MB6-06305

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. / No de dossier de la SAR : MB6-06305 MB6-06306 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellants XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Appelants Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision August 18, 2017 Date de la décision Panel Roxane Cyr Tribunal Counsel for the Appellants Jane G. Rukaria Conseil des appelants Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX his spouse, are citizens of Colombia and are appealing against the decision of the Refugee Protection Division (RPD) that rejected their claim for refugee protection. [2] They are not presenting any new evidence but are requesting a hearing before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that the appellants, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, are not "Convention refugees" or "persons in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] XXXX XXXX XXXX is Afro-Colombian. He grew up in XXXX, Colombia. Two of his brothers were granted refugee status in Canada because of problems with the FARC (one in 2005, concerning forcible recruitment, and the other in 2012, after fleeing following a forcible confinement). His father in law was allegedly killed by the FARC in 2009; he had been a victim of extortion. [5] The male appellant moved to XXXX in 2012. [6] In XXXX 2013, he received two text messages stating that the FARC would recruit him next. [7] In XXXX 2014, he started a relationship with the female appellant. In XXXX 2014, the FARC broke into their residence manu militari (they were living at the home of the female appellant's mother), struck and threatened the appellants, and told the male appellant that he was on their recruitment list. The FARC left after telling the male appellant that they would be back with instructions from the FARC. After they left, the male appellant contacted his aunt XXXX, and he and the female appellant moved in with her, in XXXX. [8] The male appellant then called his uncle in Panama. On his advice, he left Colombia alone on XXXX XXXX, 2014, and went to Panama, where he remained until XXXX XXXX XXXX 2014. He worked there to raise the money needed for the female appellant to come and join him. In XXXX 2014, he learned from the female appellant that unknown individuals were asking about her at her workplace. She allegedly moved back in with her mother. [9] In XXXX 2014, the male appellant went back to Colombia, fearing he would be deported from Panama. [10] In XXXX 2015, he allegedly received a call from an unknown man, who told him, "No one fools them." [11] On XXXX XXXX, 2015, the appellants obtained an American visa. They were married in XXXX 2015. [12] On XXXX XXXX, 2015, they left Colombia and landed in Miami, United States. They entered Canada illegally on XXXX XXXX, 2015, and claimed refugee protection on January 22, 2016. RPD DECISION [13] The RPD rendered a negative decision, finding that the appellants were not credible with respect to their allegations. [14] The RPD indicated in its decision that it had considered the appellants' education levels and their employment histories. Places of residence [15] The RPD found that the male appellant's testimony was not credible regarding where he allegedly resided when he claimed to have been followed and persecuted by the FARC. [16] Although the RPD found that the appellants' testimony was detailed and consistent with respect to the incident on XXXX, 2014 (break-in at the home of the female appellant's mother, assault and threats), the RPD concluded that the lack of credible testimony about the subsequent relocations superseded the presumption of truthfulness for this incident. Lack of subjective fear [17] In the RPD's opinion, the male appellant did not demonstrate the existence of a subjective fear, given that he did not claim asylum in Panama, where he fled, and that he voluntarily returned to Colombia even though he had learned from the female appellant that the FARC were looking for him. Moreover, when he returned, he went back to living with the female appellant's mother, the very place where he had been attacked in XXXX 2014. The RPD also noted that the male appellant made no effort to protect himself after receiving two text messages in XXXX 2013, even though he alleges that he is from a family with a history of being persecuted by the FARC. As a result, the RPD found this behaviour to be inconsistent with his allegations of fear. [18] The RPD was also of the opinion that the female appellant did not demonstrate that she had a subjective fear because, although she alleges that people came looking for her at work in XXXX 2014, she returned to live with her mother, the very place where the appellants had been attacked in XXXX 2014. Stay in Panama [19] The RPD noted factors that undermined the male appellant's credibility. [20] During the first sitting (the sessions before the RPD took place a month apart, on XXXX XXXX, 2016 and XXXX XXXX, 2016), he stated that when he left Colombia in XXXX 2014, his intention was that the female appellant would join him. At the second sitting, he stated that he had intended to go to Panama to earn enough money and then return to Colombia so that he and his spouse could travel to Canada. [21] It was only at the second sitting that the male appellant alleged that he also left Panama because of the discrimination he had experienced as a member of the Afro-Colombian community (racial discrimination). Documents [22] In light of the above, the RPD found that the appellants were not credible and it did not believe their problems with the FARC. Given that finding, the RPD gave no probative value to the affidavits from family members that were filed in evidence (from the female appellant's mother and the male appellant's brother and mother). It therefore did not believe that the FARC had been trying to contact the male appellant's mother since the appellants left Colombia. Afro-Colombian origin [23] Lastly, the RPD found that the appellants did not establish that they had a well-founded fear under section 96 by reason of their Afro-Colombian origin. APPELLANTS' MEMORANDUM [24] The appellants, for their part, are of the opinion that the RPD erred by failing to consider all of the evidence and by conducting a selective and microscopic analysis of it. Credibility * The male appellant became confused during the hearing and had difficulty giving his account in chronological order. He clearly has trouble giving testimony in chronological order (the RPD did not take his lack of education into account). But this was corrected by the female appellant during her testimony. The RPD erred by failing to consider her testimony when assessing credibility. * It appears that the RPD found the male appellant credible with respect to where he lived after his return from Panama, as this (see para. 23 of its decision) is corroborated by form IMM5569. Yet at the same time, it rejected this part of the testimony, finding that it lacked credibility. The RPD erred. Stay in Panama * The RPD erred by not asking the male appellant about what he had experienced as an Afro-Colombian in Panama. * The RPD erred by failing to consider the documentary evidence on the FARC's presence in Panama or on discrimination against Afro-Colombians. * The RPD erred by not taking into account the fact that, according to the documentary evidence, the refugee determination system in Panama is broken. * The RPD erred by rejecting the male appellant's testimony regarding the discriminatory treatment he was subjected to as an Afro-Colombian in Panama because he did not mention it in his Basis of Claim Form (BOC Form). It was the RPD that raised this point at the hearing, and the male appellant was entitled to respond. The appellants submit that Panama, just like Colombia, is racist against and marginalizes the Afro-Colombian community. That is why the male appellant did not claim asylum in Panama. The RPD erred by rejecting that part of the testimony. * The evidence demonstrates that the appellants had always (since their problems began) planned on coming to Canada and that the male appellant went to Panama to make it easier to carry out that plan. The RPD erred in finding that part of the testimony not credible. Voluntary return / subjective fear: * It was not unreasonable for the male appellant to return to Colombia given that he could not bring the female appellant to join him in Panama (lack of money) and that his visa was about to expire. The male appellant's decision was reasonable considering his level of education. In addition, the male appellant submits that he is not "the sharpest person in many respects" (see para. 41 of the memorandum). * The RPD erred by drawing a negative inference from the fact that when the male appellant returned to Colombia, he went back to living in the same place where he had been attacked in XXXX 2014. The RPD did not consider the documentary evidence that states that Afro-Colombians are often limited in terms of where they can live, which then forced them to go back to living in the same place where they had previously been at risk. Documentation * The RPD erred by failing to consider and by rejecting the affidavits from the appellants' family members. A differently constituted RPD panel had considered these very documents in the case of one of the male appellant's brothers and had accepted him as a refugee. * The RPD erred by describing the affidavits from family members as hearsay. * The RPD erred by rejecting the written statements from family members because the authors could not be questioned. The RPD could have questioned the authors of these statements (which it did not do), including XXXX XXXX XXXX XXXX, the male appellant's brother, who was in the room and offered to testify orally. * The RPD erred by concluding in paragraph 28 of its decision that it could not consider the evidence relating to the files of the male appellant's two brothers (who were accepted by the RPD) on the grounds that this evidence was not part of the record. The appellants submit that that is untrue, that, in practice, the RPD discloses the files of members of the same family under Rule 22 of the Refugee Protection Division Rules and that, in any case, the male appellant's brothers had given their consent. THE RAD'S ROLE [25] The RAD is an appeal tribunal for RPD decisions. [26] Federal Court decisions have established that the RAD is a "specialized (if not overspecialized) tribunal" (see Alvarez),1 and a hybrid appeal, according to recent case law. The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [27] The Federal Court of Appeal determined in Huruglica (2016 FCA 93) (para. 70) that the RPD, having heard the testimony, many enjoy an advantage with regard to credibility: [70] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [28] A recent decision made by a three-member panel of the RAD (see TB-03419) dealing with deference concludes as follows: "Where the RPD enjoys a meaningful advantage in making a particular finding, the RAD may assess that finding using a standard of reasonableness, modified to apply to the RAD context" [para. 116b) TB6-03419]. [29] Nevertheless, even where an RPD finding warrants deference, the RAD is required to undertake an independent review of the evidence upon which the finding is based (para. 71, TB6-03419). [30] "Where the RAD finds that deference is warranted, it is obligated to explain how the RPD enjoyed a meaningful advantage with respect to the finding in question" [para. 116( c) TB6-03419]. [31] "The RAD will consider the refugee determination on a standard of correctness, even where it has deferred to some or all of the findings upon which that determination is based" [para. 116 e)]. [32] Paragraph 103 of Huruglica (2016 FCA 93) sets out the standard of review to be adopted by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [33] The RAD will conduct its own analysis. The RAD will consider all the evidence, including the testimony. It will determine whether the RPD's decision contains errors of fact, of law or of mixed fact and law, and whether they are determinative to the outcome of the case and are such that the decision cannot be upheld. REQUEST FOR A HEARING BEFORE THE RAD [34] The appellants did not submit any evidence before the RAD. [35] Under subsection 110(6) of the IRPA, there is no cause to hold a hearing before the RAD. ANALYSIS [36] In its analysis, the RAD considered all of the evidence on the record, including the recording of the hearing. [37] The RPD decision in this case is based on the lack of credibility of the appellants' testimony. The RAD will review, pursuant to the decision of the three-member RAD panel (T6-03419), each of the RPD's findings in this matter. It will determine whether the RPD enjoyed a meaningful advantage, having seen and heard the appellants. If so, it may show deference to the findings on various points of credibility. In the end, it will assess whether the totality of these findings led it to render a correct decision. [38] The RAD finds that the appellants' problems with the FARC are not credible. In essence, the appellants' testimony about the actions they took to protect themselves from the FARC was contradictory, vague and inconsistent with the alleged fear. Incident on XXXX XXXX XXXX 2014 [39] This is the only incident in which the appellants apparently saw the FARC members firsthand, when the FARC members beat them and threatened to kill them, at the female appellant's mother's home. During his testimony, the male appellant had difficulty answering the RPD's questions about what happened after the attack in terms of where he went in order to seek shelter. The male appellant stated that he called his aunt immediately after the attack and that she told him that they could come to her home. When asked when exactly the appellants went to the aunt's home, the male appellant could not answer. He stated that he could not remember, that it was in 2014, but he could not be more specific, nor could he remember whether he had gone before leaving for Panama or when he returned. It was only after numerous questions that he eventually answered that it was after the attack. This was in contrast with his written account and with the IMM5669 form (see page 61, RPD record), where he specifies that immediately after the attack, the appellants went to the home of the male appellant's aunt, who was also living in XXXX (as was the female appellant's mother). [40] The RAD listened carefully to the recording of the male appellant's testimony on this subject. [41] The appellants argue in their memorandum that the RPD failed to consider the fact that the male appellant has a low level of education and that his testimony was confusing testimony because he has difficulty testifying in chronological order. During the sitting, the RPD confronted the male appellant about his difficulty testifying on this matter, and he stated, "I am nervous, that is why I am not remembering properly." [42] The RAD is of the opinion that this part of the testimony is central to the credibility of the appellants. In the RAD's opinion, this is, in fact, the most important incident with respect to the alleged events: the appellants indicated that on XXXX XXXX XXXX 2014, the FARC broke into their home, physically assaulted them and threatened to kill them. [43] During his testimony, the male appellant was able to spontaneously give the date of this incident and a description of it without any memory problems, without hesitating and in accordance with his BOC Form. However, when the RPD asked him when exactly he had subsequently moved in with his aunt, the male appellant's testimony became vague, confusing and contradictory, with the male appellant going so far as to state that he could not remember. The BOC Form and the IMM5669 form indicate that it was immediately after the attack. [44] At issue is not just the date of this departure to his aunt's home, which the RPD was trying to obtain by questioning the male appellant and about which struggled to respond, or the fact that the male appellant's testimony then changed, going from confident to nearly incomprehensible. [45] This is not a matter of a mere problem remembering a date, but rather an inability to provide an account of an event as a whole-one that he allegedly lived through and that he himself wrote about in his narrative. This incident is central to his story of alleged fear. [46] The RAD is of the opinion that the low level of education invoked in the memorandum cannot be the explanation. First, the RAD is of the opinion that 11 years of education-according to the male appellant's testimony (the male appellant has a high school diploma; see IMM5669, page 58, RPD record)-is actually a sufficiently high level of education to understand the questions and to be able to answer them. The RAD rejects this argument. Second, it is inconsistent that the male appellant could unhesitatingly describe the assault of XXXX XXXX XXXX 2014, but was unable to remember where he went and when he then left the place where the assault occurred. [47] The fact that the female appellant was subsequently able to overcome this weak point in her husband's testimony does not change the problem with his credibility. The male appellant was reportedly there when the attack occurred and experienced it himself. He was unable to explain what happened afterwards. This seriously undermines the credibility of this incident on XXXX XXXX XXXX 2014, and the female appellant's testimony, even though there were no contradictions or omissions in it, is insufficient to make the male appellant's testimony credible. [48] Consequently, the RAD finds that the credibility of the male appellant's testimony regarding the incident on XXXX XXXX, 2014, is seriously undermined. [49] The RPD did not err based on the correctness standard. Lack of subjective fear [50] The male appellant went to Panama alone from XXXX to XXXX 2014 to escape and to protect himself from the FARC. He worked while he was there. [51] The RPD found the male appellant's behaviour to be inconsistent with that of someone who fears for his life because he voluntarily returned to Colombia and did not claim asylum in Panama. The RPD rejected the male appellant's explanation that the FARC were present in Panama, that Afro-Colombians there face discrimination and that his goal was to raise money so that the female appellant could leave Colombia but that, in the end, he returned to Colombia because he feared for the female appellant's safety and did not want to be deported. [52] The appellants argue in their memorandum that it was not unreasonable for the male appellant to return to Colombia given the context-he had learned that people had gone looking for his wife at her work in XXXX 2014, but security staff had not let the people looking for her enter her workplace. Moreover, his Panamanian visa was going to expire in a month and he feared he would be deported. Finally, the memorandum argues that the male appellant is not "the sharpest person in many aspects." [53] The RAD rejects this last point made in the memorandum. First, this is more of an inappropriate comment than a valid argument, and second, the RAD listened to the recording but did not at any time notice that the male appellant, through his answers and his understanding of the questions asked, had below-average cognitive abilities. The RAD did not in any way observe that the male appellant was having trouble understanding the questions or answering in a way that suggested a lack of cognitive ability. Moreover, it is not relevant for the appellants' counsel to make such an argument without the support of an expert report. [54] As for the male appellant's answer that his visa was about to expire and he did not want to deported, the RAD agrees with the RPD that this answer is illogical, not to mention inconsistent, given that the male appellant did return to Colombia despite that. [55] Finally, regarding the argument that the RPD failed to consider the male appellant's low level of education, the RAD, as it mentioned above, does not believe that the male appellant's level of education is so low that he has no capacity and does not have good instincts when faced with impending danger. This is not a matter of education but of intellectual capacity. In fact, the RAD is of the opinion that his level of education is not relevant in this context. [56] As a result, the RAD is of the opinion that the reasons invoked by the male appellant during his testimony for having gone to Panama lack consistency. [57] The male appellant argues that he left Colombia to raise the money needed so that the female appellant could join him. However, the male appellant clearly testified that he not only had to pay back his uncle for the airline ticket to Panama once there, but in Panama he also had to pay for his rent and food, and he sent the [translation] "little that was left over" to his spouse. That answer would be consistent if the appellants had no concerns other than to raise money in order migrate elsewhere, without the imminent threat of being killed by the FARC. But, according to the alleged facts, the FARC were on the appellants' doorstep, and they were at serious risk of being assaulted by them. Consequently, the RAD is of the opinion that if that really had been the case, the male appellant would have found another solution rather than leave the female appellant in Colombia while he earned a meagre income that certainly would not have enabled the appellants to pay for a trip to Canada. [58] Furthermore, the evidence demonstrates that the female appellant continued to live with her mother while the male appellant was in Panama (after a short period at the home of the male appellant's aunt). The FARC certainly knew their address because the appellants had been attacked there in XXXX 2014. [59] Lastly, the RAD agrees with the RPD that the male appellant contradicted himself with respect to his intentions regarding the female appellant when he left for Panama. He stated during the first sitting that his goal was to raise the money for her to join him in Panama, but at the second sitting, he indicated that the plan was for him to raise enough money for the appellants to be able to come to Canada, and then he would return to Panama to get the female appellant and they would travel to Canada together. This is not the same thing, and the RAD rejects the arguments made in the memorandum to the effect that these two versions are complementary. [60] As a result of all of the above-mentioned factors taken together, the RAD does not find credible the male appellant's argument that he went to Panama to escape from the FARC. In light of the evidence, the RAD is instead of the opinion that there were no threats from the FARC and that the appellants did not fear them. If they really did fear for their physical integrity, not to mention their lives, the male appellant would not have left the female appellant behind in Colombia, he would not have gone to Panama for a mere pittance, and the female appellant would have moved and would not have continued to live and work in the same place. The RPD did not err in its assessment of credibility on the correctness standard. [61] The appellants' credibility is undermined. [62] As for the fact that the male appellant did not claim asylum in Panama, the RAD is of the opinion that, even though the male appellant might have experienced discrimination as an Afro-Colombian, he nevertheless stayed there for five months and worked and lived there. [63] If the male appellant thought that this country was sufficiently welcoming (he also went there legally) for him to voluntarily stay there for five months, and he is alleging that he returned home only because the FARC had been looking for his spouse and he feared deportation, the RAD finds it inconsistent that he did not claim protection. If the male appellant really had believed that he was at risk from the FARC in Panama, the RAD is of the opinion that he would not have stayed in Panama for five months. Alleged discrimination [64] As for the discrimination against Afro-Colombians by Panamanians, the male appellant did not establish that, in his case, this discrimination amounted to a well-founded fear of persecution in either Panama or Colombia. Corroborating documents rejected by the RPD [65] The first is the affidavit from XXXX XXXX XXXX and XXXX XXXX XXXX XXXX (see RPD record, pages 195 and 196), dated March 11, 2016. [66] XXXX XXXX XXXX is the appellant's brother who arrived in Canada in 2005. The other brother, XXXX XXXX XXXX XXXX arrived in XXXX 2013. The RPD was correct to conclude that the content of this document is based on information provided by the male appellant. In fact, the allegations in support of the male appellant's refugee protection claim took place in 2013. At that point, XXXX XXXX XXXX had been gone for eight years and was never in Colombia at the time of the alleged incidents. As the RPD noted, the content of the affidavit demonstrates that the information came from the male appellant himself. As a result, it was not relevant for the RPD to question them. The RPD did not err. [67] As for the affidavit from XXXX XXXX XXXX, the male appellant's mother (pages 197 to 199, RPD record), she writes that the male appellant told her in Colombia that he had been beaten by people who identified themselves as the FARC. She adds that in XXXX 2015, a man told her on the telephone that [translation] "they" would continue to look for the male appellant. She adds that a cousin told her that unknown men are still searching for the male appellant. [68] In addition, as the RPD pointed out to the appellants at the start of the hearing, given that the documentation (see National Documentation Package, tabs 5.13 and 5.14, pages 143 and 144, RPD record) does not mention forced recruitment targeting adults like the male appellant-he is 28 years old and was 25 years old at the time of the alleged facts-the RAD is of the opinion that the RPD did not err in rejecting the affidavit from the male appellant's mother. [69] The same can be said of the affidavit from the female appellant's mother, XXXX XXXX XXXX XXXX (pages 204 and 205, RPD record), as it repeats the information provided by the appellants. [70] The RPD did not err by indicating that this was hearsay. [71] The RAD is of the opinion that the appellants did not credibly establish the allegations in support of their refugee protection claim. It was open to the RPD, having assessed the evidence and found the appellants not credible with respect to the facts in support of their allegations, to reject an affidavit from the mother of the male appellant based on his lack of credibility. Afro-Colombian origin and subjective fear [72] The memorandum indicates that the RPD erred by not considering the Afro-Colombian origin of the appellants, who returned to their home (the home of the female appellant's mother) when they returned to Colombia rather than going to live elsewhere. The memorandum argues that, according to the documentation, Afro-Colombians have no choice but to return to their family because they are unable to meet their needs anywhere else. [73] First, the memorandum makes no reference to any particular document. Second, although the documentation mentions discrimination against Afro-Colombians (see Tab 1.4, National Documentation Package, October 2015, page 130 of the RPD record), the RAD finds that, in their case, the appellants did not demonstrate that the discrimination to which they could be subjected should they return to their country of origin may amount to persecution. [74] Considering the above analysis, the RAD is of the opinion that the RPD rendered the correct decision. REMEDY [75] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" under section 97 of the IRPA. [76] Their appeal is dismissed. Roxane Cyr Roxane Cyr August 18, 2017 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (September 11, 2016) Disponible en français RAD File No. / No de dossier de la SAR : MB6-06305 MB6-06306 2