TC1-08331

RAD File / Dossier de la SAR : TC1-08331 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 Date of decision December 10, 2021 Date de la décision Panel Madeleine Schwarz Tribunal Counsel for the person who is the subject of the appeal Terry S Guerriero 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] XXXX XXXX XXXX XXXX (Appellant) is a citizen of Colombia. He appeals a decision of the Refugee Protection Division (RPD) dated June 21, 2021, rejecting his claim for protection. These are my reasons for dismissing the appeal. [2] The Appellant was a XXXX XXXX XXXX XXXX XXXX in Bogota. His job included XXXX XXXX XXXX XXXX XXXX XXXX XXXX who would then turn the matter over to the police. One day in 2011, he XXXX XXXX XXXX XXXX XXXX. He was told that the person he reported was a former member of the Fuerzas Armadas Revolucionarias de Colombia (FARC). He says he travelled with the suspect in the police car. The suspect threatened him and his family during the drive.1 [3] Seven years later, on February 10, 2018, the Appellant was working as a XXXX XXXX for a different company called XXXX XXXX. As he was walking on the street on his way to give receipts to clients, he came across the suspected shoplifter he had reported in 2011. The man approached the Appellant and threatened him and his family again. The man told him that he would be punished for reporting his threat. The police were nearby, and the man fled. The Appellant went to the prosecutor's office to report this second threat.2 [4] The Appellant received four to five threatening telephone calls per day for almost a month. The caller threatened that the FARC would kill his family members one by one. The Appellant changed his telephone number after about a month and stopped receiving threatening phone calls.3 [5] On January 22, 2019, he came home to find a threatening letter under the door. It was in the form of a death certificate with the Appellant's full name as the deceased. It said, "no one gets in the way of our comrades." The Appellant approached the police and the prosecutor's office but received no protection or assistance. [6] The Appellant left for the US on XXXX XXXX XXXX 2019 and entered Canada outside a recognized port of entry on XXXX XXXX XXXX 2019. The Appellant claims his spouse and children were threatened before his departure. [7] The RPD heard the Appellant's claim on April 6, 2021, along with the claims of his wife and two daughters. The RPD found the Appellant's credibility was undermined by discrepancies within the evidence, vague testimony, and a failure to try to obtain details of the 2011 shoplifting report. After considering the supporting documentation, the RPD found the claimants failed to present reliable and credible evidence to support the allegations which form the basis of their claims, on a balance of probabilities. The RPD found they were neither Convention refugees nor persons in need of protection. [8] The Appellant's wife and two daughters are not appellants in this appeal. [9] The Appellant submits that the RPD erred in its assessment of his credibility by focussing on peripheral issues, failing to consider his explanations for any discrepancies, failed to consider all the evidence, including evidence put forward by the Appellant's wife, and made decisions based on speculation. [10] Having carried out my own independent assessment of all the evidence, I find the RPD did not err. I dismiss the appeal. NEW EVIDENCE [11] The Appellant does not seek the admission of new evidence and does not request an oral hearing. ANALYSIS [12] My role is to look at all the evidence and decide if the RPD made the correct decision.4 The RPD did not err in its assessment of the Appellant's credibility [13] The RPD found there were several areas of the Appellant's evidence that gave rise to credibility concerns. The RPD focussed on the evidence regarding the allegations of the 2011 incident and the threats he received in 2018. The 2011 shoplifting incident [14] The RPD concluded that the 2011 shoplifting incident likely did not occur. In coming to this conclusion, the RPD found the Appellant's testimony was vague and he failed to make any effort to obtain and provide more details regarding the event. The RPD found his failure to obtain more details not plausible and it undermined the credibility of his allegation. The RPD considered supporting documentation, namely letters from his employer at that time, and found they provided little support for the Appellant's allegation that he reported a former FARC member for shoplifting, and as a result he and his family were threatened by the suspect. [15] The Appellant argues the RPD erred in finding the 2011 incident likely did not occur. [16] The RPD questioned the Appellant on the incident. The Appellant could not recall the date of the event. He explained that he XXXX XXXX XXXX XXXX XXXX. He also confirmed that he did not make any effort to find out more about this event - particularly the suspect's name. [17] I accept that the Appellant XXXX XXXX XXXX XXXX XXXX in 2011. However, it appears that there was only one time when he arrested a former member of the FARC, and this was the only suspect he reported who threatened him again on a street seven years later. I find the RPD erred in finding his failure to obtain further details about the 2011 incident not plausible, as this is not the clearest of cases.5 However, I find the Appellant's vague testimony on the incident, and his failure to get more details about the FARC member in order to corroborate his story bring this allegation into doubt. [18] It is reasonable to expect that the Appellant would have tried to obtain more details of this FARC member who has threatened him and his family on two occasions. Indeed, the Appellant asked his former employer for letters of support. I find the letters confirm that the Appellant worked with the company in 2011 and XXXX XXXX XXXX XXXX XXXX. However, as the letters offer no information on the particular incident with the suspected FARC member, they fail to satisfy my doubts about the credibility of this allegation. [19] The Appellant says it was wrong for the RPD to assume that there was an onus on him to have made efforts to obtain further information or details about the 2011 incident from his former employer. I find the Appellant misstates the RPD finding. The RPD did not place an onus on him to obtain information from his former employer. Rather, the RPD considered that the Appellant has the onus to provide sufficient credible evidence to establish his allegations.6 The RPD assessed the evidence provided by the Appellant and found he failed to satisfy his burden. [20] Having carried out my own independent assessment of the evidence and the Appellant's testimony, I agree with the RPD that the Appellant failed to provide sufficient, credible, and reliable evidence to support his allegation that he was threatened by a FARC member after he arrested him in 2011. My finding is not based on the lack of a specific date for the incident, but on the Appellant's failure to provide sufficient evidence that could offer independent corroboration that this 2011 incident took place. The February 10, 2018 threat by the former FARC member [21] The RPD had credibility concerns with the Appellant's allegation that in February 2018 he was threatened by the former FARC member he reported for shoplifting back in 2011. In coming to this conclusion, the RPD focussed on an amendment to the Appellant's narrative concerning the date of the 2018 incident, and discrepancies between the narrative and the denunciation the Appellant made to the Colombian authorities about this threat. [22] The Appellant argues the RPD failed to explain why the member did not accept his explanation for why he amended the date of the incident in his narrative. [23] In his Basis of Claim (BOC) narrative, the Appellant stated that on March 12, 2018, he was out on the streets on his way to give receipts to a client when the suspected FARC member he reported for shoplifting in 2011 approached him. The Appellant amended his BOC narrative on April 1, 2021, prior to the RPD hearing, and claims that the date of the incident was February 10, 2018, not March 12, 2018. When asked about the date, the Appellant explained that it was an interpretation error. It is unclear to me how this error came up, as the interpreter would have had to get both the month and the specific day wrong. I do not find his explanation that it was an interpretation mistake reasonable. I think it more likely that the Appellant initially provided an incorrect date of March 12, 2018 and amended it to reflect the date mentioned in the denunciation he submitted to the Colombian prosecutor's office. This on its own does not lead me to find this allegation not credible, but it does case doubt on the allegation. [24] The RPD also highlighted discrepancies in his description of the incident. In his BOC narrative, the Appellant states that he was doing his duties out on the streets on his way to give receipts to clients for his new boss when the former FARC member from seven years ago threatened him. The FARC member threatened him and his family and cursed and said that things are not going to stay the way they are. He told the Appellant that he would be punished for reporting his theft. The police arrived and the FARC member fled. The police told him to report the threat to the prosecutor's office. The Appellant states that he went to the prosecutor's office the same day to report this second threat.7 [25] The Appellant submitted a copy of his denunciation to the prosecutor's office dated February 12, 2018. In his denunciation, he states: On February 10, 2018 around noon, I was together with my daughter ...when a guy ...with a 3 or 4 cm long scar on his forehead, came up to me and said that I was a snitch, that I had arrested him at XXXX store, that I had to pay him for what he had gone through with the arrest. I moved away from him and took a cab out of there. But today February 12, 2018, at about seven o'clock in the morning I received a call to the house landline number ...and an adult male voice told me that he already knew where I worked and where my wife worked.8 [26] There are significant differences in the detail provided in the BOC and the denunciation. First, in the BOC the Appellant describes why he was in the area - he says he was carrying out his work duties. In contrast, in the denunciation, he states that he was out with his daughter. [27] Second, in his BOC narrative he states that the police arrived and told him to go to the prosecutor's office, which he did on the same day, i.e., February 10, 2018.The denunciation is dated February 12, 2018, two days later. When asked about this by the RPD, the Appellant states he did attend at the prosecutor's office on February 10, 2018, but they told him to return two days later. [28] Third, the BOC indicates that the police arrived, and the former FARC member ran away. The denunciation indicates that the Appellant and his daughter took a cab out of there. The Appellant states that these two facts are not mutually exclusive, which can be true. However, this is one of two key events that the Appellant relies on to demonstrate his claim. The BOC narrative details his overall story, and he confirms that it is true. A denunciation to the prosecutor's office details his overall story. While the two documents do not have to be exact replicas, it is reasonable to expect that both would provide the same detail on who was present, whether the police appeared, and how the Appellant left the scene of the altercation. [29] Fourth, while not mentioned by the RPD, I find it important to note that in the BOC narrative, the Appellant is certain that the person who approached him on February 10, 2018, is the same former FARC member he reported in 2011. There is no mention of the individual being a former FARC member in the denunciation. I find this a significant difference, and one with consequences. It would be very difficult for the prosecutor's office to follow up on the denunciation without knowing that the individual is allegedly a former FARC member. [30] In addition to my finding that the Appellant's explanation that the amendment to the BOC narrative regarding the date was an interpretation error is not reasonable, I have also noted four other discrepancies and differences between the BOC narrative and the denunciation regarding the February 10, 2018 incident. While each finding on its own would not lead me to find this allegation not credible, considering the discrepancies, I find the Appellant has failed to provide sufficient, credible and reliable evidence to establish, on a balance of probabilities, the February 10, 2018 incident occurred. Consideration of XXXX evidence [31] I agree with the Appellant that the RPD failed to consider XXXX (the Appellant's wife) evidence in terms of whether it offers corroboration to the Appellant's claim. I will undertake that consideration of the evidence that relates to the Appellant's claim. However, as XXXX claim is not before me, I will not assess whether it offers support to a personal risk to her life. [32] There were a number of supporting documents relating to XXXX and threats made against her and the children after the Appellant left. A declaration from her sister dated March 16, 2021, states that XXXX was forced to flee Colombia because of threats from groups outside the law. It indicates that she was threatened the year before, i.e., 2018. She and the daughters moved around - they stayed at XXXX father's house and were threatened there. They moved to the sister's house and were threatened there.9 [33] A declaration of XXXX father dated March 16, 2021, states that XXXX ran away to Canada because of death threats against her by the FARC armed groups outside the law that have been going on for more than two years.10 [34] I have considered the sister and the father's letters. At best they may support that XXXX was personally threatened. However, they do not provide information about threats of harm to the Appellant. I give them no weight to support the Appellant's allegations that he reported a former FARC member for shoplifting in 2011, and that the former FARC member threatened him again in February 2018. [35] XXXX claims that she was also threatened in person multiple times by different people. On July 1, 2019, she was threatened at the XXXX XXXX retail centre where she works by a young man who passed her a note that said "Since your hubby left, you will pay the consequences." She was then threatened again on July 20, 2019, where she received a letter that stated, "don't believe that because your hubby left nothing is going to happen."11 On August 15, 2019, a woman came up to her and said "we know where you are hiding. Watch yourself."12It states that they know where she is hiding. She reported these to the prosecutor's office. They acknowledged the receipt of the letters, but nothing happened. [36] I have considered the denunciations made by XXXX. I note that XXXX thinks that she is receiving the threats because of the Appellant's work. However, her supporting documentation provides no specific information that would corroborate the Appellant's allegations that he reported a former FARC member for shoplifting in 2011, and that the former FARC member threatened him again in February 2018. I give the denunciations no weight in relation to the Appellant's two core allegations. Objective documentation [37] The Appellant has referred to objective documentation that indicates that FARC dissident groups continue to operate across the country and continue to carry out attacks. I find the Appellant has failed to satisfy his burden to provide sufficient, reliable and credible evidence to support his allegations. I find he has not established, on a balance of probabilities, that a FARC dissident or a member of the FARC political group threatened him in 2011 and/or in 2018. CONCLUSION [38] 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) Madeleine Schwarz Madeleine Schwarz December 10, 2021 Date 1 Exhibit RPD-1, RPD Record, Exhibit 2.4, Basis of Claim (BOC) Narrative, pp. 20-22. 2 Exhibit RPD-1, RPD Record, Exhibit 5, Amended Basis of Claim Narrative, p. 24. 3 Exhibit RPD-1, RPD Record, Exhibit 2.4, Basis of Claim Narrative, p. 21. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII). 6 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 6-7, para. 13. 7 Exhibit RPD-1, RPD Record, Exhibit 2.4, BOC narrative, pp. 20-21. 8 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 92. 9 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 55. 10 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 57. 11 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 60-61. 12 Ibid., at p. 61. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-08331 RAD.25.02 (August 20, 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 (August 20, 2021) Disponible en français