TB8-12307

RAD File / Dossier de la SAR : TB8-12307 TB8-12308 / TB8-12309 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 XXXX XXXX Personnes en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision January 22, 2020 Date de la décision Panel Daniel Tucci Tribunal Counsel for the persons who are the subject of the appeal Luis Antonio Monroy Garcia Barrister and Solicitor Conseil des personnes 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 (Principal Appellant), XXXX XXXX XXXX XXXX XXXX (Associate Appellant) and XXXX XXXX XXXX XXXX (Principal Appellant's Son), (collectively the Appellants), are citizens of Venezuela. They are appealing a decision of the Refugee Protection Division (RPD) rejecting their respective claims for refugee protection. They request that the Refugee Appeal Division (RAD) set aside the RPD's decision under section 111(1)(b) and substitute a determination by finding that they are Convention1 refugees. DETERMINATION OF THE APPEAL [2] The Panel finds that the Appellants are Convention refugees or persons in need of protection and therefore accepts their claims under section 96 and 97 of the Immigration and Refugee Protection Act (IRPA).2 The Panel therefore substitutes the determination of the RPD pursuant to section 111(1)(b) of the IRPA. BACKGROUND [3] The Appellants are citizens of Venezuela. The Principal Appellant and the Associate Appellant became members of a political opposition party called Un Nuevo Tiempo (UNT) in 2006. The Principal Appellant's Son joined the UNT in 2011. The Appellants began having problems in Venezuela beginning on February 19, 2014 when they participated in a protest against the government. The Principal Appellant and the Associate Appellant left the protest around 6 PM. The Principal Appellant's Son remained at the protest. The Principal Appellant's Son was subsequently kidnapped as he made his way home from the protest. He states that he was kidnapped and held for ransom from the Collectivos, which have been identified as neighborhood groups that support the government of Venezuela. [4] The Principal Appellant was contacted by a member of the Collectivos who demanded 300,000 Bolivars for the return of his son. The Principal Appellant was only able to raise one hundred thousand Bolivars. The Principal Appellant's Son was later released by the group. Following his release, the Principal Appellant's Son moved to his aunt's home in Caracas for a short period of time. He then departed Venezuela for Panama where he remained until his return on XXXX XXXX XXXX 2016. [5] The Principal Appellant and his wife moved from their home and resided with their daughter for a period of time. They then obtained Temporary Resident Visas (TRV) to visit their other son in Canada who is a Canadian citizen. They remained with their son in Canada for a period of five months before returning to Venezuela. The Principal Appellant's Son remained in Panama and applied to remain permanently. The program in place to allow this was cancelled by the government of Panama prior to the Principal Appellant's Son filing his application. He then made inquiries about asylum in Panama. He was informed that he would not be authorized to work in Panama while his asylum application was being processed. He was further informed that the application process could take two years or more to be completed. The Principal Appellant's Son decided not to file the application as he was subject to harassment in Panama as a foreigner. He made the decision to return to Venezuela in 2016 hoping that he would no longer face the issues he had faced preciously with the Collectivos. [6] The Appellants believe that they will be harmed or killed if they return to Venezuela because of their membership in an opposition political party as well as a result of their political activities that are in opposition to the government in Venezuela. The RPD Member rejected all of their claims on the basis of the Appellants' lack of credibility and lack of subjective fear. ISSUES [7] The RPD Member found that the determinative issue in the Appellants' claims was credibility and their lack of subjective fear. The RPD Member therefore rejects all three claims under section 96 and 97 of the IRPA. The Appellants argue that the RPD Member erred in her assessment of the Appellants' credibility and that there is no dispute that the Appellants were members of the UNT, an opposition party and that there is sufficient objective evidence to allow their claim on the basis of this membership. NEW EVIDENCE AND ORAL HEARING [8] The Appellants have not presented new evidence under section 110(4) of the IRPA to be considered by this Panel. As the Appellants have not presented new evidence for this appeal, the Panel cannot hold a hearing. SCOPE OF RAD APPEAL [9] 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 [10] The Panel has reviewed the evidence in the record and has considered the recording of the RPD hearing. The Panel has also considered all the documentary evidence presented by the Appellants' Counsel in the Appellants' Record including the Memorandum of argument. The Panel has also considered the most recent National Documentation Package (NDP) on Venezuela. [11] The Panel has considered the credibility of the Appellants and agrees with the RPD that there were some issues with their evidence regarding the events in Venezuela as well as the decision they made to return to Venezuela. Specifically, the Principal Appellant and the Associate Appellant left Venezuela for Canada. They stayed with their son who is a Canadian citizen for approximately five months. They then decided to return to Venezuela. The Panel recognizes that their failure to claim refugee status in Canada indicates a lack of subjective fear on their part and this negatively impacts their overall credibility. The Principal Appellant was asked why he and his wife did not make a claim in Canada when they visited their son. The Principal Appellant stated that he hoped that the problems he and his family faced in Venezuela would disappear. The Panel finds that the Principal Appellant was naive in believing this given the ongoing problems in Venezuela. The Panel accepts that the Principal Appellant and associate appellant erroneously believed that their problems would disappear in Venezuela when they returned. The Panel finds that the Principal Appellant and the associate appellant return to Venezuela is not sufficient to reject their claims based on a lack of subjective fear. [12] The Principal Appellant's Son left Venezuela and he went to Panama. His intention was to remain permanently in Panama. He indicated that a program that would allow him to remain in Panama was cancelled before he could apply to remain permanently. He then looked into the possibility of claiming asylum in Panama. His investigation with the authorities revealed that the process would take at least two years and that he would not be able to work during the asylum process. The Principal Appellant's Son decided not to apply because of the time it would take and also because of the fact that he would not be able to work in Panama. The Panel finds that the Principal Appellant's Son has provided a reasonable explanation why he did not pursue asylum in Panama. The Principal Appellant's Son also hoped that he would not face problems in Panama when he returned because of the time that had passed since his departure. Once again, the Principal Appellant's Son may have been naive about the prospects for him in Venezuela if he returned. The Panel finds that the Principal Appellant's Son return to Venezuela does not establish a lack of subjective fear on his part and it is insufficient to reject his claim. [13] The Panel does agree with the RPD Member that there were some discrepancies and contradictions in the evidence provided by the Appellants. In particular, the Principal Appellant testified that someone from the military delivered a document to the Appellant but it turns out this was a report from the security company that oversaw the protection of the building where they lived. The Principal Appellant explained that he was confused in describing this document. The Panel finds that the Principal Appellant improvised his testimony at the hearing to explain the contradiction between the documentary evidence and his testimony at the hearing. Although the Panel draws a negative inference with respect to the Principal Appellant's testimony, it is insufficient to reject to reject their claims. [14] There was also some discrepancy between the Principal Appellant's Son's evidence as to what happened while he was detained. There was an issue with respect to the threat that was made to him. He stated in his testimony that three individuals pointed a pistol at his head while he was detained. He did not mention this in the refugee documents he completed before his hearing. The Panel finds that the Principal Appellant's Son embellished his testimony by adding details about his detention to raise his risk profile. The Panel finds that although the Principal Appellant's Son may have embellished part of his claim, it is not sufficient to reject his claim. [15] The RPD Member concluded that the Appellants were members of the UNT. They provided documentation to that effect. The Panel has not been presented with any evidence to suggest that they were not members of the UNT. Although the Principal Appellant was vague in describing the objectives and goals of the UNT, the Panel is satisfied, on a balance of probabilities, that the three Appellants were members of the UNT in Venezuela. The Panel also finds that they were perceived as political opponents of the regime. The Panel finds that the Appellants will continue to be perceived as opponents of the regime if they return to Venezuela. [16] Counsel for the Appellants argues that the most recent NDP on Venezuela to assess the country conditions. The Panel finds that the political and human rights situation in Venezuela remains grave with a deterioration in recent times. The government and security forces continue to target any individuals that it perceives as an opponent to the regime. This includes political activists and journalists. The government is engaged in arbitrary detentions and arrest. They are systematically violating human rights on a wide scale. There is evidence that certain groups within the Collectivos are using violence against individuals and groups opposed to the regime. The Panel finds that the Appellants will likely face harm at the hands of the Venezuelan government given their lengthy membership in the UNT as well as the fact that they have previously faced issues with the government in the past. The Panel therefore finds that they have established that they will face persecution in Venezuela should they return there. [17] Based on the evidence presented by the appellants, the panel substitutes the decision of the RPD and finds that the Appellants are Convention refugees under section 96 of the Immigration and Refugee Protection Act (IRPA). Having found that the Appellants are Convention refugees under section 96, there is no need to assess their claim under section 97 of the IRPA. REMEDIES [18] For all of these reasons, the Panel substitutes the decision of the RPD and therefore finds that the Appellants are Convention refugees. (signed) "Daniel Tucci" Daniel Tucci January 22, 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 : TB8-12307 TB8-12308 / TB8-12309 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français