TB9-06676

RAD File / Dossier de la SAR : TB9-06676 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 at Montreal, QC Appel instruit à Date of decision July 27, 2020 Date de la décision Panel Michel Colin Tribunal Counsel for the person who is the subject of the appeal John W Grice 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 this appeal. XXXX XXXX XXXX XXXX (Appellant) is citizen of Colombia. a. He fears members of the Clan del Golfo who threatened to kill XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. b. The Refugee Protection Division (RPD) refused his asylum claim as it found him to have a viable Internal Flight Alternative (IFA) in XXXX XXXX XXXX, Colombia. Before the Refugee Appeal Division (RAD) he submits that the RPD erred in its assessment of the availability of IFA, in its assessment of the risk that he faces, and that it conducted a microscopic analysis of facts, ignoring recent developments in jurisprudence. c. The determinative issues for the RAD are nexus to the Convention and IFA. d. Although I do find that the RPD did err in its analysis, I nevertheless find that the decision is correct and that there is no nexus to the Convention and that the Appellant indeed has a viable IFA in XXXX. DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. INDEPENDENT ANALYSIS BY THE RAD [3] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [4] The test to be applied when assessing IFA was defined by the Federal Court of Appeal in the Rasaratnam2 and Thirunavukkarasu3 cases. The test has two prongs: - The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted or that, on a balance of probabilities, he would not be subject personally to a risk of harm in the part of the country to which it finds an IFA exists. - Moreover, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for seeking refuge there. [5] Both prongs must be established to conclude that an IFA exists. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with the Appellant to show that they do not have an IFA. First prong The RPD correctly found that there is no nexus to a Convention ground [6] Counsel for the Appellant conceded before the RPD that there was no nexus to a Convention ground in the present case and the RPD correctly found that there is none. However, in his memorandum, the Appellant submits a number of arguments in which he alleges that the RPD failed to consider his profile, and in a number of instances, implies that he belongs to a social group, within the meaning of the Convention. To cite just one example, he states at paragraph 28 of his memorandum, "From the NDP package and the Appellant's testimony and his social profile it is clear that there is a serious possibility of a risk to the Appellant's safety in the town of XXXX." Although he refers to a "risk", a term used in section 97 of the Immigration and Refugee Protection Act (IRPA), he nevertheless uses the terms "serious possibility", a standard generally associated with a well-founded fear of persecution on Convention grounds. I prefer to clarify this question from the very onset of this decision. [7] The RPD correctly notes in its decision that the Appellant stated while testifying that he was targeted by the Clan del Golfo XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In his memorandum, the Appellant contests this. He submits that he also stated while testifying that he was told that he was chosen because he is personable and had many friends which is also true. He recurrently refers to his profile as being a personable, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [8] I would first mention that I find these arguments to be immaterial with regard to his prospective fear or risk. First, the Appellant is XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [9] Furthermore, the fact that drug dealers seek persons with certain talents and qualities such as his perceived wealth, the fact that he is sociable and makes friends easily, is insufficient to conclude that he belongs to a social group within the meaning of the Convention. Indeed, while drug dealers may wish to have a person who is sociable and well liked in a milieu where there is money to increase the likeliness of him selling drugs on their behalf, they may also wish to have a person who looks intimidating to scare people into paying, a person who can aim a gun to fight off opponents, or a person who knows how to drive a car or a boat to move merchandise. The fact that one has such talents and qualities is not the reason for persecution. [10] The reasons why members of the Clan del Golfo may wish to harm the Appellant, based on the evidence on record is because XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and that he was perceived as being responsible for the arrest of some of their members. Nothing in the evidence suggests that this may be construed as a political opinion. The RPD correctly applied case law which states that "criminality, revenge, personal vendetta, cannot be the foundation of a well-founded fear of persecution by reason of a Convention ground ..."4 I find, as the RPD correctly did, that there is no nexus to a Convention ground. The RPD erred as it failed to clearly apply a proper framework for analysis of subparagraph 97 (1) b of the IRPA [11] The Appellant submits that the RPD "relied on outdated jurisprudence"5. [12] While I do not believe that the jurisprudence relied upon by the RPD is "outdated" per se, I do find that it erred as it failed to apply a clear framework for analysis. The case law referred to by the Appellant in this regard, suggested a framework for analysis to clarify some confusion which resulted from the use of varying terminology in various decisions. [13] The Court, in several cases including the Portillo6 cited by the Appellant, indicates that the RPD must first correctly determine the nature of the risk faced by the Appellant; assessing whether this risk constitutes a personal risk to life or one of cruel and unusual treatment or punishment, and whether he faces an ongoing or future risk, on a balance of probabilities. Subsequently and only then, must the correctly described risk be compared to that faced by others in the country at issue to determine whether the risk differs, in nature or degree, to that generally faced by others. [14] The RPD did not follow such a systematic approach. It did not clearly identify the risk and determine whether the Appellant faces an ongoing or future risk on a balance of probabilities prior to addressing whether such a risk differs from that generally faced by others. Therefore, the RPD erred as it failed to provide reasons that clearly apply a proper framework for analysis. The Appellant did not establish that the personal risk that XXXX XXXX XXXX XXXX is ongoing or would constitute a future risk on a balance of probabilities, particularly if he were to establish himself in XXXX today [15] In the case at hand, I find that the Appellant has established that in XXXX, there existed for him a personal risk to his life, as his life was threatened by Clan del Golfo members who were displeased by the fact that XXXX XXXX XXXX XXXX XXXX XXXX XXXX and because they believed that he was responsible in playing a part in the arrest of their colleagues. [16] However, the Appellant has not established that he faces an ongoing or future risk on a balance of probabilities, particularly if he were to establish himself in XXXX today. Indeed, although the Appellant was informed by a XXXX XXXX XXXX XXXX XXXX XXXX XXXX wanted to know his whereabouts and requested his phone number XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, that he received phone threats after his return to Colombia, and that during that same year suspicious motorcycles were seen passing in front of his family communal home in XXXX XXXX, neither his half-brother who lives in XXXX or his grandmother who continues to live in XXXX XXXX, have reported7 ever having been questioned about his whereabouts, nor have they seen any suspicious motorcycles in the subsequent four and a half years, despite the fact that these individuals told the Appellant that they knew everything about him and his family. [17] I therefore do not agree with the submission of the Appellant that the RPD erred in its conclusion that he is not actively sought today by the Clan Del Golfo today. The RPD correctly reached this conclusion as the Appellant failed to provide evidence, on a balance of probabilities, that the Clan Del Golfo went to seek for him XXXX XXXX. [18] As for the submission that the RPD failed to consider evidence that criminal gangs, including the Clan Del Golfo, are not forgiving, I would first mention that the RPD is presumed to have considered all of the evidence. Furthermore, the question as to whether this group is forgiving is immaterial when considering IFA. The question is not whether they intend to forgive him, but rather whether the evidence, on a balance of probabilities, establishes that the persons feared by the Appellant have an interest today in finding him in XXXX to harm him further. In this case, the lack of any effort to find him since 2014, although they have substantial resources available to them, fails to establish that they have such an interest in him today. I find no error in the failure of the RPD to specifically mention this evidence in its decision. [19] The submission that people, including Clan Del Golfo members, sometimes act irrationally, while likely true, does not suffice to establish on a balance of probabilities that they will do so. I find no error in the failure of the RPD to specifically mention that persons sometimes act irrationally. [20] The Appellants submit that gangs, including the Clan Del Golfo operate on a national level, have infiltrated the armed forces, police and government institutions and thus that it is "not unlikely" that he could be traced when travelling from any airport where he would arrive in Colombia to an IFA location. [21] With respect, I disagree. I would first mention that the fact that a number of groups have infiltrated a number of state institutions does not make it likely that persons from one of these groups who targeted him, the Clan Del Golfo in this case, would notice him upon arrival at the airport. This is especially unlikely when one considers that he was able to leave Colombia, return to that country, and leave again through airports in XXXX when his agents of harm were actively looking for him. Furthermore, when one considers that they rode motorcycles in front of his family communal home, never even attempting to question his grandmother or his half-brother about his whereabouts either then or in subsequent years. [22] While I agree that some documents indicate that the Clan Del Golfo operates on a national level, there is no evidence on the record that they have had any intention of using this national network to find the Appellant XXXX XXXX XXXX XXXX. Hence, the RPD has not erred by failing to specifically mention this evidence. [23] For these reasons, I find that the Appellant has failed to provide sufficient evidence, on a balance of probabilities, that the people that he fears have a will to find him should he return to Colombia and establish himself in XXXX today. Therefore, I find that the that the Appellant has not established, on balance of probabilities, that he would be subject personally to a risk of harm in XXXX. Second prong The Appellant has failed to establish that it would not be reasonable for him to establish himself in XXXX today [24] When analyzing the reasonableness in the second prong of the test, the Federal Court of Appeal has held that there is: a very high threshold for the unreasonableness test. It requires 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. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations.8 [25] Before the RPD, the Appellant did not indicate that he fears any undue hardship should he attempt to establish himself in XXXX other than his fear of the Clan Del Golfo. [26] However, before the RAD he submits that the Clan Del Golfo or other groups which sell drugs would likely target him in XXXX because of his profile as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX They also argue that he intends to pursue further studies and that there is no evidence that XXXX is a "drug-free" place. [27] I have already found that the Appellant has not established that those members of the Clan Del Golfo who threatened him have an interest in pursuing him in XXXX. Although other members of this gang or other gangs that sell drugs have not personally threatened him, I find it necessary to address this question in the second prong analysis, as safety and security in an IFA location are relevant considerations. [28] As mentioned earlier, the Appellant is neither a high-school student nor a teen today. The RPD did not err by failing to consider this profile which he no longer has. [29] While he would like to pursue his studies further, it is mere speculation to assume that other members of the Clan Del Golfo or any other gang involved in the drug trade would recruit him on XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, particularly since they have operated throughout the country without his assistance for decades. Furthermore, should he have to abandon his aspirations to XXXX XXXX XXXX because he believes that persons such as he are likely to be recruited by gangs, the case law cited above specifically indicates that the "... loss of aspirations ... and frustration of one's wishes and expectations" are not sufficient forms of hardship to conclude that an IFA is not reasonable. [30] The Appellant has not contested the conclusions reached by the RPD with regard to language, employment, transportation and travel (other than as it pertains to the first prong already examined above), health services or absence of family support. In light of the fact that the Appellant has the burden of proof, that he did not raise any such concerns in his testimony, that he has not contested these findings in his memorandum, and that I find no error in those conclusions, I find that the RPD conclusions are correct in this regard. [31] I therefore conclude that the Appellant does not have a well-founded fear of persecution in XXXX XXXX nor does he, on a balance of probabilities, face a risk to his life or a risk of cruel and unusual treatment or punishment in that location, nor would it be unreasonable for him to establish himself there. I find, as the RPD correctly did, that he has a viable IFA in that location. CONCLUSION [32] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Michel Colin Michel Colin July 27, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Rasaratnam v. Canada (1992) 1 F.C. 706 (C.A.), p. 710. 3 Thirunavukkarasu v. Canada (1994) 1 F.C. 589 (C.A.). 4 Paragraph 18 of the RPD decision. 5 Paragraph 55 of the memorandum. 6 Portillo v Canada (Citizenship and Immigration), 2012 FC 678. 7 Their letters of support are included at pages 63 and 64 of the RPD record. 8 Rasaratnam v. Canada (Minister of Employment and Immigration) (1992), 1 F.C. 706(C.A.), at para 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-06676 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