baton like instrument called a "rolo." The Appellant was detained. The Appellant, while in detention, was forced to strip naked after which cold water was thrown at him by the guards. He was held in detention until XXXX XXXX. He was released with a threat of worse to come. The Appellant was told that as leader of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX he was considered responsible for the protests and that the government had a special interest in him. The Appellant attended a medical clinic in XXXX with his family that same day. Later that same day, the Appellant went to the XXXX to make a denunciation however the office was closed when he arrived. [5] On XXXX XXXX, 2014, the Appellant attended the Public Ministry to submit a denunciation, where he was laughed at and thrown out of the office. [6] On XXXX XXXX, 2014, the Appellant was cited by the National Guard to present himself at the local detachment. When the Appellant complied, he was detained for the day. The Appellant was interrogated in regards to his uncle and his uncle's wife and their political activities in Toronto. The Guard used coercive measures trying to obtain information from the Appellant that the Appellant did not have. The Guards finally let the Appellant leave without charges. After the Appellant was released, the Tupamaro Collectives began circulating the rumour that XXXX XXXX is a traitor and that his family (including the Appellant) support the opposition to the government. [7] On XXXX XXXX, 2014, the Appellant founded an organization called the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX which was anti-government. A protest rally occurred with police intervention. [8] On XXXX XXXX, 2014, the Appellant and others in a vehicle were attacked, resulting in the death of a professor who supported the Appellant's cause. [9] On XXXX XXXX, 2014, the Appellant was kidnapped by a group of members of the Tupamaro Collectives. The Appellant was interrogated by them about the Appellant's uncle and aunt. The Appellant was sexually assaulted and eventually released. [10] Many other things occurred to friends and family members of the Appellant however; due to all of the above and more, the Appellant became frightened and decided that he must leave Venezuela. The Appellant purchased an airline ticket to Panama and from there, came to Canada on October 11, 2014, making his claim for refugee protection at the airport on October 12, 2014 [11] The Appellant's application for refugee protection was heard on February 6 and March 31, 2015. A negative decision was handed down on May 20, 2015. The RPD found that the Appellant was simply not credible and that he was neither a Convention refugee nor a person in need of protection. [12] The Appellant submits that the RPD's decision is unreasonable. Specifically, the Appellant submits that the credibility finding of the RPD based on a lack of subjective fear because the Appellant failed to claim in the United States of America (USA) is unreasonable. The RPD, in its Reasons and Decision pointed out that the only reason given by the Appellant for his failure to claim in the USA was that "that country does not respect human rights but Canada does."1 [13] The Appellant submits that the RPD ignored evidence which supported the Appellant's allegation of being a student leader. Such evidence included letters which were rejected because they were not notarized. [14] The Appellant submits that the RPD's finding that the Appellant failed to explain a discrepancy in his testimony regarding a protest in Caracas was unreasonable. [15] The Appellant submits that the RPD was unreasonable when it found a lack of credibility because the Appellant did not report his kidnapping to anyone including a human rights organization. [16] The Appellant submits that the credibility finding of the RPD in respect to the Appellant's failure to mention the suspected perpetrators of the attack on his uncle and aunt, in his Basis of Claim (BOC) form is unreasonable. [17] The Appellant submits that the credibility finding of the RPD in respect to there being no medical report to substantiate an alleged attack on the sister of the Appellant's uncle, was unreasonable. ANALYSIS Role of the RAD [18] In regard to the role that the RAD plays in the review of an RPD decision, the RAD finds that the recent Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [19] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [20] The Appellant argues that the RPD's decision is unreasonable. Specifically, the Appellant submits that the credibility finding of the RPD based on a lack of subjective fear because the Appellant failed to claim in the United States of America (USA) is unreasonable. The RPD, in its Reasons and Decision pointed out that the only reason given by the Appellant for his failure to claim in the USA was that "that country does not respect human rights but Canada does". [21] The Appellant argues that the RPD ignored evidence which supported the Appellants allegation of being a student leader. Such evidence included letters3 from a number of students and others who were familiar with the Appellant, each of which was an attestation to the allegation that the Appellant was a political leader at the student level. These letters were not mentioned in the Reasons and Decision4 of the RPD. The Appellant argues that the letters, all of which included photographic identification and most including telephone contact numbers for the authors of the letters, speak in a positive way to the leadership exhibited by the Appellant in the political arena at the student level. [22] The Appellant cites Cepeda-Gutierrez5 which says that a tribunal's decision will be considered unreasonable where it omits discussion in the reasons of information which contradicts a finding of fact. The Court said: "...the more important the evidence that is not mentioned specifically and analysed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact without regard to the evidence." [23] The RAD finds that it agrees with the Appellant's argument. After reading the "statements"6 disclosed at the hearing, the RAD finds that those letters, without exception, indicate that the Appellant was a student leader and organizer of the protests as he claimed to be. The RPD questioned the Appellant, asking specifically what proof the Appellant had to support his allegations that he was a leader. The RPD asked the Appellant whether he had letters from friends indicating that he was a leader. The Appellant said that he did not have such letters but had photos of himself leading the protest marches. The RAD listened to the audio recording of the hearings and was confused by the Appellant's declaration that he had no letters of support from friends or students regarding the Appellant's leadership. Near the end of the first sitting, this confusion was clarified when the RPD was generous enough to suggest that the Appellant produce relevant evidence in time for the next sitting on March 31, 2015. [24] The hearing reconvened on March 31, 2015 and the RPD began with more questions on the Appellant's narrative before getting to the new evidence disclosed by the Appellant. [25] On March 31, 2014, at about 00:42:30 on the recording of the second sitting, the RPD began to address the new evidence which included an amendment to the BOC which was unsigned and did not conform to the IRB rules, so was returned to counsel for adjustments. The RPD accepted the documents as presented. Counsel began her questioning of the Appellant by clarifying details of who the authors of the letters are and what they said. [26] The Appellant testified that the letters were written by various friends and contacts who were aware of the Appellant's political activity and issues surrounding those activities. The letters contained statements attesting to the knowledge of the authors regarding the Appellant being a student leader. The Appellant testified that these people were aware of his leadership because most of them had voted for him in the University student elections. The elections were not University sanctioned but were organized by students for students but at the University, in the auditorium. The Appellant garnered XXXX XXXX XXXX XXXX XXXX XXXX of the votes cast. [27] The RAD has read the letters or statements7 and finds that they do indeed support the allegation that the Appellant is a student political leader. There are included six letters/statements with each one of them speaking to the leadership of the political movement, at the University level, of the Appellant. The RAD finds that the RPD did err in its assessment of the credibility of the Appellant in regard to his political profile. The RAD finds that the letters provided do in fact establish that the Appellant was a student leader in a political cause. The RPD found that the Appellant failed to explain a discrepancy in his testimony regarding a protest in Caracas. The Appellant argues that the RPD's finding was unreasonable. Having listened carefully to the audio recording, it was evident to the RAD that the Appellant was clearly confused by the question put to him by the RPD. The question came during a flurry of questions about the Appellant's personal political activities and, as explained by counsel, appeared to have confused the Appellant. The Appellant appeared to believe the question was in regard to the Appellant leading a protest in Caracas on the date in question. It is apparent that once clarified, the Appellant quickly confirmed that a "national protest" took place in Caracas. The RPD did not accept this reason for the previous testimony finding the statements contradictory and thereby inferred negative credibility to the Appellant because of that finding. The RAD agrees with the Appellant and finds that the RPD erred when it assessed negative credibility to the Appellant in this matter. [28] The Appellant argues that the RPD was unreasonable when it found a lack of credibility because the Appellant did not report his kidnapping to anyone including a human rights organization. When asked by the RPD whether the Appellant reported the kidnapping to the authorities or to any human rights organization, the Appellant testified that he had not done so. The panel then asked the Appellant whether he had reported the kidnapping to the National Guard. The Appellant testified that he had not reported to the National Guard because he feared the National Guard would "do something to him." The Appellant argues that his explanation was perfectly reasonable given his past experience at the hands of the National Guard as well as the lack of response from the police after the Appellant had tried to report his previous episode.8 The Appellant cites Peralta9 to remind the RAD that the Appellant is not required to illustrate that he has exhausted all avenues of protection in Venezuela but generally, only that he took all steps reasonable in his particular circumstances, taking into account country conditions, the steps actually taken, and the Appellant's interactions with the authorities in the country of origin. The RAD agrees with the Appellant. The RAD considers the jurisprudence as set out in Ward10 in which the Court has said "A claimant is required to approach the state for protection if protection might reasonably be forthcoming or, alternatively, if it is objectively reasonable for the claimant to have sought protection. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness." [29] In this particular case, the Appellant has been brutalized at the hands of authorities and has made at least two attempts to seek protection from the state, to no avail. The reason testified to for not reporting the kidnapping meets the requirements in Ward. [30] The Appellant also argues that there is no requirement in law for him to seek protection from or report the kidnapping to a "human rights organization" as mentioned in the RPD's Reasons and Decision.11 The RAD is cognizant of the fact that, in refugee claims, it is "state protection" that becomes an issue and that does not require a claimant/Appellant to seek protection from non-state entities such as human rights organizations. The RAD agrees with the Appellant on this issue and finds that any negative inference drawn from the fact that the Appellant did not contact a human rights organization would be an error. [31] The RPD however points out that there was a discrepancy between oral testimony and written narrative which was not explained to the satisfaction of the panel. The RAD has listened to the exchange on the audio recording12 in regards to the above noted discrepancy. The Appellant explained to the RPD that he had misunderstood the original question believing the question to be in reference to the Appellant ever again seeking protection from the National Guard. The RPD did not accept that reply as reasonable however, the RAD finds that the explanation from the Appellant is a reasonable and understandable reply and accepts that explanation. The RAD considered the explanation of the Appellant and after listening to the audio recording, agrees that it is quite plausible that the Appellant would presume the question was in reference to his seeking protection through the National Guard. [32] The Appellant argues that the credibility finding of the RPD in respect to the Appellant's failure to mention the suspected perpetrators of the attack on his uncle and aunt, in his Basis of Claim form (BOC) is unreasonable. The Appellant cites Schopova13 to illustrate his point. Here, the Court held that it was natural for a claimant to mention some facts at a hearing that he or she did not include in written materials. The Appellants argues that this is exactly what he has done, that is, he has merely elaborated in greater detail the basic narrative previously submitted. The Appellant argues that such elaborations did not significantly alter his story as a whole and consequently, the RPD's finding here was unreasonable. The RPD inferred negative credibility over this issue. The RAD agrees with the Court and with the Appellant on this issue and finds that the RPD erred by inferring negative credibility because of the aforementioned elaborations. [33] The Appellant argues that the credibility finding of the RPD in respect to there being no medical report to substantiate an alleged attack on the sister of the Appellant's uncle was unreasonable. The Appellant reminds the RAD that, although there was no medical report, there was in fact supporting evidence by means of photographs of the sister's wounds, while she was in the hospital. The RAD finds that the RPD failed to properly assess the weight of that evidence in support of the issue with the Appellant's sister. [34] The Appellant argues that the RPD made adverse credibility findings on issues including the fact that the Appellant had not mentioned that he had been elected as a student leader until asked, or that the Appellant had been involved in making protest banners until he was asked by the RPD specifically about these and other issues. However, the Appellant reminds that RAD that he had been informed by the panel that he should only respond to questions that were asked of him. For this reason, the Appellant argues, the panel's adverse credibility finding here was unreasonable. The RAD, having listened to the entire audio recordings did hear the panel admonish the Appellant and inform him to answer only the questions asked. Therefore, the RAD agrees with the Appellant and finds that the RPD's credibility assessment in this case was in error. [35] The RPD found that the Claimant/Appellant was not credible and the RPD based that finding on many of the incorrect findings listed above. The RAD, after conducting its own assessment of the evidence, finds that the Appellant does have a nexus to the Convention: his perceived political opinion. The RAD finds that the Appellant is credible and has provided sufficient supporting documentation which confirms him as a student leader involved heavily in opposition politics in Venezuela. The RAD finds that country condition documents14 for Venezuela confirm much of the Appellant's story and his fears. Disposition [36] The RAD has found that the RPD decision cannot stand. CONCLUSION [37] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe August 12, 2015 Date 1 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, p. 7, para. 11 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit P-2, Appellant's Record, Exhibit B, pp. 66-97 4 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, pp. 5-15. 5 Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998 6 Exhibit P-2, Appellant's Record, Exhibit B, pp. 66-97 7 Exhibit P-2, Appellant's Record, Exhibit B, pp. 66-97 8 Exhibit P-2, Appellant's Record, Affidavit, p. 18, para. 16 9 Peralta, Gloria Del Carmen v. M.C.I. (F.C.T.D., no. IMM-5451-01), Heneghan, September 20, 2002 10 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85 11 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, p. 9, para. 22 12 Recording of second hearing, at about 00:15:40 to 00:24:02 13 Schopova, Silvia Marinova v. M.C.I. (F.C., no. IMM-2753-02), O'Reilly, July 22, 2003, 2003 FC 904 14 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NPD) for Venezuela (April 30, 2014), items 2.1, 2.3, 2.5, 4.6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06204