MB6-02976

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 : MB6-02976 MB6-02977 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX XXXX XXXX XXXX Appelants Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision August 18, 2017 Date de la décision Panel Roxane Cyr Tribunal Counsel for the Appellant(s) François (MONTRÉAL) Jean Denis Conseil des appelants Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX and her husband, XXXX XXXX, both citizens of Haiti and Venezuela, are appealing against a decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. [2] The appellants did not submit any new evidence before the Refugee Appeal Division (RAD), nor are they requesting a hearing. DETERMINATION [3] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's decision, namely that XXXX XXXX XXXX XXXX and XXXX XXXX are not "Convention refugees" or "persons in need of protection" within the meaning of section 97 of the IRPA. ALLEGATIONS [4] The female appellant had a business XXXX XXXX and XXXX in Caracas. Her husband, the male claimant, worked in the XXXX XXXX. [5] After their most recent trip to Canada (which lasted five months, during which the business was closed), the male appellant stayed in Canada, while the female appellant returned to Venezuela; when she returned, she had problems with competitors in her area. Thanks to some aggressive sales strategies, the female appellant's business pulled through, but that was not the case for the neighbouring businesses, some of which even ended up closing their doors. As a result, the door to the female appellant's business was painted with threatening, racist graffiti. The first time this happened was on XXXX XXXX, 2015; it happened again on XXXX XXXX, 2017, this time on the door of her house. She also received a threatening telephone call, during which she was told that she was preventing the other businesses from making sales. [6] The female appellant concluded that the other business owners were responsible for these messages and that they wanted to kill her. [7] She asked the police for protection, but that did not stop the threats. [8] The female appellant left and went to Haiti on XXXX XXXX, 2016. [9] She owns property there and had problems with the renters. She did not want to renew their lease because she wanted to use the space to set up a business. They refused to leave and threatened to rape, kidnap, torture and kill the female appellant. [10] The female appellant left Haiti on February 3, 2016, and came to Canada, where the male appellant was living. They claimed refugee protection on February 17, 2016. The male appellant's claim is based on that of his wife. RPD DECISION [11] The RPD rendered a negative decision in this case. [12] The RPD believed the female appellant, stating [translation] "The panel accepts that the appellant was targeted by unknown individuals who were acting on behalf of her competitors because her business was successful." (see para. 18, RPD decision) [13] The RPD was of the opinion that this claim does not fall under section 96 of the Act as the grounds cited do not meet the criteria of the Convention refugee definition, given that there is no nexus to the ground of "membership in a social group" (women), as put forward by counsel at the hearing. The RPD was of the opinion that the alleged fear did not stem from the fact that the female appellant is a woman, but rather from the fact that she was a business owner. [14] The RPD was further of the opinion that this claim does not meet the requirements set out in paragraph 97(1)(a). [15] In the RPD's opinion, the threats that the female appellant received do not constitute a risk to her life or a risk of cruel and unusual punishment within the meaning of paragraph 97(1)(b) of the IRPA. [16] The RPD was of the opinion that the appellants did not establish that they have a prospective fear in Venezuela. The RPD relied on the Federal Court of Appeal's reasoning in Sanchez v. Canada (2007 FCA 99), which states the following: "...persons claiming to be in need of protection solely because of the nature of the occupation or business in which they are engaged in their own country generally will not be found to be in need of protection unless they can establish that there is no alternative occupation or business reasonably open to them in their own country that would eliminate the risk of harm." [17] The RPD concluded that the female appellant's fear stemmed from the fact that she ran a business. The threats from competitors were telling her to stop her business activities in the area. Since she and her husband are not poor, the couple would not be left wanting even if she were to stop her business activities (the male appellant has been working in the restaurant industry for a number of years). [18] Given that the appellants did not establish that they have a fear in Venezuela, it was not necessary to analyze their prospective fear in Haiti. APPELLANTS' MEMORANDUM [19] The appellants argued that the RPD erred on a number of points: - The RPD did not properly assess the female appellant's testimony. It was not vague, evasive or arduous. - The RPD erred in applying the reasoning in Sanchez v. Canada (2007 FCA 99). It is impossible for the female appellant to find another occupation. She has no education, she has been a business owner for 20 years and she is XXXX years old. Changing jobs in a country like Venezuela, which is on the cusp of financial ruin and where unemployment is endemic, would be impossible. There is no chance of finding another job or occupation. Her business capital is now obsolete, and she cannot go near her store. - The agents of harm intend to kill the female appellant because of what she did to the other business owners: she forced (some of) them to close their doors. Those individuals will not stand by and simply accept the harm they feel she has caused. They are driven by vengeance. - The RPD erred in failing to analyze the activities the female appellant could undertake if her business were to close. - The RPD did not demonstrate how those new activities would protect the female appellant from the threats she was receiving. - The RPD erred in concluding that the male appellant could find another job. That is speculation. - The RPD showed bias and erred in failing to analyze the reasonable fear of persecution in this case. It made an error. THE RAD'S ROLE [20] As a tribunal, the RAD hears appeals against decisions rendered by the RPD. [21] Federal Court decisions have established that the RAD is "a specialized (if not overspecialized) tribunal" (see Alvarez),1 and conducts hybrid appeals, according to the recent case law. The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [22] The Federal Court of Appeal recently determined in Huruglica (2016 FCA 93) (paragraph 70) that the RPD, having heard the testimony, may have an advantage with regard to credibility: [70] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [23] The RAD must determine in its analysis whether the RPD enjoyed an advantage owing to the fact that it heard the testimony, and accordingly what degree of deference the RPD should be afforded. [24] Paragraph 103 of Huruglica (2016 FCA 93) specifies the standard of review to be applied by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [25] Accordingly, the RAD should apply the correctness standard of review, except when the finding under review deals with an issue of credibility with regard to which the RAD believes it should show deference. [26] In a decision rendered by a three-member panel of the RAD2 on the topic of deference, the panel concludes in paragraph 116 b) that, "Where the RPD enjoys a meaningful advantage in making a particular finding, the RAD may assess that finding using a standard of reasonableness, modified to apply to the RAD context." [27] However, even where deference to an RPD finding is warranted, the RAD is required to undertake an independent review of the evidence upon which the finding is based.3 [28] "Where the RAD finds that deference is warranted, it is obligated to explain how the RPD enjoyed a meaningful advantage with respect to the finding in question."4 [29] The RAD will conduct its own analysis. The RAD will consider all the evidence, including the testimony, and will determine whether the RPD's decision contains any errors of fact, of law or of mixed fact and law, and whether they are determinative to the outcome of the case and are such that the decision cannot be upheld. ANALYSIS WITH RESPECT TO VENEZUELA [30] The RAD has reviewed the entire record, including the recording of the RPD hearing. [31] The RAD need not analyze the appellants' arguments concerning credibility. They argue that the RPD erred and showed bias in concluding that the female appellant's testimony was vague, evasive and arduous. The RPD concluded that it believed that the female appellant had been threatened by unknown individuals in connection with her business operations, despite its remarks concerning her testimony. However, those remarks had no impact other than providing some clarification about the female appellant's testimony. There is therefore no need to conduct an analysis of this point. [32] Did the RPD err in relying on the reasoning in Sanchez v. Canada (2007 FCA 99)? [33] The RPD concluded that the threats made to the female appellant were designed to force her to stop her activities and leave the area. [34] The evidence indicates that graffiti was painted on her doors, both at her business and at her home, on XXXX XXXX, 2015, and XXXX XXXX, 2016. The female appellant also received threatening telephone calls telling her that she was preventing them from making sales and that they could no longer tolerate her. The graffiti stated that the female appellant had to leave or else she would be killed. The female appellant is of the opinion that the threats were being made by small-time criminals who were hired by her competitors whose businesses were suffering. [35] The female appellant stated that after she returned to Venezuela in late XXXX 2015, she reopened her business in early XXXX 2015. At that time, she used aggressive sales techniques, such as lowering her prices and distributing brochures in the neighbourhood, which hurt the other merchants. [36] The RPD found her story to be credible, so it is plausible that the other merchants blamed the female appellant for their businesses failing (some of them had to close up shop). The female appellant was told more than once in the threats to leave or else she would be killed. [37] Therefore, the RAD concludes that the merchants wanted the female appellant to stop her activities because she was hindering them, to the point that they threatened to kill her if she did not leave, which she did. [38] The RAD does not agree with the appellants' argument in their memorandum that the agents of harm were motived by vengeance and that, consequently, the fact that the female appellant stopped her business activities does not mean that she is no longer at risk, because the agents of harm are motivated by vengeance. [39] In light of the evidence on the record, the RAD is of the opinion that the RPD decision is correct: ending these business activities, as per Sanchez v. Canada (2007 FCA 99), puts an end to the fear under paragraph 97(1)(b). [40] Is it unreasonable, as argued by the appellants in their memorandum, to ask her to start another occupation, trade or job? [41] The RPD's states in its decision that if the female appellant were to cease her business activities in the particular neighbourhood where she had her store, the risk she was facing would no longer exist. [42] Therefore, the RPD is not asking the female appellant to stop all business activities, as the appellants allege. Rather, it is suggesting that she remove herself from the risk she is facing in a particular area, that is, the neighbourhood where she operated her business. As in Sanchez, the female appellant did not establish that she could not find another occupation in her country, given that she could stop operating her business in that area and start it up in another location. [43] In light of the above analysis, the RAD is of the opinion that the female appellant has not established that the criminals (who the female claimant assumes were hired by the merchants) were doing anything other than sidelining her as a competitor. Given that they succeeded in doing so, there is nothing in the evidence to suggest that these merchants have any motivation to seek revenge now that they have made her close her business. [44] In view of the evidence on the record, the female appellant has not demonstrated that she is impoverished. She was able to stay in Canada for nearly five months in 2015 even though she had closed down her business. She travelled while she was living in Venezuela. She owns property in Haiti. Her husband has worked in the XXXX XXXX for a number of years. [45] Consequently, the issue is not that she must no longer own a business in Venezuela. She may do so in another geographic area if she does not wish to change occupations. [46] The RAD is of the opinion that the RPD did not err in applying the reasoning in Sanchez. [47] In their memorandum, the appellants submit that the RPD erred in failing to analyze whether the appellants would have a "well-founded fear of persecution" if they were to return to their country of origin. However, those terms are used in section 96 of the IRPA with respect to Convention refugees: "a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion". The RAD is of the opinion that there is no nexus to the Convention grounds in the appellants' claim for refugee protection. [48] The female appellant was threatened by merchants and people hired by them because they resented her for running a successful business and blamed her for the fact that their own businesses were not doing well and that some had even had to close. These motives have no nexus to any of the five Convention grounds. Consequently, there was no need for the RPD to analyze the well-founded fear of "persecution" that is included in the definition of refugee set out in section 96 of the IRPA. [49] There is no reason to analyze the fear of returning to Haiti given that the RAD concludes that the RPD rendered the correct decision with respect to Venezuela. The male appellant's claim is based on that of the female appellant. Consequently, the analysis under section 96 and paragraph 97(1)(b) also applies to him. [50] For these reasons, the RAD is of the opinion that the RPD rendered the correct decision. REMEDY [51] For these reasons, the RAD confirms the RPD's decision, namely that XXXX XXXX XXXX XXXX and XXXX XXXX are not "Convention refugees" pursuant to section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [52] Their appeal is dismissed. Roxane Cyr Roxane Cyr August 18, 2017 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. 2 X (Re), 2017 CanLII 33034 (CA IRB). 3 Idem, para. 71. 4 Idem. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB6-02976 MB6-02977 11