VB4-02794

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 File No. / N° de dossier de la SAR : VB4-02794 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is (are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal heard at Vancouver, BC Appel instruit à Date of decision March 3, 2015 Date de la décision Panel Rena Dhir Tribunal Counsel for the person(s) who is (are) William J Macintosh Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the "appellant"), a citizen of Colombia, appeals the August 15, 2014 determination of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on August 15, 2014 with a Notice of Decision being sent to the appellant on September 4, 2014.1 The RPD found that the appellant is neither a Convention2 refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (the "Act").3 DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(b) of the Act, the Refugee Appeal Division (the "RAD") confirms the determination of the RPD, but for different reasons that, in its opinion, should have been made. RAD finds that XXXX XXXX XXXX XXXX is neither a Convention refugee pursuant to section 96 of the Act nor a person in need of protection pursuant to section 97 of the Act. BACKGROUND [3] Counsel for the appellant before the RAD is the same counsel he had at the RPD. The Minister has not intervened before the RPD or the RAD. [4] A transcript of the RPD proceedings has been included in the Appellant's Record (AR).4 [5] The appellant does seek to present "new" evidence to the RAD pursuant to subsection 110(4) of the Act.5 [6] On October 3, 2014, counsel for the appellant requested an extension of time of 10 days in which to complete the Record. Specifically, counsel asked the deadline to be October 16, 2014. The Immigration and Refugee Board (the "IRB") informed the appellant and his counsel that, "RAD will not take any measures to dismiss this file for lack of perfection prior to October 16, 2014. Please ensure the appellant's Record is submitted to RAD prior to that date." I note that the AR was submitted to RAD on October 16, 2014. A further letter was sent to counsel and the appellant stating that, "On October 3, 2014, an application for an extension of time to perfect the appeal from a decision of the Refugee Protection Division dated September 4, 2014 was filed by the subject of the appeal with the Refugee Appeal Division." Further, the letter states that the "application was allowed" and that 'the appeal is considered to be perfected as of October 27, 2014. Therefore, I will not be addressing the appellant's concerns regarding an extension of time to perfect the appeal as outlined in the Memorandum as it has already been dealt with. No further disclosure or correspondence was submitted by the appellant or his counsel to the RAD after October 16, 2014. BASIS OF CLAIM [7] According to the allegations set out in the appellant's Basis of Claim Form (BOC),6 the appellant is from Colombia. The appellant owned a business in XXXX XXXX. For about 10 months, the appellant was forced to pay extortion money to a criminal group called "bandas criminals", a.k.a. BACRIM, if he wanted to continue operating his business. If the appellant could not pay, they would take XXXX from his business and threaten to harm his family. [8] In XXXX 2007, the appellant decided to move his business to XXXX. In XXXX 2009, BACRIM found the appellant in XXXX and began to extort him again. In XXXX 2009 the appellant was not able to pay the monthly fee of $400 so they took XXXX XXXX. The appellant was forced to pay BACRIM $4,000 for the return of XXXX XXXX. The appellant continued to pay $400 to BACRIM for two more years. [9] In XXXX 2011, the appellant joined other XXXX and decided to file a complaint with the authorities. For about three months the police protected them. However, a few weeks later, BACRIM members came to his XXXX and demanded payment. When the appellant refused to pay he was beaten. In XXXX 2011, the appellant was almost shot by a gun man. [10] The appellant obtained a visa to Europe on XXXX 2011 and flew to Spain. He heard that several of his fellow XXXX had been killed by the BACRIM. The appellant returned to Colombia in XXXX 2012. He wanted to sell XXXX XXXX. He displayed a 'For Sale' sign and phone number on the door of his XXXX. He received a phone call and was told he "is a dead man." [11] In XXXX 2012, the appellant flew to Europe again and lived in Spain. The appellant returned to Colombia in XXXX 2013 as he was concerned about his mother. He left Colombia and went to the Dominican Republic in XXXX 2013. He then travelled to Panama and stayed there for four months. [12] The appellant travelled through Mexico and arrived in Canada on XXXX XXXX, 2014. He made a claim for refugee protection in Canada. CONSIDERATION OF NEW EVIDENCE [13] Subsection 110(4) of the Act provides that 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 they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [14] The appellant has submitted three documents7 as new evidence pursuant to subsection 110(4) of the Act: (1) Death Certificate for XXXX XXXX XXXX dated XXXX XXXX, 2014; (2) Police Complaint dated XXXX XXXX, 2014 by XXXX XXXX XXXX XXXX; and, (3) Chamber of Commerce of XXXX registration certificate for XXXX XXXX XXXX. [15] The appellant submits that, "the proposed evidence is credible, relevant, new, and material, and therefore ought to be admitted. The evidence came into existence after the appellant's hearing concluded, before the appellant was aware that his claim had been rejected."8 The appellant further submits that: The proposed evidence is relevant. It goes to the heart of the appellant's claim that he is a target of BACRIM. The circumstances of another XXXX's death, and that his mother has been approached by people looking for the appellant in late XXXX and XXXX, substantiates the appellant's claims that he was a target in Colombia.9 [16] I find that all three documents are not admissible. Documents 1 and 2 relate to another individual and are not directly related to the appellant's problems in Colombia. Furthermore, the police report in Document 2 clearly states that the person was killed by BACRIM due to the son's reluctance to join them. This has very little connection to the appellant's own allegations of extortion and threats. The appellant is pursuing a section 97 claim, and thus is required to show his personal circumstances and why he cannot return to his home country. I find that the death of a fellow XXXX because his son refused to join the BACRIM is not related to the risk of harm alleged by the appellant. I do not find that this particular evidence is sufficient to show that how that the appellant will be at risk of harm as the events in this evidence do not directly relate to the appellant or his situation. I also find that these documents are irrelevant in consideration of the outcome of this appeal. Therefore, I decline to accept Documents 1 and 2 as new evidence for this appeal. [17] I also do not accept Document 3. I note that the RPD Member covered this issue during the oral hearing and in her reasons. The RPD Member states in the oral hearing: So counsel, I'm just looking at a letter that was sent to the claimant. It wasn't sent to you, but it was sent to the claimant with respect to his Basis of Claim Form. And I can get you a copy of this, but in this letter acknowledging the receipt of the Basis of Claim Form, the claimant is asked for specific documents. Documentary proof, proof of alleged incidents, including payment of extortion fees; complaints to the police; treatment of other XXXX including XXXX and we got the documents on that; documents proving his occupation and his income as a XXXX. I'll get you a copy of that letter, but I am not going to grant an adjournment for documents. This claim was originally scheduled to proceed in XXXX and has been rescheduled a couple of times. So, this is the hearing date and the claimant has had plenty of time to provide documents to support his claim.10 [18] In reviewing the evidence before the RPD and RAD, I note that the appellant's claim for refugee protection is based on his business in Colombia, which is also central to his allegations. I find that the appellant has not provided reasonable arguments as to why this information was not before the RPD up to and at the time of the hearing. I also note that the appellant has been represented by counsel before the RPD hearing date of August 15, 2014. Therefore, I agree with the RPD Member in not allowing additional time to present more documents and I also decline to accept this document as new evidence. [19] The RAD has not accepted any of the new evidence; thus, it is not necessary to consider whether to hold an oral hearing as per subsection 110(6) of the Act. GROUNDS OF APPEAL [20] The appellant's submissions11 as to the grounds of this appeal can be summarized as follows: * Did the RPD err in her conclusion in regards to the evidence before her? * Did the RPD err by refusing to adjourn the hearing to allow the appellant an opportunity to obtain further documents? REMEDY SOUGHT [21] The appellant has requested that the RAD admit the proposed evidence of the appellant, allow an extension of time to file the Record, and order an oral hearing. However, given my decision not to admit the submitted evidence and therefore not to hold a hearing, the RAD will decide, under subsection 111(1) of the Act, which remedy it should provide in this case. The RAD can confirm the determination of the RPD, set aside the determination and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for redetermination by a differently constituted Panel. The issue regarding the extension of time to file the record does not arise before me as the appellant's record was submitted and accepted by the RAD. ROLE OF THE RAD [22] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [23] RAD, being a new division, has struggled with the standard of review to be used in RAD appeals based on several Federal Court cases that have differed in their approach of what standard should be used. Initially, RAD followed the Supreme Court of Canada (the "Supreme Court") case Dunsmuir12 as the leading case on standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing decisions of administrative tribunals: unreasonableness and correctness. The standard of correctness applies to questions of law, while the standard of reasonableness applies to questions of fact, and mixed fact and law. [24] In recent months, the Federal Court has issued differing decisions on the role of RAD when conducting an appeal of the RPD determination. These decisions include the Federal Court cases Iyamuremye,13 Eng,14 Alvarez,15 Huruglica,16 Njeukam,17 Yetna,18 Wahgmo,19 Alyafi,20 among others. [25] The Federal Court in Iyamuremye addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness: That said, the Court finds that in assessing the reasonableness of the decision, the RAD should, at the very least, have reviewed the evidence that was presented before the RPD and conducted an independent assessment of all the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had properly considered the evidence and reasonably justified its conclusion.21 [26] In Alvarez, Justice Shore said that, "the Court is of the view that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts."22 Furthermore, Justice Shore stated that, "[w]hen analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error."23 Justice Shore also said in Alvarez that "the RAD must nonetheless perform its own assessment of all the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error."24 [27] In Huruglica, Justice Phelan found that the RAD erred in reviewing the RPD's decision on the standard of reasonableness and concluded that the RAD is required to conduct a hybrid appeal: "It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection."25 Justice Phelan also states that, "that notion may well justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative. Where there is no adverse finding of credibility, the policy rationale for deference is not sustainable."26 [28] Justice Phelan also found that the RAD's role should be to determine whether the RPD decision is wrong rather than look at whether it was a reasonable decision. Justice Phelan emphasized that the RAD's mandate is to conduct a fact based review. The RAD, Justice Phelan said, "must review all aspects of the RPD's decision and come to an independent assessment... Where its assessment departs from that of the RPD, the RAD must substitute its own decision." Furthermore: In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error."27 [29] Counsel for the appellant submits that: The RPD Member's findings of credibility were based on her assessment of the evidence and her conclusions regarding inferences to be drawn by some of the appellant's actions. Each one, the appellant submits, is open to interpretation and another person could reach a different conclusion based on the same information. Furthermore, he submits, "the Appeal division could, on its own review of the evidence, reach a different conclusion than the RPD Member."28 [30] The Huruglica decision is the most thorough of all the recent cases and the first one where the Federal Court has certified a question for the Federal Court of Appeal. Again, I refer to paragraphs 54 and 55 of Huruglica which read as follows: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.29 [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error."30 [31] Following the Huruglica decision, many other cases have followed the Huruglica approach in what the role of the RAD should be in assessing an appeal. There is another line of authority that suggests that the standard that RAD should apply is that of "palpable and overriding error."31 In Alyafi,32 Djoussou,33 and Siliya,34 the Federal Court notes that there are two competing approaches in the Federal Court jurisprudence and that the RAD Member is free to decide which approach to follow. [32] In Kanga, the Federal Court held: Furthermore, even where there is divided Federal Court authority on a point of law, I do not agree that the Board is required to explain why it has adopted one view over the other. Presumably, Federal Court jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law.35 [33] In this appeal and taking into consideration the Federal Court decisions regarding the role of the RAD, I will be applying the points set out in Huruglica. In this appeal, I have reviewed all aspects of the RPD's decision and have conducted my own independent assessment of all the evidence to determine whether the appellant is a Convention refugee or a person in need of protection, while giving a certain deference to the RPD's findings regarding the appellant's credibility and any other issues where the RPD enjoys a particular advantage. As well, it is clear from the many recent Federal Court cases that have been previously mentioned, all agree that the standard of correctness should be used for any error of law found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [34] The appellant submitted a number of arguments to establish that the RPD's determination is erroneous and should be set aside by the RAD. I do not agree with all these arguments, and I am of the opinion that I do not need to address them all given that I am confirming the determination of the RPD, and substituting a determination that, in my opinion, should be made following my own assessment of the evidence submitted before the RPD and the RAD. [35] In particular, the appellant submits that the RPD Member erred by not allowing additional time to submit documents. The appellant submits that is deciding to grant an adjournment to provide further evidence, the Member ought to have considered various factors, such as outlined in Siloch v. Canada36. These factors include: a. the number of previous adjournments granted; b. the length of time for which the adjournment is being sought; c. the effect on the immigration system; d. would the adjournment needlessly delay, impede or paralyse the conduct of the inquiry; e. the fault or blame to be placed on the applicant for not being ready; f. were any previous adjournments granted on a peremptory basis; and g. any other relevant factors. [36] In my review of the evidence, the RPD Member did address some of these factors. The RPD Member responded to Counsel's request, at the RPD hearing, with the following: So counsel, I'm just looking at a letter that was sent to the claimant. It wasn't sent to you, but it was sent to the claimant with respect to his Basis of Claim Form. And I can get you a copy of this, but in this letter acknowledging the receipt of the Basis of Claim Form, the claimant is asked for specific documents. Documentary proof, proof of alleged incidents, including payment of extortion fees; complaints to the police; treatment of other XXXX including XXXX and we got the documents on that; documents proving his occupation and his income as a XXXX. I'll get you a copy of that letter, but I am not going to grant an adjournment for documents. This claim was originally scheduled to proceed in XXXX and has been rescheduled a couple of times. So, this is the hearing date and the claimant has had plenty of time to provide documents to support his claim.37 I also note that the RPD Member accepted late disclosure at the hearing. Many of these issues are also addressed in the RPD Member's oral decision. I find that the appellant has not provided persuasive arguments to establish that the RPD Member did not adequately deal with the adjournment request for additional documents to be submitted. I find the RPD Member has not breached procedural fairness by not allowing these documents, and I also find the RPD Member has provided adequate reasons for her refusal to admit such documents. STATE PROTECTION [37] I have reviewed all the evidence before the RPD and the RAD, including the transcript of the oral hearing, in its entirety. I note that the RPD Member did ask the appellant about his interactions with the police concerning the problems he was facing in Colombia. I will be accepting the appellant's testimony before the RPD as being credible for the purpose of my analysis on state protection. As well, I will be taking into consideration the appellant's counsel's submissions at the RPD oral hearing. I find there is persuasive evidence before me to conclude that the appellant has state protection available to him in Colombia. [38] I also cite Federal Court jurisprudence referring to state protection and the obligations of a refugee claimant to pursue it in their country. The RPD is not obliged to provide proof that the state can offer the claimant effective protection, rather, the claimant bears the legal burden of rebutting the presumption that state protection exists by adducing clear and convincing evidence which satisfies the RPD, or the RAD, on a balance of probabilities.38 [39] I reviewed the testimony39 surrounding the appellant's interactions with authorities in Colombia: RPD Member: "And why do you think the BACRIM would be interested in you now still? Appellant: "Because I was one of the few people that had the courage to denounce them against - with the authorities." RPD Member: "So what does the fact of denouncing the BACRIM to the authorities have to do with your fear now?" Appellant: "Because just the fact of taking the steps to do the denunciation for this criminal group, for the BACRIM, for them, they take it as a - they take it as a crime, as is - as if they are looking for me because of it." Furthermore, the appellant had earlier testified that he had been "mistreated and abused for two years." The RPD Member asked the appellant if he ever went to the authorities regarding the threats the appellant received from the BACRIM and the extortion demands prior to when he denounced him with a group of coworkers. The appellant testified: "No, I didn't go. Because I didn't have the courage." [40] As well, the appellant testified that he went to the police after XXXX XXXX was stolen. However, he later learnt that it was the BACRIM who stole XXXX XXXX and they demanded the appellant pay them money for the return of XXXX XXXX. In regards to the police report, the RPD Member asked the appellant, "And was there an investigation?" The appellant replied, "I believe not because nobody called me or anything like that, but - nothing resulted of it, but -and since my XXXX, I got it back, then I never called them again."40 [41] The RPD Member asked about the group denunciation the appellant made to the police. The appellant testified that, "after this denunciation what happened is that they changed the police officers around the neighbourhood and they kind of, like, did a couple of inspections, but then this - this was just for a period of three months." The appellant further testified that, "Yes, there was an investigation. And during that period of three months there was one arrest. And there was one - they captured one person, there was one arrest of - during those three months of a person with the alias XXXX." I also note that during an interview41 with the Canada Border Services Agency (the "CBSA") officer, the appellant was asked, "Are there any specific people in the GROUP [BACRIM] that you are afraid of?" And, the appellant mentioned, "Yes, XXXX XXXX, aka XXXX." [42] The RPD Member asked the appellant whether he received any "follow-up or response from the attorney general's office with respect to the investigation and what was happening."42 The appellant responded: Three months afterwards, after I went to the attorney office and I made the denunciation, three months after that, that's when there was an attack, I suffered an attack on myself. And in that period after I suffered that attack is when I requested a visa to Europe. They grant it to me and I left the country. And within that time frame the attorney office, they were requesting written proof, evidence and documentary evidence from us against this group. And I ... And I never went because I was travelling, and I never went back I didn't dare to do it. I also note that the appellant testified that he did not report any threats to the police after he returned to Colombia from Spain in 2011. [43] I find that the appellant has not provided persuasive evidence that the police were not willing or able to help him in Colombia. I have also taken into consideration the country documents on Colombia. Colombia is a constitutional, multi-party republic. In 2010 voters elected Juan Manuel Santos President in elections that observers considered free and fair. Authorities maintained effective control over security forces. Security forces committed human rights abuses. The government continued efforts to prosecute and punish perpetrators, including members of the security services, who committed abuses. It increased resources for the Prosecutor General's Office, prioritized human rights cases, and employed a new contextual analysis strategy. Nonetheless, a high rate of impunity persisted.43 [44] Taking into consideration the country reports and the appellant's lack of efforts to follow up with the police in his country, I find the appellant has not provided clear and convincing evidence that state protection was not available for him in Colombia. Nor is there any information before the RPD Member, or the RAD, that state protection is ineffective in Colombia. A claimant who alleges that the state protection is inadequate must persuade the Immigration and Refugee Board that the evidence establishes that the state protection is inadequate.44 The claimant's (evidentiary) burden of proof is directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more claimants must do to exhaust all courses of action open to them.45 The appellant has not adequately demonstrated to the RPD, nor the RAD, how the police were not willing or able to provide him with protection. [45] Counsel for the appellant referred to a document in his submissions before the RPD which notes that: Human Rights Watch notes that paramilitary successor groups and new criminal bands, that is BACRIM, it refers that the toleration of such groups 'by security force members is the main factor for their continued power. At least 180 police officers were jailed in 2011 because of alleged ties to successor groups.46 [46] I have reviewed the country documents regarding police response to such criminal bands as BACRIM. The same document counsel referred to also notes the following: The Chief of the National Police reported in November 2011 that, in the last year, they had captured 2,904 bacrim members, including 70 heads of the groups (ibid. 30 Nov. 2011). According to the CNAI report, the government captured 2,959 bacrim members in the first nine months of 2011 and killed an additional 37 (8 Feb. 2012, 7). Similarly, an article in El Tiempo says that, in 2011, 3,000 bacrim members were captured by the authorities (9 Jan. 2012).47 [47] I note that although there are reports that some security forces have been infiltrated by the BACRIM, there is no persuasive evidence before the RPD, or RAD, that establishes that the appellant's fear of pursuing state protection was due to these reasons. Rather, the appellant testified that at one point in XXXX the police have even arrested one of the BACRIM members and did conduct an investigation into the appellant's allegations of extortion. In the absence of a compelling explanation, where the state is a functioning democracy with willingness and the apparatus necessary to provide a measure of protection to its citizens, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim.48 This is so even where the protective services of the state have gaps or deficiencies.49 It is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system.50 [48] The Court has also said that, "local failures to provide effective policing do not amount to a lack of state protection unless they are part of a broader pattern of state inability or refusal to provide protection."51 As well, the Federal Court has held that a standard of perfection is not required. Less than perfect protection is not a basis to determine that a state is either unwilling or unable to offer reasonable protection.52 Again, I note that the state protection situation in Colombia is not perfect. As noted earlier, the protection need not be perfect.53 One measure of the adequacy of the protection is whether the state is making "serious efforts" to protect its citizens.54 On the operational level, the documentary evidence indicates that the police arrest and prosecute the perpetrators of crimes, including crimes committed by groups such as BACRIM. [49] The Colombian government's efforts to eradicate the BACRIM are well documented in the country condition documents. The appellant testified that he only approached the authorities twice while in Colombia. Once when he made the group denunciation and the other time when XXXX XXXX was stolen. Both times there is no persuasive evidence of the appellant making any efforts to pursue his denunciations. The appellant testified that after he made the first denunciation, he decided to leave the country. The next time, when his XXXX was stolen, he had already paid the BACRIM for the return of his XXXX, and he did not go to the police even after he had made a denunciation. The appellant also did not provide persuasive evidence as to why he would not inform the police, the second time, that he had to pay the BACRIM to get his XXXX back. A claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state.55 [50] Finally, the Federal Court has said that, "in the absence of a compelling explanation, where the state is a functioning democracy with willingness and the apparatus necessary to provide a measure of protection to its citizens, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim.56 This is so even where the protective services of the state have gaps or deficiencies.57 It is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system.58 [51] I find that the appellant has failed to rebut the presumption of state protection with clear and convincing evidence. I have reviewed the appellant's testimony in its' entirety, and I find that there is no persuasive evidence that the authorities were not willing to help him at any time. Moreover, the appellant has not provided any persuasive evidence that if he was to return to Colombia and encounter problems with BACRIM that the authorities would refuse to investigate his allegations and refuse to arrest and prosecute the perpetrators if there was sufficient evidence. Where there is evidence that the government is taking steps to protect the target group, in the absence of evidence to the contrary, it must be presumed that these steps will be effective.59 The appellant has not provided persuasive arguments and has not adequately demonstrated that the authorities in Colombia cannot offer him protection. [52] The appellant failed to adduce, either at the RPD hearing or at the RAD, any documentary evidence that shows that adequate state protection was not available to those threatened by the BACRIM. I have considered the totality of the evidence, including the evidence heard at the RPD oral hearing. Based on all the evidence, I confirm the RPD determination, but for different reasons, that the appellant is not a Convention Refugee or a person in need of protection. The RAD finds the appellant has state protection available to him in Colombia. REMEDY [53] For all these reasons, I confirm the determination of the RPD, but for different reasons, and find that the appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Rena Dhir" Rena Dhir March 3, 2015 Date 1 Exhibit 3, Refugee Protection Division Record (RPDR). 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 Immigration and Refugee Protection Act (the "Act"), S.C., 2001, c. 27. 4 Exhibit 2, Refugee Appeal Division (RAD); Exhibit 2, Appellant's Record (AR). 5 Exhibit 2, RAD, AR. 6 Exhibit 3, Refugee Protection Division Record (RPDR). 7 Exhibit 2, AR. 8 Exhibit 2, AR, Memorandum. 9 Exhibit 2, AR, Memorandum. 10 Exhibit 3, RPDR, Transcript, p. 60. 11 Exhibit 2, AR. 12 Dunsmuir v. New Brunswick, 2008 SCC 9. 13 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494. 14 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 15 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 16 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 17 Njeukam v. Canada (Minister of Citizenship and Immigration), 2014 FC 859. 18 Yetna v. Canada (Minister of Citizenship and Immigration), 2014 CF 858. 19 Wahgmo v. Canada (Minister of Citizenship and Immigration), 2014 FC 923. 20 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952. 21 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494, at para. 41. 22 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, at para. 27. 23 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, at para. 28. 24 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, at para. 33. 25 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, at para. 54. 26 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, at para. 37. 27 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, at para. 55. 28 Exhibit 2, AR, Memorandum. 29 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, at para. 54. 30 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, at para. 55. 31 Eng v. Canada (Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; and Spasoja, Francisca v. Canada (Citizenship and Immigration), 2014 FC 913. 32 Alyafi v. Canada (Citizenship and Immigration), 2014 FC 952. 33 Djoussou v. Canada (Citizenship and Immigration), 2014 FC 1080. 34 Siliya v. Canada (Citizenship and Immigration), 2014 FC 120. 35 Garcia Kanga v. Canada (Citizenship and Immigration), 2012 FC 482. 36 Siloch v. Canada (Minister of Employment and Immigration)(1993), 151 N.R. 76 (F.C.A.). 37 Exhibit 2, AR, Transcript, p. 60. 38 Nadeem, Choudhry Muhammad v. M.C.I. (F.C.T.D., no. IMM-6320-00), McKeown, November 15, 2001; 2001 FCT 1263. The Court stated: "The issue is not whether there is clear and convincing evidence that the police would not be reasonably forthcoming with a guarantee of effective protection but whether there is clear and convincing evidence that the police would not be reasonably forthcoming with serious efforts at protection. The onus is on the claimant to produce clear and convincing evidence that the police would not provide protection, not on the Board to provide proof that there will be state protection."; and Kaleja, Michal v. M.C.I. (F.C., no. IMM-4106), Near, June 9, 2011; 2011 FC 668. 39 Exhibit 2, AR, Transcript. 40 Exhibit 2, AR, Transcript, p. 21. 41 Exhibit 3, RPDR, p. 72. 42 Exhibit 2, AR, Transcript, p. 23. 43 Exhibit 3, RPDR, National Documentation Package (NDP), Colombia, April 30, 2014, Item 2.1. Country Reports on Human Rights Practices for 2013. United States. Department of State. 27 February 2014. 44 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), 2008 FCA 94, para. 20, 24. 45 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.), at 536. 46 Exhibit 2, AR, Transcript. 47 Exhibit 3, RPDR, NDP, Columbia, April 30, 2014, Item. 7.2. Paramilitary successor groups and new criminal bands (bandas criminales, bacrim), including areas of operation and criminal activities; state response to successor groups and bacrim, including reintegration of combatants and assistance offered. COL104030.E. Immigration and Refugee Board of Canada. 22 March 2012. 48 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 49 Salazar Santos, Marco Antonio v. M.C.I. (F.C., no. IMM-4602-06), Barnes, July 30, 2007; 2007 FC 793. 50 Marquez Alvarez, Guillermo v. M.C.I. (F.C., no. IMM-2477-09), Boivin, February 23, 2010; 2010 FC 197; Romero Castaneda, Manuel Alejandro v. M.C.I. (F.C., no. IMM-4838-09), Boivin, April 13, 2010; 2010 FC 393.. 51 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.); Mejia, Alberto v. M.C.I. (F.C., no. IMM-2757-03), Pinard, June 30, 2004; 2004 FC 925. The Court stated: "When the agent of persecution was not the state, the lack of state protection had to be assessed as a matter of state capacity to provide protection rather than from the perspective of the effectiveness of local apparatus in providing protection in a given circumstance. Thus, in the absence of evidence pointing to a more general policy by which the state's protection is not extended to the target group, a refusal to provide protection at the local level does not constitute a refusal to provide protection." In Baku, Ervin v. M.C.I. (F.C., no. IMM-1090-10), Pinard, November 25, 2010; 2010 FC 1163, the Court stated: "While potentially enlightening, evidence of the comparable circumstances of others cannot be the final word on the availability or adequacy of state protection." 52 Jaroslav, Spacil v. M.C.I. (F.C., no. IMM-3214-10), Kelen, May 31, 2011; 2011 FC 634. 53 Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.). 54 Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), at 132. 55 Judge, Gurwinder Kaur v. M.C.I. (F.C., no. IMM-5897-03), Snider, August 9, 2004; 2004 FC 1089; Martinez, Dunnia Patricia Suarez v. M.C.I. (F.C., no. IMM-7329-04), Phelan, July 29, 2005; 2005 FC 1050; Kim, Eun Mee v.M.C.I. (F.C., no. IMM-8191-04), Phelan, August 17, 2005; 2005 FC 1126; and Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 56 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 57 Salazar Santos, Marco Antonio v. M.C.I. (F.C., no. IMM-4602-06), Barnes, July 30, 2007; 2007 FC 793. 58 Marquez Alvarez, Guillermo v. M.C.I. (F.C., no. IMM-2477-09), Boivin, February 23, 2010; 2010 FC 197 and Romero Castaneda, Manuel Alejandro v. M.C.I. (F.C., no. IMM-4838-09), Boivin, April 13, 2010; 2010 FC 393. 59 Manorath, Rahonie v. M.C.I. (F.C.T.D., no. IMM-2369-94), Cullen, January 26, 1995. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-02794