TC2-00818

RAD File / Dossier de la SAR : TC2-00818 Private Proceeding / Huis clos Reasons and Decision ? Redetermination of Appeal Motifs et décision - Nouvel examen de l'appel Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Date of decision January 29, 2024 Date de la décision Panel Derek Vermette Tribunal Counsel for the person who is the subject of the appeal Maia R Rotman 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, and she is appealing a Refugee Protection Division (RPD) decision that denied her claim for refugee protection in Canada. [2] The Appellant seeks refugee protection in Canada because she alleges that she fears the Black Eagles, a terrorist organization that has persecuted her and her family in Colombia. She alleges that she was sexually assaulted by the Black Eagles in XXXX 2017 because they believed she was the girlfriend of a FARC supporter. The Appellant arrived in Canada on XXXX XXXX XXXX 2018, and filed a claim for refugee protection in Canada on or about October 9, 2020. [3] On December 29, 2021, the RPD decided that the Appellant is not entitled to refugee protection. [4] The Appellant appealed that RPD decision to the Refugee Appeal Division (RAD). On January 17, 2023, the RAD determined that the RPD had correctly denied the Appellant's claim for refugee protection. [5] The Appellant asked the Federal Court to judicially review that RAD decision. On June 27, 2023, the Federal Court ordered that the Appellant's claim be returned to the RAD to be redetermined by a different RAD member.1 [6] This is my redetermination of the Appellant's appeal of the RPD decision. It is my decision that the RPD correctly determined that the Appellant is not entitled to refugee protection in Canada. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention2 refugee nor a person in need of protection. NEW EVIDENCE [8] For the reasons that will be discussed below, the following documents submitted by the Appellant are not accepted as new evidence for this appeal: a. Documents from Immigration, Refugees and Citizenship Cananda (IRCC) confirming the Appellant's legal status in Canada, dated October 19, 2018, October 23, 2019, and May 6, 2020;3 b. News Article from Colombia Reports dated February 25, 2019, entitled, "Aguilas Negras Bloc Capital D.C.;"4 c. News Article from www.colombiareports.com, dated November 20, 2020, entitled, "Colombia's far-right threatens senators, journalists and protest organizers;"5 d. News Article from www.infobae.com, dated November 16, 2020, entitled, "En panfleto, Aguilas Negras amenazan y tildan de guerrilleros a funcionarios de secretarias de Gobierno y Habitat," Infobae, November 16, 2020. (Translation) - "In panphlets, the Aguilas Negras (Black Eagles) threaten officials from the Ministry of the Interior and the Ministry of Habitat, branding them guerrilla fighters."6 [9] I can only accept evidence that arose after the RPD decision (the RPD decision is dated December 29, 2021); or was not reasonably available at the time of the RPD decision; or that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before its decision.7 [10] 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.8 [11] The burden of establishing the admissibility of new evidence lies on the party submitting that evidence, and the party must provide full and detailed submissions on the admissibility and relevance of the proposed new evidence.9 [12] I find that the documents submitted as proposed new evidence do not meet the requirements of section 110(4) of the Immigration and Refugee Protection Act (IRPA).10 All the documents arose before, not after, the RPD decision of December 29, 2021. The Appellant has not shown that the documents were not reasonably available to her at the time of the RPD decision. The IRCC documents were with her paralegal, and the articles appear to be from publicly available websites. [13] I find that the Appellant has not shown that she could not reasonably have been expected in the circumstances to bring the documents to the RPD before its decision. With respect to the IRCC documents, the Appellant discusses in the narrative to her Basis of Claim form that she obtained a student visa, and I therefore find that her status with respect to that visa, especially considering the period of delay in question, is an issue she should have reasonably expected would be discussed during the hearing. [14] Even if I am incorrect on this point, I find that while the IRCC documents are credible, they are not new or relevant. The RPD accepted that the Appellant had obtained temporary status through her student visa and extensions thereto.11 The relevant issue is whether the Appellant's temporary status satisfactorily explains the significant delay in seeking refugee protection. [15] If I were to admit the IRCC documents as new evidence, I would have found that the IRCC documents damage the Appellant's case. The IRCC documents show that the first extension was issued October 19, 2018 and expired January 13, 2019. The second extension was issued October 23, 2019 and expired January 14, 2020. The third extension was issued May 6, 2020 and expired July 14, 2020. These extension documents therefore reveal that there were gaps where the Appellant did not have status, including between July 14, 2020, when her last extension expired and October 2020, when she filed her refugee protection claim. [16] As I will discuss in the Analysis section of this decision, I have determined that temporary status is an insufficient explanation to account for the significant delay in this case. Among other reasons, I explain that temporary status is temporary and there are risks that such temporary status might not be continued, thus leaving the Appellant without status and subject to removal from Canada. I explain that the fact that the Appellant would not seek a permanent solution to obtain protection, rather than taking the chance of relying upon extensions of temporary status, is relevant to her subjective fear and the credibility of her allegations. [17] If I were to admit the IRCC documents, those documents would have supported my analysis that it was not satisfactory for the Appellant to rely upon temporary status to explain her significant delay as she was at risk of being returned to Colombia during the periods where she did not have extensions, and yet, despite this, she still did not file for protection until October 2020. [18] With respect to the articles on the Black Eagles, the Appellant submits that the articles provide information about the Black Eagles and the practice of issuing notes/pamphlets, and therefore addresses the RPD's determination that no weight should be given to the Black Eagles note allegedly left with the Appellant's mother. [19] I am not persuaded by the Appellant's submissions. The Appellant should have reasonably expected that the issues addressed in the articles, as characterized by the Appellant, should have been brought to the RPD before its decision. The Appellant alleges that the articles address information about the alleged agent of persecution/harm and their practices, which are clearly issues that would be expected to arise during the hearing. The Appellant has failed to provide satisfactory submissions to explain why these articles are just now being provided.12 An appeal to the RAD is not an opportunity for an applicant to complete a deficient record, or to answer the weaknesses identified by the RPD.13 [20] I note that if I am incorrect in my analysis above, and if I had admitted the articles as new evidence, that I would find that the articles would not have helped the Appellant's case. I would have found that the articles are dated and not new. The first article is dated in February 2019, which is just under five years ago. The other articles are dated in November 2020, which means they are over three years old. I would have given more weight to the country condition evidence I will cite from the National Documentation Package (NDP), as the information in the NDP contains information about the Black Eagles and notes/pamphlets that is more up-to-date. ORAL HEARING [21] For the following reasons, I deny the Appellant's request for an oral hearing. The Federal Court has commented that an appeal of an RPD decision to the RAD is intended to be a paper-based appeal, and that holding an oral hearing is an exception where there is new evidence admitted that meets the requirements of section 110(6) of the IRPA.14 Having not admitted any new evidence, I am required to determine this appeal on the merits without holding a hearing.15 ANALYSIS [22] My role is to look at all the evidence and decide if the RPD made the correct decision.16 For the following reasons, I find that the RPD correctly decided that the Appellant is not entitled to refugee protection. The RPD did not fail to consider section 96 of the IRPA, or Chairperson's Guideline 4 [23] The Appellant submits that the RPD erred in failing to consider whether she was a Convention refugee pursuant to section 96 of the IRPA. She argues that her claim establishes a nexus to a Convention ground on the basis of membership in a particular social group (i.e., her gender), and on the basis of imputed political opinion (i.e., because the agents of harm believe she is the girlfriend of a FARC leader). The Appellant alleges that by failing to properly consider section 96 of the IRPA, the RPD failed to assess her claim according to the applicable standard of proof for a section 96 claim (i.e., Whether there is "more than a mere possibility" of persecution, rather than based, on a "balance of probabilities," of harm under section 97(1) of the IRPA). The Appellant also submits that the RPD erred in failing to consider Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board (the Guideline).17 [24] I am not persuaded by the Appellant's submissions for the following reasons. [25] First, the purpose of the Guideline is not to alter the legal tests for establishing refugee protection:18 This Guideline assists members in carrying out their duties to conduct fair hearings and render well-reasoned decisions. It does not alter the legal requirements set out in legislation and case law. For example, the standard of proof that applies to any particular proceeding and the legal tests, such as the criteria to be accepted as a Convention refugee, remain the same. In cases involving gender considerations, members are expected to apply the principles set out in this Guideline when presiding over hearings, assessing evidence, applying legal tests to the facts and rendering decisions. [26] The Appellant has not identified parts of the Guideline that she suggests that the RPD ignored, that would have had an impact on the analysis of her claim. [27] My analysis of the Appellant's claim below applies to both section 96 (a Convention refugee) and section 97(1) (a person in need of protection). In other words, for the reasons I will set out below, I find that the Appellant's allegations that she faces a risk of persecution or a risk of harm from the Black Eagles are not credible, and are not supported by sufficient evidence. In other words, there are issues of credibility and insufficiency of evidence that lead to the conclusion that the Appellant is neither a Convention refugee nor a person in need of protection. The RPD did not breach procedural fairness, and the Appellant failed to provide a satisfactory explanation for her delay in seeking refugee protection after arriving in Canada [28] The Appellant alleges that the RPD member breached procedural fairness when he did not permit the Appellant to submit post-hearing evidence related to her status in Canada, yet then made a negative credibility finding on the lack of such evidence. Specifically, there was a discussion during the RPD hearing about the extensions that the Appellant had obtained to her original visa after arriving in Canada. The extension documents were not entered into evidence, and the Appellant's counsel asked the RPD member if the Appellant could produce those documents after the hearing. The RPD member denied that request, explaining, "...The documents aren't necessary. I accept [the Appellant's] testimony today that she made efforts to ascertain that she was staying legally in Canada. We don't need these documents."19 [29] I disagree with the Appellant's argument that the RPD member's denial of the request to produce the extension documents after the hearing amounts to procedural unfairness. The RPD member accepted that the Appellant had a visa, and had obtained extensions to those visas. The issue at hand was not whether the Appellant had obtained temporary status. Rather, the issue was, despite the temporary status, whether there was satisfactory explanations for the delay in seeking refugee protection. [30] I agree with the RPD's approach. I accept the Appellant's testimony that she had a visa when she entered Canada, and that she obtained extensions. Therefore, there was no procedural unfairness in rejecting the Appellant's request to produce the actual extension documents after the hearing, as those documents addressed a fact that was not in dispute. Again, the issue was not whether the Appellant had temporary status (the RPD accepted that fact), but rather, whether that temporary status was a satisfactory reason for the significant delay in seeking protection. As I will explain below, I find that the existence of the visa and extensions is not a satisfactory explanation for the significant delay in seeking refugee protection in Canada. [31] I find that the Appellant failed to provide a satisfactory explanation for her significant delay in claiming refugee protection in Canada, and that this delay contributes to the finding that her allegations that she faces a risk of harm in Colombia are not credible (section 97(1) of IRPA). The lack of satisfactory explanation for the significant delay also supports a finding that Appellant does not have subjective fear, which is a requirement of section 96 of IRPA. [32] The Federal Court has held that it is well established that failure to make a timely claim can be a significant factor in assessing the credibility of a refugee protection claimant.20 [33] Justice Norris of the Federal Court has set out several principles relating to the significance of delay in seeking refugee protection.21 Justice Norris indicated that one of those principles is that delay in seeking protection can be inconsistent with subjective fear because generally one expects that a genuinely fearful claimant would seek protection at the first opportunity. [34] Absent a reasonable explanation for the delay in claiming refugee protection, it may be open to an administrative decision-maker to conclude that the claimant does not actually fear persecution and that this is why protection was not sought sooner.22 [35] Justice Diner of the Federal Court has indicated that, "Negative credibility findings made under section 96 may also affect the validity of a claim under section 97, even though subjective fear is not part of the assessment for the latter section."23 Justice Montigny explained, "It is true that the applicant's subjective fear, on which some doubt may be cast, given the delay in filing his claim, is not relevant under section 97 of the Act. Nonetheless, the objective risk allegedly faced by the applicant must be based on a credible story."24 [36] Justice Norris set out three questions that must be answered in assessing the significance of the delay:25 It will be apparent from the foregoing that, to assess the significance of delay in claiming refugee protection, three key factual questions must be answered. First, according to the claimant, when did their subjective fear of persecution crystalize? Second, when did the claimant first have an opportunity to make a refugee claim? And third, why, according to the claimant, did they not take up that opportunity? It is only unexplained delay after the fear has crystalized and after it was possible to seek protection that can reasonably support an inference that the claim of subjective fear should not be believed because of the delay in seeking protection. [37] With respect to the first question, I find that based on the Appellant's allegations, her alleged fear had already crystallized before she arrived in Canada on XXXX XXXX XXXX 2018. She alleges that she came to Canada because she was in fear of the Black Eagles. [38] With respect to the second question, I find that the Appellant first had an opportunity to make a refugee claim when she arrived in Canada on XXXX XXXX XXXX 2018. While I acknowledge that the Appellant successfully applied for extensions of her student visa status to remain in Canada, which I will discuss further below, I note that the Federal Court had held that the length of delay must be determined with regard to the time of inception of the claimant's fear as determined from her personal narrative.26 The Appellant's narrative indicates that her fear had crystalized by the time she arrived in Canada; she came to Canada because she was allegedly in fear.27 [39] With respect to the third question, the Appellant provided the following explanations for not taking the opportunity to claim refugee protection until October 2020. The RPD member asked the Appellant why it took her nearly three years to file a refugee claim. The Appellant testified that she delayed because of what people told her, namely that it was hard to get refugee status, particularly since she was a Colombian, as they had closed the refugee spots for Colombians.28 The Appellant indicated that prior to meeting her lawyer, she did not explore the refugee process because she heard negative things about the process, specifically that Canada was not receiving Colombian cases.29 The Appellant explained that her idea was to continue to make extensions to her student visa, but then she met her lawyer and started the refugee process.30 The Appellant explained that she met her lawyer after a friend introduced her to him.31 [40] For the following reasons, I find that the Appellant's explanations are not satisfactory. First, serious efforts require more than having a friend inquire about the process.32 Given the amount of delay, it is not satisfactory that the Appellant relied on what others told her about the refugee process. The Appellant is an educated woman, with experience in immigration matters (having obtained a student visa in Colombia, and obtained extensions to that visa in Canada with the help of a paralegal), and the Appellant was not making a serious effort by relying upon what others told her instead of making other additional inquiries (including with the paralegal she had access to), particularly given the significant time period in question (i.e., from when she entered Canada in XXXX 2018, to when she applied for protection in October 2020). [41] Having temporary status pursuant to her student visa, and extensions thereto, is not a satisfactory explanation for the significant delay in seeking protection in this case. The student visa, including the extensions, were temporary and not a permanent solution. Temporary status is not necessarily a sufficient answer to account for delay, and the circumstances of the temporary status must be considered to determine whether this shows a lack of subjective fear.33 As I will discuss below, I have considered the Appellant's circumstances, including her education, experience in immigration matters and her access to immigration professionals, in concluding that it would have been reasonable for her to seek protection at an earlier date.34 [42] The Appellant is highly educated, with five years of university in the field of XXXX XXXX. [43] The Appellant is experienced in immigration matters and had access to immigration professionals. She was able to obtain a student visa on short notice while in Colombia. The Appellant testified that she came to Canada on a student visa, and she obtained extensions of that visa with the help of a paralegal.35 The Appellant testified that she met a lawyer in September or October of 2020.36 [44] The Appellant testified that she did not think of bringing a refugee claim until she met her lawyer in September or October of 2020.37 When the RPD member pointed out that the Appellant's letters of support were dated in January and March of 2020, the Appellant indicated that she was changing her testimony about when she met her lawyer. She indicated that she had met her lawyer earlier, and that her claim was submitted in October 2020.38 She testified that she had been having discussions with her lawyer "long before" she eventually decided to make a claim for refugee protection.39 [45] The RPD member asked the Appellant why she submitted her claim in October 2020 if she had gathered evidence by January 2020. The Appellant replied that she was still waiting for other documents, and that she submitted the claim when she had all her documentation ready.40 It is not appropriate to significantly delay making a claim for protection until all desired documentation is obtained. [46] In waiting almost three years to file for refugee protection after arriving in Canada, the Appellant was risking that her student visas might not be extended, and that she would then be at risk of being returned to Colombia. The Appellant would be at risk of being returned to Colombia - a country that she was supposedly in fear of returning to - while in Canada without status. That she would take this risk of being in Canada without status (i.e., if her extensions were not granted), allegedly fearing that a return to Colombia could cost her life, and yet take no serious steps to determine information about how to stay in Canada permanently, and about the refugee process specifically, is not a satisfactory explanation that accounts for the significant delay in this case. [47] The Appellant had been in Canada since XXXX XXXX XXXX 2018, and then remained in Canada for years on student status. During this time, she could have made inquiries about how she could remain in Canada after her status was set to expire. Having temporary status is not a sufficient explanation for the delay.41 The Appellant could have been making inquiries about available options while she was on student status, anticipating that such status might eventually end. [48] The Appellant's lack of effort in seeking out basic information to facilitate making a claim earlier is inconsistent with that of a person exposed to the risk, experience and fear that she alleges.42 The Appellant's unsatisfactory explanation for the significant delay is relevant to assessing her statements and actions, and the credibility of her story.43 In other words, absent a reasonable explanation, the significant delay undermines the Appellant's subjective fear, and consequently, her credibility.44 [49] While not determinative, the delay in claiming refugee protection is inconsistent with the subjective fear of persecution the Appellant alleges, and also undermines her overall credibility.45 The credibility of the Appellant's allegations that she faces a risk of harm from the Black Eagles is negatively affected, given that her actions in delaying claiming protection in Canada are not those of someone who believes that she faces a risk of harm. The RPD correctly gave no weight to an alleged note delivered to the Appellant's mother, and correctly found that there is insufficient evidence that the Black Eagles have an interest in the Appellant [50] The Appellant submits that the RPD erred by giving no weight to a threatening note allegedly left by the Black Eagles at the Appellant's mother's home after the Appellant fled Colombia.46 The Appellant argues that the RPD should have given weight to the letter because (a) relevant evidence in the NDP supports the validity of the letter, including the typical content of these types of letters; (b) the fact that the letter was delivered from the Capital Block to the Appellant's mother home is consistent with the balance of the evidence; (c) the fact the letter was left at the Appellant's mother's house is consistent with one of the ways these pamphlets are delivered; and (d) the fact that a threat has not been carried out against the Appellant's family, or the fact they have only received one threat, is no reason to reject evidence of the threat. [51] I disagree with the Appellant's submissions. [52] I find that the RPD correctly determined that the alleged note from the Black Eagles should be given no weight, and that the Appellant does not face a risk from the Black Eagles. [53] It is appropriate to assign greater or lesser weight to evidence based on its source and any existing corroboration, and it is open to assign no weight to a document if its genuineness is questionable based on the lack of supporting documentation.47 While the Appellant's mother allegedly received the note, there is no information from the mother about how or when she received it. This corroborative information is necessary in this case given the credibility concerns, namely the delay in the Appellant seeking refugee protection in Canada, discussed above, and as I will discuss below, the vague answers the Appellant provided with respect to how and when the mother received the note, in addition to the fact that the Appellant had the opportunity to gather the corroborative evidence.48 [54] The presumption of truthfulness set out in Maldonado49 does not apply to the alleged note from the Black Eagles. The Appellant allegedly received the note from her mother, therefore the Appellant cannot swear to the truth that the mother received it from the Black Eagles.50 The principle laid out in Maldonado does not apply to statements from third parties (i.e., evidence on behalf of the Appellant, rather than the Appellant's own evidence).51 [55] The Appellant was vague with respect to when and how her mother received the note, and even when she received it from her mother. [56] When asked when the letter was sent, the Appellant testified that her mother mailed her the note the previous year (i.e., 2020).52 The Appellant testified that she did not remember when, but that she was already in Canada (she arrived in Canada on XXXX XXXX XXXX 2018).53 The RPD member attempted to determine specifically when the Appellant received the note, and the Appellant agreed that it arrived at some point in 2020, maybe closer to the second half of the year.54 [57] The Appellant testified that her mother sent her the Black Eagles note, and that "They simply left it. She found it" at her house.55 [58] The RPD member asked the Appellant why her mother's letter does not mention anything about the Black Eagles note that she found at her house, and the Appellant replied, "The letters, my family letters, are more focused at what happened to me and their worry of what happened to me in Bogota."56 The RPD member indicated that given that the note declares her a military target, it would be expected that it would be something her mother would mention, and the Appellant replied, "She says that she is afraid for my life and what could happen to me. And we all know that it was the Autodefensas that killed my brother and father, so I don't know why she would have to mention it again."57 [59] The Appellant had an opportunity to gather evidence from her mother that could have provided details about the note, but she did not do so. The Appellant confirmed that all her family still live in Colombia, and that she is still in contact with them, including her mother who she speaks with every week.58 [60] I find that there is insufficient evidence that the Black Eagles have an interest in the Appellant. The evidence indicates that the Appellant's family has not been targeted between when the Appellant's brother and father were killed in 2002, and when the grandmother's land was taken in 2013, and when the Appellant was allegedly assaulted in XXXX 2017, and since the Appellant arrived in Canada in XXXX 2018. In other words, as I will explain below, these are isolated events that are not connected to each other, and do not represent a pattern of the Appellant's family being pursued, as alleged. [61] The Appellant's father and brother were killed in 2002.59 The government determined that they were killed by the Autodefensas.60 [62] There was then a gap of approximately eleven years before the Autodefensas took the Appellant's grandmother's land. In 2013, the Autodefensas made the Appellant's grandmother sign away her land to them.61 The Appellant testified that the Autodefensas probably took the land for their cocaine operations.62 [63] I find that the gap of eleven years between the Appellant's father and brother being killed, and when the grandmother's land was taken, demonstrates that these two events were not connected. In other words, given the large amount of time between these incidents, I find that these two incidents do not represent a pattern of the Autodefensas pursuing the Appellant's family. As indicated above, the Appellant indicated that the Autodefensas likely took the grandmother's land for its cocaine operations, as opposed to taking the land because it was part of some ongoing campaign of persecution against the Appellant's family. Again, the amount of time between the two incidents indicates that there was not an ongoing campaign against the Appellant's family. [64] It is permissible to draw inferences about an agent's motivation based on the passage of time.63 This inference that the agents of harm were not in a campaign to pursue the Appellant and her family is particularly strong when coupled with the Appellant's testimony that the Autodefensas was always in the area, and that her family also remained in the area. Thus, even when there was access to the Appellant and her family, the agent of harm did not pursue them. [65] The Appellant testified that between 2002 and 2013, the Autodefensas was always patrolling in the area.64 The Appellant testified that her family (mother, brother and sister) was living in Cucuta when her father and brother were killed, and continued to reside there afterwards, except for a brief period of four to five months when they lived with her grandmother on the outskirts of Cucuta.65 [66] The Appellant testified that between XXXX 2002 (when the Autodefensas murdered her father and brother) and XXXX 2013 (when the Autodefensas took her grandmother's property), the Autodefensas did not contact or threaten any member of the Appellant's family.66 [67] Even after relocating to Bogota, the Appellant was not harmed for approximately three years. The Appellant testified that she left the Amazonas in XXXX 2014, spent XXXX 2014 with her family, and then lived in Bogota between XXXX 2015 and XXXX 2017, at which point she was assaulted.67 [68] The Appellant testified that when she was kidnapped in XXXX 2017, the kidnappers told her that they knew where her family worked and lived. She said that the kidnappers did not provide any specifics about any member of her family, and that she saw it more as an "intimidation tactic."68 The Appellant testified that the kidnappers did not say anything about her father and brother.69 This evidence further supports that there was a lack of connection between the murder of the Appellant's father and brother in 2002, the theft of the grandmother's land in 2013, and the kidnapping and assault of the Appellant in 2017. [69] The Appellant testified that since XXXX XXXX XXXX 2017 (when she was kidnapped on the street), neither the Black Eagles nor any other group have tried to contact or threaten her family, other than for the alleged note left with her mother.70 The Federal Court has commented that it is a common-sense proposition that if an agent of persecution were truly looking for a claimant, one of the first places the agent would go is to family.71 [70] For the following reasons, I find that the support letters filed by the Appellant are insufficient to establish that the Appellant faces a risk from the Black Eagles. [71] The Appellant explained that her mother indicated in her letter that the people that killed the Appellant's father and brother, are the same people that assaulted the Appellant in XXXX 2017, because the Black Eagles and the Autodefensas are of the same group.72 [72] The RPD member asked the Appellant why the letters from her relatives did not make any mention of the threats they allegedly face, as suggested by the Black Eagles note that declares them military targets. The Appellant replied that she did not know, and that she was the only target, and that they have only observed her.73 [73] The Appellant testified that her friend who had submitted a letter knew what had happened to her because she told her friend what had happened.74 [74] The suggestion in the Appellant's mother's letter that the Autodefensas group and the Black Eagles are the same group is not consistent with the objective information in the NDP. The Appellant's mother indicated in her letter that the Appellant was a victim of terrorism by the Aguilas Negras, "...who had come looking for her ever since my husband and son were murdered by them."75 [75] As I have discussed above, there is insufficient evidence that the same group that killed the Appellant's father and brother in 2002, were in pursuit of the Appellant or her family afterwards. There is insufficient evidence that the Black Eagles, as a group, exists anymore. The evidence in the NDP suggests it is a name used by many groups. The NDP indicates that sources report that the Black Eagles do not exist, or that there is no armed group with members, but that groups and/or individuals use the name to make threats.76 The same document indicates that the Black Eagles are a defunct paramilitary group, and that the name of the Black Eagles is often invoked to make blind threats. [76] The same document in the NDP indicates that the Police Intelligence Directorate has guaranteed the non-existence of the Black Eagles for years, and that thousands of pamphlets containing threats are signed with this name, which is used to cover up threats or assassinations perpetrated by individuals or groups of varying composition. The document further indicates that the name of the Black Eagles is used by different illegal groups in the country to make threats while hiding their identity. [77] The Appellant's suggestion that the Appellant's family has not been harmed because only she is the actual target is also not consistent with the objective information in the NDP. The document in the NDP, referred to above, states that:77 Pamphlets are often falsified. But the rule for understanding their impact is that ALL pamphlets should be taken seriously, because they instil fear and terror in the population - and their stigmatizing effect for any persons named is real and lasting, whether they come from the signing group or a nefarious third party. In Colombia, the threats delineated in pamphlets very often come to fruition, so they are not something to take lightly. [78] In this case, the threats have not come to fruition, which is suggestive that the letter declaring the Appellant and her family as military targets is falsified. One document in the NDP indicates that a military target is defined as a term used by armed groups or the state to demarcate a person deemed to be an opponent, and that a declaration as a military objective is a threat to life.78 The same document indicates that there is very real danger that comes from receiving such a threat, and that being designated a military objective is the highest informal threat that someone can receive, and the threat is very serious and time sensitive, usually with a deadline between 24 and 72 hours. The document indicates that a military objective declaration is a threat to an individual and their family because a threat to the life of family members is an effective tactic to ensure the person of interest will take the declaration seriously, and that most military objective threats end with people being murdered. [79] Given the objective evidence described above, and the fact that the Appellant's family has not been approached despite the fact they have always lived in the same location, suggests that the alleged note is either falsified or that the unknown group behind the note is not motivated to pursue the Appellant, as evidenced by their lack of contact with the Appellant's family over a significant period of time. [80] I considered the psychological report in evidence.79 I find that this report is insufficient to establish that the Appellant faces risk from the Black Eagles. The Federal Court has held that the recounting of events to medical personnel does not make these events more credible and the resulting medical report cannot confirm the Appellant's allegations.80 I agree with the RPD's correct assessment that the accuracy and reliability of the report is questionable given that a section of the report refers to the name of a different person rather than the Appellant (thus seriously undermining the extent to which the report actually applies to the Appellant, or whether it was cut and pasted from the report of a different client), and also because it recommends ten sessions that the Appellant indicated she had already completed by the time of the report.81 CONCLUSION [81] 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) Derek Vermette Derek Vermette January 29, 2024 Date 1 In returning the matter back to the RAD for redetermination, paragraph 2 of the Federal Court Order dated June 27, 2023, directed that "All published records in this matter shall be anonymized." 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Appellant's Record, pp. 43-45. 4 Appellant's Record, pp. 46-53. 5 Appellant's Record, pp. 54-57. 6 Appellant's Record, pp. 58-63. 7 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, subsection 110(4). 8 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 9 Pajarillo v. Canada (Citizenship and Immigration), 2019 FC 1654 at para 18; and Thorne v. Canada (Citizenship and Immigration), 2020 FC 790 at para 8. 10 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 11 Transcript of RPD Hearing (December 20, 2021) at p. 26, lines 26-31. 12 Ilias v. Canada (Citizenship and Immigration), 2018 FC 661 at para 33. 13 Singh v. Canada (Citizenship and Immigration), 2022 FC 164 at para 8; and Khelili v. Canada (Public Safety and Emergency Preparedness), 2022 FC 188 at para 20. 14 Digaf v. Canada (Citizenship and Immigration), 2019 FC 1255 at para 25; and Rehman v. Canada (Citizenship and Immigration), 2022 FC 783 at para 44. 15 Marquez Obando v. Canada (Citizenship and Immigration), 2022 FC 441 at paras 24 and 28. 16 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 17 Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, Effective date: July 18??, 2022. 18 Section 1.2. 19 Transcript of RPD Hearing (December 20, 2021) at p. 26, lines 26-31. 20 Labana v. Canada (Citizenship and Immigration), 2022 FC 414 at para 19. 21 Zeah v. Canada (Citizenship and Immigration), 2020 FC 711 at para 61. 22 M'Vila Biabatantou v. Canada (Citizenship and Immigration), 2023 FC 473 at para 20. 23 Dowansingh v. Canada (Citizenship and Immigration), 2015 FC 933 at para 18. 24 Singh v. Canada (Citizenship and Immigration), 2009 FC 1070 at para 21. 25 Zeah v. Canada (Citizenship and Immigration), 2020 FC 711 at para 62. 26 Singh v. Canada (Citizenship and Immigration), 2023 FC 1106 at para 24; and Guecha Rincon v. Canada (Citizenship and Immigration), 2020 FC 173 at para 19(c). 27 RPD Record, Narrative to Appellant's Basis of Claim form, pgs. 25-28, paras 11-12: "... I began the process to apply for a visa so I could escape and preserve my life. ... I arrived in Canada the same day [January 13, 2018], as an international student. I was fleeing the war and the threats of the Black Eagles..." 28 Transcript of RPD Hearing (December 20, 2021) at p. 18, lines 22-35. 29 Transcript of RPD Hearing (December 20, 2021) at p. 18, line 37 to p. 19, line 2. 30 Transcript of RPD Hearing (December 20, 2021) at p. 19, lines 4-9. 31 Transcript of RPD Hearing (December 20, 2021) at p. 19, lines 11-15. 32 Ortiz Garzon v. Canada (Citizenship and Immigration), 2011 FC 299 at para 30. 33 Kivalo v. Canada (Citizenship and Immigration), 2016 FC 728 at para 53, citing Gurung v. Canada (Citizenship and Immigration), 2010 FC 1097 at paras 22-23. 34 Singh v. Canada (Citizenship and Immigration), 2023 FC 1106 at paras 26-28. 35 Transcript of RPD Hearing (December 20, 2021) at p. 18, lines 1-12; p. 24, line 37 to p. 26, line 2; and p. 26, lines 18-31. 36 Transcript of RPD Hearing (December 20, 2021) at p. 18, lines 7-20. 37 Transcript of RPD Hearing (December 20, 2021) at p. 20, lines 9-13. 38 Transcript of RPD Hearing (December 20, 2021) at p. 20, lines 15-48. 39 Transcript of RPD Hearing (December 20, 2021) at p. 27, lines 2-14. 40 Transcript of RPD Hearing (December 20, 2021) at p. 21, lines 1-13. 41 Singh v. Canada (Citizenship and Immigration), 2023 FC 1106 at para 27. 42 Licao v. Canada (Citizenship and Immigration), 2014 FC 89 at para 60. 43 Ibid. 44 Ibid., at paras 45 and 50. 45 Singh v. Canada (Citizenship and Immigration), 2023 FC 1106 at para 23. 46 RPD Record, Note from Aguila Negras (Black Eagles) Capital Block D.C., pgs. 88-89. 47 Shah v. Canada (Citizenship and Immigration), 2013 FC 280 at paras 19 and 21. 48 Moreno v. Canada (Citizenship and Immigration), 2023 FC 235 at paras 19-22. 49 Maldonado v Canada (Minister of Employment and Immigration), 1979 CanLII 4098 (FCA), [1980] 2 FC 302. 50 Chhetri v. Canada (Citizenship and Immigration), 2017 FC 735 at para 30. 51 Adekanmi v. Canada (Citizenship and Immigration), 2021 FC 283 at para 47; Capa v. Canada (Citizenship and Immigration), 2014 FC 648 at para 26. 52 Transcript of RPD Hearing (December 20, 2021) at p. 14, lines 29-31. 53 Transcript of RPD Hearing (December 20, 2021) at p. 14, lines 33-35. 54 Transcript of RPD Hearing (December 20, 2021) at p. 14, line 41 to p. 15, line 12. 55 Transcript of RPD Hearing (December 20, 2021) at p. 16, lines 16-26. 56 Transcript of RPD Hearing (December 20, 2021) at p. 21, lines 15-19. 57 Transcript of RPD Hearing (December 20, 2021) at p. 21, lines 23-29. 58 Transcript of RPD Hearing (December 20, 2021) at p. 2, line 42 to p. 3, line 21. 59 Transcript of RPD Hearing (December 20, 2021) at p. 3, line 44 to p. 4, line 4. 60 Transcript of RPD Hearing (December 20, 2021) at p. 4, lines 27-28. 61 Transcript of RPD Hearing (December 20, 2021) at p. 6, lines 38-42. 62 Transcript of RPD Hearing (December 20, 2021) at p. 7, lines 1-5. 63 Vyshnevskyy v. Canada (Citizenship and Immigration), 2020 FC 881 at para 35. 64 Transcript of RPD Hearing (December 20, 2021) at p. 6, lines 44-48. 65 Transcript of RPD Hearing (December 20, 2021) at p. 7, line 33 to p. 8, line 49. 66 Transcript of RPD Hearing (December 20, 2021) at p. 9, lines 2-9. 67 Transcript of RPD Hearing (December 20, 2021) at p. 11, lines 8-23. 68 Transcript of RPD Hearing (December 20, 2021) at p. 13, lines 15-32. 69 Transcript of RPD Hearing (December 20, 2021) at p. 13, lines 34-36. 70 Transcript of RPD Hearing (December 20, 2021) at p. 15, lines 22-25. 71 Rodriguez Llanes v. Canada (Citizenship and Immigration), 2013 FC 492 at para 10. 72 Transcript of RPD Hearing (December 20, 2021) at p. 21, line 31 to p. 22, line 12. 73 Transcript of RPD Hearing (December 20, 2021) at p. 22, lines 14-29. 74 Transcript of RPD Hearing (December 20, 2021) at p. 22, lines 33-40. 75 RPD Record, Letter dated January 8, 2020, from Appellant's mother, pgs. 98-101. 76 On June 27, 2023, the Federal Court ordered that the Appellant's claim be returned to the RAD for redetermination. On October 27, 2023, the Appellant's counsel filed her additional written submissions with respect to this redetermination. The version of the NDP in place at the time the Appellant filed her addtional written submissions for this redetermination was the version dated August 31, 2023, which is also the most current version of the NDP at the time of this decision. I will therefore be referring to the NDP version dated August 31, 2023. See Lin v. Canada (Citizenship and Immigration), 2021 FC 380 at para 26. See National Documentation Package (NDP) for Colombia (August 31, 2023), item 7.10: ?The Black Eagles (Águilas Negras), including activities, areas of influence and areas of operation; threat letters, including appearance and content; availability of fraudulent threatening letters (2020-June 2022). Immigration and Refugee Board of Canada. 13 July 2022. COL201106.E. 77 NDP for Colombia (August 31, 2023), item 7.10, p. 6 (4.3 Availability of Fraudulent Threat Letters or Pamphlets). 78 NDP for Colombia (August 31, 2023), item 7.21: ?Individuals declared a military objective (objetivo militar) (also translated as military target), including issuing authorities; ability to track individuals who are declared military objectives; state response (2021-August 2023)?. Immigration and Refugee Board of Canada. 11 August 2023. COL200922.E. 79 RPD Record, Report dated November 2, 2021, from G&R Wellness Services, p. 117. 80 Kivalo v. Canada (Citizenship and Immigration), 2016 FC 728 at para 50. 81 Transcript of RPD Hearing (December 20, 2021) at p. 22, line 42 to p. 24, line 11. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC2-00818 RAD.28.07 (February 15, 2022) 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.28.07 (February 15, 2022) Disponible en français