TB5-10833

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 : TB5-10833 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 1, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard M. Addinall Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Peru, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that this Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. Determination [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Background [3] The Appellant alleged before the RPD that he fears returning to Peru because he will be persecuted by XXXX XXXX and XXXX XXXX. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [4] The Appellant's application for refugee protection was heard on July 9, 2015. A negative decision was rendered in writing on September 21, 2015. The RPD found that the Appellant was not a credible witness and that he failed to provide sufficient credible evidence to substantiate the core of his claim. [5] The Appellant submits that the RPD erred in its assessment of the Appellant's credibility because the RPD's inferences were unreasonable; because the RPD gave no probative value to corroborative documents and a psychiatric assessment; and because the RPD ignored or misunderstood relevant evidence. Consequently, the Appellant submits that the RAD should not show deference to the RPD in its assessment of the Appellant's fear. ANALYSIS Role of the RAD [6] Counsel has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [7] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [8] The Appellant argues that the RPD erred in its assessment of the Appellant's credibility because the RPD's inferences were unreasonable; because the RPD gave no probative value to corroborative documents and a psychiatric assessment; and because the RPD ignored or misunderstood relevant evidence. [9] Specifically, the Appellant argues that the RPD's negative inference concerning subjective fear on the basis of the delay in leaving Peru3 is not reasonable. The Appellant cites Ramirez Rodas4 in which the Court basically advised the RPD that cumulative acts do take time to occur; so when the RPD is assessing subjective fear based on a delay in leaving the country of persecution, the RPD must consider the timing in relation to the final act of the cumulative acts as the date relevant to departure and not the date of the first act of many. In this case, the first act against the Appellant occurred in 2004, with further acts occurring over 11 years, but with as many as five years separating the acts. The final two events occurred within one month of each other and, according to the Appellant, motivated him to leave Peru altogether. The RPD considered the delay in leaving Peru by basing the timing on the original incident or even later incidents, but did not appear to consider the cumulative effect which eventually motivated the Appellant to flee. This was an error by the RPD. Individual acts of harassment or discrimination are not necessarily persecution and it may take many acts over a long period of time to amount to persecution, as is suggested in the case at bar. The RAD finds that the evidence in this case clearly indicates that the Appellant was so fearful that he relocated many times in order to avoid his persecutors. When relocation within Peru proved to be useless, the Appellant, driven by his fear, left the country. The RAD respectfully disagrees with the RPD on this issue and finds that the delay in leaving was reasonable. [10] The Appellant argues that the RPD's negative inference based on the Appellant's family remaining in the same place of residence for all of the years5 during which these incidents occurred, is not reasonable. The Appellant argues that his parents were old and set in their ways. They had resigned themselves to the possibilities of harassment and chose to stay. Further, for the RPD to assess negative credibility based on what the Appellant's parents chose to do is unreasonable when considered along with the substantive documentary evidence6 presented to support the allegations. The Appellant also testified that moving within Peru solved nothing as when the Appellant moved 18 hours away, he was still pursued and found. The RPD inferred negative credibility based on this issue. The RAD must respectfully disagree with the RPD. It is not within the control of the Appellant to decide whether or not his parents stay where they live. The Appellant claimed subjective fear and the Appellant relocated many times over the course of the eleven years, in order to avoid the harassment. What his parents did or did not do is not material to this claim and the actions, or lack thereof, of others should not be used to define the subjective fear of a claimant/Appellant. The RAD finds that the RPD did err in making this assessment of a lack of credibility. [11] The Appellant argues that the negative inference drawn by the RPD because the Appellant failed to inform his teammates on the XXXX team of the threats against him7 is unreasonable. The Appellant argues that the RPD misapprehended the nature of the XXXX XXXX XXXX league in which the Appellant played. Unlike the XXXX sports in North America, the XXXX XXXX XXXX league teams contract their players for short periods of one, two, or three months, according to the Appellant's testimony.8 The Appellant argues that the RPD was placing an onus on the Appellant to report the harassment against him to his team, which is unreasonable. The Appellant argues that he does not know what the RPD believed the XXXX team could do for the Appellant, and the Appellant reminds the RAD that an Appellant is under no obligation to seek protection through a XXXX team. The Appellant reminds the RAD that he did seek state protection on a number of occasions and even though the state attempted to protect the Appellant, it was unable to offer him adequate protection from his pursuers. The RAD agrees with the Appellant and recognizes that the onus is on the Appellant to seek state protection but there is no onus on the Appellant to inform his XXXX team of his issues. The RAD finds that the RPD erred when it inferred negative credibility based on this issue. [12] The Appellant argues that the RPD made a negative inference of his credibility based on the apparent contradiction between the Appellant's testimony and the Appellant's evidence.9 The Appellant testified that his wife made the police report; however, the RPD contends that the report indicates it was made by the Appellant. The Appellant points out to the RAD that the final paragraph of that police report reads as follows: "Due to panic and fear because his life was in danger, he says to his wife to go to the Police Station to file a complaint at this Police Station." The Appellant argues that when the police report is read in its totality, it is consistent with the Appellant's testimony. The RAD, having independently reviewed the evidence, agrees with the Appellant on this matter. The RAD takes into consideration the interpretation issues from Spanish to English and then reads the translation of the document in total and finds that, in fact, it is ambiguous and may be taken either way. That is, it may indicate that the report was actually filed by the Appellant while also may indicate the report was filed on his behalf, by his wife. The RAD will give the benefit of the doubt to the Appellant and find that there is no reason for the RAD to infer a negative finding on this issue. [13] The Appellant argues that the RPD erred when it inferred a negative finding in regard to the issue that the Appellant could not remember whether he had filed a police report after his XXXX XXXX XXXX 2015 incident. The RPD believed it to be unreasonable for the Appellant to not recall such an important incident which occurred in the very recent past (only XXXX months prior to the hearing). The Appellant argues that Dr. XXXX report10 clearly indicated her assessment of the Appellant, including the possibility of the Appellant suffering cognitive impairment. The RPD gave little weight to the report because the RPD did not believe the Appellant's story and Dr. XXXX report was based on the re-iteration of that story to her by the Appellant. It is apparent that the RPD based its lack of belief on the numerous credibility issues it determined existed. It is obvious to the RAD that any psychological report or assessment will be gleaned from the information provided to the doctor by the patient. Based on the RPD's reasoning, no psychological report would carry any weight at any time. The Courts11 have repeatedly advised the Board that such psychological reports, when they speak to a claimant's ability to testify, must be considered by the Board when a credibility assessment is being made, and the Board must be "sensitive and alert" to such psychological reports. In this case, the RPD decided that there were major credibility concerns with the Appellant and his story and then, using those concerns, dismissed the value of the psychological report. This is an error. The report should have been considered on its own merit and then the assessment of credibility should have been made while considering the report. The RAD finds that the RPD erred in disregarding the value of the psychological report when determining its credibility assessment in regards to the Appellant's cognition, specifically around the event of XXXX XXXX, 2015. [14] The Appellant argues that the RPD erred when it assessed documents provided in support of the Appellant's allegations, specifically police reports, because originals were not provided. The Appellant argues that many of the original documents were provided while some of the older documents, which related to the refugee claims of the Appellant's siblings, may not have been before the RPD. The Appellant argues that the RPD erred when it issued a blanket statement regarding the lack of original documents and by failing to identify which documents were actually not made available to the Board as originals. The RAD agrees that this was an error by the Board. In the RAD's own independent assessment of the evidence, the RAD is satisfied that there are sufficient original documents presented in evidence. The RAD does not infer any negative finding over the lack of some of the documents in their original form. [15] The RAD notes that the RPD found that the Appellant had a nexus to the Convention by his membership in a particular social group. That group was his family. Various members of his family had been murdered, sexually assaulted, harassed and otherwise persecuted by the same group of individuals who have been harassing the Appellant. It is reasonable that the RPD found a nexus on this basis. [16] The main basis on which the RPD rejected the Appellant's claim was his lack of credibility. Neither state protection nor internal flight alternatives (IFA) appeared as issues against the claim and neither of these are mentioned substantially in the appeal. Therefore, the RAD will accept that a) there is a nexus for the Appellant, b) the Appellant had been successful at the RPD in rebutting the presumption of state protection if his allegations are to be believed, and c) the Appellant has relocated many times and each time has been found by the agents of harm, thereby rebutting any presumption of an IFA. As the RAD, after conducting its own independent assessment of the evidence, does not have the same credibility concerns as did the RPD, the RAD is left with only one option, which is to find that the Appellant is a Convention refugee in accordance to section 96 of the IRPA. Disposition [17] The RAD has found that the RPD's decision cannot stand. CONCLUSION [18] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe December 1, 2015 Date 1 Exhibit RPD-1, RPD's Record, pp. 14- 30. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit RPD-1, RPD's Record, Reasons for Decision, p. 7, paras. 17- 20. 4 Ramirez Rodas v. M.C.I. (F.C., no. IMM-6560-13), Zinn, February 27, 2015, 2015, FC 250. 5 Exhibit RPD-1, RPD's Record, Reasons and Decision, p. 8, para. 21. 6 Exhibit RPD-1, RPD's Record, pp. 96- 133 and 138- 167. 7 Exhibit RPD-1, RPD's Record, Reasons and Decision, p. 8, para. 23. 8 Audio recording of the hearing, at 26:44-26:53; 101:47-102:06; 106:32-106:50; 107:12-107:30. 9 Exhibit RPD-1, RPD's Record, pp. 17-18, Police Report (XXXX XXXX, 2009). 10 Exhibit RPD-1, RPD's Record, pp. 159-162. 11 Cay, Ulas v. M.C.I. (F.C., no. IMM-2867-06), Blanchard, July 20, 2007, 2007 FC 759, at para. 19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-10833