TB9-01537

RAD File / Dossier de la SAR : TB9-01537 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision July 28, 2020 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the persons who are the subject of the appeal N/A Conseil des personnes 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, citizen of Venezuela, appeals a decision of the Refugee Protection Division (RPD) rendered on December 11, 2018, denying his claim for refugee protection. The Appellant submits that the RPD erred in finding that Colombia is a country of reference in his claim on the basis that he has a right to nationality in that country. [2] After conducting my own analysis of the record, I conclude that the RPD correctly determined that Colombia is a country of reference. The Appellant is not a Convention refugee nor a person in need of protection. The appeal is denied.1 BACKGROUND [3] The Appellant is a citizen of Venezuela. [4] His parents are Colombian. His mother obtained her Colombian passport in Canada. The Appellant's half-brother has a Colombia passport and lives in Colombia. [5] The Appellant was XXXX XXXX XXXX in Venezuela. In May 2009, he became a member of the Alianza Bravo Pueblo (ABP) to commemorate International Worker's Day in Caracas and he attended various protest demonstrations in 2009 and 2010. [6] The Appellant experienced harassment in the workplace. Moreover, his supervisor obliged him to attend political events in support of the ruling Chavez party. As such, he resigned from his job in October 2012. [7] The Appellant then began working as XXXX XXXX XXXX at the XXXX XXXX XXXX XXXX XXXX XXXX In May 2012, he was attacked by the Bolivarian Colectivos, a paramilitary group who supports the ruling government. [8] In March 2013, the government started to persecute and harass public servants who were not registered with the ruling PSUV party. The Appellant who continued to attend various protests in opposition to the government, experienced continuous harassment at work based on his political beliefs in opposition to the government. [9] In XXXX 2013, he came to Canada to visit his half-sister. Following his return to Venezuela, he was subjected to ongoing harassment at work, his car was vandalized on five occasions, he received threatening phone calls, and he was threatened by work colleagues linked to the Colectivos and the police. While he lived surreptitiously to ensure his safety, his parents received phone calls asking about his whereabouts. [10] In XXXX 2015, he was physically attacked by the Colectivos and filed a police report. [11] In XXXX 2015, he left Venezuela and came to Canada. While staying in Canada, he learned that he received three summonses from the CICPC (Cuerpo de investigaciones Cientifica Penalesy Criminalisticas). [12] In XXXX 2015, the Appellant returned to Venezuela to spend time with his child. However, on December 2, 2015, he was once again attacked by the Colectivos who also threatened his family. He remained in hiding until XXXX XXXX, 2015, when he left for Canada. On XXXX XXXX, 2017, he returned to Venezuela as he felt that he had become a financial burden on his sister in Canada. [13] Following his return, the Appellant, who suffers from XXXX, hid in his parents' home. However, on April 19, 2017, the threatening calls resumed. He returned to Canada on XXXX XXXX, 2017 and made a refugee claim. [14] On December 11, 2018, the RPD rendered a decision rejecting the claim. The RPD found that the Appellant's evidence is largely credible. This being said, the RPD concluded that the Appellant is presumptively entitled to Colombian citizenship since he is descended from at least one parent who is Colombian. The Appellant, who made no effort to take steps to obtain his Colombia passport in Canada, did not establish a risk if he relocates to that country. DETERMINATIVE ISSUE [15] The Appellant submits that the RPD erred in finding that Colombia is a country of reference in the present case. He submits that he faces impediments in obtaining his Colombian nationality and he would be at risk if he relocated to that country. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [16] The Appellant requests to submit the following document as new evidence on appeal: - Item 1: Letter from the Appellant's father, January 30, 2019.2 [17] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that the Appellant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. If the new evidence meets the test for admissibility in ss. 110(4), then the RAD must further analyze the content of the document which requires an assessment of the credibility, relevance and newness of the evidence.3 [18] In the present case, the RPD decision rejecting the claim is dated December 11, 2018. [19] Item 1 is a letter from the Appellant's father dated January 30, 2019. On the face of it, the letter post-dates the rejection of the claim. [20] The letter states that the Appellant's father left Colombia in 1974 when he "was displaced due to the urban guerrilla in XXXX in 1974." In other words, the information contained in the letter is not new since it speaks to a situation which occurred in 1974. The Appellant submits that the letter is admissible on appeal as he did not have this letter from his father at the time of the rejection. However, he has not explained why the letter (or information in the letter) was not reasonably available or obtainable prior to the rejection of the claim. [21] In this regard, I note that the RPD hearing took place over two sittings on July 11, 2018, and December 11, 2018. At the conclusion of the first sitting, the hearing was adjourned for a period of five months so that the Appellant could have time to contact people and obtain any additional information about any risk in Colombia which was identified as a potential country of reference. In other words, the Appellant's ability to relocate to Colombia was a central issue and the RPD gave him a substantial period to gather information to present in his claim. The Appellant has not explained why the letter from his father was not reasonably available or obtainable prior to the rejection of the claim by the RPD. As such, I find that it does not meet the statutory requirement for admissibility under 110(4) of IRPA. ORAL HEARING BEFORE THE RAD [22] The Appellant requests an oral hearing before the RAD. No new evidence is admissible on appeal. This, in itself, is a bar to an oral hearing before the RAD.4 SCOPE OF THE RAD APPEAL [23] The RAD reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.5 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.6 I have applied the correctness standard in the present case. ANALYSIS The RPD did not err in finding that Colombia is a country of reference [24] A person claiming refugee protection must demonstrate that he has a well-founded fear of persecution in all countries of nationality before he can be conferred refugee protection in Canada.7 [25] It is well established that the term "countries of nationality" embraces potential countries of nationality. As such, where citizenship in another country is available, a refugee claimant must attempt to acquire it. The claim will be dismissed if it is demonstrated that it is within the control of the refugee claimant to acquire the citizenship of a country with respect to which he has no well-founded fear of persecution.8 [26] More recently, in Tretsetsang9 the Federal Court of Appeal held that a refugee claimant who alleges the existence of an impediment to exercising his or her rights of citizenship in a particular country must establish, on a balance of probabilities: - the existence of a significant impediment that may reasonably be considered capable of preventing the claimant from exercising his or her citizenship rights of state protection in that country of nationality; and - that the claimant has made reasonable efforts to overcome such impediment and that such efforts were unsuccessful such that the claimant was unable to obtain the protection of the state. [27] What constitutes reasonable efforts to overcome a significant impediment will be determined on a case-by-case basis. [28] In the present case, the RPD determined that Colombia is a country of reference based on the following factors: - The Appellant was born and raised in Venezuela. - The Appellant's parents were born in Colombia and are citizens of Colombia and Venezuela. He has a half sibling who lives in Colombia along with aunts and uncles. - The Appellant has never lived in Colombia. He concedes that it is within his power to obtain Colombian nationality but that he made no such efforts to do so.10 - The Appellant was given five months between two sittings at the RPD to make inquiries about his nationality in Colombia. He stated that he believed it would be difficult to get a copy of his birth certificate. When asked why he did not try to obtain it, he said it is "because currently I don't need to do it."11 - According to the objective evidence, the Appellant is presumptively entitled to Colombian citizenship since he is descended from at least one parent who is Colombian.12 - Once he was given notice in July 2018 that Colombia may be a country of reference, the Appellant concedes that he made no effort over the intervening period of five months to inform himself about the proper procedures for obtaining Colombian citizenship from Canada. While he acknowledges that he did not try to contact the Colombia Embassy or Consulate in Canada, the RPD noted that the Appellant's own mother had obtained her Colombia passport through this channel during her 6-month stay in Canada. - The Appellant correctly noted that his birth registration must be obtained within Venezuela. However, the RPD did not find this to be a significant impediment, noting that the document can be obtained in person or through a representative with Power of Attorney. In this case, the Appellant's parents live in Venezuela and he could designate a representative to obtain the document. His failure to make efforts to obtain the document is fatal to his argument that he faces a significant impediment.13 - As such, the RPD found that obtaining Colombian citizenship is a mere formality. While he established his subjective reluctance to obtain Colombian citizenship, his lack of effort is fatal to his claim. [29] The Appellant concedes that he can apply for citizenship in Colombia because his parents were born there. However, on appeal, he reiterates that he faces a significant impediment preventing him from exercising his right to acquire citizenship in Colombia as it would be difficult to obtain his birth registration without going to Venezuela. [30] My review of the evidence is compatible with the RPD: the PA who is born to Colombian parents has a presumptive right to citizenship in Colombia subject to formalities. The Appellant acknowledged that he did not take steps to acquire his citizenship in Colombia and he expressed a subjective reluctance to do so. This being said, he was granted a period of five months to take steps to obtain his citizenship. I am unable to give any weight to his assertion that he is impeded from obtaining the required birth registration as he cannot return to Venezuela to obtain it, given that it is entirely possible for him to delegate a representative to act on his behalf in Venezuela. [31] There is no question that the Appellant's situation in Venezuela is difficult. Indeed, the RPD found that he was a credible witness who established a well-founded fear of persecution from the government or armed paramilitary group associated with the authorities known as the Colectivos in Venezuela. The Appellant clearly stated that he is not interested in relocating to Colombia. However, the fact remains that the Appellant has an automatic right to citizenship in Colombia, and he is expected to do everything within his control to meet the required formalities to acquire Colombian nationality. In this regard, I find that the RPD did not err in determining that the efforts of the Appellant fell short as he did not establish that he made reasonable efforts to fulfill the required formalities allowing him to acquire nationality in Colombia. The Appellant did not demonstrate a serious possibility of persecution or personal risk of harm if he relocates to Colombia [32] As noted above, if citizenship in another country is available, a claimant is expected to make attempts to acquire it. The unwillingness of a refugee claimant to take required steps to gain protection from a country is fatal to his refugee claim unless that unwillingness results from the very fear of persecution itself. 14 [33] In the present case, the self-represented Appellant argues that he cannot be expected to relocate to Colombia where he has a well-founded fear of persecution or risk of harm. In this regard, he reiterates similar arguments that he made to the RPD. Since there exists a connection between Colombian and Venezuelan paramilitary groups, it would not be safe for him to move there even if he obtained his nationality in Colombia. Moreover, he says he would be at risk since his own father was forced to flee XXXX in 1974 as a result of the FARC, and his cousin also experienced problems in Colombia. Finally, based on his residual profile as XXXX XXXX XXXX and activist, he is at risk of harm in Colombia. [34] I find that the Appellant's argument cannot succeed. [35] I retain from the evidence that the Appellant credibly established that he was persecuted by the Venezuelan authorities and Colectivos in Venezuela. While there is objective evidence speaking to a link between armed groups in Venezuela and Colombia,15 I must agree with the RPD that there is simply no evidentiary basis to suggest that the Appellant established any connection to any problem with armed groups in Colombia. The Appellant spoke in vague terms about his cousin in Colombia who had a lot of debt resulting in his entire family being threatened. While he is not exactly sure, he said that his cousin may have been connected to the FARC in 2014. However, he has not returned to Colombia so does not know the details of his cousin's situation.16 Moreover, he states that his father left Colombia in 1974. In assessing whether the Appellant's link to his cousin or father represents a risk, I agree with the RPD who noted that following the cousin's trouble in 2014, there was a Peace Accord which disbanded the FARC. There is insufficient evidence to conclude that his father's past problems with the FARC or the Appellant's link to his cousin could cause him problems with any armed group in Colombia. [36] There is also no evidence to suggest that the Venezuelan authorities would actively search for the Appellant in Colombia. First, his evidence is that he was able to leave and return to Venezuela on several occasions, without difficulty. Second, he was able to do this despite the fact that he received three summonses from the authorities which he ignored. The government did not follow through on the summons or otherwise obstruct his movement to and from Venezuela. Third, there is no evidence to suggest that the Venezuelan authorities or Colectivos made any inquiries about the Appellant in Colombia or that they will expend resources to locate him outside Venezuela. It bears noting that the Appellant's brother, aunts and uncles who live XXXX XXXX have not reported any information to suggest that the authorities are enquiring about the Appellant in Colombia. [37] With respect to the Appellant's assertion that he is at risk based on his residual profile as a XXXX XXXX and activist, the RPD found that this too was entirely speculative because the Appellant is a Venezuelan XXXX XXXX and activist and party member-not a Colombian XXXX XXXX. The RPD noted the following: While he may want to do similar work with communities in Colombia, and that's commendable, it is presumptuous to assume that these communities, whichever they may be, would accept him, would accept his help as a new citizen and resident and elevate him to the level of a local leader, which would place him at risk from some other armed group, let alone that he would be engaged in issues relating to peace accord or land reclamation which are mentioned in Item 1.7 of the Colombia NDP, which is the UNHCR Report, and those are issues that potentially attract deadly attention from other groups.17 [38] I have reviewed this aspect of the evidence. The Appellant testified that his work as XXXX XXXX XXXX is directed towards implementing policies aimed at improving the welfare of the citizens. While he is unsure what his work would look like in Colombia, broadly speaking, he would expect to improve the community through work in a hospital, school or government organization. For example, he could work with the community to build a soccer field to improve sport, a medical clinic to improve health or build an educational network for training. He stated that he does not know how his career as XXXX XXXX XXXX would develop in Colombia since XXXX XXXX face danger. When asked whether he thought he could be at risk as XXXX XXXX XXXX in Colombia, he stated: "To be quite honest, I wouldn't know." Likewise, he stated that he does not know whether any of the paramilitary groups in Colombia would be aware of him through his work in Venezuela.18 [39] Having reviewed the entirety of the evidence, I find that the RPD did not err in concluding that the Appellant did not establish a risk based on his residual profile as XXXX XXXX XXXX and activist. While he intends to continue practicing his profession as XXXX XXXX XXXX if he relocates to Colombia, there is nothing telling in his evidence to suggest that he would be at risk if he worked as XXXX XXXX XXXX to improve his community in terms of access to medical help, education and sport. The UNHCR report regarding Eligibility Guidelines for Assessing the International Protection needs of Asylum-Seeker from Colombia19 mentions that prominent political, social, ethnic or cultural profiles such as human rights activists, union leaders and those holding public sector positions, face a real risk of being harmed. The same document also refers to the risk of being Indigenous or Afro-descendant, as well as a risk profile related to land activists and Afro-Colombians.20 The Appellant's evidence regarding his potential work in Colombia was tentative and uncertain. While he states his intention to improve his community through his work as XXXX XXXX XXXX, his assertion that he has a residual profile placing him at risk in Colombia does not rise beyond the level of speculation. [40] In sum, I find that the RPD did not err in finding that the Appellant did not demonstrate a serious possibility of persecution or a personal risk of harm in Colombia. REMEDY [41] For all these reasons, I confirm the decision of the RPD in accordance with ss. 111(1)(a) of the IRPA, namely that the Appellant is not a Convention refugee nor a person in need of protection. The appeal is dismissed. Patricia O'Connor Patricia O'Connor July 28 2020 Date PO/lp 1 In response to the COVID-19 disruption, the RAD is gradually resuming operations. On June 16, 2020, the RAD sent a letter to the Appellant advising that he has 30 days to submit additional documentation or submissions in support of his appeal. The Appellant did not provide any further information. 2 Exhibit P-2, Appellant's Record , at p. 18. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 55 [Singh]. 4 Immigration and Refugee Protection Act, s. 110(6). 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paras. 78, 103. 6 Ibid, paras. 58, 59 and 70. 7 S. 96(a) of IRPA states that a Convention refugee is a person who "(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themselves of the protection of each of those countries." 8 Canada (Minister of Citizenship and Immigration) v Williams 2004 FCA 126, para 22. 9 Tretsetsang v Canada (Minister of Citizenship and Immigration) 2016 FCA 175. 10 Transcript of the RPD hearing, second sitting, December 11, at p. 10 11 Ibid, at p 10. 12 Exhibit RPD-1, RPD Record, Document 3, National Documentation Package (NDP) for Venezuela (31 May 2018), tab 3.7: ?Colombia and Venezuela: Whether a Venezuelan national who was born to a Colombian parent has the right to Colombian nationality (2016-May 2018). Research Directorate, IRB, ZZZ106114.E. 13 Ibid. 14 Williams, supra note 8 15 For example, Document 4, NDP for Colombia (30 April 2018), tab 1.7: ?UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia. United Nations High Commissioner for Refugees. September 2015. HCR/EG/COL/15/01.UNHCR Report. Fn. 176. 16 Transcript of the second sitting of the RPD hearing, December 11, 2018, at p. 13. 17 Ibid, at p. 39. 18 Ibid, at pp. 20-22. 19 Ibid. 20 Ibid, at p. 18, fn 122, 125, 161. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-01537 RAD.25.02 (April 04, 2019) 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