MB9-10692

RAD File / Dossier de la SAR : MB9-10692 MB9-10693 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision December 17, 2019 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the persons who are the subject of the appeal Me Nancy Cristina Munoz Ramirez Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX and her son XXXX XXXX XXXX XXXX (Appellants) are citizens of Colombia who have appealed a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. For the reasons that follow, the appeal is granted. The RPD's decision is set aside and the file referred back to the RPD for re-determination by a different member. [2] Ms. XXXX XXXX fears that if she were to return to Colombia members of the Revolutionary Armed Forces of Colombia (FARC) would kill or seriously harm her and/or her son. Ms. XXXX XXXX was a member of the Democratic Centre Party. She alleged that she received a few threatening calls in December 2014 and January 2015. She and her son then travelled to the United States for five months before returning to Colombia. Ms. XXXX XXXX alleges that she continued receiving threatening calls and text messages and that members of the FARC attempted to kidnap her son in XXXX 2017. Her cousin, who was also active within the Democratic Centre Party, was killed in XXXX 2017. Ms. LXXXX XXXX left Colombia for Canada in May 2017 and she claimed refugee status upon arrival. [3] The RPD did not find Ms. XXXX XXXX account of her political activities credible due to gaps in her testimony about her political involvement. It also found that her failure to claim asylum during her trip to the United States and her return to Colombia were incompatible with the subjective fear she alleged. In addition, the RPD found that there were inconsistencies on important parts of the Appellants' claim. The Appellants argue that the member's conduct at the hearing gave rise to a reasonable apprehension of bias. They also argue that the RPD erred in making its credibility findings, in particular by failing to take into consideration the documentary evidence they filed in support of their case. [4] For the reasons that follow, I agree with the RPD that Ms. XXXX XXXX account of her political activities was vague in parts. I also agree with the RPD that neither the medical documents or the police complaint she submitted support her allegation that members of the FARC were responsible for the incident in XXXX 2017 involving her son. That said, I agree with the Appellants that the RPD erred in seemingly ignoring what could be an important piece of evidence-that is, the copies of the text messages submitted by the Appellants. The RPD did not question Ms. XXXX XXXX about the text messages nor does it mention the text messages in its decision. In addition, the RPD erred in drawing an adverse inference based on a second letter of confirmation of employment filed by the Appellants without first putting its concerns to Ms. XXXX XXXX to provide her with an opportunity to address those concerns. Given these errors, I find that the file must be referred back to the RPD for re-determination by a different member. ROLE OF THE RAD [5] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.2 I have conducted my own independent assessment of all of the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. PROPOSED NEW EVIDENCE AND REQUEST FOR ORAL HEARING [6] Evidence from the person who is the subject of the appeal is only admissible if it meets the statutory conditions for the admission of new evidence as well as the conditions set out in the applicable case law. Proposed new evidence is only admissible if it arose after the claim was rejected, or it was not reasonably available, or the person could not reasonably have been expected to present it at the time the claim was rejected.3 If one of these conditions is met, the RAD will also consider if the evidence is credible, relevant, and new.4 [7] The Appellants have tendered the following as proposed new evidence: 1. A letter dated May 9, 2019, confirming that Ms. XXXX XXXX had been referred to a psychotherapist. 2. Copies of documents from November 2018 to February 2019 showing that Ms. XXXX XXXX saw a social worker that she was evaluated in a medical clinic and prescribed medication for insomnia. 3. A translation of a Spanish-language letter submitted by the RPD in which the father of Ms. XXXX XXXX son provides her with consent to travel outside Colombia. 4. A more recent letter confirming that the consent to travel had not been revoked. [8] I find that all of the above are inadmissible as new evidence. Even though the RPD asked Ms. XXXX XXXX at the hearing whether she had received medical care, this appears to have been related to the fact that the RPD had granted the Appellants an adjournment because of Ms. XXXX XXXX medical condition. The documents under items 1 and 2 have no relevance to the Appellants' claims or their appeals. They only had relevance to the adjournment that the RPD had granted in this case. [9] Likewise, whether or not Ms. XXXX XXXX had consented to travel with her son has no relevance to this appeal, as the RPD did not make any finding against her on this issue. [10] For these reasons, all of the documents submitted by the Appellants are inadmissible. Since the RAD did not admit any new evidence on appeal, it does not have the power to hold an oral hearing as requested.5 ANALYSIS No reasonable apprehension of bias [11] Although I do agree with the Appellants that the RPD member had flashes of impatience in this case, I do not agree with them that these were of such significance as to give rise to a reasonable apprehension of bias. [12] I agree with the Appellants that RPD members are entrusted with the responsibility to make decisions that have a profound significance upon the lives of the individuals that appear before them. I also agree that, with that responsibility, comes a duty imposed upon members to conduct themselves according to the highest standards of patience, respect and restraint. The test for reasonable apprehension of bias is: what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude? Would they think that it is more likely than not that the adjudicator, whether consciously or unconsciously, would not decide fairly?6 [13] Applying this test, I do not think it can be said that the RPD had a reasonable apprehension of bias against the Appellants. While it is true that the RPD member asked probing questions about whether Ms. XXXX XXXX had followed up with a medical practitioner after the first hearing date was adjourned, this was likely to satisfy herself that the adjournment she had granted had truly been required. It is also true that the RPD member asked many questions to determine whether Ms. XXXX XXXX had the consent of her former partner to travel outside the country with their son. I find that the RPD member could have better explained the reason for her questions. However, I do not find that the RPD acted inappropriately in asking them since, in any case where one parent claims asylum with one or more children, it is important for the RPD to confirm that the parent has not abducted the children. I also do not find that the way which the RPD member posed the questions was impolite, aggressive, intimidating or otherwise inappropriate, even if she could have better explained the reason for her questions. [14] I do agree with the Appellants that the RPD member showed impatience with their counsel when the counsel only discovered at the hearing that there was a translation error in one of the documents she had filed on behalf of the Appellants. While I think that the level of impatience shown by the RPD member was disproportionate to the error by counsel, I do not find that the flashes of impatience from the RPD member in this case would lead an informed person, viewing the matter realistically and practically, to conclude that the member would either consciously or unconsciously not decide the matter fairly. However, I do think that such flashes of impatience were regrettable and ought to be avoided. Credibility assessment Failure to claim asylum in the United States and return to Colombia [15] In my view, any negative inference that could be drawn based on the Appellants' failure to claim asylum in the United States or their return to Colombia after their vacation in the U.S. is insufficient, on its own, to find them lacking in subjective fear or to find them non-credible. Credibility concerns regarding political involvement [16] I agree with the RPD that Ms. XXXX XXXX sometimes provided vague testimony about her political involvement. For example, as noted by the RPD, she provided few details about the subjects discussed at the party meetings she attended. Ms. XXXX XXXX also could not provide the address of the party's headquarters or the name of the person whom she spoke to obtain the attestation she submitted into evidence. I find that the RPD was correct to draw a negative inference based on these factors. Even though Ms. XXXX XXXX filed a copy of the short form letter from the General Secretary of the Democratic Centre Party certifying that she was registered in the party's registry, the letter does not say how long Ms. XXXX XXXX was a member of the party. It also says nothing about the activities she carried out as a member of the party, nor does it speak to the threats she alleged that she received due to her membership in the party. As such, the letter was deserving of little to no weight in terms of corroborating Ms. XXXX XXXX allegations of death threats in this case. [17] For all these reasons, the RPD was correct to have concerns about the credibility of Mr. XXXX XXXX political involvement. Kidnapping attempt on son [18] The RPD correctly pointed out that some of the documentary evidence submitted by the Appellants did not support their allegation that Ms. XXXX XXXX son was kidnapped by members of the FARC in XXXX 2017 or that the kidnapping had any nexus to her political opinions. As noted by the RPD, neither the police complaint nor the medical documents submitted by the Appellants speak of a kidnapping attempt or the involvement of the FARC.7 Instead, both the police complaint and the medical documents refer to two men hitting Ms. XXXX XXXX son in the face. However, I find that the RPD erred in disbelieving that the incident had a nexus to Ms. XXXX XXXX political opinion without first taking into consideration the text messages she submitted in support of her claim.8 [19] The Federal Court has made it clear in a number of cases that when assessing the credibility of a claimant, it is important to remember that all of the evidence must be considered and assessed, not just selected portions of the evidence. Thus, the RPD should not selectively refer to evidence that supports its conclusions without also referring to evidence to the contrary. While decision makers such as the RPD and the RAD are presumed to have taken into consideration all of the evidence before them, the more important the evidence that is not mentioned specifically and analyzed in a decision maker's reasons, the more willing a court may be to infer from the silence that the decision maker did not consider it. [20] In my view, the text messages filed by the Appellants, if credible, were key pieces of evidence to establish the nexus between the kidnapping attempt and Ms. XXXX XXXX political opinion. The RPD erred by not questioning Ms. XXXX XXXX about these text messages and not considering them before finding Ms. XXXX XXXX account of events not credible. Attestations of employment [21] I agree with the Appellants that the RPD erred in drawing a negative inference based on Ms. XXXX XXXX submission of two letters attesting to her employment with her employer without first putting its concerns to her to provide her with an opportunity to address them. Overall credibility assessment and next steps [22] I find that the RPD erred in concluding that Ms. XXXX XXXX was not credible without properly considering all of her evidence, including the text messages she submitted. When the RAD is unable to confirm, or set aside and substitute its own decision without hearing evidence that was presented to the RPD, paragraph 111(2)(c) of the Immigration and Refugee Protection Act (IRPA) permits the RAD to return the case to the RPD for re-determination. In this case, I have found that the RPD had some valid concerns regarding the credibility of Ms. XXXX XXXX account of her political involvement. However, the RPD erred in not questioning Ms. XXXX XXXX in regards to the documentary evidence she filed which, if found credible, may lead to a different conclusion as to the overall credibility of Ms. XXXX XXXX account of events. Therefore, in the circumstances of this case, I am left with no option but to remit this matter to the RPD for re-determination by a different member, taking into consideration the reasons set out above. CONCLUSION [23] For the above reasons, the appeal is allowed. The RAD refers the matter to the RPD for redetermination by a different member.9 (signed) Jo-Anne Pickel Me Jo-Anne Pickel December 17, 2019 Date JP/tm 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Immigration and Refugee Protection Act (IRPA), s. 110 (4). 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 5 IRPA, s. 110(6). 6 Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 SCR 369 at p. 386. 7 Exhibits C-9 and C-11 submitted by Appellants in RPD Record. 8 Exhibit C-22 in RPD Record (Exhibit RPD-1 on appeal). 9 Section 111(1)(c) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9- 10692 MB9- 10693 RAD.25.02 (April 04, 2019) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français