TB9-08462

RAD File / Dossier de la SAR : TB9-08462 TB9-08463 / TB9-08464 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision February 11, 2020 Date de la décision Panel Daniel Tucci Tribunal Counsel for the persons who are the subject of the appeal Michael F Loebach Barrister and Solicitor Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Principal Appellant), XXXX XXXX XXXX XXXX (Principal Appellant's Daughter) and XXXX XXXX XXXX (Principal Appellant's Son) are appealing a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. They request that the Refugee Appeal Division (RAD) set aside the RPD's decision under section 111(1)(b) and find that they are Convention1 refugees or persons in need of protection. DETERMINATION OF THE APPEAL [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA),2 the Panel sets aside the determination of the RPD and refers the matter back to the RPD for re-determination with respect to the principal appellant. The panel confirms the decision of the RPD with respect to the principal appellant's daughter and son under Section 111(1)(a) of the IRPA. The panel finds that the minor appellants are not Convention refugees or persons in need of protection. BACKGROUND [3] The Principal Appellant is a citizen of Venezuela and Lebanon. The Principal Appellant's Daughter and Son are citizens of the United States. The Principal Appellant was a XXXX in Venezuela. In 2012 he travelled to Turkey and Germany where he met with the Minister of Food and Industry as well as XXXX XXXX, the present leader of Venezuela. The Principal Appellant stated that he exchanged phone numbers with the individuals. When he returned to Venezuela, he was contacted by these individuals and asked to attend a meeting in Caracas. [4] The Principal Appellant stated that he was asked to enter into a fraudulent scheme which he refused to do. He then began having problems in Venezuela. The Principal Appellant and his family fled Venezuela in 2018. The Minister filed an Intervention at the RPD hearing on the basis of credibility. The Minister disclosed information indicating that the Principal Appellant had entered the United States on a number of occasions while he was having problems in Venezuela. He did not make an asylum claim in the United States during these several entries and he chose to return to Venezuela. The Minister argued that the Principal Appellant's failure to claim asylum in the United States and his subsequent return to Venezuela show a lack of subjective fear on his part and this negatively impacts his credibility with respect to his refugee claim in Canada. The Principal Appellant stated that he and his family fear returning to Venezuela as they believe that they will be harmed or killed if they do return. ISSUES [5] The Counsel for the Appellants argue that the RPD Member erred in finding that the Appellants are not Convention refugees or persons in need of protection. Counsel further argues that the RPD Member erred in concluding that the letter from the political party is fraudulent, that the RPD erred in its finding that the Principal Appellant was not credible and also erred in its analysis of the other evidence in relation to his credibility. NEW EVIDENCE AND ORAL HEARING [6] The Principal Appellant has not submitted any new evidence under section 110(4) of the IRPA. The Appellants are not seeking an oral hearing for this appeal pursuant to section 110(6) of the IRPA. SCOPE OF RAD APPEAL [7] When reviewing the RPD decision, the Panel is required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. The Panel may defer to the RPD's credibility assessment of oral testimony if the Panel finds that the RPD had a meaningful advantage in the circumstances. Reasons will be provided in the Panel's analysis if the Panel finds that the RPD had a meaningful advantage. ANALYSIS OF THE MERITS OF THE APPEAL [8] The Panel has considered the evidence on file including the Minister's disclosure as well as the Appellant's Memorandum. The RPD Member found that the Principal Appellant was not credible with respect to his refugee claim. The Panel disagrees. The RPD in its decision and reasons stated that the Principal Appellant did not specify in his Basis of Claim (BOC) Form with whom he met in Turkey and Germany in 2012. The Principal Appellant testified that he met with XXXX and the Minister of Food and Industry in Turkey and that he met them a few days later in Germany. The RPD Member asked the Principal Appellant why he did not specifically mention the Minister and XXXX in his BOC. The RPD Member found the Principal Appellant evasive in his explanation for failing to mention them in his BOC. The RPD Member saw this failure to provide a reasonable explanation as a significant factor in assessing the Principal Appellant's credibility. The RPD Member found this fundamental to the claim as it formed the basis for rejecting the refugee claims. The RPD Member concluded that the Principal Appellant's failure to mention whom he met with in Turkey and Germany negatively impacted his overall credibility. [9] The Panel finds that the RPD Member erred in her analysis of the Principal Appellant's evidence. The Panel finds that the Principal Appellant and the Principal Appellant's Spouse did in fact mention with whom the Principal Appellant met in Turkey and Germany. The Panel finds that this conclusion from the RPD Member impacted her analysis of the Principal Appellant's other evidence in support of his claim. The Panel finds that this error on the part of the RPD Member leads to a determination that the decision must be set aside. [10] Although the error mentioned previously is sufficient to set aside the RPD decision, the Panel does want to comment on other aspects of the RPD Member's analysis. The RPD Member placed little weight on the letters sent by the Principal Appellant's manager as well as little weight in the police reports submitted by the Appellants. The Panel disagrees. The Panel agrees with Counsel that although the letter sent by the Principal Appellant's manager was short it does not diminish the fact that it is consistent with the evidence presented by the Appellants. In addition, the police reports should have been afforded some weight as they contain information that is consistent with the information put forward by the Appellants at the RPD hearing. In addition, the RPD Member was not presented with any evidence to suggest that the police reports were not genuine. [11] The Panel also agrees with the Appellants' Counsel that the Panel erred in drawing a negative inference form the fact that the Appellants did not present all the evidence that the Panel believed to be readily available. The burden to establish a refugee claim rests with the Appellants. This burden does not require them to disclose every possible document in support of their claim. The Panel finds that the RPD Member erred in drawing a negative inference with respect to the credibility of the Appellants because they omitted to disclose certain documents that may have been available. [12] The Panel has considered the issue of the Principal Appellant not making an asylum claim in the United States as well as his re-availment in Venezuela. The Panel agrees that this is not determinative of the claim. The Panel finds that the Appellant provided a reasonable explanation for his failure to make a claim in the United States. Although the Principal Appellant may have been naïve about the possibility of his problems going away in Venezuela, this is not sufficient to draw a negative inference from his failure to make a claim. In addition, the Principal Appellant stated that he was looking to apply through means other than the asylum process and he feared that he would we barred from travelling to Lebanon to see his children if he made an asylum claim. The Panel finds that the Appellant provided a reasonable explanation for his failure to make an asylum in the United States. [13] The RPD Member found that the Primero Justicia letter to be fraudulent. The RPD Member considered the timing of the letter and the absence of any mention of this political group in the Principal Appellant's BOC. The RPD Member concluded that the Principal Appellant had not established that he was a member of the Party. The Panel agrees with the Appellant's Counsel that the claim is based on political opinion and that this opinion is related to his interactions with XXXX and the Minister of Industry and his refusal to be involved in their illegal scheme. The Panel finds that this is the primary reason that the Principal Appellant was targeted. [14] The Panel therefore finds that the RPD decision must be set aside for the principal appellant. The Panel notes that the RPD Member did not assess the Principal Appellant's claim against Lebanon nor did the RPD Member assess whether the Principal Appellant could obtain state protection in Lebanon. As such, the Panel cannot substitute the decision of the RPD Member. The Panel must refer the matter back to the RPD for re-consideration. The Panel further finds that it confirms the decision of the RPD Member with respect to the claims of the two minor appellants. The panel finds that they are citizens of the United Stated and the Panel has not been presented with sufficient evidence to determine that they are Convention refugees or persons in need of protection against the United States. The panel therefore rejects the minor claims under both Section 96 and 97 of the IRPA. REMEDIES [15] For all these reasons, the Panel sets aside the decision of the RPD and refers the matter back to the RPD for re-determination before a different Panel with respect to the principal appellant. The panel confirms the decision of the RPD with respect to the minor appellants. (signed) "Daniel Tucci" Daniel Tucci February 11, 2020 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. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-08462 TB9-08463 / TB9-08464 RAD.25.02 (January, 2020) Disponible en français 2 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 (January, 2020) Disponible en français