MC0-09009

RAD File / Dossier de la SAR : MC0-09009 Private Proceeding / Huis clos Reasons and Decision ? Motifs et decision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision June 28, 2021 Date de la décision Panel Desiree Adams Tribunal Counsel for the person who is the subject of the appeal Marcos Ortiz 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 OVERVIEW [1] I dismiss this appeal. [2] XXXX XXXX XXXX XXXX (Appellant) is a citizen of Colombia. [3] The Appellant fears unknown guerilla fighters in Colombia. He fled the country after he was assaulted by them in 2014 while they were looking for his uncle. [4] The Refugee Protection Division (RPD) found that the Appellant had an Internal Flight Alternative (IFA) in Florencia, Barranquilla, or Cartagena. [5] The Appellant's Counsel argues that the RPD demonstrated bias and erred in its findings. Counsel argues that the objective documentary evidence indicates that the Appellant would not be safe from the guerilla fighters in the IFA locations. Counsel also argues that the IFAs are unreasonable because the Appellant cannot live in warm humid climates with his XXXX XXXX. [6] After an independent review of the record, I find that the RPD did not err. There is insufficient evidence on the record to indicate that the IFAs are unsafe or unreasonable for the Appellant. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [8] The Appellant lived with his uncle's family in Bogota, Colombia. In 2009 his uncle purchased some land in an area which was under guerilla control. Guerillas began extorting the Appellant's uncle. After several years the uncle ceased these payments, and the family was targeted by the guerillas. In XXXX 2014 the uncle's family fled the country and made a claim for asylum in the USA. In XXXX 2014 the Appellant was abducted by three men, who assaulted him and asked him questions about his uncle's whereabouts. The men released him but said that they would return to question him again. [9] The claimant decided to flee the country. The Appellant obtained a student visa and relocated to Canada in XXXX 2014. NEW EVIDENCE [10] The Appellant's hearing before the RPD was on February 6, 2020. The RPD allowed the Appellant an additional three weeks for extra submissions related to his medical condition. The Appellant submitted documents and the RPD accepted and analyzed them. The RPD signed its decision on July 17, 2020. [11] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [12] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.2 [13] The Appellant submitted the following documents as new evidence: a. Affidavit of XXXX XXXX XXXX XXXX (the Appellant), August 26, 2020. b. Letter from XXXX XXXX XXXX XXXX (the Appellant's brother) with identification documents, August 20, 2020. c. Letters confirming that the Appellant's brother lived in Barranquilla, August 20, 2020. d. Letter from XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX (the Appellant's parents), August 20, 2020. e. Letter from XXXX XXXX XXXX XXXX XXXX (the Appellant's former psychologist in Colombia), August 18, 2020. f. News article by unknown author, "Colombia suspends peace talks with ELN rebels", Reuters, January 18, 2018. g. News article by unknown author, "ELN", InSight Crime, May 4, 2020. h. News article by unknown author, "Dealing with arthritis in hot weather", Griswold Home Care, May 11, 2017. i. News article by Colleen Doherty, "How summer heat may worsen your chronic pain", Very Well Health, July 5, 2020. j. News article by unknown author, "Colombia has 24 of the best hospitals in Latin America", Medellin Guru, October 29, 2019. k. News article by unknown author, "Average Weather in Cartagena", Weather Spark, date unknown, printed on August 28, 2020. l. News article by unknown author, "Average Weather in Barranquilla", Weather Spark, date unknown, printed on August 28, 2020. m. Three publicly available federal court decisions. n. A doctor's note submitted to the RPD.3 The Appellant's affidavit is inadmissible as new evidence [14] The new evidence includes an affidavit sworn by the Appellant. The affidavit repeats information that was before the RPD and "rebuts with corroborative evidence why his life is in danger".4 This affidavit does not meet the requirements of the Immigration and Refugee Protection Act (IRPA) as described above. As such, I will not engage with the Appellant's explanations of his evidence presented at the RPD and his comments on the RPD reasoning. The information provided in the affidavit are inadmissible, either because it is not new evidence or contains arguments that belong in the Appellant's Memorandum. As such, I will only consider the arguments made in the Appellants' Memorandum. Letter from XXXX XXXX XXXX XXXX and letters confirming his residence in Barranquilla are inadmissible as new evidence [15] These documents are inadmissible as new evidence because their content is not new. [16] Although the letters post-date the RPD's decision, they describe the Appellant's brother's experience living and completing an internship in Barranquilla "from XXXX 2016 to late 2017."5 Mr. XXXX XXXX states that he witnessed extortion in his apartment building. He states that the perpetrators used the same "modus operandi as those who attacked [the Appellant]".6 [17] The letter also contains several general statements. Mr. XXXX XXXX states that guerillas in Colombia are becoming more dangerous and crime is increasing. He states that people who are blacklisted by the FARC and ELN can be easily located. No specific incidents or details are provided. He repeats the Appellant's previous submission that the Appellant would be easily identified by his physical condition. [18] Mr. XXXX XXXX letter is also accompanied by two letters confirming that he lived and studied in Barranquilla in 2016-2017. [19] The content of these documents is not new. The Appellant's brother's experiences in Barranquilla in 2016-2017 occurred years before the RPD signed its decision. The RPD informed the Appellant and his Counsel that it would consider Barranquilla as a potential IFA at the Appellant's hearing. There is no reason why the Appellant and his Counsel could not present this evidence at an earlier date. The Appellant did not provide any explanation for why he did not present this evidence earlier. [20] Furthermore, even if I were to find that these documents are new, I do not find that they would impact my decision. Although there may be organized crime in the IFA locations, the Appellant's brother's letter does not help to establish that the men who targeted the Appellant in 2014 are present in the IFAs, or whether they have connections to the existing organized crime in these areas. The same applies to Mr. XXXX XXXX general statements about the presence of guerrilla groups in Colombia. [21] I do not admit these documents as new evidence. Letter from the Appellant's parents is inadmissible as new evidence [22] This document is inadmissible as new evidence because its content is not new. [23] This letter repeats information about the Appellant's XXXX XXXX, including details of its onset and treatments that the Appellant received. It repeats the Appellant's story including his uncle's past issues in Colombia. It explains that in 2016 the Appellant's parents moved to another one of their properties and changed their phone numbers in 2016 to avoid issues in Colombia. It repeats that the Appellant's brother witnessed his landlord's extortion in Barranquilla in 2016-2017. [24] This letter describes events that occurred before the Appellant's hearing and before the RPD signed its decision. Most of the details of this letter were before the RPD. Moreover, the Appellant has not explained why he was unable to provide a similar letter of support before the RPD signed its decision. [25] I do not admit this letter as new evidence. Letter from XXXX XXXX XXXX XXXX XXXX is inadmissible as new evidence [26] This document is inadmissible as new evidence because its content is not new. [27] Mr. XXXX XXXX is the Appellant's former psychologist. His letter states that he treated the Appellant from 2011-2014 for depression. This letter describes the Appellant's physical and mental health conditions as they appeared at the time that he underwent treatment. It describes the therapist's recommendations, which included mindfulness exercises, conscious breathing, and cognitive focalization. [28] This letter describes the Appellant's medical treatment that occurred before the Appellant's hearing and before the RPD signed its decision. The Appellant has not explained why he was unable to provide a similar medical report before the RPD signed its decision. This is especially pertinent considering that the RPD provided the Appellant with an additional 3 weeks to provide post-hearing submissions related to his health condition. In these circumstances and without further explanation, I find no reason why this evidence was not available to the Appellant prior to the RPD's decision. The Appellant could have reasonably been expected to provide this evidence to the RPD. [29] I do not admit this letter as new evidence. News articles are inadmissible as new evidence [30] These articles are not admissible as new evidence because they are not new. [31] Five of the seven articles submitted as new evidence pre-date the RPD's decision. They cover subjects that were before the RPD, including the activity of guerilla groups in Colombia, the quality of healthcare in Colombia, and the impact of humidity on arthritis and chronic pain. [32] The other articles are undated. The undated articles describe the weather in Barranquilla and Cartagena respectively. The subject of the weather in the IFA locations was before the RPD. [33] The Appellant did not explain why he was unable to provide these articles to the RPD in the time the RPD provided the Appellant for post-hearing submissions or before it signed its decision. The evidence was reasonably available at the time of the decision and I find no reason why the Appellant could not have been expected to provide this evidence to the RPD. [34] I do not admit these articles as new evidence. Federal Court decisions are not new evidence [35] The Appellant's Counsel submitted three decisions from the Federal Court with the new evidence. It is open to Counsel to make submissions about the applicability of Federal Court decisions. I note that Counsel pointed to two decisions in their submissions.7 I reviewed this decision and the others and considered them in my analysis. I did not, however, consider them as new evidence or apply the test for new evidence to these documents. Documents that were before the RPD are not new evidence [36] The Appellant's Counsel resubmits a doctor's note that was before the RPD.8 This is not new evidence because it was before the RPD. I have considered this document as it forms part of the RPD record but have not applied the test for new evidence to this document. ORAL HEARING [37] The Appellant requested an oral hearing. I may hold a hearing if I accept new evidence that raises a serious issue about the Appellant's credibility, which is central to the claim, and would justify allowing or rejecting the claim. Since the new evidence does not fit these criteria, I did not hold an oral hearing. ANALYSIS [38] My role is to look at all the evidence and decide if the RPD made the correct decision.9 The IFAs are safe [39] There are two parts of the legal test for assessing an IFA.10 [40] First, I must be satisfied, on a balance of probabilities, that there is no serious possibility of the Appellant being persecuted, and/or no danger of torture, risk to life, or risk of cruel and unusual treatment or punishment in the proposed IFA locations. [41] Second, the conditions in the IFAs must be such that it would not be unreasonable, in all the circumstances, for the Appellant to seek refuge there. [42] Once an IFA has been identified, the Appellant is responsible for demonstrating that the IFA is unsafe or unreasonable. [43] The RPD considered the cities of Barranquilla, Cartagena, and Florencia as potential IFAs. The RPD found that both parts of the legal test for an IFA were satisfied. After an independent review of the record, I agree with the RPD for the following reasons. [44] The Appellant's Counsel argues that the men who assaulted the Appellant in 2014 were the same men who extorted his uncle. Like the RPD, I accept this fact as credible. However, I do not find that this fact automatically makes the IFAs unsafe. My analysis must consider the totality of the Appellant's circumstances, which is conducted below. The jurisprudence presented by Counsel is different than the Appellant's case [45] The Appellant's Counsel points to Barrera Torres, which recites a passage from the National Documentation Package (NDP) that was current at the time of the Court's decision. This passage indicates that guerrillas and paramilitary groups have access to sophisticated databases and computer networks. It states that people who relocate within Colombia are not notably safer in another region of the country, even after an extended time.11 [46] The facts of Barrera Torres are different from the Appellant's case. In that case, the claimant was pursued by the FARC because of her job in a financial institution. She and her husband were contacted and threatened by the FARC on multiple occasions. When they reported an incident to the police they were subsequently contacted by the FARC and informed that they were considered military targets. Justice Beaudry found that the RPD did not properly consider that the Appellants filed complaints against the FARC, or that people in similar situations are often exposed and persecuted by the FARC. [47] This is different from the Appellant's case. The Appellant had one incident of contact with his assailants, where the conversation focused on the whereabouts of his uncle. He does not know to which guerrilla organization they are affiliated. Neither he nor the rest of his family had any subsequent contact with his assailants. [48] Similarly, the Appellant's Counsel argues that the RPD demonstrated bias in their decision by misconstruing the Appellant's testimony and ignoring "relevant corroborative evidence."12 Counsel does not point to specific evidence that the RPD ignored. Rather, Counsel relies on Pabon Morales, which references evidence from a previous NDP, which states that the FARC, ELN and successor groups have the capacity to pursue victims throughout the country and may do so when the person is of "particular interest to warrant such effort."13 The excerpt goes on to state that advances made against guerilla groups do not necessarily translate into state protection for those targeted by such groups.14 [49] The Pabon Morales case is different than the Appellant's. Following the excerpt described above, Justice Simpson states that the Officer failed to appreciate how this evidence linked to that claimant's circumstances as a former police officer in Colombia who was pursued because of his involvement in investigations against the FARC. These are indeed circumstances that would trigger the FARC to have a "particular interest" to pursue a target across different Colombia. These circumstances are very different than the Appellant's, who was not a police officer and had a single interaction with an unknown guerilla group looking for his uncle. There is insufficient evidence to demonstrate that the Appellant's assailants have the means or motivation to pursue him in the IFAs on a balance of probabilities [50] The RPD found that there was insufficient evidence to demonstrate that the men who assaulted the Appellant in 2014 have the means or motivation to find him in the IFA locations. I agree. I accept that many guerilla and organized crime groups in Colombia have the means to locate and harm their targets as discussed in the jurisprudence considered above. However, like the RPD, I must consider what has been established on a balance of probabilities in the Appellant's case. [51] In the Appellant's case, he does not know which group his assailants were affiliated. Although I accept that some criminal groups have means such as access to databases to find their targets, without further information about the identity of the Appellant's assailants I cannot conclude that his assailants have these means available to them. Without further information, I find that there is insufficient evidence before me to establish that these men belonged to a guerrilla group that can locate the Appellant throughout Colombia on a balance of probabilities. [52] I accept that there are cases where refugee claimants may not know all the details of their agents of persecution. In these circumstances it is important to evaluate the other facts of the case, including any further interactions between the agents of persecution and the Appellant or his remaining family. Like the RPD, I note that the Appellant had a single interaction with his assailants over six years ago. They were looking for his uncle. He testified that none of his remaining family in Colombia, including his siblings and parents, had been contacted by the men who were looking for his uncle. If the Appellant's assailants were motivated to find him or had the means to do so I would expect them to have attempted to contact his other family members in the six years that he was gone, on a balance of probabilities. This is particularly the case when I consider that the Appellant's assailants were initially looking for the Appellant's uncle, who is his family member. [53] The RPD succinctly and correctly summed up the facts of the Appellant's case with respect to the safety of the IFA locations.15 I have similarly considered the same factors in my analysis and will not repeat them here. The RPD found that there was insufficient evidence on the record to establish that the men who assaulted the Appellant had the means or motivation to locate and harm the Appellant in the IFA locations, on a balance of probabilities. I agree with this analysis and find it without error. [54] After considering the evidence before me, I do not find that the men who assaulted the Appellant in 2014 while looking for his uncle have the means and motivation to locate him in the proposed IFAs, on a balance of probabilities. I am satisfied, on a balance of probabilities, that there is no serious possibility of the Appellant being persecuted, and/or no danger of torture, risk to life, or risk of cruel and unusual treatment or punishment in the proposed IFA. State protection analysis is not required in an IFA evaluation [55] The Appellant's Counsel argues that the IFA cities are not safe because the Appellant would not have access to state protection in these locations because of the presence of organized crime groups. Before the RPD, the Appellant argued that he would not have access to state protection in the IFA cities. The RPD found that there was no evidence to indicate that the Appellant would not have protection from state authorities. Counsel points to Lobaton, where the Federal Court found that a PRRA Officer failed to engage with evidence contrary to his findings on the availability of state protection and IFA. Specifically, the Court found that the Officer failed to engage with the evidence that the ELN was active in Bogota. [56] First, I find that the RPD engaged with the Appellant's arguments regarding his access to state protection. The RPD clearly addressed these arguments in its reasons.16 The RPD considered that the Appellant did not make a police report. The RPD also noted a credibility concern with the Appellant's evidence regarding state protection. He answered yes to question 2c), which asks whether he sought assistance from police or any other organization. By contrast, his Basis of Claim (BOC) states that he did not approach authorities. The RPD did not accept the Appellant's explanation that his response to question 2c) was an error because he had declared that this form was complete, true and correct at the beginning of the hearing. [57] Although I do not find any error in the RPD's analysis of the Appellant's submissions about lack of state protection, the RPD did not need to engage with the Appellant's arguments on this subject. The concepts of state protection and internal flight alternative are separate in the refugee determination. If the first prong of an IFA is met, on a balance of probabilities, the Appellant would be safe from their agents of harm in the given IFA locations as detailed in paragraph 40 above. In these circumstances the Appellant would not have a need to access state protection from their agents of persecution. As the determinative issue in this case is IFA, I have not engaged further with the Appellant's arguments regarding the availability of state protection from his agents of persecution. The IFA is reasonable [58] Relocation will always involve some amount of hardship. However, the threshold to find an IFA unreasonable is high. Appellants must provide actual and concrete evidence to demonstrate that the conditions in an IFA would jeopardize their life and safety.17 [59] After considering the particular facts of the Appellant's case, I find that the Appellant has not met his burden to provide actual and concrete evidence to demonstrate that the proposed IFAs are unreasonable. My reasons are as follows. There is insufficient evidence to demonstrate that the Appellant's health condition makes the IFAs unreasonable [60] Counsel argues that the RPD erred when it did not give probative value to the Appellant's doctor's note, which states that the Appellant cannot live in an area that is humid and warm. Counsel submits that the IFA cities are all humid and warm. [61] The Appellant has XXXX XXXX. Before the RPD he submitted that this condition made relocation to the IFAs unreasonable, notably because of their alleged hot and humid climate. The RPD considered the Appellant's submissions regarding his health condition but did not find that the Appellant's health condition made the IFAs unreasonable. I agree for the following reasons. [62] The Appellant submitted a note from a doctor who treated him in Colombia. The note says that he "cannot live where the climate is warm and humid as his health condition would otherwise be badly affected".18 The Appellant also testified that he had been in remission but encountered symptoms that prevented him from picking up objects, walking quickly and moving his neck. The RPD noted that the note did not explain why a warm climate would affect the Appellant's XXXX. In addition, I note that this letter does not speak to whether any potentially negative side effects could be remedied with treatment. [63] I agree with the RPD's decision to accord minimal probative value to this note because it does not contain more descriptive details or information about the Appellant's condition and response to weather. The RPD also correctly considered the Appellant's doctor's note and testimony about his condition within the context of his medical history. The RPD noted that the Appellant had not seen a doctor about his medical condition since 2014. Also, the Appellant's former doctor's medical report listed the medical interventions that the Appellant underwent for his condition. The doctor's note about the Appellant's final visit in 2012 says, "No pain, the patient can do his daily jobs".19 [64] The RPD noted that despite having the opportunity to provide post-hearing submissions, the Appellant did not provide any evidence about the climate in the IFA locations, nor did he submit any evidence to substantiate his claim that the climate could impact his condition. [65] I note the same. I note that the Appellant submitted information with his appeal but found it inadmissible as new evidence as described in paragraphs 30-35 above. As I did not admit this evidence, I will not engage with it. That said, I note that the Appellant attempted to submit evidence regarding the climate in Barranquilla and Cartagena but did not attempt to submit any new evidence with respect to the climate in Florencia. While I do not draw an overt inference from this omission, I note that if I were to have admitted the evidence with respect to Cartagena and Barranquilla and found them to be unsuitable IFAs, I would still find insufficient evidence to indicate that an IFA in Florencia would be unreasonable. [66] I do not have sufficient evidence to find that the Appellant's health condition makes all the IFA locations unreasonable. Additionally, I note that the RPD thoroughly analyzed the objective documentary evidence describing the availability and quality of health care in Colombia.20 The Appellant does not contest this analysis. [67] I have reviewed this information and find no error in the RPD's reasons. On a balance of probabilities, I find that the Appellant would have access to adequate care for his condition in the IFA locations. I consider that this mitigates any issues that might occur due to the Appellant's health condition. Insufficient evidence to demonstrate that the Appellant's professional circumstances make the IFAs unreasonable [68] The Appellant testified that he did not think he would be able to work in the IFA locations because his assailants could find him through the details he would reveal through his professional work. He also testified that there was insufficient artistic work in these regions. [69] The RPD considered the Appellant's testimony but did not find that these circumstances made relocation to the IFAs unreasonable for the Appellant. The Appellant does not contest the RPD's analysis of his testimony. After an independent review, I find the RPD's analysis correct. I adopt it as my own. The IFAs are reasonable [70] Like the RPD I find no other reason why the Appellant's particular circumstances would make an IFA unreasonable. The Appellant speaks Spanish, has post-secondary education and work experience in his field. I find that these elements of the Appellant's profile weigh favourably in my analysis of the second part of the IFA test. [71] After considering the evidence before me, I find that an IFA in Florencia, Barranquilla, or Cartagena would be reasonable for the Appellant in all the circumstances. CONCLUSION [72] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Desiree Adams Desiree Adams June 28, 2021 Date 1 Subsection 110(4) of the IRPA. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 3 Exhibit P-2, Appellant's Record, at p. 57. 4 Exhibit P-2, Appellant's Record, at p. 15. 5 Ibid, at p. 21. 6 Ibid, at p. 24. 7 Exhibit P-2, Appellant's Record, at p. 10 and 15. 8 Exhibit RPD-1, RPD Record, at p. 346. 9 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 10 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No 1172, [1994] 1 F.C. 589 (F.C.A); and, Rasaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1256, [1992] 1 F.C. 706, 140 N.R. 138 (F.C.A). 11 Barrera Torres v. Canada (Citizenship and Immigration), 2008 FC 954 at para. 17. 12 Exhibit P-2, Appellant's Record, at p. 15. 13 Ibid; Pablo Morales v. Canada (Citizenship and Immigration), 2012 FC 49 at para. 18. 14 Ibid. 15 Exhibit RPD-1, RPD Record, RPD Reasons and decision, at pp. 8-9, para. 24. 16 Exhibit RPD-1, RPD Record, RPD Reasons and decision, at pp. 13-14, paras. 46-47. 17 Singh v. M.C.I. IMM-826-13, Noël, September 26, 2013, 2013 FC 988 (CanLII), at para. 40. 18 Exhibit RPD-1, RPD Record, at p. 346. 19 Exhibit RPD-1, RPD Record, RPD Reasons and decision, at p. 11 at para. 37; Exhibit RPD-1, RPD Record, at p. 349. 20 Exhibit RPD-1, RPD Record, RPD Reasons and decision, at pp. 12-13. at paras. 40-43. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC0-09009 RAD.25.02 (May 19, 2021) 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 (May 19, 2021) Disponible en français