MB9-20969

RAD File / Dossier de la SAR : MB9-20969 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 Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision December 2 2020 Date de la décision Panel Pamela Arnott Tribunal Counsel for the person who is the subject of the appeal Fedora Mathieu 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] The appeal is allowed. XXXX XXXX XXXX XXXX is a citizen of Colombia who fears former members of an armed revolutionary group, the FARC. In 2018, XXXX XXXX XXXX XXXX was threatened after filing an inquiry about a sister who had disappeared in 2004. XXXX XXXX XXXX XXXX testified that many members of his extended family were threatened or murdered by the FARC since the 1980s. His claim was dismissed by the RPD due to a viable internal flight alternative in Cali, Medellin, or Cartagena. I find that the determinative issue is the safety of the internal flight alternatives. DECISION [2] I substitute my own decision that the Appellant is a person in need of protection. BACKGROUND [3] XXXX XXXX XXXX XXXX fears an armed revolutionary group, the FARC, who kidnapped or killed numerous of the claimant's family members. Three of the claimant's uncles were kidnapped or killed by FARC, one sister was murdered, and one sister was kidnapped. The family changed addresses often to avoid or get away from the FARC. [4] In 2003, the claimant's family members relocated due to threats from FARC. In that same year, the claimant's sister successfully claimed asylum in the USA. The claimant's mother successfully claimed asylum in Canada in XXXX 2005. [5] The claimant did not receive any further threats from FARC until 2018. In XXXX 2018, the claimant submitted a formal inquiry concerning his missing sister to a government tribunal created from the FARC peace accords. While submitting his inquiry XXXX XXXX XXXX XXXX was approached by two men who threatened him with a gun and warned him to abandon his efforts. [6] XXXX XXXX XXXX XXXX submitted a complaint to the police and a denunciation with the Attorney General's office in XXXX 20181. He went into hiding until he departed the country on XXXX XXXX XXXX 2019. The claimant travelled to the USA with a valid US visa, but he did not claim asylum there. He travelled to Canada in XXXX 2019 in order to be closer to his mother. NEW EVIDENCE The evidence presented by the Appellant is partially accepted [7] According to the law,2 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 [9] The Appellant has submitted eight pieces of new evidence: five newspaper articles, a XXXX report, the national electoral registry entry for XXXX XXXX XXXX XXXX and a printout of XXXX XXXX XXXX XXXX social media accounts. [10] All the newspaper articles are admitted, except the article, "Reports show ex-FARC criminal cells taking shape around Colombia." I find that this article predated the RPD hearing, was reasonably available and could reasonably have been expected at the RPD given the importance of the evolution of the FARC to XXXX XXXX XXXX XXXX claim. [11] The XXXX report is not admitted. It was created after the RPD hearing, was not reasonably available and could not reasonably have been expected to be brought to the RPD. It is credible based on the credentials provided with the report and comes from a known Canadian clinic. However, I do not find that it is new. It describes XXXX XXXX XXXX XXXX reactions to the rejection of his claim by the RPD and comes to the conclusion that "his stressors are related to his immigration status". This conclusion was also included in the previous report. It does not provide information about a new medical condition nor significant change in condition warranting new therapies. The report also includes several obiter comments from the author. In addition, as the determinative issue is the first prong of the IFA test, I find that this update of the existing medical evidence is not relevant to this appeal. [12] The excerpt from the online National Electoral Registry and the printouts from XXXX XXXX XXXX XXXX social media accounts are not admitted. These entries predated the RPD hearing, were reasonably available and could reasonably have been expected at the RPD given the importance of the FARC's ability to track XXXX XXXX XXXX XXXX. The request for oral hearing is denied [13] The Act provides that an appeal should be heard based on the paper record.4 An oral hearing may be granted at the discretion of the RAD provided that there is new evidence which is admissible in the appeal and which raises a serious issue with respect to the Appellants' credibility, that is central to the decision, and would justify allowing or rejecting the claim.5 [14] I have admitted four newspaper articles. These documents do not raise a serious issue with respect to XXXX XXXX XXXX XXXX credibility. In addition, I find that I do not need an oral hearing to dispose of this appeal. For those reasons, I find that a hearing is not warranted. ANALYSIS [15] My role is to look at all the evidence and decide if the RPD made the correct decision.6 The Appellant argues that the RPD erred in : a. Failing to conduct an analysis under section 96 of the Act. The Appellant argues that this error led to the RPD erroneously finding that XXXX XXXX XXXX XXXX had an obligation to take measures to reduce his risk; b. Focussing on the single event of XXXX 2018 when XXXX XXXX XXXX XXXX was threatened; c. Failing to appreciate the current strength of the FARC and its network of informants across Mexico; d. Ignoring the ease with which XXXX XXXX XXXX XXXX could be found through his social media accounts and membership in the Bar e. Ignoring the evidence of XXXX XXXX XXXX XXXX XXXX health condition. [16] As I have found that a viable IFA is the determinative issue, I will only address those issues which relate to the safety of the IFA. [17] An IFA is a determinative issue because, if a claimant can find safety from persecution by fleeing within Mexico, they are not entitled to Canada's surrogate protection.7 This is true for claims under section 96 or section 97. A claimant must be a refugee from a country, not from a particular region or city. Accordingly, the Appellant bears the onus to demonstrate that there is a serious possibility of persecution throughout the country, including the proposed IFA.8 The existence of a viable IFA is determinative of any refugee claim. [18] The analysis for assessing an IFA has two parts.9 An IFA will only be viable if both criteria are met.10 A high threshold of "nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area", applies equally to both parts of this test.11 [19] I must first determine whether there is a serious possibility that the Appellant will be persecuted, or whether he faces, on a balance of probabilities, a risk to his life, torture, cruel and unusual treatment or punishment in the proposed IFA. For the reasons that follow, I find that XXXX XXXX XXXX XXXX has met the onus of proof under the first prong of this test. New evidence shows that XXXX XXXX XXXX XXXX will not be safe in the proposed IFAs. [20] The RPD found that XXXX XXXX XXXX XXXX was a credible witness about his family's history of persecution by the FARC. This history dates from the 1980s and resulted in the death or disappearance of 5 members of his extended family. The RPD also found credible his narrative that he was found by the FARC in XXXX 2018 while waiting in line to make a written statement following his application to the Victims Unit. The RPD noted that there was little information to confirm that the men were from the FARC: I also note that the conversation from the armed men had no personal information specific to XXXX XXXX XXXX XXXX. I also note that he was singled out in a waiting line by the men. Having reviewed the oral and written evidence, I find no reason to disturb the RPD's finding about XXXX XXXX XXXX XXXX credibility nor about the family history. [21] The RPD proposed Medellin, Cali or Cartagena as internal flight alternatives for XXXX XXXX XXXX XXXX. At the time of the hearing in June 2019, the RPD found that the number of FARC militants was decreasing due to the peace process and ongoing demilitarization. The RPD also relied on objective evidence showing that Medellin, Cali or Cartagena were outside the sphere of influence and control of the FARC. Since the hearing, the new evidence brought by the Appellant, as well as the evidence in the most recent NDP, indicate that FARC leaders are rejecting the peace process and returning to armed conflict.12 In August 2019, several FARC leaders released a video that they were returning to armed conflict. A subsequent announcement indicated that they had allied with another large armed group, the ELN, to win this "war". The objective evidence also indicates that the FARC has alliances which allow them to pursue targets across Colombia.13 Multiple sources indicate that the number of dissidents is now increasing. [22] Given XXXX XXXX XXXX XXXX recent contact with men from the FARC and his family's history of persecution viewed with this rearmament of the FARC, I find, on a balance of probabilities, that he faces a risk to his life, torture, cruel and unusual treatment or punishment in Medellin, Cali or Cartagena. [23] As I have found that XXXX XXXX XXXX XXXX would not be safe in the proposed IFA, there is no need to consider the second prong of the IFA test. CONCLUSION [24] The evidence establishes, on a balance of probabilities, that the Appellant would be in danger of torture, face a risk to his life, cruel and unusual treatment or punishment in Mexico. [25] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) Pamela Arnott Pamela Arnott December 2 2020 Date 1 He fled the country before these investigations were completed. Documentary evidence before the RPD shows that the file was duly opened in January 2019. 2 Immigration and Refugee Protection Act, S.C. 2001, c.27, section 110(4). 3 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385 4 Immigration and Refugee Protection Act, S.C. 2001, c.27, section 110(3) 5 IRPA s. 110(6); Zhou v. Canada (Citizenship and Immigration), 2015 FCA 911. 6Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 7 Canada (Attorney General) v. Ward, [1993] 2 SCR 689 at 752. Thirunavukkarasu v. Canada ( Minister of Employment and Immigration ), [1994] 1 FC 589. 8 Rasaratnam v. Canada (Minister of Employment and Immigration) [1992] 1 FC 706 at 710. See also: Okechukwu v. Canada (Citizenship and Immigration), 2016 FC 1142 at para. 35. 9 Ibid. 10 Ibid. at 711; Calderon v. Canada (Citizenship and Immigration), 2010 FC 263 at para. 10. 11 Adebayo v. Canada (Immigration, Refugees and Citizenship), 2019 FC 330 at para. 53. 12 P-1, Notice of appeal, "Former FARC commanders say they are returning to war despite 2016 peace deal", The Guardian, August 29 2019; "Former FARC leaders announce 'new stage of fighting', upending Colombia's peace deal", NPR, August 29 2019; "Major implications of former FARC leadership returning to war", InSight Crime, August 29 2019. 13 NDP for Mexico (30 September 2020), item 7.22: "Mexico's Out-of-Control Market" at p. 9. See also P-1, "Former FARC commanders say they are returning to war despite 2016 peace deal", The Guardian, August 29 2019 at p. 3; "Former FARC leaders announce 'new stage of fighting', upending Colombia's peace deal", NPR, August 29 2019 at p. 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-20969 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français