 
 
 
 
 
RAD.25.02 ( September  18, 2018)  
Disponible en français   
 
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 / Dossier de la SAR  : TB8 -02584  
 
Private Proceeding / Huis clos  
 
Reasons and decision   Motifs et décision  
 
Person(s) who is(are) the 
subject of the appeal  XXXX XXXX XXXX XXXX  Personne(s) en cause  
   
   
Appeal considered / heard at  Toronto, ON  Appel instruit / entendu  à 
   
   
Date of decision   December 5, 2018  Date de la décision  
   
   
Panel  XXXXXXXXXX  Tribunal  
   
   
Counsel for the person(s) who 
is(are) the subject of the appeal  XXXXXXXXXXXXXXXXXXXX  Conseil(s) (de la/des)  
personne(s) en cause  
   
   
Designated representative  N/A  Représentant(e) désigné(e)  
   
   
Counsel for the Minister  N/A  Conseil du ministre  
   
  
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RAD.25.02 ( September 18 , 2018)  
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 REASONS FOR DECISION  
[1] 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 new evidence in support of this appeal. The Appellant is not requesting an oral 
hearing. The Appe llant asks the Refugee Appeal Division (RAD) to overturn the decision of the 
RPD and to find that the Appellant is a Convention refugees or a person in need of protection. In 
the alternative, the Appellant requests that the matter be returned to the RPD fo r a new hearing 
under a differently constituted panel.  
BACKGROUND  
[2] The claimant alleges the following:  
The claimant fears returning to Venezuela because his family is opposed to the present government 
of XXXXXXXXXXXXXX.  
[3] The claimant has lived in Canada sinc e 2010 and studied here until he began working in 
2014.  
[4] His family is on a list with the XXXX XXXX XXXX XXXX XXXX XXXX XXXX ), a 
government body which provides legal currency exchange, and offers money at preferential rates 
for students. This has made his f amily a target. The threats to the claimant’s family have 
increased.  
[5] The claimant completed his Basis of Claim form on August 10, 2017. For further details 
please see the narrative of the Basis of Claim Form.1 
                                                 
1 Exhibit RPD -1, RPD Record , at pp. 9-20. 
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RAD.25.02 ( September 18 , 2018)  
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 RPD’s Reasons  
[6] In its reasons, the RPD found that the Appellant had failed to adduce sufficient credible 
evidence to support his allegations of risk.  
[7] 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 neit her a Convention refugee nor a 
person in need of protection. This appeal is dismissed . 
Appellant’s Issues  
[8] The Appellant raises two issues at the RAD:  
1. Did the panel err in fact or in fact and law in concluding that the applicant did not establish a 
well -founded risk of persecution?  
2. Was the RPD’ s finding that there was a delay in claiming, appropriate?  
ANALYSIS  
Standard of Review  
[9] For questions of fact, mixed fact and law, and law, I have applied the standard of 
correctness as per Huruglica .2 
Admiss ibility of New Evidence  
[10]  The Appellant submitted new evidence with this Appeal Record.  
[11]  Section 110(4) of the IRPA provides that the person who is the subject of the appeal may 
present only evidence that arose after the rejection of her claim or that was not  reasonably 
                                                 
2 M.C.I. v. XXXXXXXXX, XXXXX  (F.C.A., no. A -470 -14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93.  
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RAD.25.02 ( September 18 , 2018)  
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 available, or that the person could not reasonably have been expected in the circumstances to 
have presented at the time of the rej ection of their refugee claim.  
[12]  If the proposed new evidence does meet the requirements of section 110(4), I must then 
apply the analysis set out in the Federal Court of Appeal’s decision in Raza3 as subsequently 
modified by the same court’s decision in XXXXX ;4 effectively I will assess the credibility and 
relevance of the evidence in order to determine whether it is admissible.  
[13]  The Appellant submits the following pieces of new evidence in support of his appeal:  
1. XXXXXXX, XXXXXX , Who Is XXXXXXXXXXX? ‘Venezuelan XXXXXXXXXX’  Who  Tried To Stage 
Coup Is Surrounded By Authorities , Newsweek .com , Newsweek, 15 January 2018. 
Web. Retrieved from <http://www.newsweek.com/oscar -perez -venezuelan -james -
bond -surrounded -781458 > 
2. XXXXXXX, XXXXXXXX , Venezuela’ s M aduro calls for ‘mega -election’  that could cement 
his power , WashingtonPost .com , Washington Post, 22 February  2018. Web. 
Retrieved from <https://www.washingtonpost.com/world/the_americas/venezuelas -
XXXXXX -calls -a-mega -election -that -could -cement -his-power/2018/02/22/0579af70 -
17f1 -11e8 -930c -45838ad0d77a_story.html?utm_term=.b560bd860cef > 
3. XXXXXXX, XXX , International  Criminal Court may investigate Venezuela , CNN.com , 
CNN, 8 February 8 2018. Web. Retrieved from 
<https://www.cnn.com/2018/02/08/americas/venezuela -international -criminal -
court/index.html>  
                                                 
3 XXXX, Syed Masood  v. M.C.I.  (F.C.A., no. A -11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 . 
4 XXXXX, XXXXXXXXX  v. M.C.I.  (F.C.A., no. A -512 -14), Nadon, Gauthier, de  Montigny, March 29, 2016, 2016 FCA 
96. 
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RAD.25.02 ( September 18 , 2018)  
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 [14]  In deciding whether to allow an application to submit new evidence under section 110(4) 
of IRPA, I must interpret the statute very narrowly, that is, there is no room for the RAD to 
circumvent the statute. Th e evidence must comply with 110 (4) or it cannot be admitted.  
[15]  The documents submitted as new evidence were authored and released with dates which 
are beyond the date of the RPD decision. On the face of it, this evidence may be considered as 
new evidence.  
[16]  Further, where a document meets the test in Section 110(4), as discussed above, the RAD 
will conduct a further assess ment of that evidence. While Section 110(4) provides the RAD with 
factors to consider in assessing a document’s “newness,” these factors alone cannot determine 
the admissibility  of new evidence in an appeal. To put it simply, if a document is lacking in 
credibility, or is irrelevant to the issues to be considered by the RAD, it would make little sense 
to admit such document, even if it meets the test in Section 110(4).  
[17]  The RAD has, in many appeals to date, applied the factors set out by the Federal Court of  
Appeal in Raza.5 While Raza  predates the introduction of IRPA Section 110(4), it is based on the 
nearly -ident ical wording of Section 113( a). The Court of Appeal held that new evidence should 
be considered for its credibility, relevance and newness, in add ition to any express statutory 
provisions.6 The RAD presumes that Parliament, in creating Section 110(4), was well aware that 
this provision is almost identical in wording to Section 113( a)—which provides a strong 
indication that Parliament intended the te st from Raza  to be used by the RAD.7 
[18]  Counsel argues that in the case of item #1, this is evidence of the authoritarian and 
criminal actions of the XXXXXX ’s government against those who differ from the official views. 
                                                 
5 XXXX v. Canada (Minister of Citizenship and Immigration),  2007 FCA 385, [2008] 1 F.C.R.  
6 Ibid, XXXX , at paras. 13 -15.  
7 The presumption of consistent expression holds that “it is presumed that the legislature uses  language carefully and 
consistently so that within a statute or other legislative instrument the same words have the same meaning and 
different words have different meanings.”  XXXXXXXXXXXXX, Sullivan on the Construction of Statutes , 5th ed. 
(Markham, Ont.: LexisNexis, 2008) , at pp 214 -15. 
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RAD.25.02 ( September 18 , 2018)  
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 XXXXXXXXXXX, although considered for so me as a terrorist, was murdered with excess ive of force 
when reportedly negotiating his surrender.  
[19]  I cannot concur with counsel. The Appellant has no profile as a terrorist in Venezuela, 
has never had any negative encounters with the authorities and bears no similarities in any 
manner to XXXXXXXXXXX. Th e article has no relevance to this case.  
[20]  In the second case, counsel argues that this evidence shows the intention of the XXXXXX 
government to continue ruling the battered country . This is relevant to the app eal as it 
demonstrates that the appellant ’s fears are plausible, should he be returned to his country, he will 
be faced with a country hurt by totalitarian government and repression.  
[21]  Again, I cannot concur with counsel on the relevance of this article. XXXXXX government of 
every country “intends” to continue ruling the country it governs, there is nothing in this article 
that directly relates to this Appellant.  
[22]  In the third case, counsel fails to explain how this relates to the Appellant however; the 
article  speaks about excessive force having been used against some people and how the 
International Criminal Court may investigate.  
[23]  I have looked carefully at the XXXXXXXXX’s allegations of potential mistreatment by the 
government based on nothing more than the f act that the XXXXXXXXX (and his family) have 
opposing opinions to the government of the day.  
[24]  If one stretches one’s imagination to the limit, it is possible to imagine that the above 
three articles may, at some point in the future, become somehow relevant to the XXXXXXXXX ; 
however, at this point in ti me, I do not see the relevance.  
[25]  I am, however, going to give the benefit of the doubt to the Appellant and admit these 
three articles. I will assign them the appropriate weight if and when they become part of t he 
XXXXXXXXX’s argument.  
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RAD.25.02 ( September 18 , 2018)  
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 Arguments  
[26]  Counsel argues that the XXXXXXXXX is a member of a particular social group and therefore 
has a nexus to the Convention.8 The Appellant argues that the characteristics of gender, youth 
and social status or lack of parental  guidance are immutable characteristics, which have not been 
properly assessed by the RPD by excluding section 96 in its analysis.  
[27]  Although gender is immutable, neither social status nor a lack of parental guidance are 
immutable characteristics. Both can a nd do change.  
The UNHCR’s position is as follows. Individuals who believe in or are perceived 
to believe in values and standards at odds with the social mores of the society in 
which they live may, in principle, constitute a “particular social group” withi n the 
meaning of Article 1A(2) of the 1951 Convention. Such persons do not always 
constitute a “particular social group”.  In order to do so the values at stake must 
be of such a nature that the person concerned should no t be required to renounce 
them.  
“Particular social group” means a group of people who share some characteristic 
which distinguishes them from society at large. That characteristic must be 
unchangeable , either because it is innate or otherwise impossible to change or 
because it would be wr ong to require the individuals to change it. Thus, where a 
person holds beliefs or has values such that requiring them to renounce them would 
contravene their fundamental human rights, they may in principle be part of a 
particular social group made up of l ike-minded persons.  
. . .  
It is important to appreciate that UNHCR’s position does not entail defining the 
particular social group by reference to the persecution suffered. Indeed, the 
UNHCR agrees with the conclusion of the Court of Appeal in the present  cases that 
persecution alone cannot determine a gro up where none otherwise exists.  
. . .  
                                                 
8 United Nations Convention Relating to  the Status of Refugees . 
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RAD.25.02 ( September 18 , 2018)  
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 [I]t is not the reaction to the behaviour of such persons which is the touchstone 
defining the group. However, the reaction may provide evidence in a particular case  
that a particular group e xists.9 [emphasis added]  
[28]  Counsel argues that the Appellant also has a nexus due to his perceived or actual political 
opinion. My issue with this is that the Appellant has spent the last seven years (of his 19 years of 
life) in Can ada and much of the previous lifetime in the U.S.A. He has not had any substantial 
connection to any political movement even though he claims opposing views to the current 
government. The closest the Appellant comes to being perceived as having a political  opinion 
may occur because he alleges his parents have always opposed the government.  
[29]  Simply being in opposition to a sitting government does not paint a target on one’s back. 
Almost no government, ever, has had a 100% backing of the people and in most ca ses, hundreds 
of thousands and even tens of millions of people “oppose” a government when they cast a ballot 
for the losing party. Unless the individual is a person of high profile in opposition to the 
government, there is less than a mere possibility that  one’s political opinion will be known by the 
government and then “punished” by the government for that opposition.  
[30]  The Appellant has failed to show how he is at risk of any persecution based on either his 
membership in a particular social group or for his  perceived or actual political opinion.  
[31]  If there is any risk here to the Appellant, it would be under section 97 which I will know 
analyze.  
[32]  The Appellant has never faced persecution in the past, which although not in any way 
determinative, it often forms t he basis of a claim. I must look forward at what possible risk the 
Appellant faces upon his return to Venezuela.  
                                                 
9 XXXXXXXXXX, XXXXXXXXXXXX, “ Membership in a Particular Social Group”: Analysis and Proposed Conclusions, 
UNHCR.org , UNHCR The UN Refugee Agency, n.d. We b. 9 November 2018. 
<http://www.unhcr.org/protection/globalconsult/3b83b1c54/membership -particular -social -group -analysis -proposed -
conclusions.html > 
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RAD.25.02 ( September 18 , 2018)  
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 [33]  Section 97 speaks to the situation of a person outside his normal country of residence 
being removed to his country or countries of nationalit y or, if he/she does not have a country of 
nationality, his/her country of former habitual residence, and how that removal would subject 
them personally  
(a) to a danger, believed on substantial grounds to exist, of torture within the 
meaning of Article 1 of th e Convention Against Torture; or  
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if  
(i) the person is unable or, because of that risk, unwilling to avail 
him/herself of the  protection of that country,  
(ii) the risk would be faced by the person in every part of that country and is 
not faced generally by other individuals in or from that country,  
(iii)  the risk is not inherent or incidental to lawful sanctions, unless imposed 
in disregard of accepted international standards, and  
(iv)  the risk i s not caused by the inability of that country to provide adequate 
health or  medical care.10 
[34]  In this particular case, the alleged fear is of being at risk because of political opinion or of 
membership in a particular social group. The political opinion, perceived or otherwise attributed 
to the Appellant is one to be anti -governing party. In the De cember 2015 general elections in 
Venezuela, there were 19,504,106 eligible voters of which 70% cast ballots (14,385,349). Of 
those, 7,726,066 voted for the current government. An additional 5,622,944 votes were cast 
against the current government (686,119 ballots were counted as invalid).11 
[35]  What the above figures mean in this particular case is that the Appellant fails in his claim 
under section 97 because, unlike the requirement of article (b)(ii), above, the risk this Appellant 
                                                 
10 Immigration and Refugee Protection Act , S.C. 2001, c. 27, s. 97.  
11 National Documentation Package ( NDP ) for Venezuela (31 May 2018), at  item 4.2 , International Foundation for 
Electoral Systems. Election Guide., Bolivarian Republic of Venezuela. Election for Asamblea Nacional (Venezuelan 
National Assembly) of 6 December 2015. , n.d.  
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RAD.25.02 ( September 18 , 2018)  
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 faces is in fact a risk face d by over 5 million other people in Venezuela, each of whom has a 
perceived or actual political opinion different from that of the governing party. Therefore, it 
cannot reasonably be argued that this Appellant faces a risk that is personalized and not gene rally 
faced by many others in Venezuela.  
Summary  
[36]  The Appellant has failed to adduce sufficient credible and relevant evidence to support 
his claim that he is at risk of persecution should he be returned to Venezuela. Further, the 
Appellant has failed to sh ow how he would be successful under section 97 as any risk he may 
face is a generalized risk.  
Disposition  
[37]  The RAD has found that the RPD decision will stand.  
CONCLUSION  
[38]  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 . 
 
 
 
(signed ) “XXXXXXXXXX”  
 XXXXXXXXXX  
 December 5, 2018  
 Date  
 
2018 CanLII 143901 (CA IRB)

