MB9-11918

RAD File No. / No de dossier de la SAR : MB9-11918 MB9-11919 / MB9-11920 / MB9-11921 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision November 27, 2019 Date de la décision Panel Mokhtar Lamani Tribunal Counsel for the persons who are the subject of the appeal Juan Cabrillana Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (principal appellant) and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (associate appellants), citizens of Colombia, are appealing the decision of the Refugee Protection Division (RPD) dated May 2, 2019, rejecting their refugee protection claims on the grounds that they have an internal flight alternative (IFA). [2] They are submitting new evidence on appeal but are not requesting that an oral hearing be held before the Refugee Appeal Division (RAD). DETERMINATION [3] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the RPD's determination, namely, that the appellants are neither Convention refugees nor persons in need of protection. This appeal is therefore dismissed. BACKGROUND [4] In his Basis of Claim Form (BOC Form), the principal appellant alleges that he fears a criminal group, [translation] "the Black Eagles," who were demanding his collaboration by supplying confidential information on clients of the bank where he worked in Bogotá. [5] The principal appellant states that after receiving death threats by telephone on April 27, 2018, he was intercepted on May 8, 2018, by two armed men from the Black Eagles. They uttered threats against him and other members of his family for refusing to answer their calls. [6] On XXXX XXXX XXXX 2018, four persons intercepted his mother and, after threatening her, informed her that they were looking for her son. The next day, the appellant quit his job and left with his family to go live in a distant village. [7] On July 26, 2018, two armed Black Eagles on motorcycles intercepted him again and threatened him, but he managed to get away. [8] Holding valid visas for the United States, the appellants left Colombia on XXXX XXXX, 2018, crossed the Canadian border two days later and claimed refugee protection in Canada. Refugee Protection Division decision [9] The RPD [translation] "noted certain credibility issues, in particular regarding the claimant's profile as a XXXX XXXX XXXX XXXX XXXX in Bogotá, Colombia. However, the panel also considers that the determinative issue in this case is the internal flight alternative (IFA) for the claimants in their country...".1 The RPD rejected their claims because it concluded that there was a viable IFA in Florencia. [10] The appellants consider that the decision is based on erroneous findings and are asking the RAD to allow their appeal and set aside the RPD's determination. STANDARD OF REVIEW [11] The RAD reviews RPD decisions, applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule is where the RPD enjoys a meaningful advantage with respect to the credibility assessment.2 That being said, the RAD's role is to determine whether the RPD erred, as alleged by the appellant. Admissibility of new evidence [12] The appellants filed two new pieces of evidence referred to in subsection 110(4) of the IRPA: a document describing the appellant's work duties and a letter concerning the medical condition of XXXX XXXX XXXX XXXX (the principal appellant's mother) issued on June 3, 2019, and signed by a psychologist, Dr. XXXX XXXX XXXX XXXX. This letter states that the patient suffers from XXXX XXXX XXXX XXXX XXXX. [13] The burden is on the appellant to make full and detailed submissions in his memorandum regarding how the new evidence being presented meets the requirements of subsection 110(4) of the IRPA and how it relates to the appellants. [14] In a paragraph headed [translation] "compliance with subsection 110(4) of the IRPA" in their memorandum,3 the appellants reiterate the explanations provided in the two written statements from the principal appellant and his mother. [15] In his written statement concerning the new evidence before the RAD,4 the principal appellant, XXXX XXXX XXXX XXXX, explains that it is a document obtained after the hearing that describes his work duties as a XXXX XXXX XXXX XXXX XXXX in Colombia. He adds that he did not present it at the time of his hearing before the RPD because he did not have it at that time and had not thought that it was necessary since he was presenting other evidence that soundly corroborated his account.5 [16] This document contains a detailed description of the XXXX XXXX XXXX XXXX, responsibilities and mandate, the position level, and the education and experience required to hold it. The document is general in nature and undated. [17] The principal appellant did indicate in his written statement (referred to above at paragraph 12) that he had not thought it necessary to present this document to the RPD. [18] Subsection 110(4) does not provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.6 [19] Additionally, since the determinative issue in this case, for both the RAD and the RPD, is the IFA, this document cannot rebut the RPD's finding regarding the existence of an IFA in Florencia for the appellants. Consequently, it will not be accepted as evidence. [20] As for the second document presented as new evidence, the medical certificate concerning Ms. XXXX XXXX, the appellant explains in her written statement7 that it is a document that arose after the hearing and that she did not have it at the time of the hearing.8 [21] This certificate is indeed dated June 3, 2019, more than two months after the RPD hearing (on March 27) and three weeks after the RPD rendered its decision rejecting the refugee protection claims (on May 15). The RAD cannot limit its analysis to the dates on the new evidence presented. [22] The medical certificate indicates in its first paragraph that Ms. XXXX XXXX has been receiving weekly psychotherapy care in Gatineau since November 2018, that is, five months prior to the RPD hearing. As a result, this evidence was reasonably and easily available and should therefore have been presented before the RPD. [23] The last paragraph states that the [translation] "certificate is being provided at the request of XXXX XXXX XXXX XXXX to support her appellation application to the Canada immigration authorities following the rejection of refugee status." The RAD has no discretion to admit evidence.9 This document also cannot rebut the RPD's finding regarding the existence of an IFA in Florencia for the appellants. It will therefore not be accepted as evidence. [24] The issue in this case is whether the RPD erred. The determinative issue for the RAD, as it was for the RPD, is the existence of an IFA. ANALYSIS [25] The appellants submitted three specific criticisms10 concerning the RPD's decision. They are as follows: A) Did the RPD make an unreasonable error by rejecting the refugee protection claim? B) Did the RPD breach its duty of procedural fairness by rendering a negative decision based on the claimants' credibility, applying inappropriate criteria to the IFA and failing to analyze state protection? C) Does the RAD have jurisdiction to hear an appeal of the RPD's decision? Analysis of risks under section 97 and unreasonable rejection of the refugee protection claim [26] The appellants argue that insofar as the principal appellant was targeted by the Black Eagles, [translation] "no analysis was conducted by the RPD, which is seeking to demonstrate indirectly that the risk faced by the claimants is a risk faced by the [entire] Colombian population: 'a generalized risk.' However, these are insufficient grounds to reach a conclusion that the claimants are not persons in need of protection under section 97 of the IRPA."11 [27] The RAD cannot accept this argument, since the sole instance where the RPD mentioned that the risk faced was no different from that faced by other Colombians was not in relation to the principal appellant's persecution by the Black Eagles but rather the risk of not finding work in Florencia for XXXX XXXX (the principal appellant's father).12 [28] The RPD in no way rejected the refugee protection claims due to considerations of generalized risk but rather due to the existence of a viable IFA, which the RAD will address in greater detail below. The issue of an IFA arises when a refugee protection claimant who otherwise meets all the elements of section 96 or 97 in the region where they reside is nevertheless not a refugee or a person in need of protection because they have an IFA elsewhere in the country. Breach of procedural fairness [29] In their memorandum, under the heading [translation] "breach of procedural fairness," the appellants submit that the RPD breached procedural fairness. [30] With all due respect, the RAD cannot support these arguments. When it comes to procedural fairness, the question is whether the principles of natural justice were respected taking into account the specific context of the case.13 [31] The purpose of procedural fairness is to ensure that refugee protection claimants understand the proceedings, have a reasonable opportunity to tender any evidence that supports their claim, and are given a chance to persuade the RPD that their claim is well-founded.14 [32] In this case, the RPD considered all the evidence, and the appellants understood the proceedings, submitted evidence in support of their claims and had the opportunity to persuade the RPD that their claims were well-founded. The RPD therefore respected this principle of procedural fairness. [33] While the issues raised (credibility, failure to apply the IFA criteria, lack of analysis of state protection) are not related to procedural fairness, the RAD analyzed these issues nonetheless to determine whether the RPD's conclusions were correct. A) Negative decision based on credibility [34] They argue [translation] "that the RPD did not provide sufficient reasons for its decision and found that there were 'certain credibility issues.' In fact, the sole credibility issue raised by the RPD is an alleged implausibility/inconsistency in the title of the position held at XXXX by the principal claimant."15 [35] The RAD disagrees. Although the RPD noted certain credibility issues, it did not render its negative decision, with regard to rejecting the refugee protection claims, based on credibility issues. It indicated clearly that the determinative issue in this case is the IFA.16 B) Failure to apply appropriate criteria to the internal flight alternative [36] The appellants submit that the RPD erred in its reasons for [translation] "deciding to reject the claimants' refugee protection claims, notably by relying on documents in the National Documentation Package (NDP) on Colombia, when said documents do not all appear to be up to date and contain information coming from sources of questionable reliability as well as a great deal of contradictory information."17 [37] The appellants argue further that, in identifying the city of Florencia as an IFA, the RPD relied on a paramilitary services map reflecting the Black Eagles' status in 2014 and 2015, whereas that group's influence has expanded in recent years. [38] Lastly, the appellants submit that most of the information contained in the NDP comes from teachers or a student writing a thesis and provides only hypothetical information. Consequently, [translation] "the RPD erred in the determination of the IFA...since no official information on the topic is available."18 [39] The RAD cannot support these arguments. An IFA exists when a refugee protection claimant who rightfully fears being persecuted in the region in which they live could safely relocate to another part of the country. [40] The case law has been consistent concerning the criteria to consider, namely that there is no serious possibility of persecution or any risk under section 97 of the IRPA in the part of the country where an IFA exists and that the conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, for the claimant to relocate there.19 [41] In identifying Florencia as an IFA, the RPD considered the two prongs required to identify this IFA. It questioned the appellants at length on this issue, diligently consulted the NDP on Colombia, and considered all of the documentary evidence and the appellants' testimony. [42] When an IFA is proposed, the onus is on the refugee protection claimant to establish that no IFA exists (Rasaratham, FCA). [43] Lastly, based on information provided by the national police, the map described above as being from the paramilitary services is an undated map that was produced by the Peace and Reconciliation Foundation (Fundacion Paz et Reconciliacion n.d.) in Bogotá. This map, which indicates areas where the Black Eagles are active, clearly shows that the Black Eagles do not have a presence in Florencia. [44] Consequently, the RAD considers that the RPD did not err in concluding that an IFA exists in Florencia. C) Lack of analysis of state protection [45] The appellants argue [translation] "that the lack of analysis of state protection [by the RPD] in this case constitutes an unreasonable error."20 [46] The RAD disagrees. The RPD was not required to review the issue of state protection, as it rejected the claims on the ground that there is a reasonable and safe IFA. The RPD is not obligated to review all possible issues once it has decided to reject the claim on other grounds. Jurisdiction of Refugee Appeal Division to hear the appeal [47] Counsel included in the memorandum six paragraphs under this heading that have no connection to the matter at hand. These paragraphs refer to claimants who cannot appeal RPD decisions before the RAD under the Safe Third Country Agreement and how the election of President Trump had a profound impact on immigration rights, turning the United States into an anti-refugee country, before concluding that refusing to allow someone to appeal before the RAD amounts to clear psychological harm for the claimants, which is undeniably an additional ground in favour of invoking section 7 of the Charter.21 [48] The RAD sees no connection between these arguments and the issue in this case and, consequently, declines to comment in this regard. [49] Lastly, in view of the fact that the principal appellant stopped working entirely at XXXX in Bogotá in XXXX 2018 and left the country for such an extended period, the RAD is of the opinion that the appellants did not produce any satisfactory evidence to the RPD or the RAD demonstrating that the Black Eagles have the motivation to look for them in the proposed city, Florencia. [50] With respect to the second prong of the IFA, the appellants did not make any argument to the effect that they would not be able to live safely in that city. They are all educated and have diverse work experience, and they did not raise any issues in this regard during questioning before the RPD apart from difficulty finding employment. [51] The appellants did not produce any evidence to discharge their burden of satisfying the two-pronged IFA test. [52] Upon reviewing the evidence provided, the RAD has not identified anything pointing toward a serious possibility that the appellants would be persecuted or, on a balance of probabilities, that they would be subjected to a danger of torture, a risk to their lives or a risk of cruel and unusual treatment or punishment and that it would be unreasonable for the appellants to live in Florencia. [53] In summary, and in light of all the evidence, the RAD agrees with the RPD that the appellants have an IFA in the proposed city and, consequently, are not persons in need of protection. The RPD's decision is correct. [54] The appeal is dismissed. CONCLUSION [55] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the determination of the RPD that the appellants are neither Convention refugees nor persons in need of protection. Mokhtar Lamani Mokhtar Lamani November 27, 2019 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) Reasons and Decision, paragraph 17. 2 Huruglica v. Canada (MCI), 2016 FCA 93. 3 Appellants' memorandum, page 94 of the appellants' record (p. 99 of the scanned document). 4 Written statement from the principal appellant, page 14 of the appellants' record before the Refugee Appeal Division (RAD) (p. 15 of the scanned document). 5 Ibid., paragraphs 3 and 4 of written statement. 6 Singh, 2016 FCA 96, paragraph 54. 7 Written statement from Ms. XXXX XXXX, page 15 of the appellants' record before the RAD (p. 16 of the scanned document). 8 Ibid., paragraphs 9 and 10 of written statement. 9 Deri v. Canada, 2015 FC 1042, paragraph 55. 10 Appellants' memorandum, part 2 (issues), page 85. 11 Ibid., part 3 (arguments). A) Inaccurate statements, page 86. 12 RPD Reasons and Decision, paragraph 31. 13 Ching v. Canada (MCI), 2015 FC 725, paragraph 75. 14 Nemeth v. Canada (MCI), 2003 FCT 590, paragraph 10. 15 Ibid., page 88. 16 RPD Reasons and Decision, paragraph 17. 17 Appellants' memorandum, page 89 of the appellants' record. 18 Ibid., page 91. 19 Adjei, Rasaratnam, Thirunavukkarsu, Ranganathan. 20 Appellants' memorandum, page 92. 21 Ibid., pages 92 and 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-11918 MB9-11919/MB9-11920/MB9-11921 RAD.25.02 (April 04, 2019) Disponible en français 4 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, 2019) Disponible en français