MB7-01905

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 : MB7-01905 ; MB7-01906 ; MB7-01907 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montreal, Quebec Appel instruit à Date of decision December 31, 2018 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la personne en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION I. OVERVIEW [1] XXXX XXXX XXXX XXXX (the principal Appellant) and his wife XXXX XXXX XXXX XXXX (the female Appellant), citizens of Colombia, along with their minor daughter XXXX XXXX XXXX XXXX, citizen of Costa Rica, appeal a decision of the Refugee Protection Division (RPD) rendered on December 2, 2016, denying their claim for refugee protection. [2] The principal Appellant and his spouse were living in Costa Rica where they fear gang members from Colombia. They allege that the RPD erred in finding that they are excluded from refugee protection on the basis that they had substantially similar rights as nationals of Costa Rica. Moreover, they allege that the RPD erred in rejecting their claims for protection from Costa Rica on the basis that they did not rebut the presumption of adequate state protection. [3] After conducting my own analysis of the record, I am satisfied that the RPD was correct in finding that the principal Appellant and his spouse are excluded from refugee protection and that they did not rebut the presumption of state protection. The refugee claim of the minor claimant, which rests on her affiliation to her parents, is also denied given that the presumption of state protection in Costa Rica is not rebutted, which is determinative of the appeal. II. BACKGROUND [4] In 2004, the principal Appellant was living in Colombia where he witnessed the execution of 6 people by the Revolutionary Armed Forces of Colombia (the FARC). When armed men came looking for him, he fled to Costa Rica in 2005 where he was granted refugee protection in 2006. [5] The female Appellant was operating a XXXX XXXX with her ex-partner in Colombia who was accused by the FARC of being an informant. After receiving threats, she fled to Costa Rica in 2007 where she obtained refugee protection in 2008. [6] The principal Appellant met his spouse in Costa Rica in 2008. Their daughter was born in 2012. [7] In 2012, the female Appellant's cousin XXXX was murdered in Colombia by members of a dominant criminal force, Los Urabenos. In 2013, the female Appellant was informed that members of this group were looking for her as she was presumed to know about missing money. [8] In XXXX 2014, the female Appellant returned from her lunch break at work in San Jose, Costa Rica when she was informed by co-workers that two armed men had come looking for her. [9] The Appellants did not report the incident to the police as they feared reprisals. Instead, they fled Costa Rica on XXXX XXXX, 2014. After being detained in the USA, they made their way to Canada on XXXX XXXX, 2016 and made a refugee claim. [10] The Minister intervened in the case before the RPD, taking the position that the principal Appellant and his spouse are excluded from refugee protection. [11] The RPD agreed with the Minister, concluding that the principal Appellant and his wife are excluded from refugee protection in Canada pursuant to s. 98 of IRPA and Article 1E of the Refugee Convention1 on the basis that at the time of the hearing, they had or had access to permanent residence or equivalent status that is substantially similar to nationals of that country. The RPD also determined that the Appellants failed to establish a serious possibility of persecution in Costa Rica or that they would be at risk of harm if they returned to Costa Rica as they failed to rebut the presumption of adequate state protection in that country. III. DETERMINATIVE ISSUE [12] The Appellants submit that the RPD erred in finding that the principal Appellant and his wife are excluded from refugee protection. Moreover, they submit that the RPD erred in finding that they did not rebut the presumption of adequate state protection in Costa Rica. [13] The Minister has not intervened in the present appeal. IV. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL a. Test for admissibility [14] Subsection 110(4) of the IRPA provides that an Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the Appellant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. If the new evidence meets the test for admissibility in ss. 110(4), then the RAD is required to further analyze the content of the document which requires an assessment of the credibility, relevance and newness of the evidence.2 [15] The Appellants request the following documents be admitted as new evidence on appeal: - Item 1: Appellants' affidavit; - Item 2: Affidavits from XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, photographs and news articles, en liasse; - Item 3: News articles, en liasse; - Item 4: News article "Colombian died after being shot in Heredia"; - Item 5: Birth and Death Certificate of XXXX XXXX; birth certificate of XXXX XXXX XXXX XXXX and a letter from XXXX XXXX XXXX, en liasse. b. Decision on the admissibility of the new evidence I find that Items 1, 2 and 4 are inadmissible while Items 3 and 5 are admissible for the reasons set out below. Item 1: Sworn affidavit from the female Appellant dated February 13, 2017 [16] A sworn affidavit from the female Appellant is submitted as new evidence on appeal.3 The entirety of the affidavit restates evidence that was before the RPD or attempts to provide additional explanations about the RPD hearing. There are no detailed submissions as required under Rule 3(3)(g)(iii) of the RAD rules to explain how the information contained in the affidavit meets the requirements of 110(4) of IRPA. On the face of it, the affidavit contains information that did not arise after the rejection of the claim. As such, Item 1 does not meet the statutory requirements for admissibility under 110(4) of IRPA. Item 2: Sworn affidavit from XXXX XXXX XXXX and XXXX XXXX XXXX; identifying information; photographs and news articles, en liasse [17] XXXX XXXX XXXX sworn affidavit and identifying information en liasse4 dated January 26, 2017, mentions that she is the Appellants' friend and that her Colombian partner, who was Costa Rican by naturalization, was murdered on XXXX XXXX, 2016 in his car in San Jose, Costa Rica. Following his death, she received death threats. As such, she returned to her home country of Nicaragua. [18] The sworn affidavit and identifying information en liasse, from XXXX XXXX XXXX5 is dated January 26, 2017 and attests to the fact that she is a friend of the Appellants and that in XXXX 2014, two suspicious men with Colombian accents asked about the Appellants. She adds that her Colombian partner was killed on XXXX XXXX, 2011. A news article attached to the affidavit states that the Costa Rican authorities are investigating the murder. [19] While the sworn affidavits and accompanying information post-date the rejection of the claim, it is plain to see that the information provided pre-dates the rejection by the RPD. The Appellants have not explained why this evidence was not available or obtainable prior to the rejection of their refugee claim. Moreover, I note that the Appellants already testified about the murder of their two friends in Costa Rica which is documented in the RPD decision.6 As such, I find that the letters do not meet the statutory requirement for admissibility pursuant to 110(4) of IRPA. Item 3: News articles about the targeting and assassination of Colombian citizens in Costa Rica, en liasse [20] A news article entitled "Colombian killed in Costa Rica, Sevilla is mourning his untimely death" is dated December 13, 2016.7 The article states that the man was gunned down on his motorcycle for an unclear motive and that the "Judicial Police will establish what happened." The Judicial Investigation Agency retrieved the body and transferred it to the Forensic Sciences Complex in San Joaquin de Flores, Heredia. [21] A second news article entitled "One Colombian dead and one wounded after being attacked in Costa Rica" dated December 11, 2016 refers to the same incident, confirming that the man gunned down was shot by hit men "although the motive is not clear yet." The article notes that officers are involved and investigating the matter.8 [22] The news articles post-date the RPD decision and speak to an incident which occurred after the rejection of the claim. As such, the news articles were not available or obtainable prior to the rejection by the RPD. Turning to the factors set out in Singh, I note that the news articles refer to a specific incident of a Colombia man being gunned down in Costa Rica. This speaks to an ongoing risk of crime in Costa Rica which is being investigated by the authorities. As such, I find that the news articles is admissible as new evidence on Appeal. Item 4: News article "Colombian died after being shot in Heredia" [23] This news article, dated October 29, 2016, pre-dates the rejection of the claim by the RPD.9 There are no submissions to explain why this publicly sourced news article was not available or obtainable prior to the rejection. As such, Item 4 is not admissible as new evidence under 110(4) of IRPA. Item 5: Birth and Death certificate of the principal Appellant's brother XXXX XXXX XXXX XXXX, the principal Appellant's birth certificate and a letter from XXXX XXXX XXXX, en liasse; [24] Following the perfection of the appeal, the Appellants provided additional documents establishing that the principal Appellant's brother, a citizen of Costa Rica, was killed on XXXX XXXX, 2017. The birth certificates establish a link between the principal Appellant and his brother. The birth certificates, the death certificate and the letter from the principal Appellant's mother corroborate that the brother was the victim of a homicide. The Appellants submit that this new information corroborates that there is a risk if they return to Costa Rica or Colombia where they fear being harmed, kidnapped, detained or even killed based on the fact that the principal Appellant's brother was also murdered. [25] This evidence post-dates the rejection of the claim, which triggers an application pursuant to Rule 29 of the RAD rules which states that a document submitted after the appeal is perfected must not be used in the appeal unless it is authorized by the RAD. When deciding whether to allow an application to submit a document after the appeal is perfected, the RAD must consider any relevant factors, including the document's relevance and probative value; any new evidence the document brings to the appeal; and whether the person who is the subject of the appeal, with reasonable effort, could have provided the document within the appeal record.10 [26] I authorize that the documents be submitted pursuant to Rule 29 as the information regarding the murder of the principal Appellant's brother took place after the perfection and will inform the present appeal. Likewise, I find that the documents regarding the brother's murder were not reasonably available or obtainable prior to the rejection the claim by the RPD. I have no concerns about the source of the documents which I find to be credible, relevant and new. It follows that Item 5 is admissible as new evidence pursuant to 110(4) of IRPA. V. REQUEST FOR AN ORAL HEARING [27] Section 110(3) states that the RAD proceeds without a hearing, on the basis of the RPD record, and may accept documentary evidence and submissions from both the Minister and the person subject of the appeal. [28] Section 110(6) stipulates that the RAD may hold an oral hearing if, in its opinion, there is documentary evidence referred to in subsection (3) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; that is central to the decision with respect to the refugee protection claim; and if accepted, would justify allowing or rejecting the refugee protection claim. The RAD hearing is limited to the examination of new evidence. [29] I have admitted Items 3 and 5 as new evidence on appeal. This being said, news articles about the killing of Colombians in Costa Rica which are being investigated by the authorities, along with information about the murder of the principal Appellant's brother, absent any information about the response of the State, is not new evidence which would justify allowing or rejecting the claim when assessed with the balance of the objective evidence in the NDP regarding state protection in Costa Rica. [30] As such, the Appellants' request for an oral hearing does not meet the requirements of ss. 110(6) and the RAD must proceed without an oral hearing. VI. SCOPE OF THE RAD APPEAL [31] The RAD reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.11 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.12 Unless specifically stated below, I have applied the correctness standard in the present case. VII. ANALYSIS 1. The RPD did not err in finding that the Appellants are excluded from refugee protection [32] In certain circumstances, a person can be excluded from refugee protection. For instance, through the operation of s. 98 of IRPA, Article 1E of the Refugee Convention excludes individuals from refugee protection when the person 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.13 [33] In order to determine if the exclusion clause in Article 1E applies to a refugee claimant, it must be established whether the person has substantially similar rights and obligations to that of a national in the third country.14 [34] I note that the status of the principal Appellant and his wife in Costa Rica was a contentious issue before the RPD. The RPD noted that both the principal Appellant and his wife obtained refugee status in Costa Rica after fleeing Colombia. They lived and worked in Costa Rica where they also had medical benefits and public insurance. Moreover, their daughter was born in Costa Rica and is a citizen of that country. Ultimately, the RPD determined that the Appellants had or had access to permanent residence or equivalent status in Costa Rica, giving them substantially similar rights and obligations as nationals of that country. As such, the RPD determined that they are excluded from refugee protection pursuant to Article 1(E) of the Refugee Convention. [35] The Appellants are unrepresented in the present appeal. In their Memorandum of Appeal, they allege that the RPD erred "in law in its findings, excluding the applicants from refugee protection".15 This being said, they have not provided specific submissions to explain this assertion. Moreover, the Appellants further submit in their Memorandum of Appeal that "indeed, [they] had the status equivalent to permanent residence and lived and worked in San Jose, Costa Rica without any problem for six years."16 [36] My review of the evidence is compatible with the RPD who concluded that at the time of the RPD hearing, the principal Appellant and his wife had status or access to status in Costa Rica which confers substantially similar rights to that of nationals. Their evidence is that they lived freely in Costa Rica for a period of 6 years until they decided to flee that country. They worked in Costa Rica where they had access to medical care and public insurance. They had legal documents authorizing employment and a right of re-entry to Costa Rica.17 [37] It follows that the RPD did not err in finding that the principal Appellant and his wife are excluded from refugee protection pursuant to Article 1(E) of the Refugee Convention.18 2. The RPD did not err in finding that the Appellants failed to rebut the presumption of adequate state protection in Costa Rica [38] Having determined that the Appellants have substantially similar rights as nationals in Costa Rica, the RPD considered their assertion that the state will not protect them from members of Colombian gangs whom they fear if they return to Costa Rica. [39] After reviewing the evidence, the RPD found that the Appellants failed to provide clear and convincing evidence to rebut the presumption of adequate state protection in Costa Rica and that their failure to approach the state for assistance is fatal to their claim. [40] On appeal, the Appellants concede that they did not approach the authorities in Costa Rica for assistance. This being said, they argue that the RPD erred by failing to accept their explanation that as a black, Afro-Colombian refugee family, they have experienced racism in Costa Rica and feared that the police would perceive them to be the source of the problem. Moreover, they argue that the RPD erred by failing to consider that they did not trust the authorities to assist them following the murder of Colombian friends and the principal Appellant's brother in Costa Rica. [41] With respect, the Appellants' argument cannot succeed. The RPD did not err in finding that the Appellants' subjective reluctance and failure to obtain assistance from the authorities in Costa Rica is fatal to their claim. To explain this finding, I begin by providing a statement of the law regarding state protection. Then, I apply the law to the facts of the case. Statement of the law [42] A state is presumed to be capable of protecting their citizens, except when there is evidence that the state is in a complete situation of breakdown.19 To rebut this presumption, a claimant must "adduce relevant, reliable and convincing evidence which satisfies the trier of fact on a balance of probabilities that state protection is inadequate."20 [43] A contextual approach is required when assessing whether a refugee claimant has rebutted the presumption of state protection. This requires an analysis of different factors, including the nature of the human rights violation, the profile of the agent of harm, the efforts of the victim to seek protection from the authorities, the response from the authorities to requests for assistance, and the available documentary evidence.21 Application of the law to the facts [44] The Appellants fear members of Los Urabenos which is a paramilitary group known for drug trafficking. In 2013, the female Appellant was implicitly threatened by members of this group following XXXX death. She was threatened again in 2014, when two armed members of Los Urabenos presented at her job in Costa Rica while she was out for lunch. These incidents prompted the Appellants to flee Costa Rica where they feared for their lives and safety. [45] The Appellants also presented new evidence on appeal that the principal Appellant's brother was killed in Costa Rica in XXXX 2017. While the Appellants submit that this incident has exacerbated their fear of returning to Costa Rica, I note that there is no information about the assailant or the status of any police investigation stemming from the incident. [46] The Appellants have clearly expressed a subjective reluctance to approach the state for assistance on the basis that they distrust the police and fear being blamed for their problems, given that they are black, Afro-Colombians subject to discrimination in Costa Rica. [47] In assessing the merits of this assertion, I am guided by the Supreme Court in Ward. The following excerpt is instructive: "[O]nly in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state."22 [48] In reaching the conclusion that the Appellants' failure to approach the state for protection is fatal to their claim, the RPD relied on documentary evidence about the country conditions in Costa Rica.23 The RPD noted the following: - Referring to the United State Department of State Country Reports on Human Rights Practices24, the RPD found that Costa Rica is a functioning democracy with a relatively high degree of democratic freedoms. In this regard, the principal Appellant and his wife received the protection of Costa Rica when they claimed asylum from Colombia years ago; - The Appellants did not approach the state for assistance in 2013 after Los Urabenos implicitly threatened the female Appellant. Moreover, they did not contact the police after armed men came looking for the female Appellant at work in Costa Rica in 2014; - While the Appellants say that the police are not always successful in apprehending criminals and some cases remain unresolved, this is insufficient to rebut the presumption of adequate state protection when weighed against the documentary evidence pointing to the fact that the state is in effective control of its territory, has a military police and civil authority in place and makes serious efforts to protect its citizens; - While the Appellants say that the police do not apprehend criminals, the fact that the police are not always successful is not sufficient to demonstrate a lack of effectiveness of state protection, especially given the Appellants' evidence that hit-men typically leave Costa Rica immediately after committing the crime. This implies that they expect to be held to account in Costa Rica which points to the operational adequacy of state protection; - The Appellants have Colombian friends who were killed in Costa Rica and the police did not solve the crime. However, in those cases, the identities of the perpetrators were unknown. This is different than the present case where the female Appellant specifically identified the two notorious armed men (XXXX and XXXX) who presented at her job in 2014; - Referring to the objective evidence, the RPD further noted that in spite of some local failures or instances when crimes were not solved, the police in Costa Rica provide effective protection with 13 agencies in Costa Rica. Moreover, there exists mechanisms to investigate and punish abuse and corruption25; - In response to the Appellants' concern that they did not go to the police where they fear being discriminated or blamed as black, Afro-Colombians, the RPD noted that the objective evidence establishes that there is an Ombudsman with the mandate to respond to citizens' rights, including engaging in a process with the Afro-descendant population to discuss racial discrimination and the President appointed a presidential commissioner for Afro-descendant affairs26; - While acknowledging that criminal networks are suspected of having infiltrated law enforcement institutions,27 the documentary evidence reveals that police officers involved in criminal activity are investigated and prosecuted, which speaks to efforts and effectiveness responding to suspected infiltration by criminal gangs in the police; - Moreover, the RPD noted that objective evidence indicates that since the fall of big Colombia cartels, the Mexican gangs have stronger control of the local criminal gangs and the government is taking steps to combat the criminal groups, including introducing a 10 year crime reduction plan in 2011 to combat public insecurity related to crime and drug trafficking and that some arrests have been made;28 - The RPD also noted that the objective evidence states that organized crimes are of significant concern in Costa Rica and that the state has improved its focus on counter-narcotic programs which in part is attributed to improvements in equipment, including boats for the coast guard, patrol trucks for the border police and new helicopters for air surveillance;29 - While the Appellants provided news reports about crime directed towards Afro-Colombian persons, the news articles also mention that there is an ongoing, active investigation by the police department as well as police raids on organized criminal activity by Colombian gangs.30 As well, Costa Rican police have reached out to the Colombia embassy to design strategies to address the presence of Colombian gangs in Costa Rica. Efforts to coordinate international responses to crime was seen to be important, considering that according to the Appellants, the assailants in the present case had notoriety and were known to the police; - The RPD also found that the Appellants' concern that any police report in Costa Rica would allow Colombian gang members to trace them in Costa Rica or take reprisals against family members in Colombia is speculative in nature. I will add further that the documentary evidence also reveals that there are victim and witness protection laws and programs in effect in Costa Rica;31 - While the female Appellant states that she approached the UNHCR in Costa Rica to disclose her story and ask for advice, she did not continue the process as she did not feel safe and they said that they were not able to help her after she left the country. However, making a report to a UN Agency is not akin to approaching the state for assistance as an NGO does not have capacity to protect those under criminal threat. [49] All things considered, my review of the evidence reveals that the RPD fully and correctly addressed the issue of State protection in this case. After conducting a detailed and contextual assessment of the evidence, the RPD correctly determined that state protection is not perfect but it is adequate in Costa Rica and that it was unreasonable for the Appellants not to seek state protection against their fear of threats and criminality in that country. [50] Finally, I acknowledge that the brother of the principal Appellant was murdered in XXXX 2017. This being said, the identity of the assailant and the motive for the murder is unknown. Likewise, there are no details provided on appeal about the intervention of the police (or lack thereof). [51] In the final analysis, the Appellants have not provided clear and convincing evidence to rebut the presumption of adequate state protection. The situation of the minor child [52] The refugee claim concerning the Appellants' minor child is dependent on her affiliation to her parents who failed to rebut the presumption of adequate state protection in Costa Rica. It follows that the RPD did not err in finding that the Appellants' daughter is not a Convention refugee or person in need of protection. VIII. REMEDY [53] For all these reasons, I confirm the decision of the RPD in accordance with ss. 111(1)(a) of the IRPA, namely that the Appellants are neither Convention refugees nor persons in need of protection. The appeals are dismissed. Patricia O'Connor Patricia O'Connor December 31, 2018 Date PO/dd 1 United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 [Refugee Convention]. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 55. 3 Record of Appeal, p. 176. 4 Record of Appeal, pp. 178-192. 5 Record of Appeal, pp. 193-205. 6 RPD decision, para. 31. 7 Record of Appeal, p. 204. 8 Record of Appeal, pp. 206-211. 9 Record of Appeal, p. 210. 10 RAD Rule 29(4). 11 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), paras. 78, 103. 12 Ibid, paras. 58, 59 and 70. 13 Section 98 of IRPA "A person referred to in section E or F of Article 1 of the Refugee Covention is not a Convention refugee or a person in need of protection." 14 Canada (Minister of Citizenship and Immigration v Zeng 2010 FCA 118. 15 Memorandum of Appeal, para. 4. 16 Ibid, para. 11. 17 RPD decision, para. 16. 18 Shamlou v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1537. 19 Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689, p. 725. 20 Flores Carrillo v. Canada (Minister of Citizenship and Immigration) [2008] 4 FCR. 636 (FCA), para. 30. 21 Gonzales Torres v Canada (Minister of Citizenship and Immigration), [2011] 2 F.C.R. 480 (F.C.) para. 37. 22 Ward, supra note 19. 23 National Documentation Package (NDP) for Costa Rica, 13 May 2016. 24 Tab 2.1, Costa Rica, Country Reports on Human Rights Practices for 2015, United States, Department of State, 13 April 2016. 25 Ibid. 26 Tab 10.1, The effectiveness of the police, including the victim and witness protection program, 4 october 2011, accessed 8 november 2012. 27 Tab 2.2, Costa Rica, Freedom in the World 2015, Freedom House, 2015. 28 Tab 7.3, Mexico's Colonization of Costa Rica, Insight Crime, 24 June 2013. 29 Tab 7.4, Costa Rica. 2015 OSAC Crime and Safety Report, United States Department of State, 2 March 2015. 30 Exhibit 11, p. 2. 31 Tab 10.1, supra, note 26. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-01905 ; MB7-01906 ; MB7-01907 14