TB6-03563

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 : TB6-03563 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 Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 5, 2016 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Graeme Kotz 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 Kamal GILL Conseil du ministre REASONS FOR DECISION [1] The Minister of Refugees, Immigration and Citizenship appeals a decision of the Refugee Protection Division (RPD) accepting the claim for refugee protection of XXXX XXXX XXXX XXXX, a male from Colombia. The Minister has not submitted new evidence in support of the appeal. DETERMINATION OF THE APPEAL [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter to the RPD for re-determination by a differently-constituted panel. BACKGROUND [3] The Respondent is an Afro-Colombian male who alleges persecution based on his fear of forced recruitment into the criminal gang known as La Empresa (the gang). This gang operates predominantly in the Buenaventura area of Colombia. The Respondent alleges that the gang will harm him because he has refused to join their ranks. Further details of the Respondent's background can be found in his Basis of Claim1 (BOC) form and in the audio recording of the original hearing. SERVICE OF DOCUMENTS [4] The Minister served a Notice of Appeal appealing the positive decisions given by the RPD for the respondents, on December 23, 2015, by regular mail, on the Respondent at XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, B.C., XXXX XXXX. The Minister also served a Notice of Appeal to the office of the counsel who represented the Respondent at the RPD hearing. The Minister filed the Notice of Appeal with the Immigration and Refugee Board on December 23, 2015 along with a statement of service. The Minister served a copy of the Appellant's Record on the Respondent by regular mail on January 22, 2016. The Appellant's Record was filed with the Immigration and Refugee Board on January 22, 2016. These documents were served within the timeframes set out in the Regulations to IRPA and the Rules of the RAD. SUBMISSIONS [5] The Minister submits that the RPD's decision lacks clarity and fails to provide adequate reasons for the analysis of section 97(1) of the IRPA. The Minister further submits that the RPD failed to carry out the required analysis under section 97(1) of the IRPA. Specifically, the RPD failed to address the various elements under section 97(1)(b)(ii) of the IRPA including the identification of the nature of the risk faced by the Respondent, whether the nature of that risk was generalized or whether his risk went beyond the risk that is generally faced by a vast majority of the people in Colombia. [6] The Minister submits that the RPD erred in its assessment of the Internal Flight Alternative (IFA). [7] The Respondent submits that the RPD did not err in its assessment of section 97(1)(b)(ii) of the IRPA, nor in its assessment of the IFA. The Respondent further submits that the RPD decision was justifiable, transparent and intelligible and should therefore be confirmed under section 111(1)(a) of the IRPA. ANALYSIS OF THE MERITS OF THE APPEAL [8] The determinative issues in this appeal are: a) Whether the RPD has conducted a full and proper analysis of the section 97 factors in this claim. b) Whether the RPD has conducted a full and proper analysis of the IFA in this claim. Appellant's Arguments [9] The RPD concluded that the Respondent was personally targeted by the gang. While analyzing the Respondent's risk under section 97, the RPD addressed the general violence that is prevalent in Buenaventura but failed to conduct a thorough analysis of the personal risk of the Respondent to be a "prime target" for recruitment by the gang. The Minister notes that the usual recruitment age of persons by the gang is a much younger age, usually between 14 years and 25 years of age, when potential recruits are impressionable, while the Respondent was 32 years old when he alleges he was recruited. [10] The Minister argues that the Respondent grew up in Buenaventura, residing there until he was in his mid-twenties, and all through his impressible years yet was never recruited until he was thirty-two years old. The Minister also points out that the gang is not actively enquiring about the Respondent's whereabouts. [11] The Minister argues that the RPD failed to state in its Reasons and Decision, whether the one time recruitment attempt into a gang is a risk to the Respondent's life or cruel and unusual treatment or punishment. Consequently, the decision lacks transparency and the RPD failed to provide fulsome reasons in regards to what risk the Respondent may face. [12] The Minister argues that the RPD identified the IFA as Bogota and then determined that the there is no IFA as the Respondent would face personal risk via recruitment, in every part of the country, however, the RPD decision lacked an assessment in regards to the gang's ability to find the Respondent in every part of the country. [13] The Minister argues that the RPD failed to conduct any analysis of whether the risk of recruitment into the gang faced by the Respondent is not faced generally by other individuals from Colombia. The Minister cites Trigueros Ayala2 in which the Federal Court noted: (8)...where a portion, not necessarily a majority, of the population is subjected to threats of extortion and violence, the evidence must demonstrate that the Applicants have experienced something that is beyond what has been experienced by population that is otherwise subjected to such threats. [14] The RPD identified Bogota as a potential IFA and then proceeded to assess that IFA in the context of racial discrimination faced by Afro-Colombians in Bogota. The RPD failed to conduct any reasonable analysis of the IFA and failed to take into account that the Respondent lived a fairly successful life in that IFA for five years before he returned to Buenaventura. The RPD has misconstrued discrimination for persecution and has not properly assessed and applied evidence central to the second part of the IFA test, which is whether it would be reasonable in all circumstances for the Respondent to relocate to Bogota. [15] In assessing whether a viable IFA exists, the RAD is guided by the cases of the Federal Court. If there is a safe haven for the Respondent in his own country, where he would be free of persecution, he is expected to avail himself of it before he seeks safety in Canada, unless he can show it is objectively unreasonable for him to do so.3 The IFA must be realistic, attainable and accessible. Barriers to getting to the IFA must be reasonably surmountable and the Respondent cannot be required to encounter great danger or undergo undue hardship either in travelling there or in remaining there. The Respondent cannot reject an IFA for frivolous reasons, such as his not liking the weather there, having no friends or family in the region or not being able to find suitable work there. In law, the fact that the Respondent may be better off in Canada economically, physically or emotionally, than he would be in his own country, is not a factor to consider when assessing the reasonableness of an IFA.4 If a viable IFA exists, a Respondent is not then a Convention refugee,5 which directs the RAD to use a two-pronged test in considering cases where a potential IFA presents itself.6 Firstly, the RAD must be satisfied that there is not a serious possibility of persecution in the part of the country in which the IFA is located. If the RAD is satisfied of this, then, secondly, it must further consider whether or not it would not be unreasonable, in all of the circumstances, for the Respondent to seek refuge there. [16] The Respondent always bears the burden of proof to show that there is a reasonable chance that persecution will occur in the entire country and specifically in the potential IFA area named.7 Respondent's Argument [17] The Respondent argues that the RPD agreed with the Respondent that the gang has connections throughout the country and is affiliated with paramilitaries and powerful business interests throughout Colombia. The RAD finds on a balance of probabilities, that there is insufficient evidence to support the Respondent's position on this issue. [18] The Respondent argues that the RPD implicitly acknowledged the risk that the Respondent would face in Bogota. The RAD finds this portion of the Respondent's argument to be supportable, however, notes that the RPD failed to provide fulsome and adequate reasons in regards to this portion of the Respondent's argument. [19] The Respondent makes arguments on state protection and other issues, however, the RAD has insufficient documentation before it to properly analyze the decision due to what amounts to a lack of clarity and insufficient analysis of the issues in the decision. The RAD finds that the Reasons in this decision are unclear and insufficient. [20] Procedural fairness requires that decision-makers provide adequate reasons to justify their decisions. The Honourable Mr. Justice Shore, in a recent decision, in Sidhu,8 defined adequacy of reasons as follows: [20] The test of adequacy of reasons has been articulated by this Court numerous times, including recently in Canada (Minister of Citizenship and Immigration) v Jeizan, 2010 FC 323, 386 FTR 1: [17] Reasons for decisions are adequate when they are clear, precise and intelligible and when they state why the decision was reached. Adequate reasons show a grasp of the issues raised by the evidence, allow the individual to understand why the decision was made and allow the reviewing court to assess the validity of the decision: see Lake v. Canada (Minister of Justice), 2008 SCC 23 (CanLII), [2008] S.C.J. No. 23 at para. 46; Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc. v. National Transportation Agency,9 [2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25 (C.A.), at para. 22; Arastu, above, at paras. 35-36. [Emphasis added.] [21] In VIA Rail Canada Inc. v. National Transport Agency et al.,10 the Federal Court of Appeal explained the obligation to provide adequate reasons at paragraph 22: [22] The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion.... Rather, the decision-maker must set out its findings of fact and the principal evidence upon which those findings were based.... The reasons must address the major points in issue. The reasoning process followed by the decision-maker must be set out...and must reflect consideration of the main relevant factors.... [22] This case was cited with approval by Mr. Justice Pinard in Zarghami11 to explain the obligation on the IRB to provide adequate reasons. Based on VIA Rail Canada Inc., and Zarghami, above, the RPD in this case had a duty to set out its findings of fact and the principal evidence upon which those findings were based. Disposition [23] The RAD has found that the RPD decision cannot stand as the reasons are unclear and insufficient. Further, the RPD has failed to provide adequate reasons to support the decision. CONCLUSION [24] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. The RAD further instructs the RPD to conduct a fulsome and adequate analysis of the issue of an IFA in Bogota or another major Colombian city. (signed) "David Lowe" David Lowe April 5, 2016 Date 1 Exhibit RPD-1, RPD's Record, exhibit 2. 2 Trigueros Ayala v. Canada (Minsiter of Citizenship and Immigration), 2012 FC 183 CanLII 3 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 4 M.C.I. v. Ranganathan, Rohini (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. Reported: Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.). 5 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 6 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 7 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 8 Sidhu, Prabhjot Kaur v. M.C.I. (F.C., no. IMM-11988-12), Shore, February 26, 2014; 2014 FC 176. 9 2000 CanLII 16275 (FCA). 10 VIA Rail Canada Inc. v. National Transport Agency et al., [2001] 2 F.C. 25 (C.A.), [2000] F.C.J. No. 1685. 11 Zarghami, Shirin v. M.C.I. (F.C., no. IMM-4258-05), Pinard, February 13, 2006, 2006 FC 151, [2006] F.C.J. No. 215 (QL). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :