TB6-01551

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB6-01551 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 27, 2016 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Joo Eun Kim Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Colombia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. [2] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Background [3] The Appellant alleged before the RPD that he fears the Fuerzas Armadas Revolucionarias de Colombia (FARC). The Appellant alleges that the FARC has targeted him for death because he refused to cease working for the oil industry and consequently was seen to be an opponent to FARC. Greater details may be found in the female Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [4] The Appellant's application for refugee protection was heard on October 7, 2015. A negative decision was rendered in writing on January 13, 2016. The RPD found that the Appellant was unable to establish his claim on the basis of credible and trustworthy evidence. The RPD found that the Appellant lacked subjective fear as he had re-availed himself to Colombia after multiple trips outside of Colombia. The RPD also found that the Appellant had failed to rebut the presumption of state protection in Colombia. [5] The Appellant submits that the RPD erred in assessing the credibility of the claim and of the Appellant. [6] The Appellant submits that the RPD erred in its assessment of state protection. ANALYSIS Role of the RAD [7] The RAD is an Appellate body governed by specific legislation and guided by the jurisprudence of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal. Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD." [8] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD. The RPD's Findings [9] The Appellant argues that the RPD erred in its credibility assessment. The Appellant argues that the RPD made no credibility finding based on demeanor or any inconsistencies in the testimony. The RPD, in its Reasons under the heading "Credibility", discusses mainly the forms of state protection available and the steps the Appellant took or could have taken to access state protection. The Appellant argues that the RPD did not make any clear negative credibility findings against the Appellant. The Appellant argues that the RPD took issue with a document2 and referred to it containing "false information"3. The document, a report to the Fiscalia on XXXX XXXX, 2014, failed to mention that the perpetrators of the threats against the Appellant were members of the FARC. However, the RPD failed to elaborate on the "false information" it mentions in its Reasons. Based on the "false information" and the lack of mentioning FARC in this document, the RPD assigned little weight to the document. [10] The RAD has studied the document and has compared its contents to the information provided by the Appellant in his BOC, along with other documentary evidence (emails)4 and cannot find any false information in the report to the Fiscalia. In this matter, the RAD must concur with the Appellant. The RPD has apparently made a negative credibility finding without clearly showing reasons for that negative finding. The Appellant correctly points to Justice Heald in Hilo,5 in which the Justice speaks to the absolute requirement of the decision maker to provide in "clear and unmistakeable terms", its reasoning when it casts doubt upon any individual's credibility. In this particular case, the RPD has not done so. The RPD has erred in its assessment of credibility in this case. [11] The RAD notes that the Appellant did not identify his persecutors as members of FARC in the report to the Fiscalia; however, the explanation given was that he was rushed by the clerk at the Fiscalia office and was forced to write his report while standing with only the wall as his desk. Further, the Appellant believed and testified that the initial report he filed would be elaborated upon once he had been assigned a prosecutor. The RAD finds this to be a reasonable explanation under the circumstances presented. [12] The Appellant argues that even if the RAD was to find the above document to be of little probative value, the fact that the Appellant returned to the Fiscalia in XXXX of 2014 to file another report should convince the RAD that the Appellant made serious attempts to access state protection. On this second visit, the Appellant provided a copy of the initial report to the Fiscalia along with emails to the Appellant which clearly identify FARC as the persecutor. The RAD concurs with the Appellant. Even though the RAD did find the first report to be of value, the second report, which substantiates the first, goes much further and provides evidence of who exactly was persecuting the Appellant. The RAD finds no credibility issues have been identified by the RPD other than the report to the Fiscalia on XXXX XXXX, 2014. As the RAD finds no credibility issue with that document, the RAD finds that the RPD erred in its assessment of that evidence. [13] The Appellant argues that the RPD erred in its assessment of state protection. The RPD, in its Reasons and Decision, went to great length to outline the organizations available to those in Colombia who are being persecuted. The list included the National Police of Colombia (NPC), the Corp of Technical Investigators (CTI) and the Unified Action Groups for Personal Freedom (GAULA). The CTI work out of the Office of the Attorney General (Fiscalia). [14] The Appellant, albeit long after the threats against him began, did report to the Fiscalia, initially on XXXX XXXX, 2014 (after which nothing was done by the Fiscalia) and again in XXXX 2014, just a week before the Appellant departed Colombia. The Appellant also attended a meeting where he was supposed to talk with representatives of the GAULA, in Cali. However, the GAULA members failed to show up for the meeting. [15] After the Appellant filed his second report to the Fiscalia, he received a threat by phone from a person identifying himself as a member of the FARC. The caller specifically referred to the denunciation of XXXX XXXX XXXX 2014 as the reason that the FARC was now going to kill the Appellant. The Appellant never returned to the Fiscalia for a follow-up due to his fear of FARC's newest threat. The RPD asked the Appellant "what kind of action he expected in less than a week after he had received the phone call threatening his life" because the Appellant fled Colombia only a week after filing his last report on XXXX XXXX, 2014. The Appellant replied to the question that it was now clear to him that the FARC intended to kill him. The RPD pointed out that the Appellant had been under threat for two years and wanted to know what was now different. The Appellant explained that previous threats had been about his anti-FARC activity, however, the last threat was because he had made his denunciation against the FARC to the Fiscalia. The Appellant testified that he now took the threat very seriously and considered himself "dead". [16] The RPD found this explanation to be illogical because in both circumstances, it was the same ruthless and violent organization which threatened the Appellant, in all cases. [17] The Appellant argues that this finding by the RPD was made with a complete disregard for the totality of the evidence. In the first instances of threats, the FARC had demanded he quit his work. Sometime after these earlier threats began, the Appellant, through his employer, sought the help of the GAULA. The GAULA members failed to show up for the scheduled meeting. The Appellant continued requesting his employer to re-schedule the meeting with the GAULA, however, it never occurred. The Appellant did quit his job as demanded by the FARC, but continued to be harassed. It was not until, in XXXX 2014, that the Appellant finally realized that the government (Fiscalia) was, indeed, infiltrated by the FARC. The Appellant then determined that he had no chance of protection, therefore deciding to leave and live rather that to stay and die. [18] The RAD finds that this decision to leave when he left was not an unreasonable decision and was not illogical at all. The Appellant had clearly come to the conclusion that his life now was truly in danger and reacted accordingly by leaving. The RAD concurs with the Appellant in this matter. [19] The RPD, in its state protection analysis, speaks about the "concerted efforts" made by the Colombian government to address the crime and violence committed by the FARC. The RPD speaks of the challenges faced by the government. Further, the RPD speaks about the new UNHCR eligibility guidelines.6 The RAD, having canvassed those guidelines, notes that this Appellant fits the descriptions in the Guidelines of those persons who are likely to be targets of the FARC. The very first category of "targets" is "Present and Former Members and Supporters of one of the Parties to the Conflict." This Appellant has testified to and has produced corroborating documentation showing his membership in the One Million Voices, anti-FARC protest movement. As well as that membership, the Appellant actively worked in the oil industry, which was seen by the FARC to be a "government" industry opposed to the FARC. It is clear to the RAD that this Appellant would be considered politically opposed to the FARC and, because he was vocal with that opposition, he would fit the profile of a person to be targeted by the FARC. [20] The RPD wrote that due to the arrival of many New Armed Groups (NAGS), the National Liberation Army (ELN) and the FARC, the government has faced new and long-standing security challenges, some for over five decades. The RPD expressed its opinion that there have been some successes and some failures in the government's efforts to address the conflict. The RPD also expresses its opinion that "it will take some years before actual success can be measured". Neither of these opinions find that there is adequate state protection, but only that the government is making serious efforts. Serious efforts do not equal adequate state protection. In a recent Federal Court decision7 the Court found that, although state protection need not rise to the level of perfection, the government's efforts and good intentions do not necessarily translate to adequate state protection. In this particular case, the Appellant did attempt to obtain state protection on at least three occasions, to no avail. The RAD finds that the Appellant has rebutted the assumption of adequate state protection in this instance. [21] The RPD has written on the issue of re-availment. The Appellant traveled to the USA on XXXX XXXX, 2013 and on XXXX XXXX, 2014, and to Canada on XXXX XXXX, 2014, returning to Colombia each time. The RPD asked the Appellant why he would not have sought refuge each of these times when he was in the relative safety of another country. The Appellant explained to the RPD that it was never his intention to abandon his country despite the risk he faced. The Appellant explained that he did not want to allow FARC to intimidate him and run him out of his own country. It was not until the threats of XXXX XXXX, 2014 that the Appellant finally accepted the fact that FARC had his personal information as they called him two days after the Appellant made his final report to the Fiscalia. The caller knew that the Appellant had been to the Fiscalia and why he had been there. This call solidified the Appellant's earlier suspicion that the Fiscalia had been infiltrated by the FARC and that is why he finally decided he must seek protection internationally. [22] The RAD has read over the evidence, including the narrative and the amendments thereto, and finds that the Appellant's explanation is reasonable. When the Appellant finally realized that the FARC had infiltrated the organization which was meant to protect citizens such as the Appellant, then and only then did the Appellant decide he must leave Colombia. After that phone call on XXXX XXXX, 2014, the Appellant never re-availed himself. [23] In summary on this issue, the Appellant did try to comply with FARC's demands, earlier on by leaving his job with the oil company and by deleting his activist Facebook account. The Appellant, in his view, complied with the FARC and therefore should not be an actual target of the FARC. It took almost two years of harassment before the Appellant finally realized the danger he was in, bringing him to XXXX 2014, when he fled Colombia. The RAD concurs with the Appellant and finds that the Appellant's action are consistent with someone who is afraid of the FARC and whose fear increased over a period of time, in this case, two years. Disposition [24] The RAD has found that a) the Appellant fits the profile of a person who would be targeted by the FARC, b) there are no major credibility issues, and c) the Appellant has successfully rebutted the presumption of state protection and the Appellant has given reasonable explanation for the re-availment in XXXX, 2013, XXXX 2014 and XXXX 2014. For these reasons, the RAD finds that the RPD decision cannot stand. CONCLUSION [25] Pursuant to Section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe July 27, 2016 Date 1 Exhibit RPD-1, RPD's Record, exhibit 2. 2 Exhibit RPD-1, RPD's Record, at p. 331. 3 Exhibit RPD-1, RPD's Reasons and Decision, at p. 5, para. 10. 4 Exhibit RPD-1, RPD's Record, at pp. 333-338. 5 Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm, L.R. (2d) 199 (F.C.A.). 6 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Colombia, September 2015 7 Molar, Gabor v. M.C.I. (F.C., no. IMM-2129-13), O'Keefe, March 4, 2015, 2015 FC 273. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-01551