MB9-10034

RAD File No. / N° de dossier de la SAR : MB9-10034 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision August 25, 2020 Date de la décision Panel Mokhtar Lamani Tribunal Counsel for the person who is the subject of the appeal Me Émilie Le-Huy Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX, a citizen of Colombia, is appealing a Refugee Protection Division (RPD) decision, rendered on April 11, 2019, rejecting her refugee protection claim on the basis of credibility and lack of prospective fear. [2] The appellant alleges that the RPD erred: a. in finding that the appellant was not credible;1 and b. in concluding that the appellant's actions were not consistent with her alleged fear.2 [3] The appellant is asking the Refugee Appeal Division (RAD) to allow her appeal, set aside the RPD's determination, and refer the matter to a differently constituted panel for re-determination. [4] The appellant is not presenting any new evidence or requesting that an oral hearing be held before the RAD. [5] The determinative issues for the RAD are credibility, the appellant's lack of subjective fear, and the internal flight alternative. DETERMINATION [6] The RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [7] According to her Basis of Claim Form (BOC Form), the appellant alleges that in 1996, she was raped by members of the Revolutionary Armed Forces of Colombia - People's Army (FARC) and that despite this attack, they attempted to recruit her to their movement. [8] Her parents decided to send her to live with her aunt in Bogota, where she worked various jobs for a number of years. [9] The appellant claims that in 1998 and 1999, FARC members kidnapped and forced four of her brothers to join their group. Three of her brothers are still missing and the fourth returned in 2012. He informed that appellant that FARC members always wanted to kidnap her. [10] The appellant claims that, in 2008, FARC members killed her brother-in-law. [11] On XXXX XXXX XXXX 2009, while she was visiting her parents, FARC members stormed into the house to kidnap her, but she was able to escape and returned to Bogota. [12] On XXXX XXXX XXXX 2009, she filed a complaint. [13] According to the amendments made to her BOC Form, the appellant moved to Cali in 2010, where she received telephone threats. In 2011, she filed a complaint with the authorities in Bogota for death threats. In 2012, she moved to XXXX, but the harassment continued. [14] In XXXX 2015, she resettled in Bogota. [15] On XXXX XXXX XXXX 2016, she obtained an American visa. [16] A little over one year later, on XXXX XXXX XXXX 2017, she left her country for the United States. [17] On XXXX XXXX XXXX 2017, she illegally crossed the Canadian border and claimed protection in Canada. STANDARD OF REVIEW [18] The role of the RAD is to review RPD decisions by applying the standard of correctness after conducting an independent analysis of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing the oral testimony heard, which, in particular cases, may attract deference.3 The RAD applied the correctness standard in this case. ANALYSIS [19] The RAD carried out an independent analysis of all the evidence, which included listening to the recordings of the two RPD hearings, and it considered the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution,4 specifically with regard to women victims of sexual violence. Did the Refugee Protection Division err in finding that the appellant was not credible? [20] The RPD concluded that it had concerns about the appellant's testimony. In the first version of her BOC Form, she did not include: - the threats that she received and that she moved to Cali in 2010; - the complaint that she filed in 2011; and - that she moved to XXXX. [21] The RPD was not satisfied with the appellant's answers that she did not have all of the information, that everything happened quickly, that she was unfamiliar with the process, and that, as a result, she forgot to include this information.5 [22] The RPD concluded that: [translation] ... [T]he claimant's failure to spontaneously include the fact that she had received a number of threats since 2009 in the first version of her account undermines her credibility. Although the claimant corroborated certain threats by submitting Exhibit P-5, a complaint that was allegedly filed with the authorities in 2011, the fact remains that this casts doubt on the fact she was threatened in XXXX in 2012, especially when considering that the claimant contradicted herself by testifying that the last threat she received was on XXXX XXXX XXXX 2011.6 [23] The appellant alleges that the RPD erred in concluding that her failure to include the threats that she received in 2010 in her first version [translation] "cast doubt" on the fact that she was threatened in 2012. She notes that she corroborated her allegations by submitting a copy of the complaint that she filed with the authorities. [24] The appellant argues that in coming to this conclusion, the RPD imposed a higher burden than the one required by the case law, namely, that of a balance of probabilities.7 [25] The appellant cites the Federal Court in Alam to argue that the RPD erred in its decision because it placed a higher burden of proof on the appellant, in addition to drawing a negative inference from the fact that she failed to mention certain incidents in the first version of her account.8 [26] The RAD disagrees with the appellant's arguments. [27] First, the omissions concern incidents that are central to her refugee protection claim. Second, in her first BOC Form, the appellant states that her fear began in 1996 and the last persecution incident took place in XXXX 2009. Since the RPD hearings were held on February 22, 2019, and March 26, 2019, the RPD was correct in raising a doubt as to the addition of the moves to two other cities-where she continued to receive death threats despite changing her telephone number-that covered more recent periods (2010 to 2012) and whose only purpose was to embellish the appellant's story. [28] During the first RPD hearing, the appellant was asked to explain why she made substantial amendments to her BOC Form and why she submitted nine new pieces of evidence only two days before the hearing, which goes against the rules in force, when the appellant has been in Canada since 2017. Her answers were vague, confused and unsatisfactory, as noted during this exchange at the hearing:9 [translation] MEMBER: - Thank you. Miss, 48 hours ago, I received substantial amendments to your Basis of Claim Form, along with nine more pieces of evidence. A total of 10 documents. I would like to know why these documents were not submitted 10 days prior to the hearing, in accordance with the rules. CLAIMANT: - There was a small confusion. MEMBER: - What confusion? CLAIMANT: - The story was not completely ready. MEMBER: - You have been here since 2017, if I am not mistaken. Why was the story not ready 10 days before the hearing? CLAIMANT: - I did not have the correct information. Everything was a mess. MEMBER: - What information did you receive? CLAIMANT: - At the last minute, the information was not clear to me. MEMBER: - What efforts have you made since 2017 in order to understand what you had to submit in terms of documents? CLAIMANT: - The truth is that, when I arrived here, I did not know how the process here worked. MEMBER: - Miss, when you filed your first form. We have rules whereby all the documentation does not have to be complete. Therefore, you submitted a partial document on January 15, 2018. - Now, you submitted another form with an account on March 2, 2018. Were you already being represented by counsel at that time? CLAIMANT: - Yes. MEMBER: - Did you not consider asking your counsel in view of the preparation? CLAIMANT: - I did not know, I did not have the information. MEMBER: - You did not ask your counsel to explain it to you. CLAIMANT: - I wrote to him at the last minute, at the eleventh hour. Over the last few days. [29] The case law is clear and extensive on the standard of proof criterion. The criterion in Adjei is worded as follows: "[I]s there a reasonable chance that persecution would take place were the applicant returned to his country of origin."10 [30] Furthermore, in Li,11 the Federal Court of Appeal cautioned against confusing the "standard of proof" and the "legal test to be met." The standard of proof refers to the standard the panel will apply when assessing the evidence adduced for the purpose of making factual findings, whereas the legal test is the test for the likelihood of persecution, which a claimant must establish in order to obtain Convention refugee status.12 [31] At the second RPD hearing (on March 26, 2019), the appellant testified that the last telephone threat that she received was on XXXX XXXX XXXX 2011:13 [translation] MEMBER: - If I understand correctly, last time you testified that the last threats occurred in 2012 and in 2013, is that correct? CLAIMANT: - The last threat that I received was on XXXX XXXX XXXX 2011, by telephone. [32] The RPD later asked her, [translation] "[G]iven that you were able to live in Bogota for all these years and that the last threats occurred in 2011, what makes you think that you are still in danger today?" The appellant answered, [translation] "[b]ecause the guerrilla still exists."14 She also testified that the telephone threats she received in Cali occurred in 2011 and that she received other telephone calls in XXXX in 2012. [33] The RAD is of the opinion that the circumstances have changed since 2012 (the date of the last threats). FARC has signed a peace agreement with the Colombian government. [34] In order to demonstrate that she faces a reasonable chance of persecution, the refugee protection claimant must establish that she has a well-founded fear of being persecuted. Through her testimony, the appellant clearly established that she has a subjective fear of returning to Colombia. However, the objective basis of her fear must be supported by the objective evidence, which must be established on a balance of probabilities. [35] In other words, does the objective evidence demonstrate that it is more likely than not that the appellant established grounds for persecution? If the objective basis of her fear of persecution is established on a balance of probabilities, then section 96 of the Immigration and Refugee Protection Act (IRPA), which governs persons who are Convention refugees, requires that a reasonable possibility of persecution exist. [36] Given that, at the hearing, the appellant also testified that she feared the criminal groups Ejército de Liberación Nacional [national liberation army] and Bandas Criminales [criminal gangs] without ever being threatened by these groups; that she was able to live and work in her country for years after the last threatening telephone call in 2012; that the only time she was physically in the presence of FARC members was in 1996; that the last time FARC members came to her father's house was in 2009; and that a peace agreement was reached with FARC in 2016, the appellant failed to establish the objective basis of her fear, on a balance of probabilities. [37] Consequently, the RPD did not err in finding that her failure to include incidents that are central to her refugee protection claim undermine the appellant's credibility. The RPD also ultimately applied the correct burden of proof to determine the outcome of the refugee protection claim. Did the Refugee Protection Division err in concluding that the appellant's actions were not consistent with her alleged fear? [38] The RPD concluded that the appellant's actions were not consistent with her alleged fear. Although she allegedly received three threatening telephone calls from FARC members stating that they knew she lived in XXXX in 2012, she stayed in the same city until 2014.15 [39] The appellant argues that the RPD erred in coming to this conclusion because it failed to consider the appellant's personal situation as a single woman who was raped.16 [40] The appellant cites the National Documentation Package on Colombia that reports on the danger that Colombian citizens face when they move and how they are victims of violence, especially members of certain vulnerable groups, such as women.17 Women are most often victims of violence, which continues to be an endemic problem, according to various sources, and relocating is much more difficult for a single woman. [41] The appellant also cites Cooper18 in support of her argument that it is not inconceivable that, as a single woman who has experienced trauma, the appellant did not rush to relocate.19 [42] The RAD disagrees. [43] First, at the hearing, when the appellant was asked to explain why she delayed relocating, she merely stated that she did not have money to relocate. [44] Second, in terms of the country conditions, it must be noted that the starting point in a refugee protection claim is assessing the prospective risk that the refugee protection claimant would face in their country of nationality, in this case, Colombia. Justice Shore states: "Documentary evidence about the current general situation in a refugee claimant's country cannot by itself establish that the refugee claim is well-founded."20 It is not sufficient for claimants to provide documentary evidence about problematic situations in their country in order to be recognized as "Convention refugees" or "persons in need of protection." The claimants must also demonstrate a connection between that evidence and their personal situation..."21 [45] The RAD is of the opinion that the evidence submitted and the testimony are not sufficient to conclude that the appellant would face a serious possibility of persecution if she were to return to her country. [46] In fact, the three-year delay in relocating from XXXX22 is not the only thing that was not considered and is not the only place that the appellant moved to. At the hearings, she testified that between 1996 and when she left her country in 2017, namely, 21 years, she moved from her village to Bogota, then to Cali, then to XXXX, and then back to Bogota. She worked in all of these cities. [47] She testified that, after several years, she left Bogota because of threats. After moving to Cali and to XXXX, she decided to return to live and work in Bogota for over two years. This is not consistent with the behaviour of someone who is genuinely persecuted. [48] The RAD also considers that this is the same behaviour that the appellant exhibited with regard to leaving her country, Colombia. The appellant obtained an American visa on XXXX XXXX, 2016, but did not leave Colombia until XXXX months later, on XXXX XXXX XXXX 2017. [49] When asked to explain why she did not leave immediately, considering that she claimed that every time she moved, FARC members found her and wanted to kill her, the appellant answered that she did not have the means to travel, which was the same explanation she provided for her delay in moving to XXXX. [50] The RAD is of the opinion that the RPD did not err in arriving at this conclusion. [51] The onus was on the appellant to demonstrate that she faces a serious possibility of persecution because she is a member of the particular social group "women." Based on the appellant's description of her personal situation, the RAD concluded that she failed to do so. [52] The RAD is of the opinion that the appellant failed to establish a serious possibility of persecution by reason of her gender if she were to return to Colombia. [53] The RAD considers that the RPD's conclusion is correct regarding the fact that the appellant failed to establish a serious possibility of persecution within the meaning of section 96 of the IRPA or a risk of harm within the meaning of subsection 97(1) of the IRPA if she were to return to Colombia. CONCLUSION [54] The RAD dismisses the appeal and confirms the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. Mokhtar Lamani Mokhtar Lamani August 25, 2020 Date IRB translation Original language: French 1 Appellant's record, appellant's memorandum, para. 8. 2 Ibid., para. 9. 3 Canada (MCI) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (MCI), 2018 FC 1145. 4 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Immigration and Refugee Board of Canada, Ottawa, November 13, 1996. 5 Refugee Protection Division (RPD) record, RPD's reasons, para. 13. 6 Ibid., para. 14. 7 Appellant's record, appellant's memorandum, para. 13. 8 Ibid., paras. 15 to 20. 9 Transcript of the hearing before the RPD on February 22, 2019, pages 1 and 2. 10 Adjei v. Canada (MCI), 1989 FC 680. 11 Li, Yi Mei v. Canada (MCI), 2005 FCA 1. 12 Interpretation of the Convention Refugee Definition in the Case Law, Chapter 5.2. Standard of Proof. 13 Transcript of the hearing on March 26, 2019, page 1. 14 Ibid., end of page 5 and beginning of page 6. 15 RPD record, RPD's reasons, para. 15. 16 Appellant's record, appellant's memorandum, paras. 21 and 22. 17 Ibid., paras. 23 to 25. 18 Cooper v. Canada (MCI), 2012 FC 118. 19 Appellant's record, appellant's memorandum, paras. 26 and 27. 20 Morales Alba v. Canada (Citizenship and Immigration), 2007 FC 1116, at para. 4. 21 Supra, endnote 19, at para. 31. 22 In the amended Basis of Claim Form, the appellant returned to live in Bogota in XXXX 2015, not in 2014, as stated in paragraph 15 of the RPD's reasons. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB9-10034 RAD.25.02 (January 2020) Disponible en français 2 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 (January 2020) Disponible en français