MB9-00753

RAD File / Dossier de la SAR : MB9-00753 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision June 28, 2019 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Me Carolina Roa Sanchez 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 XXXX is a citizen of Venezuela who has appealed a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] Ms. XXXX XXXX XXXX fears the government of Venezuela and armed collectivos who are supported by the government. In her Basis of Claim form (BoC), Ms. XXXX XXXX XXXX described XXXX incidents of criminality that occurred to her and her family between 2001 and 2014. The incidents involved times when collectivos broke into her house and stole things of value, an incident in which a collectivos member stole her daughter's cell phone while she was walking along the street, and an incident in which Ms. XXXX XXXX XXXX daughter was kidnapped in 2001 after collectivos broke into her house to steal various objects of value. Ms. XXXX was home during most of the home invasions and was subject to threatening actions including having guns pointed at her head. After describing these incidents of criminality in her BoC, Ms. XXXX XXXX XXXX also alleged that she was active for years within the Accion Democratica party and that she took part in protests in support of the Venezuelan opposition up to the time she left Venezuela in 2014. She claimed asylum in June 2018. Ms. XXXX XXXX XXXX fears she will be subject to aggression on the part of collectivos acting on behalf of the governing regime if she were to return to Venezuela. [3] The RPD found that there was no evidence to establish that the incidents of criminality alleged by Ms. XXXX XXXX XXXX had a nexus to her political opinion rather than being random criminal acts. The RPD also found that Ms. XXXX XXXX XXXX testimony about the extent of her political activities was not credible. The RPD concluded that she did not have the profile of someone who would be of interest to the governing regime in Venezuela. Among other credibility issues, the RPD noted that Ms. XXXX XXXX XXXX had engaged in actions that were incompatible with those of a person who fears their life by traveling extensively between Venezuela, XXXX XXXX XXXX, XXXX and Canada without claiming asylum during the time period during which she alleged that she feared for her life in Venezuela. The RPD found that her two returns to Venezuela and her delay in claiming asylum until 2018 were incompatible with her alleged subjective fear and her credibility regarding the danger she would face if she returned to Venezuela. ROLE OF THE RAD [4] The Refugee Appeal Division (RAD) review decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.2 I have conducted my own independent assessment of all of the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. NEW EVIDENCE [5] Evidence from the person who is the subject of the appeal is only admissible if it satisfies the conditions set out in s. 110(4) of the Immigration and Refugee Protection Act (IRPA)-that is that it arose after the claim was rejected, or it was not reasonably available, or the person could not reasonably have been expected to present it at the time the claim was rejected. If one of these conditions is met, the RAD will also consider if the evidence is credible, relevant, and new as per the Singh decision.3 [6] Ms. XXXX XXXX XXXX filed as proposed new evidence postings she made on her Facebook account between XXXX 2017 and XXXX XXXX, 2019. The Facebook posts that were posted before December 4, 2018, the date the RPD rejected Ms. XXXX XXXX XXXX claim, are inadmissible as they did not arise after the claim was rejected, there is no evidence that they were not reasonably available at the time the claim was rejected. Therefore, Ms. XXXX XXXX XXXX reasonably could have been expected to present these postings before her claim was rejected. The five Facebook postings from XXXX 2019 are admissible as new evidence but their probative value is limited as they resemble other postings that were already in evidence before the RPD. The postings are collectively marked as Exhibit A-1. [7] The two newspaper articles filed by Ms. XXXX XXXX XXXX are inadmissible as new evidence. One news article reports on the fact that the leader of the opposition declared himself interim president of Venezuela and the other reports on a gathering of Venezuelans in Montreal who celebrated this action by the opposition leader. While these articles meet the conditions of s. 110(4) of the IRPA, they do not meet the conditions set out in Singh in that they are not relevant to the specific issues arising in this case which center on whether Ms. XXXX XXXX XXXX has the kind of political profile that would put her at risk of persecution or serious harm if she were to return to Venezuela. [8] The photo of Ms. XXXX XXXX XXXX taken at the gathering of Venezuelans in Montreal is inadmissible for the same reasons as the articles are inadmissible. While the photo meets the conditions found in s. 110(4) of the IRPA, it is not relevant to the specific issues in her case. [9] Finally, I note that Ms. XXXX XXXX XXXX submitted a declaration that is also inadmissible as new evidence as it contains argument and makes allegations of memory problems due to her age. This is information that did not arise after her claim was rejected; it was available to her and could have been put forward before her claim was rejected by the RPD. REQUEST FOR A HEARING [10] The RAD may only hold a hearing if it has admitted new evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, which is central to the decision with respect to the claim and, if accepted, would justify allowing or rejecting the claim.4 I find that a hearing cannot be held and would not be appropriate as the new evidence I have admitted does not raise an issue regarding Ms. XXXX XXXX XXXX credibility and it would not justify allowing or rejecting her claim. ANALYSIS OF MERITS No breach of natural justice [11] Ms. XXXX XXXX XXXX argues that the RPD breached natural justice by failing to take her age into account. She also alleges that the RPD breached natural justice by imposing an excessive burden of proof on her and failing to clearly analyze her subjective fear. In my view, these last two arguments are not properly characterized as breaches of natural justice. They are allegations of legal errors or errors of mixed/fact and law. Therefore, I will address these last two arguments in the following sections of this decision. [12] I do not agree that the RPD erred in failing to take into account Ms. XXXX XXXX XXXX age. I am not persuaded that Ms. XXXX XXXX XXXX age affected her ability to testify or her actions in this case. I note at the outset that neither Ms. XXXX XXXX XXXX nor her counsel raised her age as an issue at the hearing to explain any problems with her testimony. They only raised the age issue after Ms. XXXX XXXX XXXX claim was rejected. I do not accept that Ms. XXXX XXXX XXXX age affected her capacity her memory or her capacity to testify in the case. In fact, I find this argument more than a little surprising given that Ms. XXXX XXXX XXXX was only 66 years old at the time of the RPD hearing and she testified with the utmost clarity. Absent some other evidence, I am not persuaded that Ms. XXXX XXXX XXXX age in itself would indicate a diminution in capacity to testify at a hearing. [13] I also do not agree that the letter that Ms. XXXX XXXX XXXX filed from her psychiatrist establishes that she has limited cognitive capacities due to her age or the post-traumatic stress she experienced. The letter says nothing at all about a decline in cognitive abilities due to age. With respect to post-traumatic stress, the letter states that Ms. XXXX XXXX XXXX experienced post-traumatic stress due to the incidents of criminality she described in her BoC but it also notes that she was now doing much better and her symptoms had disappeared. Therefore, I am not persuaded that this letter supports Ms. XXXX XXXX XXXX claim on appeal of limited cognitive capacity due to her age or post-traumatic stress. [14] I also do not agree with Ms. XXXX XXXX XXXX that her age was a factor that would explain actions that were incompatible with the risk she alleged. Although Ms. XXXX XXXX XXXX claims that a person over 60 does not have the same mental reflexes and reasoning as a person who is 30 or 40, there is no evidence to support this proposition. Therefore, absent some other evidence particularly to Ms. XXXX XXXX XXXX I do not accept that, as a general proposition, a person over 60 does not have the same capacity for reasoning as a younger person. [15] Finally, I am not persuaded by Ms. XXXX XXXX XXXX argument that older people can be persecuted in ways that would not amount to persecution for a younger person and that this factor is relevant in this case. The issues in this case were two-fold. The first issue was whether the evidence established that the incidents of criminality alleged by Ms. XXXX XXXX XXXX had a nexus to her political opinion. The second issue was whether the evidence established that Ms. XXXX XXXX XXXX had the kind of political profile that would put her at risk if she were to return to Venezuela. Neither of these issues are connected to Ms. XXXX XXXX XXXX age. [16] For these reasons, I do not find that the RPD breached procedural fairness in failing to factor Ms. XXXX XXXX XXXX age into its analysis. No error relating to the burden of proof [17] Ms. XXXX XXXX XXXX argues that the RPD erred in applying the balance of probabilities standard to her claim of political persecution when it should have applied the lower standard of a serious possibility of persecution. [18] I do not agree. In the paragraph referred to by Ms. XXXX XXXX XXXX, the RPD found that, based on an assessment of all of the evidence, she had not established, on a balance of probabilities, that she had the kind of profile of a person identified as an opponent, and therefore of interest to the Maduro government.5 The balance of probabilities standard that the RPD was referring to in this paragraph is the standard applicable to establishing facts. The RPD was referring to the question of fact of whether Ms. XXXX XXXX XXXX had established a profile as a person identified as a political opponent who would therefore be of interest to the Maduro government. [19] While the serious possibility standard applies to the legal question of whether a claimant has established a risk of persecution, claimants must still prove the facts on which they rely on a balance of probabilities.6 Therefore, I do not agree that the RPD erred in applying the balance of probabilities standard to the factual issue of Ms. XXXX XXXX XXXX political profile. Moreover, it is evident from para. 42 of its decision that the RPD applied the serious risk standard to its analysis under s. 96 of the IRPA. No error in analysis of subjective fear [20] Ms. XXXX XXXX XXXX argues that, in paragraph 42 of its decision, the RPD used the terms fear and subjective fear without distinction which makes the decision unintelligible and that it used of the notion of subjective fear in the analysis under s. 97(1) of the IRPA. [21] While I agree with Ms. XXXX XXXX XXXX that the RPD could have phrased the paragraph in question more clearly, I cannot agree that the RPD erred in its analysis of subjective fear. In the paragraph in question, the RPD discussed various actions by Ms. XXXX XXXX XXXX that were incompatible with the fear and the risk she alleged in this case. As described by the RPD, Ms. XXXX XXXX XXXX alleged that she feared persecution and that she feared for her life since the arrival of the Chavez regime in Venezuela and more particularly during the five years before the hearing. As noted by the RPD, during this time, she returned to Venezuela twice and traveled extensively between Venezuela, the XXXX XXXX, XXXX and Canada without claiming asylum until 2018. The RPD found these actions incompatible with her allegation that her life was at risk and that she feared persecution if she were to return to Venezuela. It may have been clearer for the RPD to state that these actions were incompatible with the credibility of Ms. XXXX XXXX XXXX allegation that her life was in danger and they also undermined her alleged subjective fear of persecution. However, in my view, the RPD was correct to ultimately find that the actions described above undermined Ms. XXXX XXXX XXXX subjective fear (under s. 96) as well as the credibility of her allegation that her life was at risk if she returned to Venezuela (applicable both under ss. 96 and 97(1)). No error in finding that alleged incidents were random incidents of criminality [22] Ms. XXXX XXXX XXXX argues that the RPD erred in questioning her credibility due to the fact that, during the attacks she experienced between 2001 and 2014, the assailants did not make any direct mention of political issues. She also argues that, in the Venezuelan context, the use of the term "middle class" by the criminals who attacked her was a veiled reference to the fact that she was a member of the opposition. [23] To begin, I do not agree that the RPD used the absence of any direct political references during the attacks to question Ms. XXXX XXXX XXXX credibility regarding the occurrence of the attacks themselves. The RPD accepted that the attacks occurred but it found that the evidence did not establish a nexus between the attacks and Ms. XXXX XXXX XXXX political opinion. In other words, the RPD did not dispute Ms. XXXX XXXX XXXX account of the attacks. However, it found that she had not established that she was a victim of anything other than random acts of criminality. [24] I agree with this conclusion by the RPD. I do not agree with Ms. XXXX XXXX XXXX argument that the simple fact of being robbed by persons she described as collectivos is clear evidence that she is an opponent of the government and that this was the motive behind the thefts at her home. I also do not agree with Ms. XXXX XXXX XXXX argument that the use of the term "middle class" by the assailants is sufficient to infer that they were attacking her home for political reasons. I note that, in her BoC, Ms. XXXX XXXX XXXX describes the criminals who robbed and attacked her variously as collectivos, young men and delinquents. In any event, the unfortunate reality is that Venezuela continues to be one of the world's most dangerous countries with very high levels of crime, not all of it politically motivated.7 The fact of being middle class and being perceived as wealthy would make Ms. XXXX XXXX XXXX more vulnerable to crime. Therefore, I do not agree that the fact that she was robbed by persons she described in part as collectivos who used the term middle class is enough to establish a link between the robberies and Ms. XXXX XXXX XXXX political opinion. No error in findings re. Ms. XXXX XXXX XXXX political profile [25] Ms. XXXX XXXX XXXX argues that the RPD erred in finding that her credibility about her political profile was undermined due to a contradiction between her declaration, in one of her immigration forms, that she was not a member of any political organization and her testimony that she was a member of the Demoractic Action party since the 1970s and also by the fact that she registered herself with the VENTE party just over two weeks of the RPD hearing. Ms. XXXX XXXX XXXX argues this was an error as it is not necessary for a claimant to belong to a party to claim political persecution. [26] I agree with Ms. XXXX XXXX XXXX that it is not necessary to be a member of a political party to successfully claim political persecution. However, claimants do have to establish that factually they have the profile of someone who is an opponent of the governing regime and/or would be seen as an opponent of the governing regime. The issue in Ms. XXXX XXXX XXXX case is that there were valid credibility concerns with her evidence about her political involvement. I do not agree that the RPD erred in finding the contradiction between her testimony and her immigration form negatively affected the credibility of her claim to have been a member of the Democratic Action party. It is not just that Ms. XXXX XXXX XXXX or her counsel did not complete the section that asked about membership in political and other types of organizations, it is that they wrote that Ms. XXXX XXXX XXXX had never belonged to an organization. In my view, this contradiction raised concerns about the credibility of Ms. XXXX XXXX XXXX testimony about her political profile. [27] I disagree with Ms. XXXX XXXX XXXX that the RPD "reprimanded" her for not declaring her political affiliations from the 1970s or punished her for not keeping her membership card from the Democratic Action party. All the RPD did in this case was to note the absence of documentary evidence supporting her alleged membership in the Democratic Action party and the contradiction on the immigration form. It is Ms. XXXX XXXX XXXX onus to prove the elements of her claim. Although corroborative evidence is generally not necessary in refugee claims, the RAD and RPD are entitled to draw a negative inference from a claimant's lack of effort to obtain corroborative evidence to establish the essential elements of their claim where such corroborative evidence should be available. This is especially the case when there are other valid reasons to doubt a claimant's credibility.8 [28] In this case, due to the contradiction between her declaration on the immigration form and her testimony, there was reason to doubt Ms. XXXX testimony that she was an active opponent of the governing regime or someone who would be identified as such. There was no evidence to support the former membership in the Democratic Action party which she alleged, despite the fact that such evidence would have easily been obtained in the form of a letter confirming membership which her spouse or one of her three children who remain in Venezuela could have obtained for her. The only other evidence Ms. XXXX provided was an online registration to the VENTE party website which Ms. XXXX XXXX XXXX only obtained two weeks before the RPD hearing and a series of Facebook posts. With respect to the Facebook posts, I agree with the RPD that Ms. XXXX XXXX XXXX credibility was negatively affected by the fact that she claimed to be active on Facebook since 2010 and on Twitter since she arrived in Canada but the only posts she provided were Facebook posts from the last year or so before the RPD hearing which took the form of reposting newspaper articles with only short remarks added. [29] I do not agree with Ms. XXXX XXXX XXXX that her testimony was sufficient to support a claim of imputed political opinion. As noted above, there was insufficient evidence to establish a nexus between the incidents of criminality alleged by Ms. XXXX XXXX XXXX and her political opinion. While Ms. XXXX XXXX XXXX claimed to be openly identified, or would be viewed, as somone who was an opponent of the governing regime through her participation in protests, she testified that her spouse and daughters had not had any problems from the government or collectivos since the last theft described in her BoC in which a young man stole her daughter's mobile phone. As noted by the RPD, Ms. XXXX XXXX XXXX also did not have problems re-entering or leaving Venezuela or have problems while in Venezuela when she returned twice after leaving in 2014. I do not agree with Ms. XXXX XXXX XXXX that the RPD erred in taking all of this evidence into account in assessing her likelihood or risk. I do not agree with Ms. XXXX XXXX XXXX that the RPD was "punishing" her for these factors, it was merely weighing the whole of the evidence to determine whether she had established that her political profile or imputed profile placed her at a serious risk of persecution. [30] I also do not agree that the RPD erred in finding that Ms. XXXX XXXX XXXX Facebook postings were insufficient to make her a person of interest for the Venezuelan regime. There is no evidence in this case to support the allegation that these Facebook postings are likely to come to the attention of the Venezuelan government.9 I agree with the RPD that, based on a weighing of all of the above factors, Ms. XXXX XXXX XXXX has not established that she has the political profile of someone who would be identified as an opponent of the governing regime and who would thus face a serious possibility of persecution if she returned to Venezuela. No error in finding actions incompatible with alleged fear and risk [31] Ms. XXXX XXXX XXXX argues that the RPD did not draw any negative inference based on her two trips back to Venezuela and therefore makes no arguments relating to this issue. She argues that the RPD erred in finding that her delay in claiming asylum undermined her subjective fear and the credibility of her allegation that her life was at risk. [32] I disagree with Ms. XXXX XXXX XXXX the RPD did not draw a negative inference based on her trips back to Venezuela. At paragraph 27 of its decision, the RPD noted that it asked for and obtained a complete and legible copy of Ms. XXXX XXXX XXXX passport after the hearing. Based on her passport, the RPD saw that she had spent XXXX months in Venezuela in the XXXX of 2015 and asked her to make submissions on this trip. Ms. XXXX XXXX XXXX did not respond to this request to comment on the trip back to Venezuela. Therefore the RPD noted that the trip remained unexplained. Later in its decision, the RPD found that Ms. XXXX XXXX XXXX comings and goings between Venezuela, the XXXX XXXX, XXXX and Canada were not compatible with the conduct of a person who alleges that she fears for their physical security since 2010 and even more since 2014. Clearly, the RPD considered that Ms. XXXX XXXX XXXX two return trips to Venezuela were incompatible with the actions expected of a person who alleges that their life will be at risk if they return to their country. Ms. XXXX XXXX XXXX has once again failed to provide any explanation for these trips or arguments in relation to them on appeal. In my view, the RPD was correct in finding that Ms. XXXX XXXX XXXX coming and going from Venezuela are incompatible with her allegation that her life would be at risk or she would be subjected to persecution if she returned there. [33] In terms of Ms. XXXX XXXX XXXX delay in claiming asylum, I do not agree that the delay must be counted from May 20, 2018, the date on which president Maduro was re-elected in a widely criticized election. As noted by the RPD, Ms. XXXX XXXX XXXX testified that she was afraid for her life since 2000 and especially since 2013. However, she did not seek asylum until 2018 and the only reason she provided was that she hoped things would get better. I agree with the RPD that this was not a reasonable explanation in light of her testimony that things continued to get worse since 2010 and the fact that she had multiple opportunities to claim asylum during at least XXXX trips she took to the XXXX XXXX, Canada and XXXX between 2010 and 2018. I do not disagree with the case law in Ms. XXXX XXXX XXXX memorandum to the effect that a delay in claiming asylum is not determinative and cannot be the sole reason for rejecting an asylum claim. Ms. XXXX XXXX XXXX delay in claiming asylum was not the sole reason for rejecting her claim. It was, however, a relevant factor that the RPD correctly concluded adversely affected the credibility of her allegation that her life is in danger or she would be subjected to persecution if she returns to Venezuela. CONCLUSION [34] For all the above reasons, the RAD dismisses the appeal. In accordance with section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the XXXX XXXX XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) Jo-Anne Pickel Me Jo-Anne Pickel June 28, 2019 Date JP/tm 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 4 Section 110(6) of the IRPA. 5 Paragraph 22 of RPD Decision. 6 See for example, Alam v Canada (Minister of Citizenship and Immigration), 2005 FC 4 at para. 8. 7 Tab 7.3 of NDP for Venezuela (March 29, 2019). 8 Guven v. Canada (Citizenship and Immigration), 2018 FC 38 at para. 38. 9 The standard to be applied in assessing evidence such as the Facebook posts is a likelihood or balance of probabilities: Win v. Canada (Citizenship and Immigration), 2008 FC 398 at para. 30 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-00753 RAD.25.02 (April 04, 2019) Disponible en français 10 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 (April 04, 2019) Disponible en français