MB7-02757

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 : MB7-02757 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 Montréal, Quebec Appel instruit à Date of decision May 1, 2019 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Susan Ramirez Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX XXXX XXXX XXXX a citizen Guatemala, is appealing against the Refugee Protection Division (RPD) decision rejecting his refugee protection claim on the grounds that he did not establish that he would be personally subjected to one of the risks set out in paragraph 97(1)(b) of the Immigration and Refugee Protection Act (IRPA) following the fraud he reported in Canada. [2] The appellant argues that the RPD breached procedural fairness by imposing a heavier burden of proof than that of a balance of probabilities and by inadequately interpreting section 97 of the IRPA. He also argues that the RPD erred in finding that his credibility was undermined by his failure to indicate in his Basis of Claim Form (BOC Form) that his wife was the victim of extortion. Finally, he argues that the RPD committed an error of law by not explaining why it concluded that section 96 of the IRPA does not apply. [3] Having conducted my own analysis of the record, I am of the opinion that the alleged fear does not have a nexus to one of the five Convention grounds. [4] Pursuant to section 97 of the IRPA, the appellant must establish that it is probable that he would be subjected to one of the risks set out therein. Considering that the alleged facts and the appellant's statements were not called into question, I am of the opinion that the appellant discharged his burden of establishing that his life would likely be subjected to one of those risks. [5] The appeal is allowed. BACKGROUND [6] The appellant is an XXXXworker who arrived in Canada on XXXX XXXX, 2015, on a permit allowing him to work on a XXXX called XXXX XXXX. Since the conditions of the work contract were not respected, he started working for XXXX XXXX XXXX, who owns the XXXX XXXX known as XXXX XXXX XXXX. [7] This man allegedly offered the appellant and other workers better paying jobs and promised to obtain new work permits for them along with permanent resident status. The changes to his work permit and the steps to obtain permanent residence were supposed to be handled by someone named XXXX XXXX XXXX, allegedly a lawyer. In exchange, the appellant agreed to pay a large sum of money, which would be taken off his salary. [8] On XXXX XXXX, 2016, the appellant and other workers who were defrauded by the XXXX XXXX known as XXXX XXXX XXXX. were arrested by the Canada Border Services Agency. [9] The appellant was released on XXXX XXXX, 2016. [10] While in detention, he was contacted twice by XXXX XXXX XXXX, who threatened him with retaliation if he gave the authorities any information whatsoever. [11] On XXXX XXXX, 2016, the appellant filed a complaint with the Sûreté du Québec against XXXX XXXX XXXX for fraud and threats. In addition to this complaint, he informed the Commission des normes, de l'équité, de la santé et de la sécurité au travail [commission for workplace standards, equity, health and safety] of Mr. XXXX actions. [12] That same day, when he and the other workers returned to the house where XXXX was housing them, some colleagues received threats of retaliation from XXXX. [13] On XXXX XXXX, 2016, the appellant XXXX XXXX XXXX XXXX XXXX, denouncing the fraud to which he and other workers had fallen prey. Following that press conference, some of the workers' family members in Guatemala were threatened. [14] On the night of XXXX XXXX, 2016, unknown individuals tried to break into his wife's home. [15] On XXXX XXXX, 2016, unknown individuals entered the house. His wife reported the incident to authorities, who have yet to do anything. Afraid that something serious would happen, she went to live with her parents. [16] Fearing for his safety, the appellant claimed refugee protection on December 21, 2016. He fears that if he were to return, XXXX, a Canadian citizen of XXXX origin, would take revenge because the appellant filed a complaint against him and is asserting his rights. ISSUE [17] In my opinion, the issues are as follows: * Did the RPD breach procedural fairness by not conducting an analysis under section 96 of the IRPA? * Did the RPD impose too heavy a burden when assessing prospective risk? * Did the RPD err in its credibility assessment? SCOPE OF THE APPEAL [18] Except in cases where the credibility of oral testimony is at issue and the RPD had a meaningful advantage, the Refugee Appeal Division (RAD) must determine whether the RPD decision is correct.1 [19] In this case, I will review the RPD's decision according to the standard of correctness because I do not believe that the RPD had a meaningful advantage in assessing credibility and prospective risk. MERITS OF THE APPEAL Breach of procedural fairness [20] The appellant argues that the RPD breached procedural fairness when [translation] "it stated in paragraph 18 of its analysis that the appellant, through his lawyer, was invoking paragraph 97(1)(b) of the IRPA." Counsel submits: [translation] "How do we know that this claim was not rejected simply because the RPD believes that a subjective fear was not established?"2 [21] Having conducted an independent analysis of the evidence, I conclude that the RPD did not breach procedural fairness by failing to conduct a separate analysis under section 96 of the IRPA. In this case, there is no cause to assess the prospective risk under section 96 because the alleged facts do not lead to the conclusion that the appellant's fear has a nexus to one of the five grounds listed therein. [22] I also note that the argumentation sent to the RPD by the appellant's counsel indicates that the case should be assessed under section 97 of the IRPA.3 Did the RPD impose too heavy a burden of proof [23] The risk assessment is prospective in nature. Under section 97 of the IRPA, the risk must be personal and different from that which other citizens face. [24] The facts alleged by the appellant, according to which he was the victim of fraud in Canada by XXXX XXXX XXXX, a Canadian of XXXX origin, were not called into question. The RPD also did not question whether the appellant filed a complaint against XXXX XXXX XXXX or that XXXX threatened the appellant on various occasions. It did not question whether unknown individuals tried to enter his wife's home in Guatemala. Furthermore, a document filed as Exhibit P-5 was submitted to the RPD to corroborate that fact.4 [25] In its decision, the RPD states the following: * Although the panel believes that threats were made, the appellant did not demonstrate that XXXX could follow through on those threats if he were to return to Guatemala. The RPD based its conclusion on the fact that no charges were laid against XXXX and his company continues to operate in Canada. * The omission from the BOC Form about the fact that his wife received threatening telephone calls in XXXX 2016 leads to doubts that that they actually took place. * The appellant did not demonstrate that the break-in at his home was connected to the fraud he reported in Canada. [26] The appellant argues that the RPD placed the bar too high. The probability of risk needed to be established; all reasonable doubt did not to be dispelled. Alleged risk [27] The appellant fears for his life in Guatemala because XXXX threatened to seek revenge because of the complaint filed against him. In addition, he submits that the Guatemalan justice system and security forces are not reliable institutions. [28] He submits that since XXXX did not hesitate to threaten him in Canada, where there is rule of law, it is probable that he will seek revenge in a country like Guatemala, where the state cannot offer adequate protection. [29] I agree with the arguments presented. Having reviewed the evidence, I conclude that the RPD imposed too heavy a burden. Here is why. [30] To begin, the prevailing context in the country must be taken into consideration. State protection [31] The documentary evidence does not lead me to conclude that the state is able to adequately protect its citizens. On this point, Tab 10.1 of the National Documentation Package from March 2017 states the following: "... the authorities here do very little in terms of investigating..., due to limited resources and/or corruption".... Impunity rates are [very] high.... [P]olice impunity...is a "serious problem" and...authorities lack "effective mechanisms to investigate and punish abuse and corruption" among the police and other security forces.... According to the DCAF, the Guatemalan police force "has a long and detailed history of corruption and links to organized crime," including "instances of police operating their own criminal bands, dedicated primarily to kidnapping and extortion".... Sources also state that the Guatemalan police force is underfunded, understaffed and insufficiently trained.... Burden of proof too high [32] The fact that the appellant was a victim of fraud was not questioned. Nor was there any question about whether the appellant filed a complaint with Canadian authorities. According to statements at the hearing, the fraud to which the appellant and other Guatemalan workers fell prey was reported on in the media. [33] The appellant testified that he was threatened by Mr. XXXX a number of times. He participated in publicly speaking out against the fraud that he and other workers experienced. The RPD did not question the reliability of Exhibit P-5, which reports the anonymous calls his wife allegedly received. [34] After listening to the recording of the hearing and considering the evidence on the record, I do not have any reason to doubt the appellant's statements to the effect that he was threatened by XXXX. The evidence before me does not lead me to find that Exhibit P-5 is not reliable. [35] Whether or not Canadian authorities have laid charges against Mr. XXXX is not determinative. The evidence demonstrates that Mr. XXXX is being investigated for defrauding several workers to whom he promised permanent residence and a change in their work permits. [36] The evidence indicates that hundreds of thousands of dollars are at stake. Mr. XXXX scheme was reported in Canadian newspapers. [37] The appellant and his family members did not have any issues prior to XXXX 2016. His home was broken into shortly after he was threatened by XXXX, a Canadian citizen of XXXX origin. In light of that situation, and because the appellant was threatened, as were other workers, it is logical to believe that Mr. XXXX was not happy with the turn of events and that it is more likely than not that he would retaliate no matter where the appellant settles in Guatemala. [38] In a situation where the government is unable to provide him with adequate protection, I am of the opinion that the appellant discharged his burden of establishing that it is likely that he would be personally subjected to a risk to his life if he were to return to Guatemala and that this risk is different from the generalized risk to which other citizens are subjected given the insecurity in that country. Considering the specific circumstances of this case, I am of the opinion that he could not live in safety in Guatemala. CONCLUSION [39] For these reasons, I set aside the RPD determination to the effect that the appellant, XXXX XXXX XXXX XXXX, is not a "Convention refugee" or a "person in need of protection" pursuant to section 97 of the IRPA. [40] I substitute the determination with the one that should have been made, and I determine that the appellant is a person in need of protection under section 97 of the IRPA. [41] The appeal is allowed. Maria De Andrade Me Maria De Andrade May 1, 2019 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Appellant's memorandum, page 15. 3 RPD record, page 95. 4 RPD record, pages 113 to 116. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB7-02757 8 RAD.25.02 (February 7, 2014) Disponible en français