VB7-00491

BNImmigration 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 : VB7-00491 / VB7-00492 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is (are) XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal XXXX XXXX XXXX XXXX Appeal considered at Appel instruit à Date of decision November 28, 2017 Date de la décision Panel Tribunal Counsel for the person(s) who is (are) Mojdeh Shahriari Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX XXXX (the "appellant") and XXXX XXXX XXXX XXXX (the "associate appellant") appeal the January 11, 2017 determination of the Refugee Protection Division (the "RPD"). The claims were heard by the RPD on December 14, 2016 with a Notice of Decision being sent on January 13, 2017. The RPD found that the appellants are neither Convention1 refugees nor persons in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (the "Act" or "IRPA").2 DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(b) of the Act, the Refugee Appeal Division (the "RAD") sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made namely, that the appellants are Convention refugees pursuant to section 96 of the Act. BACKGROUND [3] Counsel for the appellants before the RAD is the same as they had before the RPD. The Minister has intervened before the RPD but not the RAD. [4] A transcript of the RPD hearing has been included in the Appellant's Record (AR).3 [5] The appellant does seek to present "new evidence"4 to the RAD pursuant to subsection 110(4) of the Act pursuant to RAD Rule 29 and 37 of the Refugee Appeal Division Rules (the "RAD Rules")5 in IRPA. BASIS OF CLAIM [6] According to the allegations set out in the appellants' Basis of Claim forms,6 the appellants arrived in Canada on XXXX XXXX, 2014. The appellants worked for different XXXX in Caracas. The appellants state that in 2012 and 2013 they were politically active by signing petitions condemning the current government in Venezuela and seeking a change in government. The appellant states that "Our names are known to the state and the criminal elements supporting it." [7] The appellant alleges that there are five occasions in 2013 when she was attacked and robbed by criminals wearing "red shirts" that she believes were aligned with the current government in Venezuela. [8] After coming to Canada the appellants were denied an application to receive the transfer of funds for their studies by the Venezuelan Commission for the Administration of Currency exchange (CADIVI) which manages the currency exchange system in Venezuela. These were the appellants' own funds which had been deposited for their use when they were studying in Canada. The appellants believe this decision by the CADIVI was based on their political activity when they were in Venezuela. [9] Since coming to Canada, the appellants have been active in public demonstrations protesting the Venezuelan government that were held outside the Venezuelan consulate in Vancouver and elsewhere in the city. The appellant states that if she were to return to Venezuela she would have "no option but to participate actively in the overthrow of this (Venezuelan) government." [10] The appellants fear that if they return to Venezuela they will be persecuted by the Venezuelan government and/or criminal elements supporting the government. [11] The appellants applied for refugee protection at the immigration office in Vancouver, BC on May 8, 2014. GROUNDS OF APPEAL [12] The appellant's submissions7 as to the grounds of this appeal can be summarized as follows: * Did the RPD member make material errors in assessing the objective documentary evidence including an error in finding that there is no nexus to a Convention ground? * Did the RPD member err in his section 97 analysis? * Is the RPD member's state protection finding wrong? * Is the RPD member's sur place determination wrong? * Did the RPD member fail to apply the Gender Guidelines?8 REMEDY SOUGHT [13] The appellants have requested that the RAD, under paragraph 111(1)(b) of the Act, set aside the determination of the RPD and substitute a determination that the appellant is a Convention refugee or person in need of protection. Or, the appellants have requested9 that the RAD, under paragraph 111(1)(c) of the Act, allow the appeal and refer the matter to the RPD for redetermination by a differently constituted panel. CONSIDERATION OF NEW EVIDENCE [14] Subsection 110(4) of the Act provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [15] The appellants are required to provide full and detailed submissions as part of their memorandum and provide explanations for how the proposed new evidence meets the requirements of subsection 110(4), and how it relates to their claims.10 [16] Once the "new evidence" has been accepted by the RAD, the RAD is also guided by the recent Federal Court of Appeal ("FCA") case, Singh.11 In Singh, the FCA has said: [64] In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers. In any case, the issue seems rather academic to me, to the extent that the implicit criteria from Raza do not truly add to the wording of subsection 110(4) but are necessarily implied. Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case. [17] In Singh,12 the FCA also said: [54] [. . .] The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected. [18] The RAD will assess the evidence on "newness" as outlined in subsection 110(4). If it passes this test, the RAD will go on to assess the "new evidence" on credibility and relevance before admittance of such evidence for the RAD appeal. [19] The appellants did not submit any new evidence at the time the AR was perfected for the RAD appeal. On April 20, 2017, July 10, 2017, and September 11, 2017, applications were made pursuant to IRPA subsection 110(4) and RAD Rules 29 and 37 to admit further new evidence. These application were made after all legislated deadlines had passed including the time to perfect the appeal and the time the decision on the appeal was to be made. RAD Rule 29(4) states that: 29(4) Factors - In deciding whether to allow an application, the Division must consider any relevant factors, including: (a) The document's relevance and probative value; (b) Any new evidence the document brings to the appeal; and (c) Whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [20] The applications to submit late evidence13 included articles which are the following: A. Declaration on Venezuela, Government of Canada, dated March 23, 2017.14 B. Venezuela: Excessive use of force towards protestors exacerbates humanitarian crisis, Amnesty International, dated April 7, 2017.15 C. Non-Violence and Accountability During Protests in Venezuela, US Department of State, dated April 18, 2017.16 D. Mother of All Marches Turns Violent in Venezuela, nbcnews.com, dated April 19, 2017.17 E. The latest: Venezuela teen dies after shot near protests, apnews.com, dated April 19, 2017.18 F. Maduro gets ready for April 19 demonstrations Repressing dissent, Human Rights Watch -hrw.org, dated April 18, 2017.19 [21] The appellants submit that the documents submitted pertain to recent news and developments in Venezuela. In particular, the appellants note that these documents are relevant as they corroborate the issues argued by the appellants in their memorandum and are particular to the RPD member's error in assessing the objective documentary evidence and finding no nexus with a convention ground and the RPD member's error in its state protection determination. G. Notice - Changes to the Pre-Removal Risk Assessment for Venezuela, Government of Canada, dated July 7, 2017.20 [22] The appellants submit that the relevance of this document is that: [. . .] this notice further proves that the appellants in the present appeal are at risk of persecution and harm if returned to Venezuela and that the objective country conditions have worsened in Venezuela and that the RAD should take into "consideration the deteriorating state of affairs in Venezuela. H. Venezuela crisis: UN calls for investigation into possible crimes against humanity, theguardian.com, dated September 11, 201721 [23] The appellants submit that this document "is further evidence of the ongoing deterioration of human rights in Venezuela and the continuing escalation of repression, torture and killing of the dissidents." [24] I have examined the new evidence submitted by the appellants in its entirety. I note that all the documents submitted are dated post RPD hearing date and after the RPD determination date. I also note that these documents directly relate to the appellants' fear that was presented to the RPD. I find that these documents could not reasonably have been expected to be available for the RPD hearing. I therefore accept all documents submitted as "new evidence" for this RAD appeal. [25] The appellants have not requested an oral hearing pursuant to subsection 110(6) of the Act. ROLE OF THE RAD [26] In this appeal, and taking into consideration the recent FCA decision in Huruglica,22 with respect to findings of fact (and mixed fact and law), which raise no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Otherwise, where an issue concerning credibility of oral evidence is evident, I will be applying the points set out in Huruglica23 which is to conduct an independent assessment of all the evidence to determine whether the appellants are Convention refugee or persons in need of protection, while giving certain deference to the RPD's findings regarding the appellants' credibility and any other issues where the RPD enjoys a particular advantage. As well, it is clear from the many recent court cases that have been previously mentioned, all agree that the standard of correctness should be used for any error of law found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [27] The appellants submitted a number of arguments to establish that the RPD's determination is erroneous and should be set aside by the RAD. I am of the opinion that I do not need to address them all given that I am setting aside the determination of the RPD and substituting a determination that, in my opinion, should be made following my own assessment of the evidence submitted before the RPD and the RAD. [28] The appellants submit that the RPD member erred by determining that the appellants do not have a nexus to a Convention ground.24 The appellants submit that they have participated in public demonstrations against the Venezuelan government and will continue to do so if they returned to Venezuela.25 Moreover, the appellants submit that the RPD member's determination on sur place is wrong26 primarily because it disregards the evidence and makes its own speculative determination with respect to both the appellants' political activity progression while in Canada and to their continuous participation in demonstrations and rallies if they were to return to Venezuela. [29] I note that the RPD member finds27 the appellants to be credible: [17] The panel finds that the evidence provided by the claimants is credible overall and that the street robberies they endured took place as they are described. The testimony provided by the principal claimant in her testimony is consistent with other evidence and she did not try to embellish her story when there were opportunities for her to do so. [30] Furthermore, it is also important to note that the FCA in Rizkallah28 said: [. . .] to succeed, refugee claimants must establish a link between themselves and persecution for a Convention reason. In other words, they must be targeted for persecution in some way, either personally or collectively. [31] In the same way, I find the RPD member erred in his assessment of the objective evidence in finding the appellant not to be a Convention refugee. In my review of the RPD's findings, I find that the RPD member erred by not adequately assessing the appellant's profile in context of the country reports and by incorrectly applying the Convention refugee definition. The Court has said: The claimant [appellant] does not have to belong to a political party29 nor does the claimant [appellant] have to belong to a group that has an official title, office or status30 nor does the claimant [appellant] have to have a high-profile within a political party31 in order for there to be a determination that the claimant's [appellant's] fear of persecution is by reason of political opinion. The relevant issue is the persecutor's perception of the group and its activities, or of the individual and his or her activities.32 The appellants' allege that they have participated in protests against the current government in Venezuela and that they will continue to do so if they return. It is clear from the evidence presented that the appellants do have a link to a Convention ground being political opinion. [32] The Federal Court has made it clear in a number of cases that when assessing the credibility of a claimant, it is important to remember that all of the evidence, both oral and documentary, must be considered and assessed, not just selected portions of the evidence.33 The RPD member finds:34 [16] The panel has reviewed the country documentation in the context of this case, both from the National Documentation Packages (NDP) and in the claimants' evidence as set out in the list of exhibits. A plain reading of these documents indicates that Venezuela has deteriorated into political and economic turmoil in recent years. There is also evidence that these developments have had a significant impact on the ability of some of those actively opposing the government to exercise their civil and political rights and in some circumstances their fundamental human rights are at risk. While the evidence35 supports the targeting of those who organize and lead political opposition, there is little to support that mere participants, whose number is into hundreds of thousands, are targeted by government or those loyal to government. [33] I note that refugee-protection is forward looking. The RPD member's assessment of a claim should include the forward looking risk a person may face if he returned to his home country. In Salibian,36 the FCA found that: (1) the applicant does not have to show that he had himself been persecuted or would himself be persecuted in the future; (2) the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged; (3) a situation of civil war in a given country is not an obstacle to a claim provided the fear felt is not that felt indiscriminately by all citizens as a consequence of the civil war, but that felt by the applicant himself, by a group with which he is associated, or, even, by all citizens on account of a risk of persecution based on one of the reasons stated in the definition; and, (4) the fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his country of origin. [34] I find that the RPD member has not adequately assessed all the evidence before him, on a balance of probabilities, in finding the appellants to be not at risk of persecution at the hands of the state. I have also conducted an independent assessment of the country reports in my analysis. In particular, the US Department of State37 report states: Venezuela is formally a multiparty, constitutional republic, but for more than a decade, political power has been concentrated in a single party with an increasingly authoritarian executive exercising significant control over the legislative, judicial, citizen, and electoral branches of government. Principal human rights abuses reported during the year included use of the judiciary to intimidate and selectively prosecute government critics; indiscriminate police action against civilians leading to widespread arbitrary detentions and unlawful deprivation of life; and government actions to impede freedom of expression and restrict freedom of the press. The government arrested and imprisoned opposition figures and did not respect judicial independence or permit judges to act according to the law without fear of retaliation. The government blocked media outlets, and harassed and intimidated privately owned television stations, other media outlets, and journalists throughout the year using threats, fines, property seizures, arrests, criminal investigations, and prosecutions. Nongovernmental organizations (NGOs), the media, and government agencies reported extrajudicial killings by police and security forces; torture and other cruel, inhuman, or degrading treatment; harsh and life-threatening prison conditions and lack of due process rights that contributed to widespread violence, riots, injuries, and deaths in prisons; inadequate juvenile detention centers; corruption and impunity in the police; arbitrary arrests and detentions; abuse of political prisoners; interference with privacy rights; lack of government respect for freedom of assembly; lack of protection for Colombian migrants; corruption at all levels of government; threats against domestic NGOs; violence against women; anti-Semitic statements by senior government officials; trafficking in persons; violence based on sexual orientation and gender identity; and restrictions on workers' right of association. [. . .] In September authorities released student-protester Marco Coello, who then fled the country. CICPC authorities had detained Coello in February 2014 for participating in protests, and reportedly beat and threatened to kill him while he was in their custody. A government official publicly rejected his accusations of torture. [. . .] The constitution prohibits the arrest or detention of an individual without a judicial order and provides for the accused to remain free while being tried, but individual judges and prosecutors often disregarded these provisions. [. . .] Corruption, inadequate police training and equipment, and insufficient central government funding, particularly for police forces in states and municipalities governed by opposition officials, reduced the effectiveness of the security forces. There were continued reports of police abuse and involvement in crime, including illegal and arbitrary detentions, extrajudicial killings, kidnappings, and the excessive use of force. [. . .] At year's end the NGO Foro Penal reported that 76 political prisoners remained incarcerated, 15 of whom were initially detained during the year. An additional United States. Department of State. Venezuela. Country Reports on Human Rights Practices for 2015. [. . .] 2,057 individuals who participated in the 2014 protests were still subject to either restricted movement or precautionary measures. The government used the judiciary to intimidate and selectively prosecute individuals critical of government policies or actions. The UN Human Rights Council Working Group on Arbitrary Detentions issued a resolution in support of 317 persons arbitrarily detained during the 2014 protests. [. . .] The law provides for freedom of speech and press, but the combination of laws and regulations governing libel and media content, as well as legal harassment and physical intimidation of individuals and the media, resulted in practical limitations on these freedoms. National and international groups, such as the Inter-American Commission on Human Rights, the UN Human Rights Committee, Freedom House, the Inter American Press Association, Reporters without Borders, and the Committee to Protect Journalists, condemned or expressed concern over government efforts throughout the year to restrict press freedom and create a climate of fear and self-censorship. [. . .] The law makes insulting the president punishable by six to 30 months in prison without bail, with lesser penalties for insulting lower-ranking officials. Comments exposing another person to public contempt or hatred are punishable by prison sentences of one to three years and fines starting at Bs 55 ($8.74). [35] I note that the RPD member also assessed the same document38 in coming to his determination. The RPD member finds:39 [32] [. . .] While the claimants have a right to express their political views freely and publicly in Venezuela, the panel finds that it will be unlikely that they will go above and beyond what they have been doing in Canada, namely taking part in already organized public demonstrations. According to the documentary evidence before the panel,40 anti-governmental public demonstrations in Venezuela are quite common and they attract thousands of participants. While there is credible evidence that the government persecutes the organizers and leaders of the opposition, there is little evidence to support the persecution of participants. [36] However, I find there is sufficient objective evidence to contradict the RPD member's findings on the issue of whether the appellants have more than a mere possibility of persecution at the hands of the state due to their political opinion. I find the RPD member did not consider the central issue of the claim, namely - what is the forward looking risk for the appellants if they returned to their home country considering their profile? It is clear from the objective evidence before the RPD and the RAD that the state is not receptive to those who oppose the current government. Thus, I concur with the appellants that the RPD member erred in his assessment of the country documents and failing to find the appellants have a nexus to the Convention ground of political opinion. I find that the objective evidence that was before the RPD member is sufficient to concur that the appellants are Convention refugees and thus I do not find it necessary to deal with the "new evidence" disclosed for the RAD appeal. [37] The RAD also finds that all elements required by section 96 of the Act have been met in this case. The appellants have a nexus to the Convention ground of political opinion. I also find that the appellants have rebutted the presumption of state protection and internal flight alternative in consideration of the country conditions. REMEDY [38] For all these reasons, I set aside the determination of the RPD and substitute the negative determination, and find that the appellants are Convention refugees as per paragraph 111(1)(b) of the Act. (signed) November 28, 2017 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 3 Exhibit 2, Appellant's Record (AR). 4 Exhibit 4, 5, and 6. 5 Refugee Appeal Division Rules (the "RAD Rules"), SOR/2012-257. 6 Exhibit 3, Refugee Protection Division Record (RPDR). 7 Exhibit 2, AR, Memorandum. 8 Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, Effective date: 13 November 1996. 9 Exhibit 2, AR, Memorandum. 10 Refugee Appeal Division Rules (the "RAD Rules"), SOR/2012-257, subparagraph 3(3)(g)(iii). 11 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 12 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 13 Exhibit 4, Appellant's Late "New Evidence", April 20, 2017. 14 Exhibit 4, pp. 1-2. 15 Exhibit 4, pp. 3-4. 16 Exhibit 4, pp. 5-6. 17 Exhibit 4, pp. 7-10. 18 Exhibit 4, pp. 11-14. 19 Exhibit 4, pp. 15-16. 20 Exhibit 5, Appellant's Late "New Evidence", dated July 7, 2017. 21 Exhibit 6, Appellant's Late "New Evidence", dated September 11, 2017. 22 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 23 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 24 Exhibit 2, AR, Memorandum. 25 Exhibit 2, AR, Memorandum. 26 Exhibit 2, AR, Memorandum. 27 Exhibit 3, RPDR, Member's Decision. 28 Rizkallah, Bader Fouad v. M.E.I. (F.C.A., no.A-606-90), Marceau, MacGuigan, Desjardins, May 6, 1992. 29 Armson, Joseph Kaku v. M.E.I. (F.C.A., no. A-313-88), Heald, Mahoney, Desjardins, September 5, 1989. Reported: Armson v. Canada (Minister of Employment and Immigration). (1989), 9 Imm. L.R. (2d) 150 (F.C.A.), at 153. 30 Hilo, Hamdi v. M.E.I. (F.C.A., no. A-260-90), Heald, Stone, Linden, March 15, 1991. Reported: Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.), at 203. 31 Surajnarain, Doodnauth v. M.C.I. (F.C., no. IMM-1309-08), Dawson, October 16, 2008; 2008 FC 1165. 32 Hilo, supra, footnote 31, at 202-203 (re charitable group). See also Bohorquez, Gabriel Enriquez v. M.C.I. (F.C.T.D., no. IMM-7078-93), McGillis, October 6, 1994 (re lottery ticket cooperative); Salvador (Bucheli), Sandra Elizabeth v. M.C.I. (F.C.T.D., no. IMM-6560-93), Noël, October 27, 1994 (re witness to crime committed by paramilitary group); Marvin, supra, footnote 27, (re reporting of drug traffickers to authorities); Kwong, Kam Wang (Kwong, Kum Wun) v. M.C.I. (F.C.T.D., no. IMM-3464-94), Cullen, May 1, 1995 (re defiance of one-child policy) - but compare Chan (C.A.), supra, footnote 1, at 693-696, per Heald J.A., and at 721-723, per Desjardins J.A. 33 Owusu, Kweku v. M.E.I. (F.C.A., no. A-1146-87), Heald, Hugessen, Desjardins, January 31, 1989. 34 Exhibit 3, RPDR, Member's Decision, p. 7. 35 Exhibit 3, RPDR, National Documentation Package (NDP), Venezuela, May 31, 2016, Item 2.1. 36 Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (F.C.A.). 37 Exhibit 3, RPDR, NDP, Item 2.1. 38 Exhibit 3, RPDR, NDP, Item 2.1. 39 Exhibit 3, RPDR, Member's Decision. 40 Exhibit 3, RPDR, NDP, Item 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB7-00491 / VB7-00492