MB7-05809

RAD File / Dossier de la SAR : MB7-05809 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 Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 12, 2019 Date de la décision Panel Harold Shepherd Tribunal Counsel for the person who is the subject of the appeal Michael Brodzky 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] The Appellant, XXXX XXXX XXXX XXXX, is a citizen of Colombia who appeals a decision of the Refugee Protection Division (RPD), dated March 27, 2017, that rejected her claim for refugee protection. DETERMINATION [2] The appeal is allowed. The Refugee Appeal Division (RAD) sets aside the decision of the RPD and substitutes its own determination that the appellant is a Convention refugee. BACKGROUND AND OVERVIEW OF APPEAL [3] The standard of review for appeals to the RAD is that of correctness, unless deference should be shown to the RPD because it enjoyed a meaningful advantage over the RAD. No issue was identified to which deference should be shown on this basis.1 [4] No new evidence was filed, but the Appellant requested an oral hearing. The role of the RAD is not to conduct an oral hearing in order to rehear evidence that was already considered by the RPD. Given that no new evidence was filed, this request is denied. [5] The Appellant worked as a XXXX XXXX for the XXXX XXXX XXXX for the XXXX XXXX in the XXXX XXXX XXXX XXXX. Part of her responsibilities involved XXXX XXXX and XXXX XXXX XXXX XXXX with respect to a XXXX XXXX XXXX. She was visited by two men on XXXX XXXX XXXX 2016 who asked her to provide them with information about XXXX XXXX XXXX. After she told them that she could not help, they searched the XXXX office. Before leaving, she was asked to collaborate with them as many others at the XXXX office were doing. She was asked to choose between a box of XXXX containing money or a gun. Afterwards, she informed the XXXX of what happened. On XXXX XXXX, 2016, she was abducted and brought before a man who identified himself as XXXX, a commander with an armed group known as the Urabeños, who was helping XXXX to deal with XXXX XXXX. He promised to pay her well if she worked for them. She was released after being told to think it over She subsequently requested a transfer from her employer. She then travelled to Canada on XXXX XXXX, 2016 to attend her daughter's wedding, returning to Colombia on XXXX XXXX, 2016. Her residence was invaded the next day by three men who were looking for her. Although she was out, her mother and sister were at home. The men threatened to kill them if the Appellant would not cooperate with them. Her elderly mother subsequently died of a heart attack after the altercation. The Appellant did not return to work and went into hiding in XXXX. She then made arrangements to return to Canada, arriving on XXXX XXXX, 2016. She made an inland refugee claim in November 2016. [6] Four notarized statements were filed in support of the claim. One is from her sister who confirms that she was at home during the XXXX XXXX, 2016 attack. The second is from her landlord who confirms residency and that the Appellant left the country for security reasons. The third is from a work colleague at XXXX XXXX who states that the Appellant left the country as a result of persecution and pressure from an armed group. The fourth is from the XXXX of the XXXX XXXX XXXX that confirms the details concerning the XXXX XXXX, 2016 attack. All four are in statutory declaration form. She also filed a copy of her mother's death certificate and proof that she tendered her resignation and that this was accepted by the municipality. [7] The RPD rejected the claim on the basis of lack of credibility. The RPD drew an adverse credibility inference from the fact that the Appellant did not follow up with the XXXX after her complaint concerning the XXXX XXXX XXXX 2016 incident. The RPD noted that there were no incidents between XXXX XXXX, 2016 and XXXX XXXX, 2016. The RPD drew an adverse inference from the fact that she did not complain to her supervisor after the XXXX XXXX, 2016 abduction. The panel found her explanation contradictory, in that she said that she did not do so because she did not trust her, but on the other hand, trusted her enough to complain in XXXX. The RPD drew an adverse inference from the fact that she said that she asked for a transfer after the XXXX abduction in order to protect herself. The panel was of the view that this is not a reasonable expectation in light of the violent nature of the Urabeños organization and their national profile. Finally, the RPD gave no weight to the supporting statutory declarations because the authors were not called as witnesses and because they are brief with no details. On the basis of these observations, the RPD concluded that the Appellant is not credible and that the alleged events did not likely occur. [8] Counsel for the Appellant cites three grounds for the appeal. First, the RPD erroneously made findings concerning implausibility using the language of inconsistencies in her evidence. As a result, it failed to apply to correct jurisprudence for the issue. Second, the RPD ignored the documentary evidence without giving adequate reasons. Third, counsel submits that the RPD failed to consider the merits of the claim pursuant to sections 96 and 97 of the IRPA. ANALYSIS [9] The RPD erred in its assessment of credibility. [10] Although the Appellant complained to her supervisor, the XXXX, after the XXXX XXXX, 2016 incident, there were no further incidents until XXXX XXXX, 2016. Given the short time-frame and the fact that she did not experience any problems, her failure to follow up with her supervisor cannot reasonably serve as the basis for drawing an adverse inference. She did not complain again to her supervisor after she was abducted on XXXX XXXX, 2016. Her testimony that she no longer trusted her supervisor was in the context of an encounter with an Urabeños commander at which time she was threatened. She testified that her XXXX years of experience with the XXXX made her aware of the degree to which the Urabeños had infiltrated XXXX XXXX XXXX XXXX XXXX. In fact, reference had been made to her joining the people at XXXX XXXX who were collaborating with them. In light of subsequent events, it is not implausible for her to have formed the opinion that nobody at XXXX XXXX could be trusted, even her supervisor. She requested a transfer after her XXXX XXXX, 2016 abduction in the belief that the Urabeños would leave her alone after she no longer had XXXX XXXX XXXX XXXX of interest to them. She then attended her daughter's wedding in Canada and returned to Colombia on XXXX XXXX, 2016. This conduct is indicative of a person who did not want to leave her job or her country, but believed that the risk could be mitigated. The events of XXXX XXXX, 2017 provide her wrong. Once she realized that the Urabeños were actively searching for her and threatened to kill her if she did not work with them, she decided to leave the country for her safety and seek asylum in Canada. Under these circumstances, the Appellant provided a reasonable explanation for her conduct. The RPD erred in drawing adverse credibility inferences on the basis of either inconsistencies or implausibilities on these facts. [11] The Appellant filed four statements that were sworn to be true before notaries public in Colombia. No problems have been identified on the face of the documents that puts their authenticity in question. Their contents are consistent with the Appellant's testimony, as is the proof of resignation for security reasons and her mother's death certificate. There are no good reasons to doubt that the authors of these statements are being truthful. The fact that they were not called as witnesses and that they do not go into much detail could be relevant considerations if the RPD had good reason to doubt their veracity. However, in the absence of good reasons to doubt them, these factors alone are insufficient to call their reliability into question. These documents ought to have been accepted at face value as supporting her testimony. [12] My assessment leads me to set aside the RPD's credibility analysis. The Appellant's testimony is presumed to be true unless there are good reasons to doubt it. On the facts of this case, such is not the case. I note that the Appellant had opportunities to embellish her testimony during the hearing, but did not do so. Her oral testimony was consistent, unembellished and credible. My own assessment of all of the evidence leads me to conclude that the Appellant is a credible and trustworthy witness who is likely telling the truth about having been targeted by the Urabeños. [13] Although the issue of nexus was not discussed by the RPD, counsel made submissions at the end of the RPD hearing and in the RAD appeal record concerning imputed political opinion and membership in a particular social group. I agree with them. [14] The Supreme Court of Canada decision in the Ward decision interpreted political opinion for purposes of nexus to include any opinion on any matter in which the machinery of state, government and policy may be engaged.2 The agent of persecution does not need to be the state. The Appellant worked for a municipal government as a secretary for a section that received criminal complaints as well as requests for land restitution. Members of the Urabeños were attempting to circumvent the Colombian justice system through recruiting collaborators within government. The Appellant's refusal to work with them involves both the "machinery of state" and personal advocacy for the rule of law. As such, there is a nexus with section 96 of the Refugee Convention on the basis of imputed political opinion and as a member of a particular social group as an advocate for the rule of law free from state corruption. [15] I agree with the submissions made by counsel at the hearing concerning the nature of the risk posed by the Urabeños. Two documents in the National Documentation Package (NDP) are of particular assistance. Both are found in the April 29, 2016 NDP and in the current, May 31, 2019, versions. The situation with respect to this organization has not appreciable changed since the hearing. [16] A March 2015 Response to Information Request (RIR) provides a detailed assessment of the Urabeños.3 This organization is one of the largest drug trafficking groups in the world. It is divided into "nodes" that are present throughout the country. They have even extended their significant and violent influence through the continent. Efforts undertaken by the government have failed to curb their power. Part of the problem lies in the fact that they have been able to corrupt members of the security forces, the judiciary and government officials. They have a proven record of tracking down and murdering people who flee to other parts of the country. [17] The United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines indicate that people who work for local authorities have historically been victims of violence. Serious human rights violations are sometimes committed with the collusion or acquiescence of security forces. The vast majority of victims of criminal groups do not receive state protection. The UNHCR is of the view that individuals who work for local governments may, in appropriate circumstances, be in need of refugee protection on the basis of imputed political opinion or on another Convention ground.4 [18] The Appellant has been abducted and threatened with death by members of an Urabeños node. They visited her home the day after her return from Canada to further threaten her. Her refusal to cooperate with them has put her at real risk of being the victim of serious assault or death should she return to Colombia. This treatment is sufficiently serious to constitute persecution. As a result, there is a serious possibility that she would be persecuted should she return to Colombia. The national reach of the group, coupled with their infiltration into the security services, judiciary and government, establish that the risk extends throughout the country. She has no internal flight alternative. The documentary evidence also establishes that the state is unable to offer her adequate protection. CONCLUSION [19] The Appellant has a well-founded fear of persecution in Colombia. The risk extends throughout the country and adequate state protection is not available. Her situation has a nexus to the Refugee Convention through imputed political opinion and as a member of a particular social group, namely, an advocate for the rule of law who rejects corruption. [20] The appeal is allowed. 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 own determination that the Appellant is a Convention refugee. (signed) "H. Shepherd" Harold Shepherd July 12, 2019 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII). 2 Canada (Attorney General) v. Ward, [1993] 2 SCR 689, 1993 (CanLII). 3 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Colombia (29 April 2016), item 7.15. "The Urabeños (also known as Clan Úsuga or Autodefensas Gaitanistas de Colombia), including areas of operation, especially in Buenaventura, criminal activities, and state response; whether the Urabeños seek out individuals..." COL105044.E, Immigration and Refugee Board of Canada, 6 March 2015. 4 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Colombia, (29 April 2016), item 1.7 "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia." HCR/EG/COL/15/01, United Nations High Commissioner for Refugees, September 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-05809 RAD.25.02 (April 04, 2019) Disponible en français 7 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