MB8-23621

RAD File No. / No de dossier de la SAR : MB8-23621 MB8-23622 / MB8-23623 / MB8-23624 MB8-23625 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision February 25, 2020 Date de la décision Panel Me Zofia Przybytkowski Tribunal Counsel for the persons who are the subject of the appeal Me Carolina Roa Sanchez 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] I dismiss the appeal. The male appellant, XXXX XXXX XXXX XXXX his wife, the female appellant XXXX XXXX XXXX XXXX, and their children XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are all citizens of Colombia. a. The appellants fear returning to Colombia because of threats from the Aguilas Negras (Black Eagles). They state that people from this organization tried to convince them to enter into contracts with them, through their XXXX and XXXX XXXX, for the purpose of laundering money. The appellants refused and fear reprisals. b. The Refugee Protection Division (RPD) rejected their refugee protection claim. The RPD found that the appellants' allegations were not credible and that they did not demonstrate that they face a current and future risk in Colombia. c. The appellants dispute the RPD's decision. They claim that the RPD was overzealous in assessing their credibility and failed to consider their explanations, which, according to them, are reasonable. They criticize the RPD for not taking into consideration the evidence establishing the Black Eagle's influence. [2] I conducted an independent analysis of the evidence, taking into consideration the records of the Refugee Appeal Division (RAD) and of the RPD, including the recording of the RPD hearing. The appellants submitted exhibits A-1 to A-4 in support of their appeal, but I concluded that they are not admissible and did not consider them in my analysis. DETERMINATION [3] I dismiss the appeal. The RPD correctly determined that the appellants are neither Convention refugees nor persons in need of protection. [4] The RPD concluded that the appellants' refugee protection claim must be analyzed on the basis of section 97 of the Immigration and Refugee Protection Act1 (IRPA), which defines persons in need of protection. The appellants did not contest this conclusion, and I have applied the same analysis framework as the RPD. [5] I give less weight to some credibility issues identified by the RPD. However, I arrive at the same conclusion as the RPD that the appellants did not demonstrate, on a balance of probabilities, that they are subjected personally to a prospective risk to their lives or a risk of cruel and unusual treatment. NEW EVIDENCE AND HEARING The evidence presented by the appellants is rejected [6] In accordance with the Act,2 I can only accept the evidence that i. arose after the RPD decision; ii. was not reasonably available at the time of the RPD decision; or iii. that the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was handed down. [7] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before accepting it.3 [8] The RPD's decision is dated September 21, 2018. The appellants submit the following documents in support of their appeal: - Exhibit A-1: Statement from a lawyer from the United States, dated October 30, 2018; - Exhibit A-2: Letters from a pastor and business leader from XXXX, dated October 22 and 23, 2018; - Exhibit A-3: Website of the XXXX business, undated; and - Exhibit A-4: In a bundle, documentation regarding the XXXX business, dated 2016 and before. [9] I reject all these exhibits for the same reasons. Exhibits A-1 to A-3 are dated after the RPD's decision or are undated, but concern events that occurred well before the decision. Exhibit A-4 is dated before the RPD decision. The appellants state that the exhibits were not available at the time of the hearing, without any further explanation. [10] Upon listening to the hearing, I note that the appellants were questioned about all the allegations related to these exhibits. With respect to exhibits A-1 and A-4, the RPD even asked the appellants why they had not provided these documents. Thus, even if they did not know that they had to find and submit these documents before their hearing, they were, at the very least, able to request authorization from the RPD to submit these exhibits after the hearing. They had been duly informed of the RPD's interest in these exhibits. [11] With respect to Exhibit A-4, the appellants' lawyer even mentioned during the hearing that these documents, or at least some of them, had been provided to her associate. The appellants made no effort to find them and submit them between the hearing on August 2, 2018, and the decision on September 21, 2018. [12] I conclude that the appellants did not demonstrate that exhibits A-1 to A-4 were not available at the time of the decision, or that they could not have been expected in the circumstances to have presented them to RPD. They are therefore inadmissible. The request for a hearing is dismissed [13] Subsection 110(6) of the IRPA4 states that the RAD may hold a hearing if there is new evidence that meets certain admissibility criteria. Since I did not accept new evidence in this case, I am proceeding without a hearing, in accordance with subsection 110(3) of the IRPA.5 ANALYSIS The RPD did not make any arbitrary findings regarding the appellants' credibility Statements at the port of entry [14] The appellants criticize the RPD for having put too much emphasis on the notes from the male appellant's interview at the port of entry,6 placing undue focus on it in its decision and spending too much time questioning the appellants on this point during the hearing. I do not agree with them. There are significant omissions in the port-of-entry notes that go to the heart of the appellants' allegations. [15] When questioned about the reasons for his family's claim for refugee protection in Canada at the port of entry, the male appellant responded that they were seeking a better life for their family. He answered the same thing when the officer asked him why his family had applied for a visa in the United States. This directly contradicts their written account, according to which they left Colombia because they feared for their lives and their safety. [16] When questioned by the officer at the port of entry why, should he return to his country, he would be subjected to a risk to their lives, to a danger of torture or to cruel treatment, the male appellant responded that he feared the guerrillas, crime and drugs. He added that he did not want to raise his children there. He never mentioned being sought by a particular group of criminals and he did not name the Black Eagles. [17] According to case law, the RPD may base its credibility findings on omissions or inconsistencies from port-of-entry interviews. It must evaluate the nature of the omission or the inconsistency and its impact on the refugee protection claim.7 It would be an error on the part of the RPD to find that minor discrepancies between the account and the statements at the point of entry undermine credibility. However, the RPD may take them into consideration if these discrepancies concern an element that is central to the refugee protection claim.8 [18] In the appellants' case, I conclude that they omitted central elements in their account, namely, their fear of threats from the Black Eagles. According to their account, this is the reason they went to the United States and Canada and the reasons why they fear returning to Colombia. [19] The appellants explained that their teenage son translated their answers during the interview at the port of entry, and for this reason the RPD should not have considered these omissions. The RPD correctly noted that the appellants had been informed of their right to a professional interpreter, and their right to change their mind about the presence of an interpreter during the course of the interview. The RPD also took the time to check with the appellants the accuracy of some of the other answers given at the point of entry, to see if the translation had been a problem. The appellants criticize the RPD for having spent too much time questioning the appellants on the translation. On the contrary, I am of the opinion that the RPD was fair with the appellants, giving them the opportunity to show that the translation was flawed before rejecting this explanation and finding that the omissions undermined their credibility. [20] The appellants did not demonstrate that the omissions in their responses at the point of entry were attributable to a translation issue. Since the omissions concern the fear at the heart of their reasons for claiming refugee protection, I find that they undermine the credibility of the fear alleged by the appellants. The appellants' behaviour was inconsistent with their fears [21] The RPD concluded that the appellants' behaviour was inconsistent with their fear when living in the United States, which undermined their credibility. I agree with the RPD. This is not a determining factor of their credibility, but the RPD did not err when it took it into consideration. [22] The appellants had six-month visitor visas, and did not do anything afterward to renew them or regularize their status. They stayed in the United States for approximately nine months without status. During this time, the appellants risked being sent back to Colombia at any time. This is why the RPD considered that their inaction regarding their irregular status in the United States undermined their credibility. The appellants do not contest this finding, and I am of the opinion that it is correct. [23] The appellants criticize the RPD for having made a negative finding regarding their credibility based on the fact that they openly posted about their activities on the social network Facebook. The RPD was of the opinion that the appellants were putting themselves at greater risk of being found by thus posting their location and their activities. I conclude that the RPD did not err, but I give it less weight than the fact that the appellants stayed in the United States for nine months without regularizing their status. Structure of the appellants' business [24] I conclude that the appellants demonstrated that they had an important role in the XXXX business. I am of the opinion that their precise role in the business has little consequence with respect to their credibility or the assessment of the prospective risk. [25] The appellants state that the RPD erred in concluding that they were the owners of the XXXX business, as this is not what the male appellant allegedly stated in his written account. They allege that this had a negative effect on the assessment of their credibility. [26] The male appellant stated at the hearing that he was the business's manager, and in his memorandum of appeal, he states that he was its legal representative. The female appellant stated that she was a director within the business, but documents submitted to the RPD indicate that she was its legal representative. In their written account, the appellants state that they started the business together. [27] I conclude that there is sufficient evidence to consider that the appellants were important figures in the business's management. The appellants do not mention in their written account that they designated the male appellant's father as the legal representative before leaving Colombia. The RPD found that this omission undermined the appellants' credibility. [28] I find that this omission does not significantly undermine the credibility of the allegation that the male appellant was approached by the Black Eagles. He could have been approached, whether he was a manager, legal representative or shareholder. Nevertheless, the fact that he transferred the business to his brother before leaving and the fact that the business ceased operations have an impact on the prospective risk that still exists for the appellants. I will address this in the next section. The RPD was correct in concluding that there is no prospective risk [29] The RPD concluded that there was no prospective risk for the appellants because the male appellant designated his father as the legal representative then transferred the business to his brother. His brother then completed the remaining contracts before closing the business. To this date, he operates another business in XXXX. Neither the father nor the brother of the male appellant were approached or threatened by the Black Eagles. There is no evidence demonstrating that the Black Eagles have sought out the appellants through anyone since they left Colombia back in 2016. [30] The male appellant claims that he talked about his important ties with various local players, including businesses and churches, and had developed a reputation in the region as an entrepreneur. He also indicated that the Black Eagles would not stop threatening him because he defied them. [31] I conclude that this is not sufficient to establish, on a balance of probabilities, that the Black Eagles would have an interest in the appellants were they to return to Colombia today. If the appellants were truly approached by the Black Eagles, it was purely for commercial reasons, to enter into contracts and launder money. There is nothing in the evidence to support the conclusion that the Black Eagles would have a personal interest in the appellants now that their business has ceased operations. [32] The male appellant also stated that the Black Eagles have ties to leaders currently in power and that for this reason they could continue harassing him. [33] According to the sources cited by the appellants, the Black Eagles are a group that includes ex-paramilitaries, who have a political agenda.9 However, there is nothing in the evidence to indicate that they are associated with individuals with political power who could make it so that the male appellant would be targeted by political leaders. [34] Given that the appellants did not demonstrate that the Black Eagles have an interest in harassing them again, their sphere of influence and political ties are of little importance. Still, the RPD did not err in concluding that the Black Eagles are a criminal organization that does not have the size or influence alleged by the appellants. CONCLUSION [35] I dismiss the appeal and confirm the determination of the RPD that the appellants are neither Convention refugees nor persons in need of protection. Zofia Przybytkowski Me Zofia Przybytkowski February 25, 2020 Date IRB translation Original language: French 1 Section 97 of the Immigration and Refugee Protection Act (IRPA). 2 Subs. 110(4) of the IRPA. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 4 Subsection 110(6) of the IRPA. 5 Subsection 110(3) of the IRPA. 6 Refugee Protection Division record, pp. 262-265. 7 Shatirishvili v. Canada (Citizenship and Immigration), 2014 FC 407, at paragraphs 29 and 30. 8 Fernando v. Canada (Minister of Citizenship and Immigration), 2006 FC 1349, 58 Admin LR (4th) 272, at paragraph 20; Fahim v. Canada (Minister of Citizenship and Immigration), 2015 FC 406, [2015] FCJ No. 364, at paragraph 16. 9 National Documentation Package, Colombia, May 31, 2019, Tab 7.10: Colombia: The Black Eagles (Águilas Negras), including areas of operation and criminal activities; whether the Black Eagles seek out individuals within Colombia and abroad; state protection available (2014-March 2015), Immigration and Refugee Board of Canada, July 14, 2015, COL105254.E. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-23621 MB8-23622 / MB8-23623 / MB8-23624 MB8-23625 RAD.25.02 (January 2020) Disponible en français 10 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 (January 2020) Disponible en français