TC4-08620

RAD File / Dossier de la SAR : TC4-08620 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Date of decision May 23, 2024 Date de la décision Panel Monica Soukoreff Tribunal Counsel for the person who is the subject of the appeal Mary Jane Campigotto Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss the appeal. The Refugee Protection Division (RPD) was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. [2] The Appellant, XXXX XXXX XXXX XXXX, is a citizen of Colombia. She is appealing the decision of the RPD dated January 18, 2024. [3] The Appellant alleges she is unable to return to Colombia because her life was threatened by the National Liberation Army (ELN) after she witnessed the murder of an individual, committed by a member of the ELN in Buenaventura in XXXX 2019. She also alleges the ELN tried to recruit her former partner which led them to flee Colombia in XXXX 2022. [4] The determinative issue before the RPD was the lack of a real risk that the Appellant continues to face. [5] The Appellant argues the RPD erred by not considering the political history and function of the ELN as a political agent of harm. The Appellant argues the RPD erred by concluding the Appellant did not have a nexus to a Convention ground or risk personal harm at the hands of the ELN. [6] I arrive at the same conclusion as the RPD, as, upon my own independent assessment, I find that the Appellant has not established that she faces a serious possibility of persecution or a risk as defined in section 97 of the Immigration Refugee Protection Act (IRPA) in Colombia, at the hands of the ELN. NEW EVIDENCE [7] I can only admit new evidence that arose after the RPD's rejection of the claim, that was not reasonably available, or that could not reasonably have been expected to be presented at the time of the rejection.1 The evidence must also be new, relevant, and credible, as set out by the Federal Court.2 The new evidence is rejected except for (h) below [8] The Appellant submitted the following documents as new evidence: a. Affidavit of the Appellant, sworn on XXXX XXXX, 2024.3 b. Affidavit of the Appellant's neighbour, sworn on XXXX XXXX, 2024.4 c. Affidavit from the Appellant's mother, sworn on XXXX XXXX, 2024.5 d. News article: "Ombudsman's Office asks ELN to stop kidnapping and recruitment of children," Radio National De Colombia, dated November 30, 2023.6 e. Official Statement, dated XXXX XXXX, 2023.7 f. News article: "Colombia: ELN is allegedly extorting merchants in the north of Bogota: they demand up to six million pesos," source unknown, dated November 13, 2023.8 g. News article, source unknown, undated.9 h. News article: " Last year 10 people were killed for extortion, in 2024 two cases have been recorded", noticiasrcn.com, dated January 19, 2024.10 i. News article: La Colombia de los panfletos, https://www.elespectador.com/opinion/editorial/la-colombia-de-Jos-panfletos/.11 j. News article: "Colombia: nine soldiers die in alleged ELN attack," The San Diego Union-Tribune, dated March 29, 2023.12 k. News article: "The ELN kidnaps a Colombian Army sergeant and her two children, ages 6 and 8", El Comercio, dated May 7, 2023.13 l. News article: "ELN claims responsibility for attack that left a woman and two police officers dead in northeastern Colombia," El Comercio, May 26, 2023.14 m. News article: "Government of Colombia calls kidnappings at the hands of the ELN 'incomprehensible',' El Comercio, May 26, 2023.15 [9] Following my review of the affidavits (a) through (c), I find that the timing of the incidents described in the affidavits to be suspiciously convenient. The Federal Court has been clear that the Refugee Appeal Division (RAD) can reasonably regard evidence as dubious when the timing of events amounts to an extraordinary coincidence that is suspiciously convenient.16 In this case, the RPD rejected the Appellant's claim in part because there was insufficient evidence to establish the Appellant was personally at risk from the ELN. This finding was because following the murder she witnessed in XXXX 2019 and the threats from the ELN the following day, the Appellant moved to Bogota and had no further contact with the ELN until 2022. [10] In 2022, the ELN came to the Appellant's neighbourhood demanding vaccine which is an extortion payment demanded by illegal groups to permit individuals to run their businesses. The ELN demanded the Appellant's former partner and his colleagues to make these payments, after pamphlets were distributed in the area declaring the ELN's presence. At the time of the RPD hearing, the Appellant was no longer in a relationship with her former partner and he had moved to the United States. The RPD found this diminished the likelihood of future harm to the Appellant. [11] The RPD decision is dated January 18, 2024, and the Appellant's new evidence indicates that she reconciled with her partner in XXXX 2024 after there was an attempt to kidnap her son on XXXX XXXX XXXX 2024. The new evidence includes statements from the Appellant's neighbour who witnessed the attempted kidnapping and her mother who states she was told about the attempted kidnapping by the neighbour. [12] I find this timing too coincidental to be plausible. I am mindful that plausibility findings should only be made in the clearest of circumstances with consideration given to cultural differences; however, the timing of the new events in this case like in Meng, are, as stated above, suspiciously convenient.17 [13] For these reasons, I find the affidavits submitted by the Appellant are not credible and thus inadmissible. [14] The Appellant has also submitted three news articles, (d), (k) and (m), above. Although they pre-date the RPD's decision, the argument would be that they are probative and relevant as they relate to the kidnapping of children. However, as explained in the above reasoning, I have not admitted the affidavits outlining the alleged attempted kidnapping of the Appellant's son thus these articles are not relevant and thus inadmissible. [15] The Appellant has also submitted an official statement (e), news articles (f), (g), (i), (j) and (l). These news articles are dated months before the RPD hearing and decision, and (g) is undated, so they could have been reasonably available at the time of the RPD's decision. I find the Appellant has not explained why she was unable to submit to the RPD the articles that were published prior to the rejection of the claim. I find she could reasonably have been expected in the circumstances to bring this to the RPD before the decision, so I have deemed this evidence inadmissible. [16] The news article, (h) above, is dated January 19, 2024, one day after the RPD's decision. Therefore, the article meets the requirements for admission of new evidence under section 110(4) of the IRPA. The question then becomes whether the article meets the additional requirements of credibility and relevance. I find the article appears credible on its face and is relevant. Thus, I have admitted this piece of new evidence. NO ORAL HEARING [17] Under the title Section 110 (6) of the Appellant's memorandum, it states "we request a fresh oral hearing before a new Decision Maker at the RPD level"18. Regardless of this statement, I will address how this section applies to the RAD. [18] Subsection 110(6) of the IRPA stipulates that the RAD may hold a hearing if the new evidence: a. raises a serious issue with respect to the Respondent's credibility; b. is central to the decision with respect to the refugee claim; and c. if accepted, would justify allowing or rejecting the refugee criteria. All three criteria must be met. [19] Based on my independent assessment of new evidence that I have admitted above, I find that the above criteria have not been met. As such, I am not permitted to hold a hearing under subsection 110(6) of the IRPA. ANALYSIS [20] My role is to look at all the evidence and decide if the RPD made the correct decision.19 [21] The Appellant argues there were examples during the RPD hearing that indicated a lack of understanding of the Appellant's claim on the part of the RPD member. This includes incorrectly identifying Merida, a city in Mexico as a viable Internal Flight Alternative (IFA), and an issue with the screen sharing of documents. [22] The Appellant also argues the RPD displayed a zeal to find instances of contradiction in her testimony and was over-vigilant in its microscopic examination of the evidence.20 I disagree. The RPD found the Appellant credible and stated there was no reason to doubt the veracity of her testimony.21 [23] I find that these concerns identified by the Appellant are not determinative nor are they sufficient to allow the appeal. I have undertaken my own independent review of the entirety of the record and my detailed analysis follows. The Appellant does not face a serious possibility of persecution or a risk under section 97 of the IRPA at the hands of the ELN No Nexus to Convention [24] I find the RPD did not err in its finding regarding the absence of a nexus in this case. To satisfy the definition of a "Convention refugee"22 found in section 96 of the IRPA,23 a refugee claimant must establish that they have a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group or political opinion. Although the RPD did not include political opinion in its definition of section 96, I find I can correct that error by including it in my analysis. [25] The Appellant argues that by not complying with the demands of the ELN and being a witness to a crime of murder by ELN members brings her into the nexus of political opinion. The Appellant argues that coupled with the risk of sexual violence as a tool of conflict with a political group, she has a further nexus to a Convention ground of women as a particular social group. [26] I am not persuaded by the Appellant's arguments. In my assessment, regardless of whether the ELN is characterized as a criminal organization or a terrorist group or the tools they employ, I find the Appellant faces harm because of criminality and the potential for the ELN to harm her in vengeance. I do not find that this, in and of itself, establishes a nexus to the Convention. She does not face a serious possibility of persecution by reason of race, nationality, political opinion, religion, or membership in a particular social group. [27] It is well established in the relevant jurisprudence that being the victim of criminality does not, in and of itself, constitute a ground of persecution under the Convention.24 Moreover, victims of crime, corruption or vendettas generally fail to establish a link between their fear of persecution and one of the Convention grounds in the definition of Convention refugee.25 [28] I have therefore considered her claim under subsection 97(1) of the IRPA. No Section 97 risk [29] Section 97(1)(b) of the IRPA covers persons who need protection because their lives would be at risk or because they would be subjected to cruel and unusual treatment or punishment in circumstances unrelated to a Convention ground. Section 97(1) specifies that the prospective risk must be one to which the claimant would be subject personally. What is intended by "personally" has been the subject of a considerable body of jurisprudence. What is clear is that the risk must be personal to the claimant. The claimant must provide reliable evidence that the risk is one that is faced by him/her, and not only by others.26 In Correa, Justice Russell stated that to say someone is personally at risk simply means that they are at risk or, in other words, that the alleged risk is real.27 [30] Importantly, the Appellants' risk must not be "generalized." That is, to be a person in need of protection, Appellants must demonstrate, on a balance of probabilities, that their removal to their country of origin would subject them personally, in every part of the country, to a risk to their lives or a risk of cruel and unusual treatment that is not faced generally by other individuals in or from that country.28 An individual may have a personalized risk, but one that is shared with many other individuals, such that it is generalized.29 The analysis of risk under section 97 involves an assessment of the precise nature of the risk, the likelihood that the claimant would be subject to that risk, and if so, whether the same risk is faced generally by others. "Subject personally" and "not faced generally" are distinct, conjunctive elements. The claimant must be subject personally and the risk must not be one that is faced generally. [31] In Guerrero, Justice Zinn set out the logical order to follow when analyzing a paragraph 97(1)(b) risk that may be faced generally.30 The prospective personal risk should be found to exist before considering whether it is a risk that is faced generally by the population.31 If there is no personal risk, there is no need to proceed further in the analysis. [32] In assessing prospective personal risk, the risk must be correctly identified.32 The jurisprudence is clear that the RPD's mischaracterization of the risk can, and frequently does, lead to section 97 cases being overturned. Determining the precise nature of the risk faced by the Appellant requires considering their particular circumstances. In Prophète, the Federal Court of Appeal declined to answer the certified question before it in a factual vacuum, saying that each claim necessitated an individualized inquiry in the context of the present and prospective risk.33 [33] The Court has found that an individualized inquiry into a claimant's personal circumstances makes it possible to distinguish between risks that are personal to the claimant and those that are personal but do not meet the requirements of section 97 because they are faced generally.34 The Federal Court has repeatedly warned decision-makers, that when identifying a claimant's precise risk, it is an error to conflate the reason for the risk with the risk itself.35 [34] Furthermore, the Court has been clear that it is whether others are "generally" in the same position now, not whether they could be in the future, which is relevant to the analysis of generalized risk.36 The Court in Correa stated the following: The analysis under s. 97 is objective and forward looking. [...]There is no "consequential" or "resulting" risk under s. 97, there is only risk, objectively and prospectively considered. The question is not whether others with similar characteristics could find themselves in the applicant's position; it is whether others "generally" are in that position now.37 It seems inescapable that, if s. 97(1)(b) is to be given any meaning (for anyone, not just victims of criminal gangs), proximity to the risk (or as some have put it, the degree of the risk), must be considered in addition to its "nature" broadly defined. [...]38 [35] In my assessment, considering the Appellant's particular circumstances, I find that the Appellant's alleged risk is that of possible vengeance from the ELN following her witnessing ELN members committing murder in 2019. However, since 2019 and following her relocation within Colombia, the Appellant admitted that she had no further contact with the ELN. I find, on a balance of probabilities, that the Appellant no longer faces a personal risk at the hands of the ELN stemming from her witnessing the murder in 2019. [36] It was not until 2022 when the ELN came to the Appellant's neighbourhood demanding a vaccine from the people in the neighbourhood. As indicated above, this payment was demanded from the Appellant's former partner and his colleagues. At the time of the RPD hearing, the Appellant was no longer in a relationship with her former partner and he had moved to the United States. The RPD found this diminished the likelihood of future harm to the Appellant. I agree. [37] The Appellant argues the RPD misapprehended the nature of the pamphlets sent out by the ELN in the community in which she lived. I do not agree that the RPD erred in this instance. The objective documentary evidence, referenced by the Appellant, indicates that pamphlets are used by armed groups to instill fear with intimidating and threatening information.39 They are "often targeted at specific groups, but they send a message to the broader community about the rules of the road, who is in charge, and what sorts of things are tolerated or not"40. I agree with the Appellant's argument that the function of the pamphlet's distribution by ELN in a given neighbourhood is social control.41 [38] However, it is the Appellant's risk relative to that faced generally by other individuals in or from their country that must be assessed.42 Regarding the events in 2022, the Appellant testified that her former spouse, a mechanic, was not the only one imposed with the obligation to make payments to the ELN. The new evidence submitted by the Appellant, the article " Last year 10 people were killed for extortion, in 2024 two cases have been recorded", dated January 19, 2024, confirms that these lives were lost in Bogota localities for not paying the vaccine to profit those behind this criminal practice.43 [39] Considering the objective evidence on record with respect to the activities of the ELN, and the Appellant's personal circumstances, I find on a balance of probabilities that the experiences faced by her former spouse are not distinct from those faced by other individuals in Colombia. [40] I find on a balance of probabilities that, in respect of the Appellant's allegations involving the ELN, she has not established that she faces a risk to her life or a risk of cruel and unusual treatment or punishment or a danger of torture, under section 97 of the IRPA, that constitutes a personal risk that is not generalized. CONCLUSION [41] 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) Monica Soukoreff Monica Soukoreff May 23, 2024 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 110(4). These are the legislative requirements and comprise the 'newness test.' 2 Singh v. Canada (Citizenship and Immigration), 2016 FCA 96, [2016] 4 FCR 230. 3 Appellant's Record, New Evidence Submissions, at pp. 4-11. 4 New Evidence with Translation, at pp. 5-8. 5 Ibid, at pp. 9-14. 6 Ibid, at pp. 15-18. 7 Ibid, at pp. 19-21 8 Ibid, at pp. 22-27. 9 Ibid, at pp. 28-32. 10 Ibid, at pp. 33-35. 11 Ibid, at p. 36. 12 Appellant's Record, at pp. 23-30. 13 Ibid, at pp. 31-37. 14 Ibid, at pp. 38-44. 15 Ibid, at pp. 45-50. 16 Jiang v. Canada (Citizenship and Immigration), 2021 FC 57. 17 Meng v. Canada (Citizenship and Immigration), 2015 FC 365, IMM-1102-14. 18 Appellant's Record, Appellant's Memorandum, at para. 8. 19 Huruglica v. Canada (Citizenship and Immigration), 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 20 Appellant's Record, Appellant's Memorandum, at para. 51. 21 RPD Record, RPD's Reasons, at para. 6. 22 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. 23 Immigration and Refugee Protection Act (IRPA), S.C. 2001, C. 27, section 96. 24 Kang v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1400; 2005 FC 1128, at para. 10; Barajas v. Canada (Minister of Citizenship and Immigration), [2010] F.C.J. No. 8; 2010 FC 21, at para. 49. 25 Barrantes, Rodolfo v. M.C.I. (F.C., no. IMM-1142-04), Harrington, April 15, 2005; 2005 FC 518; Prato, Jorge Luis Machado v. M.C.I. (F.C., no. IMM-10670-04), Pinard, August 12, 2005; 2005 FC 1088. 26 Lopez v. Canada (Citizenship and Immigration), 2014 FC 102, at para. 46. 27 Correa v. Canada (Citizenship and Immigration), 2014 FC 252, at para. 77. 28 Prophète v. Canada (Citizenship and Immigration), 2009 FCA 31. 29 Prophète v. Canada (Citizenship and Immigration), 2008 FC 331, at para. 18. 30 Guerrero v. Canada (Citizenship and Immigration), 2011 FC 1210, at para. 27. 31 Ibid., at para. 27. 32 Ortega Arenas v. Canada (Citizenship and Immigration), 2013 FC 344, at para. 12. 33 Prophète v. Canada (Citizenship and Immigration), 2009 FCA 31, at paras. 7-9. 34 Burgos Gonzalez v. Canada (Citizenship and Immigration), 2013 FC 426, at para.12. 35 Corado Guerrero v. Canada (Citizenship and Immigration), 2011 FC 1210, at para. 28; Correa v. Canada (Citizenship and Immigration), 2014 FC 252, at para. 83; Pineda Cabrera v. Canada (Citizenship and Immigration), 2017 FC 239, at para. 35. 36 Correa v. Canada (Citizenship and Immigration), 2014 FC 252, at para. 56. 37 Ibid., at para. 57. 38 Ibid., at para. 61. 39 National Documentation Package (NDP), Colombia, 31 August 2023, Item 7.44: Colombia: Pamphlets produced by criminal groups declaring a person to be a "military target," including their content, appearance, and method of distribution;availability of fraudulent pamphlets (2018-February 2022), Research Directorate, Immigration and Refugee Board of Canada, 9 February 2022, COL200906.E., at p. 1. 40 Ibid., at p. 4. 41 Appellant's Record, Appellant's Memorandum, at para. 38. 42 Prophète v. Canada (Citizenship and Immigration), 2009 FCA 31. 43 New Evidence with Translation, at pp. 33-35. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC4-08620 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français