TB4-09185

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 : TB4-09185 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 28, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Pablo Andres Irribarra Valdes Barrister & 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 XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the Appellant), a citizen of Venezuela appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. He is not requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to allow his appeal, to find him either a Convention refugee or in the alternative, that the RAD refer the matter back to a different Member of the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he is a gay man with HIV/AIDS and as such, suffers persecution in Venezuela, a homophobic country. He alleges that gays face extreme violence in the form of physical attacks and cannot expect protection from local authorities. Moreover, people known to have HIV/AIDS are further stigmatized and subject to even more persecution from the wider homophobic society. The Appellant was called a "little faggot" by his uncles and was ridiculed at school. The Appellant entered into various homosexual relationships from the age of 15 years on, including one with a Canadian who he met while he was attending University in XXXX XXXX, in 1999. The Appellant returned to Venezuela in 2001. In 2004, the Appellant travelled to Seattle, after being refused a visa to Canada, where he met his Canadian boyfriend for a visit. The Appellant, after becoming ill, returned again to Venezuela which is where he was diagnosed with HIV/AIDS. The Appellant alleges that after mandatory blood test, he was forced to resign from his position with the XXXX XXXX. The Appellant wrote that he was told by his employer that he was being asked to resign because the XXXX had complaints from customers about the Appellant's work ethic. The Appellant alleges it was the knowledge of his HIV/AIDS condition which motivated Marriott to seek his resignation. The Appellant alleges that should he return to Venezuela, he will be subjected to violence, denied protection and further contends that the government health care system will be unable to provide him the care he needs. [4] The Appellant's application for refugee protection was heard on August 6, 2014. The RPD found that the Basis of Claim (BOC) lacked credibility as the allegations did not concur with the documentary evidence on hand at the RPD. The Appellant submits that the RPD erred in its credibility findings on subjective fear, reached unreasonable findings on the documentary evidence, ignored relevant evidence and erred in its internal flight alternative (IFA) analysis. The Appellant alleges that the RPD was at breach of natural justice because the panel relied on evidence which was not provided to the Appellant prior to the decision of the RPD. ANALYSIS Role of the RAD [5] Counsel has made some submissions on the RAD in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,1 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 Appellant 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." [6] Accordingly, the RAD will conduct its own assessment of the evidence and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. However, the RAD will not be bound by those RPD conclusions. The RPD's Findings [7] The Appellant argues that the RPD erred in its credibility assessment. The Appellant argues that the panel failed to provide any basis for the alleged inconsistency between the Appellant's testimony and the documentary evidence. The RAD agrees with the Appellant on this issue. The panel2 clearly identifies the United States of America (USA) Department of State (D.O.S.) report, section 6, found in the National Documentation Package (NDP) in evidence, as one such inconsistency while identifying a Response to Information Request (RIR) 3 from the NDP which also refutes to some degree the Appellant's testimony. In the first document, the subject speaks to the discrimination that is felt by members of the Lesbian/Gay/Bisexual/ Transgender (LGBT) community which on the surface, appears to support the Appellant's allegations. However, when read in its entirety, it becomes obvious that the majority of the discrimination is faced by the transgender members of the LGBT community. This however, does not make for an "inconsistency", just because the documents state that a majority of those discriminated against are transgender and this Appellant is not transgender. This may speak to a risk factor however, the documents otherwise appears to be consistent with the testimony of the Appellant. The Appellant testified to, or wrote of various acts of a discriminatory nature suffered by him, based on his sexual orientation. As an example, the USA D.O.S. report referred to by the panel clearly states that: "Psychological, verbal and physical abuses towards the LGBT community were common practice in schools and universities".4 The same document speaks to homophobic slurs spat forth on national television by a member of the Venezuelan National Assembly (government). The RAD finds that this document supports the allegations of the Appellant that discrimination does exist against the LGBT community in Venezuela. [8] The RIR quoted by the panel speaks to how Venezuela has not only legalized homosexuality but the Venezuelan National Assembly is engaged in discussions regarding a proposed law to acknowledge the rights of co-habiting, same sex couples and introduce civil unions. The panel goes on to cite "Globalgayz.com", which speaks to a thriving gay community in Caracas where social meeting places such as gay bars and saunas are available. However, this document does recognize that public displays of affection are not acceptable in Venezuela. The panel cites an Accion Ciudadana Contra e SIDA (ACCSI) report which says that members of the LGBT community have, according to a 2008 survey, had negative experiences with the police. At the same time, the panel cites a UNAF Representative who states that "violent abuses by police forces or derogatory acts by private citizens against sexual minorities" are rare. In reading the documentation presented, the RAD does not find inconsistency between those documents and the testimony or written statements of the Appellant. The documents spoke to the issues. Not all documents favoured one position or the other; however, the RAD finds that the RPD did err in its assessment that the documents were inconsistent with the testimony and other evidence on the issue. The RAD agrees with the Appellant that the RPD's credibility findings, based on these "inconsistencies" was an error and cannot stand. [9] The second issue raised by the Appellant was the RPD's finding that the Appellant failed to demonstrate that he had the required subjective fear. The Appellant submits that the RPD erred when it decided that the Appellant's apparent delay in claiming suggested a lack of subjective fear. The Appellant cites Rodriguez5 to show that such a delay of itself is not a decisive factor but is something to take into account in assessing the statements, actions and deeds of a claimant. The Appellant also cited Ruiz6and Hernandez7on this issue. As the panel noted, these citations speak to delay in filing and return to the putative country of persecution. The Appellant also cited Espinosa8 which speaks to the requirement to provide a particular explanation for such delay in claiming. Such an explanation must satisfy the panel as being plausible and right, where a claimant is "entirely credible." Those credibility issues were identified above and were deemed sufficient by the panel to have concerns regarding the explanations for the delays in claiming as well as the re-availments of the Appellant. As stated above, the RAD did not find such inconsistencies mentioned by the panel and therefore does not have the same credibility issue with the Appellant in this regard. [10] In regards to the subjective fear of the Appellant, as the panel clearly articulated, even though individually he would not find the delay or the re-availments to be determinative, cumulatively they are determinative of the claim. The RAD reviewed the record and notes that the Appellant left the country on a number of occasions and in each trip, failed to seek protection. The Appellant claimed he was unaware of his possible qualification for protection however, in three democratic countries visited by him; he never bothered to seek legal advice or to even ask his friends about refugee protection in their county. The Appellant submits that the panel erred in his assessment of the efforts of the Appellant to leave Venezuela on a permanent basis. The Appellant mentions that testimony at the hearing spoke to his efforts to obtain a USA work permit in 2000 which were thwarted by the September 11, 2001 disaster in New York. However, in the Appellant's written statement, he writes in regards to his departure from the USA in 2001: Though I was afraid of returning to the homophobic environment in Venezuela, I did not file a claim for asylum while in the USA as I was not aware at the time that it was possible to obtain protection from the USA due to persecution I feared in Venezuela as a result of my sexual orientation. Though I had heard the word "refugee," my understanding was that it only applied to individuals fleeing their countries because of war, or because of extreme poverty. This statement by the Appellant, presented as part of the Appellant's Record, fails to mention the work permit issue. The RAD listened to the audio recording of the hearing and notes that at about the 41st minute of the recording, the panel asked the Appellant what he had done to research the possibility of refuge outside of Venezuela. The Appellant testified that he began about four years before researching refugee issues but had to stop due to his health (HIV/AIDS). The panel asked him to clarify the issue to which the Appellant responded that he stopped because he realized that as an HIV/AIDS positive person it would be difficult to obtain a visa for many countries. The panel went on to ask whether, in 1999 while in France, the Appellant researched protection there. The Appellant testified that he did not because his "relationship" in France ended so he had no help nor did he have any idea of refugee claims then. The Appellant testified that at that time, his problems in Venezuela were family issues as he had kept his sexual identity private. The panel then asked the Appellant about his 1999-2001 stay in the USA. The Appellant corrected the timing to be from the year 2000 for fourteen months. The panel pointed to line 106 of the Appellant's BOC narrative where the Appellant wrote about his own acceptance as a homosexual and how much more accepting the society in the USA was about his orientation. The panel then asked what the Appellant did to seek protection so he would not have to return to the "homophobia" of Venezuela. The Appellant testified that he wanted to remain in the USA; however, his visa required him to return to Venezuela where, in one year, he could apply for a job in the USA. The Appellant testified that he had to return to Venezuela after the attack on the twin towers in New York because the laws changed. The panel stated to the Appellant that his actions were not consistent with someone who feared for his life as he did not seek legal advice or other advice to allow him to stay in the USA. The Appellant testified that, at that time, he did not have the clear concept that a country would receive him due to his sexual orientation. The panel persisted on the issue, asking the Appellant why he had not at least sought legal advice as to what he could do. The Appellant testified: "It is true. I did not make that inquiry." [11] The panel questioned the Appellant regarding two further trips to the USA in 2011 when the Appellant again failed to make any inquiries regarding protection. The Appellant testified that in 2011, he was already HIV positive and thought no country could protect him due to that condition. Nevertheless, he felt that being HIV positive was reason for some government to make many complications for him and discriminate against him because of his health status. [12] The Appellant was outside Venezuela again in 2012 and 2013 and did not apply for protection for the same reasons as above. [13] The RAD agrees with the RPD in its assessment of the lack of subjective fear in this matter. Having listened to the audio recording of the hearing, and having read the Appellant's statement, the RAD finds little evidence of a real effort on the part of this Appellant to seek protection outside of Venezuela. The only evidence of any kind is that the Appellant considered and may have sought a work sponsor in order to obtain a work permit in the USA, sometime after 2001. However, the effort described was insufficient and was more in line with someone who was interested in furthering his career rather than someone who feared for his life. Counsel for the Appellant is apparently of the opinion that the Appellant's search for work permits and "other immigration programs" equates to a person who fears for his life seeking refugee protection. The RAD does not agree with the Appellant's counsel in this matter. A casual search for ways and means of furthering one's work career does not equate to the life and death situation of fleeing a country and seeking safe refuge elsewhere. The RAD comes to the same conclusion as the RPD on the issue of delay in claiming and consequent lack of subjective fear. IFA [14] The panel analysed an IFA to Marguerita Island. The Appellant disputes the IFA. The RAD will not be analysing the IFA as the RAD finds that the egregious delay in seeking protection, combined with multiple re-availments over a period of about fifteen years is fatal to the claim. The RAD finds no need to go further in its analysis. Disposition [15] The appeal is dismissed. . The RAD determines that the multiple failures to claim protection over 15 years in three countries coupled with multiple re-availments indicates a lack of subjective fear and the Appellant has not established he faces a serious possibility of persecution in Venezuela. Similarly, the Appellant has not established a risk to his life or of cruel and unusual punishment or treatment, upon return to Venezuela. CONCLUSION [16] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe January 28, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 RPD Record, Reasons for Decision, para. 13. 3 NDP item 6.1, VEN 103243. 4 RPD Record, Reasons for Decision, para. 13. 5 Rodriguez, Avila v. Canada (Citizenship and Immigration), 2012 FC 1291 (CanLII). 6 Ruiz v Canada (MCI), 2012 FC 258. 7 Hernandez v Canada (MCI) 2012 FC 197. 8 Espinosa v. Canada (MCI) 2003 FC 1324. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-09185