MB5-02771

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 : MB5-02771 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Date(s) of hearing Montréal, Quebec Date de l'audience Date of decision April 4, 2016 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal Me Jorge J. Colasurdo 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Colombia, is appealing against the decision of the Refugee Protection Division (RPD), which rejected her refugee protection claim. [2] No new evidence was presented before the RAD. The appellant is requesting a hearing before the RAD. DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [4] The appeal is dismissed. BACKGROUND [5] The appellant and her spouse were living in XXXX XXXX They allegedly joined the political party XXXX XXXX XXXX XXXX toward the end of 2014. [6] A member of their party, Ms. XXXX, supposedly denounced the corruption in their municipality. [7] Previously, the appellant's spouse had reportedly helped collect information and, in doing so, he became aware of incriminating material. He was purportedly threatened by the Black Eagles, a paramilitary group wreaking havoc in the community. On XXXX XXXX, 2013, Ms. XXXX was murdered. The following day, the appellant's spouse received a message that he was a military target of the Black Eagles. [8] He left the country on XXXX XXXX, 2013, and claimed refugee protection in Canada in May of that same year. The appellant was allegedly intimidated by men looking for her husband in June 2013. [9] After he had left, the appellant reportedly continued to live with her husband's parents in Bogota, then with her mother in the same city, and then again with her husband's parents after they moved to XXXX. There, she alleges that she was the victim of an attack when men opened fire on her car while she was driving. [10] The appellant left Colombia for Canada on XXXX XXXX, 2014. She claimed refugee protection on March 30, 2015. RPD DECISION [11] The RPD rendered a negative decision in the appellant's case, determining that she was not credible. [12] The RPD arrived at that conclusion because it found that the appellant's behaviour was inconsistent with that of a person who is being threatened and who fears for her life. [13] The appellant, then pregnant, remained at the home of her husband's parents in XXXX, while he thought it best to hide out at his aunt's place because he had received threats. Her husband then moved to the home of the appellant's mother because, according to the appellant's testimony, he had received a letter stating he was a military target while he was staying at his aunt's place. In the RPD's opinion, if the appellant truly had a fear, she would have sought refuge at her mother's house, which the husband thought was a safe place, and she would not have stayed with his parents. [14] Moreover, the RPD found that the many movements between XXXX 2013 and XXXX 2014, including her return to her mother's house when she no longer felt safe, were not consistent with the behaviour of a person who fears for her life. [15] The RPD also drew a negative inference from the fact that the appellant contradicted herself in her testimony when she stated that her husband had received a letter stating that he was a military target while at his aunt's place, because she had written in her BOC Form that he was at his parents' home. [16] The RPD also drew a negative inference from the appellant's delay in claiming protection in Canada. She arrived in XXXX 2014 and claimed refugee protection eight months later, when she had no status in Canada. The RPD rejected the appellant's explanation. [17] The appellant's family, including her mother, who is still living at the same location in XXXX, as well as her husband's family, who is also living there, are not experiencing any problems. The RPD drew a negative inference from this and was of the opinion that the appellant does not fear for her life in Colombia. [18] None of the documents filed into evidence corroborate the appellant's allegations of persecution. [19] For these reasons, the RPD rejected her claim. GROUNDS OF APPEAL [20] The appellant's grounds of appeal can be summarized as follows: - The RPD found that the appellant's behaviour was inconsistent with that of a person who fears for her life, but it did not explain why it was inconsistent. - In its analysis, the RPD failed to consider the fact that, at the time, the appellant had a low profile, which was not the case of her husband, who was involved in politics, and that she had not yet lived with him at that point. Moreover, the RPD should have taken into account that when the appellant returned to live at her mother's house, she was pregnant, and this limited her movements. The RPD should have appreciated the fact that, from the appellant's point of view, the threats from the Black Eagles were conditional because they were aimed at her husband, and he is who they wanted to kill, not her. - The RPD should have considered, in its assessment, the places where the appellant had lived, because they were capable of finding her wherever she stayed in Colombia. - The RPD erred in concluding that the appellant contradicted herself between her testimony and her BOC Form with regard to where her husband had received the note from the Black Eagles declaring that he was a military target. She stated that he had received it at his aunt's house. The appellant, contrary to what the RPD wrote, never indicated in her BOC Form that her husband had received a note at his home, meaning his parents' house. The RPD misassessed the evidence because, in fact, the appellant wrote that he had received the note [translation] "at XXXX's house" and this was also his aunt's house since he was living there at that time. - The RPD erred in failing to consider the appellant's explanation for her delay in claiming refugee protection. She explained that she was waiting for a decision from the Federal Court regarding her husband's claim, which had been rejected by the RPD. The RPD should have appreciated and considered the appellant's explanation that if her husband's claim was rejected by the Federal Court, they would have claimed asylum elsewhere, and that is why the appellant did not file a claim in Canada at that time. HOLDING A HEARING BEFORE THE RAD [21] The appellant is requesting a new hearing in accordance with subsection 110(6) of the IRPA. No new evidence has been submitted. [22] Since no new evidence has been submitted, under subsection 110(6) of the IRPA, the RAD cannot hold a hearing because the test set out in subsection 110(6) that allows the RAD to hold a hearing has not been met. ROLE OF THE RAD [23] The RAD is an appeal tribunal for RPD decisions whose role has yet to be clarified. The IRPA does not explicitly set out the standard of review and intervention to be applied when RPD decisions are appealed. [24] To date, Federal Court decisions have established that the RAD is "a specialized (if not overspecialized) tribunal," see Alvarez,1 and that Parliament conferred "a true appellate function on the RAD...which sits on appeal of the decisions of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [25] In Alvarez,2 the Honourable Justice Shore states that "Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner." The appeals are not de novo, and the RAD can hold a hearing only if new evidence is presented pursuant to subsections 110(3), 110(4) and 110(6) of the IRPA, thus limiting the scope of the appeal that the IRPA confers on the RAD. Moreover, this is not a judicial review whose sole purpose is to determine whether the RPD's decision was reasonable. [26] In Eng,3 Justice Shore is of the opinion that the RPD, as the tribunal of first instance, is owed a measure of deference by the RAD with regard to its findings of fact because the RPD is better situated, having seen and heard the claimant. However, the RAD must perform its own assessment of all the evidence "in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error" (Eng).4 [27] In Huruglica, Justice Phelan states, "In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion." [28] Thus, Huruglica recommends an approach where a panel must show deference to the RPD with regard to the assessment of credibility, while performing an independent assessment of credibility that is not limited to "palpable or overriding error." With respect to the assessment of documentary evidence, the Honourable Justice Phelan is of the opinion that the RAD has expertise that is equal to or greater than that of the RPD "in the interpretation of country condition evidence. Unlike a court and the supervisory nature of judicial oversight, there is no reason for the RAD to defer to the RPD on this type of assessment."5 [29] In Spasoja, subsequent to Huruglica, the Honourable Justice Roy gives a different view from that of the Honourable Justice Phelan in Huruglica. He states that the standard of review for the RAD must be the standard of "palpable and overriding error" for questions of fact, that the RAD must show deference to the RPD's credibility findings, and that for questions of law, the standard of correctness should apply. This conclusion is consistent with Alvarez and Eng. [30] In Alyafi,6 Justice Martineau is of the opinion that both approaches, the first set out in Alvarez, Eng and Spasoja (palpable and overriding error) and the second in Huruglica (described by Justice Martineau as "a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal" (Alyafi, para. 16)), can be applied as long as the question of the scope of the appellate review has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [31] It seems to me that the RAD owes deference to the RPD's credibility findings, in accordance with Huruglica, because the RPD has had the opportunity to see, question and hear the appellant. [32] The RAD will consider in its analysis all the evidence, including the appellant's testimony, and will conduct its own analysis while showing deference to the RPD with respect to credibility issues. [33] The RAD will intervene only if it finds that the RPD's findings regarding questions of fact or of mixed fact and law are erroneous or are not supported by the evidence, in accordance with subsections 111(1) and 111(2) of the IRPA. The standard of review that the RAD will apply with respect to errors of law is that of correctness (Spasoja).7 ANALYSIS [34] The RAD reviewed the entire record, including the appellant's testimony at the hearing before the RPD. [35] In the RAD's opinion, the RPD rendered the correct decision and did not make any errors. [36] The basis of the appellant's story is her fear of a paramilitary group called the Black Eagles. Paramilitary groups in Colombia are formidable in terms of violence. The Black Eagles had presumably murdered Ms. XXXX (see page 181, RPD record) in XXXX 2013. [37] The appellant was not unaware that this group is dangerous. According to the appellant, her husband had started to receive threats from them in XXXX 2013 and the community leader was murdered in XXXX of the same year. Her husband continued to receive so many threats that he left the country in XXXX 2013. [38] For her part, the appellant alleged that she continued to live with her husband's parents in XXXX; then went to live with her mother, 15 minutes away, in XXXX 2013; later followed her parents-in-law to XXXX, where they had moved as a result of threats; and then returned to live with her mother in XXXX from XXXX 2014 until her departure. [39] However, on XXXX XXXX, 2013, the appellant was approached in person by the Black Eagles and threatened by them, while her husband had to leave the country because of threats in XXXX 2013. [40] The appellant stated that, after her husband's departure, she remained at his parents' home in XXXX 2013 because all of her things were there. That is why she did not go to her mother's home. She later stated that she stayed with her husband's parents after his departure because she did not believe that she was being targeted and that [translation] "the threats were made against XXXX at that time, I was not immediately affected." [41] She adds in her memorandum that her condition should have been taken into account because she was pregnant. [42] In the RAD's opinion, the appellant's behaviour is inconsistent with the account of her allegations and it undermines her credibility. [43] The appellant was not unaware of the threats made against her husband and the murder of Ms. XXXX, according to her allegations, so she also knew the Black Eagles were dangerous and could take action. [44] Knowing this, it seems inconsistent, even illogical that the appellant would have continued to live with her husband's parents if he had been threatened and was considered a military target by the Black Eagles. [45] The RAD finds her explanation that this was because she did not feel she was personally targeted and was not affected to be inconsistent in light of the facts as stated. [46] The RAD is of the opinion that, had the appellant's husband really been threatened and declared a military target, the appellant would not have stayed with his parents after he had left the country. The RAD rejects the appellant's explanation that she did not think she was targeted by the threats because they had been made against her spouse. The mere fact of being in his house, open to the Black Eagles' returning, should have meant, logically, that the appellant would fear for her own safety and would have sought shelter elsewhere. [47] The same goes for the fact that, although she was threatened in XXXX by the Black Eagles in XXXX 2013, the appellant continued to live there, at the home of her husband's parents, until XXXX 2014. If this was indeed the case, the RAD is of the opinion that the appellant would not have remained in XXXX at the house of her husband's parents. This undermines her credibility. [48] That the appellant herself kept a low political profile cannot be considered an argument in the RAD's opinion. What is at issue here is the fact that the appellant should have had a subjective fear because she is associated with her husband and she was living at his family home-but she testified that she did not. This is not credible. [49] Moreover, the argument that she did not need to move because, in any case, the Black Eagles would have found her no matter where she went in Colombia is a spurious argument. The RAD sees nothing that could explain the appellant's lack of fear: Had she had a fear, she simply would have not stayed at her in-laws' house, whether they were in XXXX or XXXX. In the RAD's opinion, the appellant is not credible on this point. [50] The RPD correctly explained its findings in this regard and it did so in detail. The RPD is of the opinion that the appellant's behaviour is simply not that of a person at risk from the Black Eagles, whether by her association with her husband or merely because she was living with her in-laws, where they were likely to show up and harm her physical integrity and the child she was carrying. The RAD arrives at the same conclusion. This is a focal point of the appellant's refugee protection claim. [51] The delay in claiming refugee protection is also a factor central to the claim. [52] The appellant waited nearly eight months to claim refugee protection. She had no legal status during that time, since she had entered Canada illegally. She could have been deported at any moment, because she was without status. The RAD is of the opinion that the appellant's explanation that she was waiting to know the outcome of her husband's appeal application before the Federal Court that was rejected by the RPD is not satisfactory (such is her explanation). [53] The appellant was not unaware that she could claim refugee protection just as her husband had. The appellant left her country, according to her testimony, specifically because the Black Eagles, a paramilitary group, had tried to kill her in XXXX 2014. In these circumstances, if the appellant was indeed being targeted by the Black Eagles, the RAD is of the opinion that she would have claimed refugee protection at the first opportunity once she was in Canada. [54] The argument put forward in the memorandum-that the appellant did not do so because she was waiting to know whether she and her husband had to leave in order to claim asylum in another country-is spurious, in the RAD's opinion. Nothing was preventing the appellant from claiming refugee protection in Canada, regardless of whether her husband's application for judicial review before the Federal Court was allowed or dismissed. [55] These reasons lead the RAD to conclude that the appellant is not credible and, consequently, that she has not established the allegations in support of her fear, because her behaviour is inconsistent with her alleged fear. [56] In her memorandum, the appellant stated that the RPD erred in finding that there was a contradiction between her testimony, in which she indicated that her husband had received a note from the Black Eagles at his aunt's house, and her BOC Form, which the RPD claimed stated that it was received [translation] "at his parents' house." [57] However, the BOC Form states [translation] "at XXXX's house." The RAD agrees with the appellant's argument that the house where he was living at that time was his aunt's house. Moreover, it is correct that [translation] "the parents' house" is not written in the BOC Form but rather "XXXX's house." [58] However, the weight of this statement is not enough to change the RAD's decision that the appellant is not credible. [59] The documentation that was submitted cannot, as such, be given any probative value because the RAD does not believe the appellant's story (see Prifty, No. IMM-10650-12, para. 35), including the letter from XXXX XXXX, the sister of the appellant's husband. None of the documents presented corroborate the alleged facts, except that letter. However, the RAD does not believe the appellant's story and therefore it gives no probative value to that letter. [60] The RAD is of the opinion that the RPD made no errors with regard to the following documents: [61] The complaints made to the Fiscalia (see RPD record, pages 156 to 161 and 164 and 165 to 171) do not establish the veracity of the alleged threats and attempted killings. These are complaints made by the appellants and not the police investigation report. [62] As for the documents corroborating Ms. XXXX's murder and the involvement of the appellant's husband in the XXXX XXXX XXXX XXXX (see RPD record, pages 162 and, 175 to 178), they do not corroborate the death threats and the attempted killing alleged by the appellants. The RPD made no error. [63] For these reasons, the RAD is of the opinion that the RPD made no error and that it rendered the correct decision. REMEDY [64] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [65] Her appeal is dismissed. Roxane Cyr Roxane Cyr April 4, 2016 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. 2 Idem, para. 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, para 33. 5 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para 38. 6 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, para. 46. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-02771 11 RAD.25.02 (2014.09.11) Disponible en français