TB7-19961

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 / Dossier de la SAR : TB7-19961 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, ON Appel instruit / entendu à Date of decision August 1, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal Diana Gallego Conseil(s) (de la/des) 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 and of Venezuela, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of this appeal. The Appellant is requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently-constituted panel. BACKGROUND [2] The Appellant alleges that he was persecuted in Venezuela where he was born and lived his whole life. He alleges he was involved in anti-government protests during which time he was injured and so decided to flee to Canada. [3] The Appellant's parents were both born in Colombia, which means that the Appellant has access to Colombian citizenship through routine application. RPD's Reasons [4] In its reasons, the RPD found that Colombia would be the country of reference as the Appellant has legal rights to citizenship there. The Appellant alleges that he cannot go to Colombia due to mandatory military service (Appellant claims to be a conscientious objector), which would put him in harm's way as the Colombian government is involved with military actions against illegal armed groups. [5] Pursuant to paragraph 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. Appellant's Issues [6] The Appellant raises one issue at the RAD: a. Did the RPD err by failing to consider the claimant's fear of being returned to Colombia and forced to join the military? ANALYSIS Determinative Issue [7] The determinative issue in this appeal is the Appellant's allegation of conscientious objection and how that may or may not provide him nexus to section 96 or make him a person in need of protection in accordance to section 97 of the IRPA. Standard of Review [8] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.1 New Evidence [9] In the Appellant's record, the Appellant has filled in and presented a copy of IRB Form IRB/CISR 3008 (02/16) which is a template for "Written Statement Pursuant to Rule 3(3)(d)(i)". [10] The Appellant has typed into the space below question #4 which states, "The evidence I am presenting is:" N/A, which is an abbreviation for "Not Applicable". This tells me that there is no new evidence being presented at appeal. [11] The next line, question #5, is a spot for the Appellant to insert the page number in his Memorandum where he will explain how the evidence (if he was submitting any) would meet the requirements of subsection 110(4) of the IRPA. This spot is left blank which supports my presumption that there is no new evidence adduced. [12] Finally, the Appellant's actual Memorandum of Argument makes no reference to any new evidence to be considered. [13] I find that there has been no new evidence adduced for this appeal. Oral Hearing [14] Subsection 110(6) of the IRPA allows the RAD to hold an oral hearing if new evidence has been accepted in accordance to the RAD Rule 3. As no new evidence has been received, then no oral hearing may be allowed. That request is dismissed. Arguments [15] Counsel argues that the panel failed to consider the Appellant's fear of military conscription should he be returned to Colombia. The Appellant stated that he wants to be as far away from guns, weapons and violence as he can be. Counsel claims that the Appellant is a conscientious objector however, the dictionary definition of conscientious objector states "a person who refuses to serve in the armed forces or bear arms on moral or religious grounds". [16] The United States of America deals with conscientious objector issues with the following information, beginning with a definition: Conscientious Objector A person who, because of principles of religious training and moral belief, is opposed to all war regardless of its cause. A conscientious objector may be released from the obligation to serve in the armed forces or to participate in selective Service registration. A conscientious objector must oppose war in any form, and not just a particular war, in order to avoid military service. He does not have to be a member of a religious congregation that forbids participation in war. Under the Military Selective Service Act (50 App. U.S.C.A. § 451 et seq. [1967]), a registrant needs only a conscientious scruple against war in all forms to obtain conscientious objector status. A conscientious scruple against war is an objection to war based on moral beliefs. A conviction that war is wrong, arrived at solely on intellectual and rational grounds, does not entitle one to exemption as a conscientious objector. [17] In this particular case, our Appellant fears being harmed or killed in fighting with the Colombian military against illegal armed groups. At no time has the Appellant espoused a general scruple against war of any kind let alone all kinds. The Appellant testified that he does not want to risk his life. I understand this concern of the Appellant as not many persons want to risk their lives unnecessarily; however, that concern does not make one a conscientious objector. It simply makes one a person who doesn't want to put his life in danger, which comes with the job when one is in the military. [18] Conscription in Colombia is a law of general application. That is, the Appellant is not personally being targeted by the government. Conscription applies to a large segment of the male population. Unless conscription would force a person to commit crimes against humanity or to commit other crimes or actions condemned by the international community, then conscription is not a ground for Convention refugee status nor does it fall within the parameters of section 97. [19] Counsel's entire argument is based on the assumption that the Appellant is a conscientious objector; however, no evidence has been adduced to support that designation. The Appellant himself has testified that he fears harm if conscripted but has never testified that he has a moral or religious issue with war, in general. He simply does not like guns and fears what may happen to him in a battle. Again, there is nothing wrong with that and they are legitimate concerns but they do not make the Appellant a conscientious objector. [20] Counsel's own words in his conclusion in the Memorandum say it well. "The term "conscientious objector" is generally understood as the principle of refusing to participate in military service because of moral, ethical or religious convictions." The Appellant has not espoused any of these convictions, but only a fear of harm. [21] It is my finding that the Appellant is not, on a balance of probabilities, a conscientious objector. [22] The rest of counsel's arguments center around the harm that the Appellant fears may come from various armed, illegal groups in Venezuela including the Revolutionary Armed Forces of Colombia (FARC), the ELN and the crime group known as the Urbenos. The risk that the Appellant might face from any of these groups is the same risk faced by the majority of the population of Colombia. That makes the risk a generalized risk, which removes it from the purview of section 97 of the IRPA. As criminality is not generally seen as persecution, the risk also fails under section 96 of the IRPA. Summary [23] The Appellant has failed to convince me that he is a conscientious objector and has failed to show any errors in fact or in law or mixed fact and law committed by the panel. Disposition [24] The RAD has found that the RPD decision will stand. CONCLUSION [25] Pursuant to paragraph 111(1)(a) of the 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) "David Lowe" David Lowe August 1, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-19961 RAD.25.02 (July 05, 2018) Disponible en français 6 RAD.25.02 (July 05, 2018) Disponible en français