VB4-01423

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 : VB4-01423 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal (Also known as XXXX XXXX XXXX) Appeal considered / heard at Appel instruit à Date of decision October 3, 2014 Date de la décision Panel Rena Dhir Tribunal Counsel for the person(s) who is(are) Lawrence Leung Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Jane Connell Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, also known as XXXX XXXX XXXX (the "appellant"), a citizen of Colombia, appeals the March 31, 2014 determination of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on March 31, 2014 with a Notice of Decision being sent to the appellant on April 15, 2014. The RPD found that the appellant is neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act ("IRPA" or the "Act").1 DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1)(a) of the Act, the Refugee Appeal Division (the "RAD") confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a Convention refugee pursuant to section 96 of the Act nor a person in need of protection pursuant to section 97 of the Act. This appeal is therefore dismissed. BACKGROUND [3] Counsel for the appellant before the RAD is the same counsel he had at the RPD. [4] The Minister has intervened before the RPD and RAD. [5] A transcript of the RPD proceedings has been included in the Appellant's Record (AR).2 [6] The appellant does not seek to present "new" evidence to the RAD pursuant to subsection 110(4) of IRPA. Basis Of Claim [7] According to the allegations set out in the appellant's Basis of Claim form (BOC),3 the appellant's cousin started a XXXX XXXX in his living room in his house in the neighbourhood called XXXX XXXX in 1998 in the city of XXXX. The appellant worked with his cousin and in 2002, he joined him as a partner. The neighbourhood they worked in was considered dangerous. The Revolutionary Armed Forces of Columbia (FARC) and the paramilitary operated in this neighbourhood. [8] From XXXX 2006, the XXXX in the area became military objectives. One XXXX was killed and then the FARC left flyers warning that the same would happen to other XXXX who would give information to the paramilitary. Afterwards, five other XXXX were killed. Four out of the six XXXX killed were members of the XXXX XXXX called "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX" which the appellant belonged to. [9] On XXXX XXXX, 2006, the appellant and his cousin went to buy new XXXX XXXX and supplies when they received a call from his cousin's wife. She was crying and said that four men had come to the house heavily armed and identified themselves as members of FARC. They accused the appellant and his cousin of being informants for the paramilitaries. After this incident, they did not return home. They left for XXXX immediately. They went to the police in XXXX. The appellant's mother received calls asking for the appellant many times but she never gave out any information. [10] The appellant and his cousin went to Fiscalia to make a formal complaint on XXXX XXXX, 2007. The Fiscalia sent them to the police to get protection. The police offered to give them protection and that they would monitor the house and visit it in XXXX. However, the police never came. [11] In XXXX 2007, the two went to XXXX and were there for about three months. The appellant's cousin left for XXXX XXXX XXXX to work. The appellant returned to XXXX and started to work at a XXXX XXXX in XXXX 2007 and got an apartment for his family and his brother. In XXXX, the appellant went to the Canadian Embassy to ask to be considered for the humanitarian program in Canada. He was told that he would have to leave the country to be considered for this program. He went to Ecuador but could not afford legal counsel to help him get on the program so he returned to XXXX. [12] In XXXX 2010, the appellant set up another XXXX XXXX with two of his friends in XXXX. In XXXX 2011, the law in Colombia required that all businesses in Colombia must be registered with the Chamber of Commerce and Tax department. On XXXX XXXX, 2012 the appellant registered his XXXX XXXX business. [13] On XXXX XXXX, 2012 the appellant travelled to XXXX for his sister's birthday party and to see his mom who was sick. He was there for a couple of days and he noticed strangers driving by his mother's home. He decided to leave immediately and returned to XXXX. A few days later, the appellant's mother called and told him the FARC were asking for him as they received information that he was in XXXX. They threatened that if the appellant did not appear before them, they would hurt the family. [14] On XXXX XXXX, 2012 the appellant's mother called and said his father was missing. On XXXX XXXX, 2012 the appellant's mother called and said his father was dead and the appellant was to blame for his death. The appellant had no doubt that the FARC killed his father. [15] The appellant made arrangements to leave for Mexico to save his life. He left his wife and daughter behind. [16] He arrived in Mexico on XXXX XXXX, 2012 and stayed with his cousin for two months. He hired an agent to help him cross the border into the US on XXXX XXXX, 2013. He was detained by US immigration at which time the appellant made a claim for asylum. He was given a Notice to Appear for his final determination on his asylum claim and released. The appellant continued his journey to Canada and crossed the border on XXXX XXXX, 2013. [17] The appellant made a claim for refugee protection in December 2013. [18] The RPD's reasons stated that the appellant's case for refugee protection was rejected because he had an Internal Flight Alternative (IFA). Grounds of Appeal [19] The appellant's submissions as to the grounds of this appeal can be summarized as follows:4 Did the RPD Member err in finding that the appellant has an IFA in XXXX? REMEDY SOUGHT [20] The appellant has requested that the RAD, under subsection 111(1)(c) of the Act, allow the appeal and refer the matter to the RPD for redetermination by a differently constituted panel. [21] The Minister has intervened in this appeal and requests RAD to reject the appeal made by the appellant, and confirm that the appellant is not a Convention refugee and that the appellant is not a person in need of protection. ROLE OF THE RAD [22] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [23] RAD, being a new division, has struggled with the standard of review to be used in assessing RAD appeals based on several Federal Court cases that have differed in their approach of what standard of review should be used. Initially, RAD followed the Supreme Court of Canada (the "Supreme Court") case, Dunsmuir v. New Brunswick5 as the leading case on standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing administrative decisions: unreasonableness and correctness. The standard of correctness applies to questions of law, while the standard of reasonableness applies to questions of fact, and mixed fact and law. [24] In recent months, the Federal Court has issued differing decisions on the role of RAD when conducting an appeal of the RPD determination. These decisions can be found in the recent Federal Court cases Iyamuremye, Ng, Alvarez, and Huruglica. [25] The Federal Court in Iyamuremye6 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. "That said, the Court finds that in assessing the reasonableness of the decision, the RAD should, at the very least, have reviewed the evidence that as presented before the RPD and conducted an independent assessment of all the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had properly considered the evidence and reasonably justified its' conclusion"7. [26] In Alvarez,8, Justice Shore said that "the Court is of the view that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts."9 Furthermore, Justice Shore stated that "when analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error."10 Justice Shore also said in Alvarez that "the RAD must perform its own assessment of all the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error." 11 [27] In a more recent Federal Court case, Huruglica,12 Justice Phelan found that the RAD erred in reviewing the RPD's decision on the standard of reasonableness and concluded that 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 claimant is a Convention refugee or a person in need of protection." Justice Phelan also states that, "that notion may well justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Where there is no adverse finding of credibility, the policy rationale for deference is not sustainable. [28] Justice Phelan also found that the RAD's role should be to determine whether the RPD decision is wrong rather than look at whether it was a reasonable decision. Justice Phelan emphasized that the RAD's mandate is to conduct a fact based review. The RAD, Justice Phelan said "must review all aspects of the RPD's decision and come to an independent assessment ... Where its assessment departs from that of the RPD, the RAD must substitute its own decision." Furthermore, "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 a 'palpable and overriding error'." [29] The Minister submits that "it accepts the Court's finding in Iyamuremye, that the RAD, as an appellate administrative tribunal, should apply a standard of review of reasonableness when reviewing questions of fact or of mixed fact and law made by the RPD. To the extent that the Court in Iyamuremye was simply saying at paragraphs 37 and 41 that the RAD must re-examine evidence in order to be satisfied that the decision is reasonable, the Respondent agrees. The Respondent respectfully disagrees with the Court's finding that the RAD erred by stating that its task is not to re-weigh the evidence. It is clear that based on the legislation establishing the RAD that parliament intended that the RAD provide deference to findings of fact made by the RPD. The Respondent maintains that the RAD's decision to apply the standard of review of reasonableness is reasonable. However, both the appellant standard of palpable and overriding and the judicial review of reasonableness provide deference and would lead to the same result in the instant case". [30] In response to the Minister, the appellant submits that he does not agree that a 'high degree of deference' be accorded to the RPD due to fact-based nature of the present case clearly is not the stanadard of intervention before the RAD. [31] The Huruglica decision is the most thorough of the four, and the only one where the Court has indicated it will certify a question for the Federal Court of Appeal. Again, I refer to paragraphs 54 and 55 of Huruglica which read as follows: [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 claimant 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 decision13. [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."14 [32] Therefore, in this appeal, the RAD has reviewed all aspects of the RPD's decision and has conducted its own independent assessment of all the evidence to determine whether the claimant is a Convention refugee or a person in need of protection. ANALYSIS OF THE MERITS OF THE APPEAL [33] The RPD Member found the appellant to be credible and accepted all the evidence as reliable and trustworthy. The parties have not contested the RPD Member's credibility findings and in my own assessment of the evidence, I have no reason to come to a different conclusion. As noted earlier, the reason the claim failed was because the RPD Member found the appellant had an IFA in Colombia so my analysis will deal with this issue. [34] I will now turn to the specific submissions by the appellant as to errors allegedly made by the RPD in its IFA assessment. [35] The appellant states that the panel erred in finding that it would not be unduly harsh for the appellant to remain in Colombia. The appellant further states that there is credible evidence that the FARC are still interested in the appellant. [36] The key concepts concerning IFA come from two cases: Rasaratnam15 and Thirunavukkarasu.16 The panel must be satisfied, on a balance of probabilities, that (1) there is no serious possibility of the claimant being persecuted or, on the balance of probabilities, in danger of torture, subjected to a risk to life or to cruel and unusual treatment or punishment, or a danger of torture in the IFA17 and, (2) that conditions in that part of the country are such that it would be reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.18 [37] The Federal Court of Appeal (the "Court of Appeal") has stated that one must first determine whether an IFA exists and then determine whether the IFA is a realistic, achievable option, given the particular circumstances of the individual.19 In Rasaratnam,20 the Court of Appeal held that, with respect to the burden of proof, once the issue was raised, the onus is on the claimant to show that he or she does not have an IFA. Furthermore, both prongs must be satisfied for a finding that the appellant has an IFA. [38] In reference to the first prong, the RPD Member found that the appellant had XXXX XXXX XXXX XXXX, "from XXXX XXXX of 2006 until XXXX XXXX of 2012, with the exception of XXXX months which he passed in XXXX in 2007 and XXXX months in Ecuador in 2008,"21 prior to leaving the country for Mexico, US, and then Canada. In the RPD reasons, the Member noted that the appellant, "returned only twice to XXXX in these years and on the second occasion he left very quickly after just a few days after cars driven by strangers were reported to be driving around his mother's neighbourhood."22 The appellant stated in his BOC23 that he lived in XXXX and opened his own XXXX XXXX in 2010 which was registered with the Chamber of Commerce and Tax Department in XXXX on XXXX XXXX, 2012. The RPD Member's finding as to establishing the first prong of the IFA test is linked to the fact that the appellant has XXXX XXXX XXXX XXXX after fleeing his hometown of XXXX. [39] The RPD Member found that the appellant failed to establish that the FARC would look for him in the city of XXXX. The appellant has not provided any submissions on how he would not be safe in XXXX from those he fears. Based on my review of the evidence, I find that I have no reason to disagree with the RPD Member's conclusion that the appellant would be able to live safely in XXXX as she took into account the many years in which the appellant lived safely and openly in the IFA while taking into consideration facts surrounding the appellant's situation. [40] The appellant submits that the RPD Member did not take into account that after his visit in XXXX in XXXX 2012 is when the FARC knew that he was still in the country. Counsel for the appellant submits that: ...in the decision of the panel member, it is accepted that FARC has infiltrated government agencies including the police and military to obtain information about their victims and that they have the ability to track down victims throughout Colombia. The appellant operated his XXXX with two partners in XXXX from 2008 without any registration. Only in XXXX of 2012, did he register the XXXX, because of the change of law in Colombia. In XXXX of 2012, he was only noticed because he returned to XXXX. At that time, FARC knew for a fact that he was still in Colombia, and they could track through the government information. FARC could have only tracked him through the government information since XXXX of 2012, but not earlier.24 [41] The Minister submits that: ... the Member also considered evidence on the Appellant's business circumstances. She considered that the appellant registered his XXXX in XXXX under his own name in 2012, and this fact has not led his agents of persecution to his location in that city. Further, she considered that the Appellant's XXXX continues to operate in XXXX to the present day, and that the Appellant's brother works there and that there is no evidence to support a finding that FARC guerrillas or any other individual or group has approached any person associated with the Appellant's business in a threatening manner since the disappearance of his father. She therefore drew a reasonable conclusion that the Appellant's agents of persecution are either unable to locate him there, or are uninterested in continuing to pursue him.25 [42] I have reviewed the transcript26 of the RPD hearing. The RPD Member and the Minister questioned the appellant extensively to determine how many times and when he had returned to XXXX. According to the testimony, the appellant testified that the last time he returned to his hometown was after what happened to his father in XXXX 2012 where he remained for three days.27 [43] I have also taken into consideration the appellant's testimony regarding his family and their situation in XXXX at the time of the RPD hearing. The appellant also testified that his wife lives in XXXX today, although not in the same residence.28 He also testified about his family's situation and stated that, "they are in XXXX. Really, they haven't had any problems."29 Based on the appellant's testimony, the XXXX in XXXX is still being run by his two partners and brother.30 As well, his mother has moved back to XXXX since XXXX. Since his mother has moved back to XXXX, she has moved to another residence. There is no persuasive evidence from the appellant that his mother has had any problems since her move. The RAD finds that there is no evidence before the RPD, and none before the RAD, which suggests that the FARC have the interest to pursue the appellant outside of XXXX. A review of the transcript indicates that the appellant's family still resides in XXXX and there is no persuasive evidence that the FARC approached the family to find the appellant. I find that given the FARC's still had an interest in locating the appellant, it would be reasonable to expect that they would continue efforts to locate the family if the FARC had the means and the motivation to find the appellant outside of XXXX. [44] I find the RPD's assessment that the problems faced by the appellant were local in nature is substantiated by the facts in the case. The appellant testified that he fears that the FARC would be able to find him in XXXX because of what happened to his father. I also note that the RPD Member did ask the appellant how the FARC would find him in XXXX. The appellant could not identify any specific method by which the FARC could find him. The RPD Member noted in her reasons that "the claimant's XXXX continues to operate in XXXX to the present day; that the claimant's brother works there and that there is no evidence before the panel to support a finding that FARC guerrillas or any other individual or group has approached any person associated with the claimant's business in XXXX". I find the appellant did not present any persuasive evidence to the RPD or the RAD that suggests that the FARC were, and still are, motivated to search for the appellant outside of XXXX. I find the RPD did consider the totality of the evidence and made clear and coherent findings related to the reasonableness prongs of the IFA, and therefore the RPD's findings were adequate. [45] The RPD Member's decision states that, "I have considered counsel's submission that FARC only kidnaps people for two reasons: for money or for information and that as the claimant's father was not wealthy it is likely that information about the claimant was the reason he was taken. In Counsel's submission, the claimant had an internal flight alternative in XXXX until the disappearance of his father; however, that event changes the safety of that internal flight alternative. Counsel for the claimant submits that the FARC likely obtained information about the claimant's whereabouts from the claimant's father, possibly by means of torture, and for this reason the claimant will no longer be safe in XXXX."31 [46] The Minister submitted at the time of the hearing that, "it is speculative to find that the claimant's father was abducted and interrogated by the FARC in order to find the location of the claimant."32 The RPD Member agreed with the Minister and further stated in her decision that, "the claimant's XXXX continues to operate in XXXX to the present day; that the claimant's brother works there and that there is no evidence before the panel to support a finding that FARC guerillas or any other individual or group has approached any person associated with the claimant's business in XXXX in a suspicious or threatening manner since the disappearance of the claimant's father and the claimant's own subsequent departure from the country."33 Furthermore, the RPD Member states that, "the panel has also considered the claimant's testimony that his wife and children have continued to reside in XXXX since he departed Colombia and have experienced no threat or harm there in his absence."34 [47] The appellant's main argument is that: "In XXXX of 2012, he was only noticed because he returned to XXXX. At that time, FARC knew for a fact that he was still in Colombia, and they could track through the government information. FARC could have only tracked him through the government information since XXXX of 2012, but not earlier."35 The appellant further submits that, "the fact that the rest of the family members have not received threats from FARC cannot be used to support a conclusion that FARC is no longer interested in pursuing the appellant."36 [48] From my review of the evidence, I find no reasons to disagree with the RPD Member's conclusion given the facts surrounding this claim. There is a clear distinction between 'having an interest' and 'would the appellant be pursued in the IFA location'. Regardless if the FARC still had an interest, the main question when assessing a viable IFA is, would the FARC have the motivation to look for the appellant in another city? In this particular case, the suggested IFA is the city of XXXX. No persuasive evidence was presented to the RPD or the RAD that suggests that the FARC have the willingness or interest to search for the appellant outside of XXXX. This conclusion applies even if, as argued by counsel, the FARC were motivated to harm the appellant. It is clear from the evidence that the motivation to find the appellant is restricted to the appellant's hometown of XXXX as discussed earlier. I find the RPD Member has clearly examined the evidence surrounding the issue of IFA, and I have no reason to disagree with her assessment. [49] In reference to the second prong for IFA, the appellant has not brought forward any arguments that it would be unduly harsh for him to live in XXXX. The RPD Member notes that the appellant already lived in XXXX for several years where he lived in an apartment with his family and owned a XXXX. I have also not found anything in my review of the evidence before the RAD that would indicate that it would be unreasonable for the appellant to live in XXXX. [50] In summary, having considered all the evidence, I find that I agree with the RPD that the appellant has an IFA in XXXX and is therefore not a Convention refugee or a person in need of protection as he has an IFA available to him in XXXX. REMEDY [51] For all these reasons, I confirm the determination of the RPD in accordance with subsection 111(1)(a) of IRPA, namely, that XXXX XXXX XXXX, also known as XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. This appeal is therefore dismissed. (signed) "Rena Dhir" Rena Dhir October 3, 2014 Date 1 Immigration and Refugee Protection Act (the "Act"), S.C., 2001, c. 27. 2 Refugee Appeal Division (RAD), Exhibit 2, Appellant's Record (AR). 3 Exhibit 3, Refugee Protection Division Record (RPDR). 4 Exhibit 2, AR. 5 Dunsmuir v. New Brunswick, 2008 SCC 9. 6 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494. 7 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494" para. 41. 8 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702. 9 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702; para. 27. 10 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702; para. 28. 11 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702; para. 33. 12 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 13 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, para. 54. 14 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, para. 55. 15 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA). 16 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 163 N.R. 232 (F.C.A.). 17 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 18 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 19 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 163 N.R. 232 (F.C.A.). 20 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 21 Exhibit 3, RPDR, RPD Decision, p. 4, line 6-9. 22 Exhibit 3, RPDR, RPD Decision, p. 4, line 10-12. 23 Exhibit 3, RPDR, BOC, p. 12, line 17-19. 24 Exhibit 2, AR, Memorandum, p. 234. 25 Exhibit 4, Minister's Memorandum. 26 Exhibit 2, AR, Transcript of Hearing. 27 Exhibit 2, AR, Transcript of Hearing, p. 54. 28 Exhibit 2, AR, Transcript of Hearing, p. 58. 29 Exhibit 2, AR, Transcript of Hearing, p. 58. 30 Exhibit 2, AR, Transcript of Hearing, p. 61. 31 Exhibit 3, RPDR, RPD Decision, p. 5, line 23-31. 32 Exhibit 3, RPDR, RPD Decision, p. 5, line 35-37. 33 Exhibit 3, RPDR, RPD Decision, p. 6, line 2-7. 34 Exhibit 3, RPDR, RPD Decision, p. 6, line 11-14. 35 Exhibit 2, AR, Memorandum, p. 234-235. 36 Exhibit 2, AR, Memorandum, p. 235. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-01423