VC0-04415

RAD File / Dossier de la SAR: VC0-04415 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 Ottawa, ON Appel instruit / entendu à Date of decision August 25, 2021 Date de la décision Panel Charles A. McDermott Tribunal Counsel for the person who is the subject of the appeal Dean D Pietrantonio 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 (the Appellant) is a citizen of Colombia. From XXXX 2013 to XXXX 2016, the Appellant owned and operated a XXXX XXXX in XXXX, which was being extorted by a paramilitary group. Initially, the Appellant made monthly payments of XXXX XXXX XXXX pesos, but in XXXX 2015, the group advised him that the payments were increasing to XXXX XXXX XXXX XXXX XXXX pesos, which the Appellant refused to pay. In XXXX 2016, after being threatened by two armed men, the Appellant first moved in with a friend in the same city, then two days later relocated to Bogota where he lived with his mother. In XXXX 2016, the Appellant relocated to Barranquilla and formed a new company in his mother's name so the paramilitary group would not be able to track him down. In XXXX 2017, a man made a business proposal to the Appellant, who suspected that the man wanted to use the Appellant's business as a cover for shipping narcotics. The Appellant refused, but the man returned the following month to convince him to agree to the proposal. The Appellant again refused. Then in XXXX 2017, two men confronted the Appellant on the street, claiming to be members of the Clan Del Golfo and telling him that if he wanted to stay in business, he must work with them. In XXXX 2017, the same two men came back and demanded XXXX XXXX XXXX pesos per month as punishment for not working with them. [3] On XXXX XXXX XXXX 2017, the Appellant relocated to Bogota with his common-law partner, a citizen of Venezuela. On XXXX XXXX XXXX 2018, the Appellant's partner flew to the United States of America (USA) where she initiated a refugee claim based on threats she received in Venezuela. The Appellant did not have a visa for the USA, so went to Mexico where he obtained a false Mexican passport and on XXXX XXXX XXXX 2018, the Appellant entered the USA on this false passport. On advice from lawyers in the USA, only the Appellant's partner made a refugee claim without making any mention of the Appellant. The partner's claim was refused in XXXX 2018. On XXXX XXXX XXXX 2019, the partner presented herself at the Canadian border to make a refugee claim, but was determined ineligible to make a claim in Canada. The same day, the Appellant entered Canada irregularly and initiated a claim for protection. [4] The Refugee Protection Division (RPD) found that the Appellant was neither a Convention refugee nor a person in need of protection as he had an internal flight alternative (IFA) in Bucaramanga. The Appellant argues that the RPD erred in its assessment of nexus, credibility and IFA. [5] The Appellant is relying on new evidence, but has not requested an oral hearing. [6] The determinative issue in the appeal is IFA. 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. NEW EVIDENCE The evidence presented by the Appellant is accepted [8] 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 the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [9] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant (the Singh/Raza factors) before I can accept it.2 [10] The Appellant has provided a statement3 from XXXX XXXX XXXX dated XXXX XXXX XXXX 2021, which corrects the translation of the declaration4 of XXXX XXXX XXXX XXXX. This statement post-dates the RPD decision and therefore meets the statutory requirement for new evidence. Turning to the Singh/Raza factors, the statement is credible and relevant, and new in the sense that it provides a more nuanced translation of the declaration. I accept the statement into evidence. ORAL HEARING [11] Although the Appellant has not requested an oral hearing, as I have accepted new evidence, the Federal Court5 has held that the onus to address the discretion to hold an oral hearing rests with me. [12] Subsection 110(6) of IRPA gives me the discretion to hold an oral hearing if new evidence has been accepted that raises a serious issue with respect to the credibility of the Appellant, that is central to the decision with respect to the Appellant's claim and that, if accepted, would justify allowing or rejecting the Appellant's claim. [13] I find that the new evidence does not raise a serious issue with respect to the credibility of the Appellant, is not central to the decision and does not justify allowing or rejecting the Appellant's claim. I decline to exercise my discretion to hold an oral hearing. ANALYSIS [14] My role is to look at all the evidence and decide if the RPD made the correct decision.6 The RPD did not err in its assessment of the nexus between the Appellant's fears and a Convention reason [15] The RPD found that the harm feared by the Appellant is criminal in nature and does not have a nexus to the Refugee Convention. The Appellant argues that the RPD erred in limiting its assessment on nexus to his own fears without carrying out an assessment of how the persecutor viewed his actions. [16] The RPD did not err, and the Appellant's arguments must fail. As noted by the Appellant, what must be determined is whether the agent of harm considers the Appellant's conduct to be "political" in nature. At least one of the groups that extorted the Appellant may also engage in political activities or have contacts within the government, but this does not make everything the gang does a political act. As noted by the Appellant, there is objective documentary evidence that some corrupt government employees support gangs and paramilitary groups in Colombia, but I could find nothing that indicates the government itself condones either these corrupt employees or the actions of the gangs and paramilitary groups. The evidence before me is that initially, the Appellant paid the demanded monthly amount, but when the amount was increased, refused. There is nothing before me that suggests any of the gangs that extorted the Appellant attempted to recruit him into their gang. [17] The Appellant has not presented any evidence that suggests he was targeted for any reason other than he was a business owner or that the gangs that extorted him would consider his refusal to pay a political act or opinion. The Appellant was a victim of criminal activity, which does not fall under a Convention ground, and being opposed to criminal activity does not make the Appellant a member of a particular social group. I find that the RPD was correct to assess the claim under section 97 of IRPA. Credibility of the Appellant [18] The RPD stated that it had concerns regarding the Appellant's credibility due to omissions and contradictions in the evidence. However, in determining that the Appellant had a viable IFA in Bucaramanga, the RPD accepted the Appellant's overall story of being targeted in the past. I can independently assess the viability of Bucaramanga as an IFA for the Appellant, and will address the Appellant's arguments regarding the RPD credibility assessment there. The RPD did not err in its assessment of IFA for the Appellant [19] The RPD identified Bucaramanga as a proposed IFA for the Appellant, and correctly stated that the test for a viable IFA is two-pronged.7 Once an IFA is identified, it falls to the Appellant to demonstrate that the IFA is not viable. First Prong: No serious possibility of persecution or, on balance of probabilities, to a risk to life or cruel and unusual treatment or punishment or danger of torture [20] The RPD found that there was insufficient evidence that the Clan Del Golfo, or the criminals who extorted the Appellant in XXXX XXXX would be motivated to pursue the Appellant to Bucaramanga. The Appellant argues that the RPD erred in finding that the agents of harm would not be motivated to pursue the Appellant in Bucaramanga and misinterpreted, misunderstood or mischaracterized the evidence about why criminal groups might pursue him. [21] The RPD did not err and the Appellant's arguments must fail. [22] The Appellant relies on Gomez Dominguez8 to argue that the RPD applied the wrong standard of risk to the issue of the agent of harm's motivation to pursue the Appellant in the IFA. However, Gomez Dominguez is distinguishable. In Gomez Dominguez, both the RPD and Refugee Appeal Division (RAD) found that the persecution was pursuant to a Convention ground under section 96 of IRPA. In the present case, the RPD found, as have I, that the Appellant is not being persecuted on a Convention ground, but rather is subject to a risk to life or a risk of cruel and unusual treatment or punishment pursuant to section 97 of IRPA, which does not include the phrase "serious risk". [23] The RPD made a number of adverse credibility findings related to the motivation of the agents of harm to search for the Appellant. However, I find that the RPD misapplied the concept of credibility in these instances. For all of the instances cited by the RPD, the Appellant was not recounting facts or his actual experiences, but was speculating or giving opinions. While it was open to the RPD to disagree with the Appellant's speculation or opinions, or to determine that the speculation or opinions were not supported by evidence, I find that the RPD did not have a sufficient basis upon which to impugn the Appellant's credibility. [24] The Appellant argues that he has information about the Clan Del Golfo that motivates them to continue to pursue him. However, the only evidence before the RPD, and before me, is that the Appellant knew the Clan Del Golfo had connections with the Port Authority or that some police authorities are involved with criminal groups. As the Appellant himself states, this information is generally well-known in Colombia9. The Appellant goes on to state that the RPD, without eliciting any further details from the Appellant, mischaracterized the information and its dismissal of the Appellant's explanation did (not) show any regard to the peculiar nature of a refugee claim determination. There is no merit to this argument. While it is true that the RPD process is inquisitorial, it is up to the Appellant to present sufficient credible and trustworthy evidence to establish the claim. The Appellant was represented by counsel at the RPD and the fact that the RPD did not ask follow-up questions does not relieve the Appellant of this obligation. The presumption of truth does not help the Appellant here since he is not recounting his actual experiences, but giving an opinion or making a submission. [25] The Appellant also argues that the Clan Del Golfo would continue to seek him out due to his knowledge and experience in the XXXXand XXXXof XXXX. This argument must also fail. There is no evidence before me that the Appellant's knowledge and experience are so critical or unique that a criminal organization would be motivated to seek him out. [26] The Appellant also argues that the RPD erred by having unreasonable expectations regarding the perception of the agents of harm, a lack of evidence showing that the agents of harm followed the Appellant or made efforts to locate him, the fact that the men who extorted the Appellant in XXXX never identified themselves as part of any particular group and that there was no evidence that the Clan Del Golfo contacted the Appellant's family. There is no merit to these arguments. The Appellant, at various points, states that the RPD "failed to explain the evidentiary basis...", "failed to explain the evidence used...", failed to indicate any evidence...". The point is that the Appellant failed to provide sufficient credible and trustworthy evidence to support his assertions and submissions. It is not up to the RPD or me to find evidence that does not support to the Appellant's assertions or submissions. Contrary to the Appellant's assertions, the RPD did not make any plausibility findings, it simply noted that there was no evidence. The RPD reasons in paragraphs 28, 29, 30 and 34 of its decision are sound, and I adopt them as my own. [27] The Appellant relies on Dinartes10 to demonstrate that he is not necessarily required to show that the agent of harm has been actively seeking him out. In that case, the objective evidence was clear that, as the cousin of a police officer that had been targeted, the claimant had the profile of someone who was at risk. The Federal Court held that the Pre-Removal Risk Assessment (PRRA) Officer imposed an impossible burden on the claimant in also requiring proof that the criminal gang had actively been seeking him out. In the case at bar, the fact that there was no evidence was only one consideration. The Appellant's brother and mother are easily identifiable to the agents of harm, but have not been contacted or threatened. In my mind, this strongly supports the RPD finding that the agents of harm have not been searching for the Appellant. [28] The Appellant argues that the RPD erred in making an inconsistency finding with respect to the Appellant's friend letter. There is merit to this argument. The RPD did incorrectly focus on the fact that the Appellant did not include this information in his Basis of Claim (BOC) narrative. The letter is consistent with the Appellant's overall story of being extorted in XXXX and does state that the gang extorting the Appellant in XXXX asked the friend about the Appellant's whereabouts. However, there is nothing in the letter that suggests that gang has looked for, or has the motivation to look for, the Appellant beyond that city. [29] For these reasons, I find that the Appellant failed to present sufficient credible and trustworthy evidence that the agents of harm are motivated to search out the Appellant in Bucaramanga. I find that the Appellant has not demonstrated that he would face a serious risk of persecution or, on a balance of probabilities, a risk to life or of cruel and unusual treatment or punishment or risk of torture should he relocate to Bucaramanga. Second Prong: It is not objectively unreasonable or unduly harsh for the Appellant to relocate to Bucaramanga [30] The second prong is whether the IFA is objectively reasonable, in all the circumstances, for the Appellant to relocate there. The Federal Court of Appeal11 has held that there is a very high threshold for finding that an IFA is unreasonable. It is not enough that the Appellant would face hardship. The conditions must be such that his life and safety would be in jeopardy. [31] The RPD found that there was insufficient evidence to support the Appellant's assertion that operating a business would be his only option for supporting himself in Bucaramanga, there was insufficient evidence that he would be unable to secure any kind of employment that would enable him to support himself and that there was insufficient evidence that crime is so pervasive in Bucaramanga to render it unreasonable. The Appellant argues that the RPD erred in determining that he could be safe if he changed his field of work and that the RPD erred by conflating the test for risk under section 97(1) of IRPA and the test for reasonableness of an IFA. [32] The RPD did not err and the Appellant's arguments must fail. The Appellant relies on Cuevas12, where the Federal Court found that his case should have been assessed on the assumption that he resumes his life as a businessman. However, I cannot see how Cuevas displaces the Federal Court of Appeal's direction in Ranganathan11. It is worth repeating the entire relevant paragraph of Ranganathan here: [15] We read the decision of Linden J.A. for this Court as setting up a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations. [33] It is likely that the Appellant will suffer hardship if he relocates to Bucaramanga. However, the XXXXandXXXX XXXX XXXX he has acquired in establishing and running his own businesses could be useful for many other employers. [34] The Appellant also relies on He v. M.E.I13. However, as this case pre-dates Ranganathan, I find that it does not help the Appellant. [35] The Appellant's reluctance to start over is understandable, but it is insufficient to render an IFA unreasonable. I find that the Appellant has not demonstrated that any hardship he would face in relocating to Bucaramanga would jeopardize his life or safety. [36] Regarding the generalized risk in Bucaramanga, the Appellant argues that the RPD conflated the test for risk under section 97(1) of IRPA and the test for reasonableness under the second prong of the IFA test. There is no merit to this argument. The RPD comment regarding section 97(1) of IRPA is to note that the Appellant would not have a claim under section 97(1) simply by living in Bucaramanga. The RPD acknowledged that, like all urban areas of Colombia, there are high levels of crime in Bucaramanga, but that there was insufficient evidence that crime is so pervasive in Bucaramanga as to render it unreasonable as an IFA. I agree. I find that the Appellant failed to present sufficient evidence that crime in Bucaramanga is such that it would be unreasonable for the Appellant to relocate there. [37] I find that the Appellant failed to establish that it would be unreasonable, in his particular circumstances, for him to relocate to Bucaramanga. CONCLUSION [38] I find that the Appellant has a viable IFA in Bucaramanga. [39] 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) "Charles A. McDermott" Charles A. McDermott August 25, 2021 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, subsection 110(4). 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 3 Exhibit P-2, Appellant Record, pp 4-5. 4 Exhibit RPD-1, RPD Record, pp 147-152. 5 Hundel et al v. Minister of Citizenship & Immigration, 2021 FC 72. 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 7 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 and Thirunavukkarasu v Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589. 8 Gomez Dominguez v. Canada (Citizenship and Immigration), 2020 FC 1098. 9 Exhibit P-2, Appellant Record, page 18-19, paragraph 32 of the Appellant Memorandum. 10 Dinartes v. Canada (Minister of Citizenship and Immigation), 2018 FC 986. 11 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.). 12 Cuevas v. Canada (Minister of Citizenship and Immigration), 2005 FC 1169. 13 He, Shao Mei v. M.E.I. (F.C.T.D., no. IMM-3024-93), Simpson, June 1, 1994. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR: VC0-04415 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