VB8-03263

RAD File / Dossier de la SAR : VB8-03263 VB8-03264 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision May 7, 2019 Date de la décision Panel Maryanne Kingma Tribunal Counsel for the persons who are the subject of the appeal Dean D Pietrantonio Barrister and Solicitor Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Randal Hyland Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] This is an appeal by the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship, Immigration and Refugees (Appellant). [2] XXXX XXXX XXXX (Principal Respondent) and his spouse, XXXX XXXX XXXX XXXX (Associated Respondent), are citizens of Colombia. The Principal Respondent also has access to permanent resident status in Costa Rica. They made refugee claims in Canada with their child, XXXX XXXX XXXX, who was born in the USA in 2016. Their child is a citizen of Colombia and also of the USA and was found not to be a person in need of protection because of her USA citizenship. There is no appeal in relation to the child. [3] On June 12, 2018, the RPD found that the Respondents are persons in need of protection from Colombia and Costa Rica. [4] The Appellant Minister relies on the documentary evidence and did not submit additional evidence to the RAD or request an in-person hearing. The Respondents have not submitted additional materials and have not requested a hearing. DECISION [5] The Minister's appeal in relation to XXXX XXXX XXXX (Principal Respondent) is allowed because of state protection in Costa Rica. [6] The Minister's appeal in relation to XXXX XXXX XXXX XXXX (Associated Respondent) is referred to the RPD for redetermination because of the uncertainty about her status in Costa Rica and of her basis for claim against Colombia. BACKGROUND [7] The Respondents are citizens of Colombia, born in Buenaventura in 1985 and 1991 respectively. Both are Afro-Colombians. [8] The Principal Respondent was a XXXX XXXX XXXX from around 2005 to 2011 in Colombia and worked to expose state and police corruption in Colombia. He alleged several occasions of threats and he endured serious physical harm as a result of his work, including an attack by police in 2009 and harm after participating in a demonstration protesting media oppression. He was almost killed by the criminal organization Los Urabenos, in 2011. [9] The couple fled to Costa Rica in October 2011 and applied for asylum there. In December 2011, they separated for a time and the Principal Respondent fathered a child who was born to another woman in Costa Rica. [10] In XXXX 2015, the couple traveled by bus to Mexico and worked there for several months before entering the USA with irregularly obtained Colombian passports. The Associated Respondent became pregnant in mid-2015 but miscarried their unborn child. She became pregnant again in Mexico before they entered the USA in XXXX 2015. Their daughter was born in Florida in XXXX 2016 and they registered their marriage in XXXX 2016.1 The couple submitted USA asylum applications in XXXX and XXXX 2016.2 One month later, Donald Trump was elected president, inspiring their departure to Canada in XXXX 2017. They entered Canada by foot and alleged that they left a bag behind in the taxi that drove them to the Canada/USA border. They allege that this bag contained the irregularly obtained Colombian passports so they only had photocopies. They stayed with an uncle of the Associated Respondent in Vancouver and made refugee claims in Canada in April 2017. [11] The RPD member accepted, and it is not disputed by the Minister, that the Principal Respondent has a valid refugee claim against Colombia. The Principal Respondent's profile as a XXXX presents a risk of harm from the Los Urabenos and the presumption of state protection is rebutted in relation to Colombia because of the corruption in state and police machinery. There is no internal flight alternative (IFA) for him in Colombia. [12] The RPD member made respectful accommodations at the in-person hearing for the Principal Appellant due to PTSD challenges, with reduced formality, breaks, considerate questioning, and allowing his spouse to sit with him and take notes during questions. [13] The respondents left Colombia in 2011 and lived in Costa Rica until XXXX 2015. In his Basic of Claim form (BoC) narrative, the Principal Respondent said he found out from an aunt in February 2014 that his cousin was brutally murdered by the Los Urabenos. He was worried that it showed the Los Urabenos were still seeking to harm him. In August 2015, a work colleague told him he had seen two suspicious cars monitoring the parking lot. A few days later the Principal Respondent was violently attacked: two men grabbed him from behind and took him behind a motel. One had a gun, and both spoke with a Buenaventura accent and identified themselves as Los Urabenos. They blamed him for the former Buenaventura mayor being convicted and jailed for 18 years. They said he must pay with his life but he managed to escape when they were distracted by a police car nearby. He got on a passing bus, went to his work and discussed with his supervisor whether to call the police but said he knew it was not safe and explained that the Los Urabenos had the power to corrupt and infiltrate the Costa Rican police. Later, the Associated Respondent called the Principal Respondent in distress because some men had come to the home demanding to know his whereabouts. The couple left Costa Rica shortly afterwards. They also claim that, in April 2018, individuals were looking for them at the home they had rented in Costa Rica before leaving in 2015. [14] At the hearing, the RPD member explored how the Los Urabenos pursue Colombians in Costa Rica generally. The RPD member invited the respondents to provide any examples or knowledge of Colombians who had been pursued in Costa Rica by Los Urabenos many years after leaving Colombia. Their evidence failed to disclose specific acquaintances and they gave a relatively generic example of the documented instance of a man who was found beheaded, and provided no specific examples of Los Urabenos pursuit after many years of leaving Colombia. [15] The RPD member confirmed that the main concern for closing arguments was about state protection in Costa Rica and the Respondents' counsel provided arguments with specific references to the country documents related to Colombia and Costa Rica. Grounds of appeal [16] The Appellant argues that: 1. the RPD member erred for not finding that the Principal Respondent is excluded by Article 1E;3 2. the RPD decision is incorrect in relation to state protection and generalized risk in Costa Rica;4 3. the RPD member erred in finding that the respondents do not have an IFA in Costa Rica,5 and 4. the respondents are simply economic migrants. ANALYSIS 1. Article 1E [17] I find that the Principal Respondent is excluded from refugee protection in Canada because of Article 1E. [18] Article 1 of the Convention defines the term 'refugee' and identifies persons who are excluded from refugee protection to include the following: E This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. [19] The Minister intervened at the RPD in writing with evidence about the status of the couple in Costa Rica.6 According to the BoC narrative, in 2014 the Principal Respondent was notified that his asylum application was denied. He filed an appeal and in the meantime also applied for permanent resident status in Costa Rica, which was granted in XXXX 2014. He abandoned the asylum appeal and then failed to renew his permanent resident status that expired in XXXX 2016. The Minister's documents included an officer's affidavit7 with information from a liaison officer's assistant that the Principal Respondent's permanent residency in Costa Rica expired in 2016 but that, as the registered father of a Costa Rican child, he can apply for permanent residency and renewal any time that it is not subject to any conditions. The Principal Respondent is recognized by the competent authorities as a person with the rights and obligations attached to the possession of the nationality of Costa Rica. Because the Principal Respondent has access to and status as a permanent resident, the issues of state protection and IFA in Costa Rica are relevant to the assessment of his claim. [20] The BoC offers that the Associated Respondent was undocumented in Costa Rica from 2011 to 2015, with temporary worker status in XXXX 2015 that expired in XXXX 2016. The Minister's affidavit referred to in the previous paragraph confirms that only holders of valid refugee documents or permanent resident cedula are able to obtain a work permit. It states that the Associated Respondent was issued a work permit as a refugee claimant in May 2012, with at least two renewals, in 2014 and 2016, and that it was currently expired. The Associated Respondent's access to status in Costa Rica as a spouse of the Principal Appellant is unclear and therefore the issues of state protection and IFA in Costa Rica were not assessed in relation to her claim. [21] The RPD member found that the lack of state protection for the Principal Respondent in Costa Rica 'vitiates his ability to obtain protection there and therefore there can be no exclusion'.8 The Appellant submits that the Principal Respondent has not discharged the onus to rebut state protection and therefore Article 1E applies. I agree, given my conclusion about state protection as set out below. [22] Regarding the Associated Respondent, she does not have the same status in Costa Rica as her husband. It may be that she has access to permanent resident status in Costa Rica through the Principal Respondent because of their marital status but that question is not answerable from the available evidence. [23] The Appellant asked me to draw a negative inference about the credibility of the respondents because of information about the Associated Respondent's work permits that is inconsistent with the evidence gathered from the Costa Rican official. I decline to do so: the respondents did not have an opportunity to address that perceived inconsistency during the RPD hearing and the difference, in isolation, could be attributable to vagaries of memory and passage of time. [24] The Appellant submits that the Associated Respondent is not at risk and can return to Colombia because her alleged fear of persecution is based on her husband, the Principal Respondent. I disagree. While it was the Principal Respondent who was targeted directly, there is evidence that family members are at risk in Colombia and a possibility exists that, as his spouse, the Associated Respondent could face a risk of harm in Colombia. [25] The Principal Respondent is excluded from eligibility for refugee protection because of Article 1E. Furthermore, for reasons explained below, I find he has not rebutted the presumption of state protection in Costa Rica. The same ineligibility does not apply to the Associated Appellant because her status in Costa Rica is uncertain based on the evidence before me. 2. State protection The law [26] It is presumed that states can protect their citizens. The presumption can be rebutted with clear and convincing evidence of the state's inability to protect its citizens. The evidence must be relevant, reliable and convincing and show, on a balance of probabilities, that state protection is inadequate. Where a state has effective control with military, police and civil authority in place and is making serious efforts to protect its citizens, the mere fact that protection is not always successful or that an individual has subjective reluctance to engage with and doubts the effectiveness of state protection, will not rebut the presumption. Claimants are required to approach the state if protection might reasonably be forthcoming or if it is objectively reasonable to do so. Although there is no requirement to risk one's life seeking ineffective protection, the more democratic the state's institutions are, the more a claimant must do to exhaust all courses of action available. Where agents of the state are the persecutors, the presumption can be rebutted without having exhausted all avenues of recourse. [27] The burden of proof is directly proportional to the level of democracy in the country of reference. In a democratic country, there will be a heavy burden to exhaust all recourses. The RPD decision [28] In rendering her decision, the RPD member addressed and combined the discussion of IFA and state protection in both Colombia and Costa Rica but the situation of the Principal Respondent in each of these countries is not identical. The RPD member found that the Principal Respondent rebutted the presumption of state protection in Costa Rica but failed to provide adequate analysis or demonstrate how the available evidence, including the country condition information, supports that finding. [29] The RPD member's decision was delivered orally and is understandably fragmented in its analysis about state protection in Colombia and Costa Rica, with findings that overlap. The RPD member reviewed country condition documents information and then concluded that the Los Urabenos are the main criminal organization in Columbia and have presence in every part of Colombia.9 The effect of media oppression on journalists is severe and well-documented and the RPD member pointed out country information to show that, once a person is targeted by the Urabenos, the targeting will continue until the person is eliminated.10 However, the RPD member referred to a number of events of targeting the Principal Respondent in both Colombia and in Costa Rica and offered a global conclusion that there is neither state protection nor internal flight alternative in Colombia or in Costa Rica for the respondents. The RPD member referred to the credibility of the respondents and concluded that the Urabenos located them in Costa Rica in August 201511 and that, in April 2018, the Urabenos came looking for the principal Appellant six times.12 Colombia [30] I agree with the RPD member that the Principal Respondent endured and continues to face personal risk of harm in Colombia. There is inadequate state protection and no safe internal flight alternative for him in Colombia. The Urabenos has a national presence throughout Colombia and the state institutions and police machinery are internally corrupted and not effective, particularly as relates to the targeting and persecution of journalists. Costa Rica [31] I disagree that Costa Rica is comparable to Colombia and equally unsafe. I find that the Principal Respondent did not provide clear and convincing evidence to rebut the presumption of state protection in Costa Rica. [32] The events in Costa Rica that the Principal Respondent believed to be associated with the Urabenos provide limited evidence that he was or will be personally targeted there on a balance of probabilities. After leaving Colombia in 2011, he heard from an aunt in 2014 that his cousin was killed in Colombia for not disclosing his whereabouts. However, the Principal Respondent and his spouse were unaffected in their work and lives in Costa Rica for several years after leaving Colombia. The Principal Respondent fathered a child who continues to live in Costa Rica. Both respondents sought and obtained status to live in Costa Rica: the Principal Respondent initially as an asylum seeker and then as a permanent resident, the Associated Appellant as an asylum seeker. There were no events of personal concern in Costa Rica for four years, until 2015. In his BoC, the Principal Respondent described suspicious cars observed by his boss, the kidnapping event and the men who approached his spouse at their home. At the hearing, the Principal Respondent was asked but could not identify comparable situations where people like himself had left Colombia and been found by the Urabenos years later, in Costa Rica or anywhere else. Even if situations occurred as suggested, the respondents did not reasonably avail themselves of state protection in relation to any of the events. [33] It was not disputed by the Respondents and is implicit in the RPD decision that she found Costa Rica to be a functioning democracy. However, the Respondents made no efforts to seek state protection in Costa Rica when challenging events occurred even though it is a country of democratic function and, indeed, one where they sought asylum and had residency with the ability to work over a period of over four years before encountering any issues. It was not established by the evidence such as country documents that state protection would not be reasonably forthcoming had they approached the authorities when there were perceived challenges to their personal safety. It was objectively reasonable for them to do so. Suspicious cars, armed men coming to the door, and a serious kidnapping event that resulted in personal injury, are circumstances that would reasonably and, objectively speaking given the passage of time and evidence of the lack of presence of the Urabenos in Costa Rica, motivate a person to contact authorities for protection and assistance. [34] The RPD member correctly took note of a growing concerns related to the illegal drug trade in Costa Rica. Its geography and location have made it a hub for the transfer of illegal drugs between Colombia and Mexico. Costa Rica has seen increasing rates of homicide, as reflected in country information that was referred to by counsel at the RPD hearing and by the Respondents in their Memorandum.13 The increasing crime rate is associated with disputes involved in the drug trade, related to score-settling, drug trafficking or revenge. However, these are factors related to general criminality, which do not rebut the presumption of state protection. The homicide rate remains well below the rates in the region.14 The evidence about Urabenos is non-specific, with indications that locals are recruited into networks of drug activity but not within an organized crime machinery such as exists in Colombia.15 The respondents' counsel argued to the RPD member, who implicitly accepted the argument, that the state machinery and police forces are increasingly vulnerable to ineptitude and corruption but that is speculative and not grounded in objective and probative evidence. For example, articles such as "Costa Rica to Send Barely Trained Police Officers on the Streets",16 speak about the how new police recruits are being added to the force without enough training and the author speculates that this will increase potential for police abuse to citizens and open the force up to bribery. Arguments presented by the respondents and accepted by the RPD member regarding corruption within the state machinery17 relies on articles that are largely speculative, with few examples or data showing that this has occurred to an extent that state protection cannot be presumed. The information does not provide clear or convincing evidence of a system that cannot be relied on for protection. [35] Even with allowance for personal reluctance to approach authorities based on past traumatic experience, the evidence is not sufficient to demonstrate objectively that it would have been unreasonable to seek police assistance in the face of the concerns identified. The reluctance is particularly notable in relation to the kidnapping incident, where the Principal Respondent had personal support from his supervisor, but state support was not engaged. The implicit suggestion from his evidence is that the Principal Respondent simply returned to his job duties after a traumatic kidnapping incident where he was threatened and believed he was going to be harmed or killed, and then dissuaded his supervisor from alerting authorities.18 That account stretches the bounds of credibility and is not objectively reasonable. The letter in evidence from the Principal Respondent's coworker19 speaks of the event but refers only to the Principal Respondent as being in 'an excessively nervous state' and that he was 'approached by two men whose intentions were to end his life'. The Appellant asked me to find that the letter is a contrivance to support the claims but I decline to do so. The RPD member did not reference that letter or pursue any questions about it and, in the absence of information about its author and how the letter was obtained, and without an opportunity for the Principal Respondent to provide evidence about its contents, I make no such finding. However, I find the letter has low weight and minimal probative value in relation to the issue of state protection because it is remarkably generic and offers no indication or explanation for why this person and the Principal Respondent did not report such a traumatic event to the police in Costa Rica. [36] I acknowledge the Principal Respondent's evidence that, in XXXX 2018, his ex-landlord in Costa Rica advised him by telephone that rudely behaving people had come looking for the Respondents around 6 times in that month. I do not find that information to be credible on a balance of probabilities: the letter emerged with coincidental timing shortly before the claim was heard on May 30, 2018; it contains no details or direct evidence from the ex-landlord about specifics, and there is no logical explanation for why individuals would be looking for the respondents after several years away from that location rather than in all the years while they were living there. Even if it is the case that people associated with the Urabenos were looking for the Principal Respondent in XXXX 2018, which is not established on a balance of probabilities by the evidence, the event does not assist in rebutting the presumed ability of Costa Rican authorities to respond adequately to such events. [37] In summary, even if all of the events occurred as described, the objective evidence does not demonstrate, clearly and convincingly, that state protection would not be forthcoming or effective in Costa Rica. Costa Rica is a democratic country with substantially effective police machinery and there must be more than speculation of possible ineptitude and corruption to rebut the presumption that it could respond adequately to the situations alleged. IFA in Costa Rica [38] The RPD decision found that the Respondents face a personal risk to their lives, on a balance of probabilities, in every part of Columbia and Costa Rica. However, the RPD member did not distinguish between the two countries and cited evidence of risk to journalists in Colombia in support of finding there is no IFA in Costa Rica.20 [39] The RPD decision erred in its assessment of the available evidence, which does not show that the Urabenos is operating in Costa Rica and has specifically targeted the respondents or that state protection is not available. A specific locale for IFA within Costa Rica was not identified or discussed so I make no specific finding but the available information, as discussed above, does not disclose that to be a determinative issue. Economic migrants [40] The Appellant offered a subheading of 'credibility, subjective fear and status shopping' in the arguments for this appeal21 and submits that the respondents have traveled north from Colombia in search of safety and a better standard of living. That is an overly general and unhelpful suggestion that fails to acknowledge the real and significant danger encountered by the Principal Respondent in Colombia. It is not in doubt that there was reason for the Principal Respondent to fear for his life and leave Colombia. [41] The migration of the respondents from Costa Rica to the USA and then to Canada over a period of years has been assessed above in the relevant context. It is neither helpful nor necessary to characterize their migration as "simply economic". CONCLUSION [42] The appeal in relation to XXXX XXXX XXXX (Principal Respondent) is allowed and the RPD decision is set aside. The RAD finds that he is ineligible pursuant to Article 1E because of his status in Costa Rica and that he has not rebutted the presumption of state protection in Costa Rica. [43] The appeal in relation to XXXX XXXX XXXX XXXX (Associated Respondent) is referred to the RPD for redetermination because of the lack of evidence from which to decide her status in relation to Costa Rica or a claim by her against Colombia. (signed) "Maryanne Kingma" Maryanne Kingma May 7, 2019 Date 1 RPD Record (RPDR) p. 98. 2 RPDR, pp. 97 & 117. 3 Appellant's Record (AR), Minister's Memorandum (MM), paras 32-40. 4 AR, MM, paras 9-31. 5 AR, MM, paras 41-46. 6 RPDR, pp. 132-134. 7 RPDR, pp. 719-720, Officer Kang's affidavit evidence. 8 RPDR, RPD decision p 10. 9 RPD decision page 7. 10 RPD decision page 7, lines 16-17. 11 RPD decision page 3. 12 RPD decision page 6. 13 See Respondent's Memorandum paragraph 11. 14 See, for example, RPD Record p. 336, 342. 15 See for example, RPD Record p. 369. 16 RPD record, pp. 394-397. 17 RPDR, Hearing transcript arguments refer to Articles in the materials at pp 354, 427, 437. 18 See BoC narrative, p. 6 in the RPD Record p. 29. 19 RPDR, translated at p. 678. 20 RPDR, RPD decision pp 6-7. 21 AR p. 95. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-03263 VB8-03264 RAD.25.02 (April 04, 2018) Disponible en français 14 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, 2018) Disponible en français