TB3-08752

RAD File No. / N° de dossier de la SAR : TB3-08752 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 27, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jayson Thomas Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Colombia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the RPD's determination and substitute its own positive determination, or to refer his claim to the RPD for redetermination by a differently-constituted panel. [2] The Appellant did ask that an oral hearing be held, pursuant to Section 110(6) of IRPA. DETERMINATION [3] Pursuant to Section 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [4] The Appellant is a citizen of Colombia and was living and working in Itaqui, in a part- time capacity of XXXX XXXX XXXX XXXX that was owned by his father. The Appellant alleges that on XXXX XXXX XXXX 2012 he was approached by members of a gang known as Los Urabenos, who are known to be involved in criminal activities. The gang advised the Appellant to inform the owner of the XXXX XXXX that he was required to pay a "security fee". The Appellant was once again approached by the same gang members on XXXX XXXX, 2012 and told to advise the parking lot owner that he had to pay the security fee. The same gang members returned once again on XXXX XXXX XXXX 2013 and informed the Appellant that they knew that the owner of the XXXX XXXX was his father, and since the security fee had not been paid, the Appellant was verbally threatened. The Appellant left Colombia on XXXX XXXX, 2013 arriving in Toronto on the same day, and filing a claim on June 26, 2013 for refugee protection. [5] The Appellant's application for refugee protection was heard on September 16 2013 and October 15, 2013. In a decision of October 15, 2013, the RPD rejected the claim. The panel did not address the issue of credibility, but assessed on the basis that adequate state protection and an internal flight alternative is available to the Appellant in his home country of Colombia. [6] The Appellant submits that in assessing state protection, and an internal flight alternative, the RPD failed to consider the operational adequacy of the state protection available, and it also failed to apply the correct legal test for determining whether a viable internal flight alternative existed for the Appellant in Bogota, and it therefore applied the wrong analysis. Determinative Issue [7] The Appellant challenges the RPD's findings on state protection; the RAD finds that the issue of state protection is determinative of this appeal. Even if the RPD erred in the assessment of the internal flight alternative, the decision to reject his refugee claim would nevertheless stand on the basis of state protection. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [8] The Appellant submits that he intends to introduce new evidence in this Appeal.1 These documents include: 1. An article that appeared in El Espectador, (internet site address) [Urabenos have an office in Bogota.] and another Article that appeared on the following internet site: http://es.insightcrime.org [entitled: "Urabenos"]2 [9] In order for the RAD to consider these as new evidence, under subsection 110(4) of the Act, it provides direction and reads as follows: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [10] Subsection 110(5) of IRPA provides for an exception to the above and states that subsection 4 does not apply in respect of evidence presented in response to evidence presented by the Minister. In this case the Minister did not intervene, thus this exception does not apply. [11] Raza3 is the leading case on "new" evidence. Even though the Raza case was specific to a Pre Removal Risk Assessment (PRRA) case, the RAD considers it relevant to this case due to the wording in s. 113(a) of the Act, which relates to the PRRA provisions, and ss. 110(4) of the IRPA with reference to the RAD and they are similarly worded. [12] In Raza, the court posed the following questions that need to be asked in deciding whether to accept new evidence for a Pre-Removal Risk Assessment case. These, as summarized by the Court, are: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or, (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or, (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [13] The RAD applied Raza in considering whether to accept evidence that was provided after the RPD decision. [14] Item 1: includes two articles written about criminal activities by numerous criminal gangs in Bogota. The articles include the name of Urabenos, which is described as a gang involved in criminal activities The Appellant has not indicated in his "submissions"4 what the relevancies of the articles are in relation to his Appeal; further the RAD notes the date on the articles is June 21, 2010. There is no explanation submitted to the RAD as to why these articles were not provided prior to the date of hearing, how or when they were obtained; the Appellant does explain why he was not able to provide the articles with reasonable efforts in advance of his hearing. Based on the foregoing, I do not accept item 1 as new evidence. STANDARD OF REVIEW [18] The RAD will consider the Appellant's submissions on the issue of state protection, and these arguments raise questions of mixed fact and law. [19] The Appellant makes no specific submissions on the appropriate standard of review to be applied to the RPD's decision. [20] Although the Immigration and Refugee Protection Act (IRPA) sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [21] In Dunsmuir,5 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,6 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [22] In Newton,7 the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:8 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and, (g) other factors that are relevant in the particular context. [23] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.9 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for re-determination. [24] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [25] The nature of the question in issue: In this appeal, the question in issue is one of mixed fact and law. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.10 The issue of state protection has also been found, in the judicial review context, to be reviewable on a standard of reasonableness.11 [26] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [27] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.12 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [28] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [29] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [30] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [31] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,13 and each can take notice of information and opinion within its specialized knowledge.14 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,15 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.16 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,17 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [32] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.18 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [33] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The question in issue is one of mixed fact and law, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.19 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [34] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual findings of the RPD as well as to findings of mixed fact and law. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.20 [35] The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.21 The RPD's Findings [36] The RPD considered objective evidence - that Colombia is a functioning democracy where police are generally effective at responding to complaints. There are mechanisms to investigate and punish police abuse. The RPD acknowledged evidence indicating that the state was facing serious problems with its illegal arms groups, was not in a state of complete breakdown.22 In addition to considering the objective evidence, the panel assessed the Appellant's own testimony. Having considered the evidence, the RPD determined that adequate state protection is available to the Appellant upon return to Colombia. [37] The Appellant contests that finding, and made the following argument on the issue of state protection: the Appellant submits that the RPD erred in law by not assessing the Appellant's case against the background of the operational effectiveness; instead, it relied upon the efforts made by the state. The evidence of the Appellant is such that he fears possible persecution in Colombia. [38] The RAD finds that there is no merit to the Appellant's arguments against the RPD's state protection finding. While the Appellant alleges that the RPD applied the wrong analysis, and he provides specifics, the RAD does not agree that the RPD made an error in applying the legal test to the facts of the claim. The RPD did emphasize that, for democratic countries, claimants will usually need to show that they sought state protection. That is no error and is consistent with the jurisprudence in Federal Court cases.23 It would only be an error if the RPD did not understand that a claim can also succeed if the claimants can show that it would likely have been futile to approach the state for protection.24 Further it is reflected in the RPD's decision that it didn't simply stop upon finding that the Appellant failed to afford himself of state protection, but went on to consider country conditions. [39] The RAD reviewed the reasons and found that the RPD reasonably found that the presumption of state protections had not been rebutted when it stated that there was documentary evidence which indicated that the police will respond to complaints made by its citizens, and in this case, did respond by taking a report and launching an investigation into the complaint. The Appellant testified he returned to the police station in the first week of XXXX 2013 to follow up, but was told that there was nothing new to report, and he would have to wait. The Appellant chose to flee Colombia in XXXX 2013, before the completion of the investigation.25 [40] The Appellant submits that the RPD erroneously found there is state protection and it therefore failed to take into consideration the adequacy of state protection available to protect the Appellant against the risks he faced by Los Urabenos in Colombia.26 The Appellant argues that the RPD noted that in a report made by the Appellant to the police, the Appellant noted that his father had twice reported threats he received and that the matter appeared to be "progressing through the Public Attorney's office number 257 of Medellin, with detainees." The Appellant argues that the RPD erroneously relied upon the police responses, as indicated in the report, as "evidence of operational effectiveness of state protection in Colombia." The RAD disagrees with the Appellant's argument. The Appellant's own evidence before the RPD clearly shows the operational effectiveness of the state, the Appellant's father made a complaint; the police launched an investigation and arrested suspects who were in detention. In the Appellant's case, he did make a complaint to the police, however he was not able to provide a description of any of the suspects,27 yet the police still took a report and launched an investigation into his complaint. Once again, the RAD notes that the claimant fled the country in XXXX 2013; he made the complaint in XXXX 2013. The RAD finds that it would be unreasonable to expect in any society that all violent acts reported to police would result in immediate prosecution or conviction. The Federal Court has held that a claimant's decision to flee before police have had an opportunity to properly respond to and investigate a transgression did not amount to a lack of state protection.28 In this particular case, there is no information to suggest that police were not making genuine and earnest efforts to investigate the Appellant's allegations and apprehend the Appellant's perpetrator(s). The Appellant's choice to leave Colombia may have resulted in the investigation being delayed or stymied, given that he, as the victim, was a key witness. [41] In this case, the RPD identified state protection at the start of the hearing, and noted "a claimant must show, on a balance of probabilities, that adequate state protection is not available." The RPD correctly enunciated state protection principle and stated in its reasons, "There is a presumption that a state is capable of protecting its citizen except in situations where there is a complete state breakdown. To rebut that presumption of state protection, a claimant must provide clear and convincing evidence of the state's inability to protect that national. While the effectiveness of the protection is relevant consideration, the test is whether the protection offered is adequate". [42] The RPD's analysis on the issue of state protection is thorough and is mindful of the principles of state protection and mindful of the Appellant's particular profile and situation. The RPD considered the Appellant's testimony that he did report the incident of the men who identified themselves as members of Los Urabenos asking him to tell his boss that a security fee had to be paid to the police. The RPD provided intelligible reasons for arriving at its finding that the Appellant did not rebut the presumption of state protection and that he "has not really tested" whether the state is able and willing to provide adequate protection. [43] The Appellant argues that, in assessing the adequacy of state protection, the RPD erred in ignoring evidence that was before it. That evidence holds that Colombia suffers from wide-ranging corruption at all levels of government, including police, and therefore the Appellant submits that the RPD placed too heavy a burden on him to do more than he did to seek protection. The Appellant points to documentary evidence in the RPD record indicating that there is a widespread public perception of government corruption in Colombia, a weak judicial system, ineffective human rights remedies, difficulty in combating high-level crimes, and numerous complaints of police mistreatment. [44] The RPD did not cite each individual piece of evidence cited by the Appellant in support of his appeal, and there is no requirement that the RPD refer to each document in assessing state protection.29 However, it is clear from reading the RPD's reasons that the panel did consider the evidence put before it,30 including some evidence which did not support the presumption of state protection.31 [45] The responsibility to provide international protection only arises when protection is unavailable to refugee claimants in their country of nationality.32 In considering the Appellant's refugee claim, the RPD was required to presume that Colombia is capable of protecting its citizens; it was for the Appellant to rebut that presumption with clear and convincing evidence of the state's inability to protect.33 In situations where protection might reasonably be forthcoming, refugee claimants are required to approach their own state for protection.34 [46] The objective evidence before the RPD on the subject of state protection is mixed. It sets out deficiencies in the functioning of government institutions, and also reports that the government has taken steps to improve the quality of law enforcement and that those actions have had actual results. Objective evidence supports the contention that the public trusts the national police service and is largely satisfied with its work. [47] Local failures to provide effective policing do not amount to a lack of state protection, unless such failures are situated by documentary evidence within a broader pattern of state inability or refusal to extend protection.35 The Appellant initially approached the local police for assistance but made no further attempts to seek state protection. While the RPD discusses other institutions which the Appellant might have approached, the police force is presumed to be the main institution mandated with protecting citizens.36 In this context, it was not unreasonable for the RPD to expect the Appellant to do more than make an initial approach to the police. [48] A refugee claimant from a democratic state must do more than simply show that he went to see some members of the police, without success.37 The RPD's finding of adequate state protection was justifiable, transparent, and intelligible; it falls within a range of possible, acceptable outcomes defensible in respect of the facts and the law. [49] The Appellant has failed to establish that the RPD erred in finding that he can expect adequate state protection in Colombia. The RAD finds that the RPD's state protection conclusion falls within a range of possible, acceptable outcomes which are defensible with respect of the facts and the law. DISPOSITION [50] In the RAD's view, the RPD's decision can rest solely on its reasonable state protection finding. The RPD's conclusion on state protection was reasonable. As the Appellant did not rebut the presumption of state protection with clear and convincing evidence, he is not Convention a refugee or a person in need of protection. CONCLUSION [51] Pursuant to Section 111(1) (a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho February 27, 2014 Date 1 Appellant's Record, page 9 2 Appellant's Record, pages 49-55 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 4 Appellant's Record, Page 65 paragraphs 38-42 5 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 6 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 7 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 8 Newton, para. 43. 9 IRPA, Sections 96 and 97. 10 Khosa, para. 89. 11 Andoni, Altion v. M.C.I. (F.C., no. IMM-5953-11), Russell, May 3, 2012, 2012 FC 516, para. 35. 12 IRPA, Section 3(2)(a). 13 IRPA, Sections 170(g) and 171(a.2). 14 IRPA, Sections 170(i) and 171 (b). 15 IRPA, Section 170(b). 16 IRPA, Section 110(3). 17 Khosa, para. 89. 18 Newton, para. 80. 19 Khosa, para. 89. 20 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 21 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 22 Reasons for Decision, paragraph 10 23 Comacho vs Canada (Minister of Citizenship and Immigration) 2007 FC 830 24 Ward, at 724 25 Reasons for Decision, page 3, line 20 26 Reasons for Decision, page 3, line 40 27 Reasons for Decision, page 3, line 45 28 Montemayor Romero, Santiago Cosme v. M.C.I. (F.C., no. IMM-1146-08), Dawson, August 28, 2008, 2008 FC 977. 29 De Toro, Martha Sofia Sernas v. M.C.I. (F.C., no. IMM-5635-11), Near, February 22, 2012, 2012 FC 245, para. 25. 30 Reasons for Decision, page 7, lines 20 to 30 31 National Documentation Package, item 7.8, page 4 in paragraph 22 32 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 33 Ward, pp. 724-726. 34 Ward, p. 724. 35 Zhuravlvev, Anatoliy v. M.C.I. (F.C.T.D., no. IMM-3603-99), Pelletier, April 14, 2000. Reported: Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 36 Katinszki, Piroska v. M.C.I. (F.C., no. IMM-2520-12), de Montigny, November 15, 2012, 2012 FC 1326, FCJ 1444 at para 15. 37 M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th), 532 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08752