MB8-05412

RAD File / Dossier de la SAR : MB8-05412 MB8-05413 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision January 10, 2020 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the persons who are the subject of the appeal Marvin M Moses Conseil de la|des personne|s en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX and her daughter XXXX XXXX XXXX are citizens of Colombia who have appealed a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. For the reasons set out below, their appeal is denied. [2] Ms. XXXX XXXX fears that, if she and her daughter were to return to Colombia, they would be targeted by the Revolutionary Armed Forces of Colombia (FARC) because of her association with her spouse who was a business person and XXXX XXXX. Three violent crimes were committed against Ms. XXXX XXXX spouse, in 2004, 2007 and 2011 respectively. Ms. XXXX XXXX believes all of these incidents were linked to ongoing and long-running extortion of her common-law spouse by the FARC. Ms. XXXX XXXX agreed to act as a surrogate for her sister who lives in Canada. She underwent in vitro fertilization in XXXX or XXXX 2016.1 Shortly after this, in XXXX 2016, she allegedly received a threatening call directing her husband to pay money. She stated in her Basis of Claim form that she believed that her spouse withheld information from her when he told her that he did not know who was threatening them. She believes the FARC is responsible for the threat and that it is linked to the three previous incidents involving her spouse. Ms. XXXX XXXX and her daughter left Colombia in XXXX 2016 and claimed asylum in Canada in July 2016. [3] The RPD found that the Appellants did not provide sufficient evidence to establish, on a balance of probabilities, that they would face a risk of one of the types of harm that would make them persons in need of protection if they were to return to Colombia. In particular, it found that the evidence did not establish a connection between the three incidents against Ms. XXXX XXXX spouse alleged by the Appellants which occurred in 2004, 2007 and 2011. The RPD also found that the evidence did not establish a connection between the FARC and the XXXX 2016 phone call. In addition, the RPD found that the evidence did not establish a nexus to any of the grounds of persecution contained in the Convention. Finally, the RPD found that the Appellants would have been able to relocate within Colombia in order to remove themselves from the perceived risks of the extortion against Ms. XXXX XXXX spouse. The RPD found that their failure to relocate was conduct that was inconsistent with the fear they alleged and that it demonstrated a lack of subjective fear of harm. [4] The Appellants' main argument on appeal is that there was a breach of procedural fairness due to the ineffective representation they received from their former counsel. They also argue that the RPD erred in its assessment of the evidence in this case. [5] Even assuming that the Appellants' allegations of ineffective representation are true, they not rise to the level of a breach of procedural fairness. In addition, I do not agree with the other arguments made by the Appellants for why they believe that the RPD erred in this case. ROLE OF THE RAD [6] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.2 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.3 I have conducted my own independent assessment of all of the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. PROCEDURAL BACKGROUND TO ALLEGATIONS AGAINST FORMER COUNSEL [7] The Appellants filed their appeal record on December 27, 2017. As noted above, the primary argument set out in their memorandum is that there was a breach of procedural fairness in this case because they received ineffective representation from their former counsel. By correspondence received by the IRB on February 2, 2018, the Appellants' current counsel made an application to file new evidence in the form of a copy of the complaint that the Appellants made to the Law Society of Upper Canada against their former counsel.4 In the complaint, the Appellants made the same allegations they make against their former counsel in this appeal. By notice dated November 29, 2019, the RAD advised the Appellants of the IRB's Practice Notice regarding allegations against former counsel which came into force September 10, 2018. The RAD advised the Appellants that, if they wished to pursue their allegations against their former counsel, they had to comply with the requirements set out in the Practice Direction including providing their former counsel with a copy of their memorandum of appeal to provide him with an opportunity to respond to their allegations.5 The RAD also directed the Appellants to advise it of any outcome of the complaint they made to the Law Society of Upper Canada. [8] On December 12, 2019, the Appellants' current counsel responded to the RAD's notice seeking clarification as to whether the Appellants had to comply with the practice notice.6 The RAD sent a second notice once again advising the Appellants that they were required to comply with the steps set out in the Practice Notice if they wished to pursue their allegations against their former counsel.7 The RAD also once again asked the Appellants to advise it on the status of their complaint to the Law Society of Upper Canada. [9] By letter dated December 24, 2019, the Appellants current counsel advised that he was informed in July 2018 that the Law Society of Upper Canada had denied the Appellants' complaint. He also advised that the Appellants did not propose a new complaint against their former counsel to the Law Society of Upper Canada. However, the Appellants' counsel provided no evidence that the Appellants complied with the steps set out in the IRB's Practice Direction as they were directed to do by the RAD. [10] The Appellants' failure to comply with the RAD's direction to follow the requirements set out in the IRB's Practice Direction would provide a sufficient basis to not consider their allegations against their former counsel. Even if the Appellants provided their former counsel with notice of the complaint they filed with the Law Society, I have no evidence to establish that the Appellants' former counsel is aware of this appeal and the fact that the Appellants have made allegations against him in this appeal. Therefore, the RAD has been deprived of possible responding evidence from the Appellant's former counsel which would have been relevant for the assessment of their allegations against their former counsel. [11] Despite the above, I have considered the Appellants' allegations against their former counsel and I find that these allegations, even if assumed to be true, would not amount to a breach of procedural fairness and thus do not provide a reason to grant this appeal. PROPOSED NEW EVIDENCE [12] Evidence from the person who is the subject of the appeal is only admissible if it meets the statutory conditions for the admission of new evidence as well as the conditions set out in the applicable case law. Proposed new evidence is only admissible if it arose after the claim was rejected, or it was not reasonably available, or the person could not reasonably have been expected to present it at the time the claim was rejected.8 If one of these conditions is met, the RAD will also consider if the evidence is credible, relevant, and new.9 [13] I find admissible the affidavits sworn by Ms. XXXX XXXX and her sister in which they set out facts relevant to their allegations of ineffective representation by the Appellants' former counsel. [14] I also find admissible the copy of a Basis of Claim form filed by Ms. XXXX XXXX son after the hearing in this case which, according to the Appellants, sets out detailed information that Ms. XXXX XXXX son would have provided to the RPD had he been effectively questioned by the Appellants' former counsel. I admit the document as the Appellants are seeking to rely upon it to make out a breach of procedural fairness in this case. [15] I also admit as new evidence the copy of the complaint that Ms. XXXX XXXX made against her former counsel to the Law Society of Upper Canada. ANALYSIS Allegations relating to ineffective representation by former counsel [16] Inadequate representation by a former counsel or representative will only be grounds for setting aside a decision of the RPD in "extraordinary circumstances".10 That is, such allegations will only be grounds for setting aside a decision if the inadequate representation led to a breach of procedural fairness. In order to establish that the inadequate representation from their former counsel or representative led to a breach of procedural fairness, the Appellants must establish the following: a) The former counsel's acts or omissions constituted incompetence; and b) A miscarriage of justice has resulted in the sense that there is a reasonable probability that the result would have been different but for the incompetence of the counsel.11 [17] In this case, the Appellants allege that their counsel inadequately represented them in the following ways: a) Failing to provide adequate interpretation in his meetings with the Appellants and instead relying upon Ms. XXXX XXXX sister and her husband neither of whom are qualified interpreters. The Appellants allege that due to the lack of proper interpretation, Ms. XXXX XXXX was unable to communicate with counsel the reasons she fears returning to Colombia. b) Failing to effectively question Ms. XXXX XXXX at the hearing, questioning her as an adverse witness, and failing to ask Ms. XXXX XXXX whether she would be safe anywhere in Colombia. c) Failing to properly question Ms. XXXX XXXX son about details of the extortion experienced by Ms. XXXX XXXX spouse. d) Failing to counsel the Appellants on what evidence they should present to the RPD to support their case. [18] Assuming without deciding that all of the above allegations are true, I find that they do not meet the requirements to establish a breach of procedural fairness. With respect to the first requirement of demonstrating that the former counsel's acts or omissions constituted incompetence, I note that the Law Society of Upper Canada denied the Appellants' claim of professional misconduct. In addition, the evidence does not establish that there is a reasonable probability that the result would have been different in this case but for the alleged ineffective representation by the Appellants' former counsel. [19] In my view, the essence of the RPD's decision was that, even accepting that Ms. XXXX XXXX husband may have been the subject of three criminal incidents, there was insufficient evidence to link the three incidents from 2004, 2007 and 2011. In addition, there was insufficient evidence to link the XXXX 2016 threatening call to the FARC or to the other incidents. The RPD found that the only evidence to link the XXXX 2016 call to the FARC was Ms. XXXX XXXX own evidence which was speculative as she stated that her spouse was withholding information from her. [20] The only specific evidence that the Appellants point to on appeal that they would have provided in this case if their counsel had effectively represented them was the following: a) Ms. XXXX XXXX would have testified that she would not be safe anywhere in Colombia as the FARC is a national organization that would find her anywhere in Colombia. b) Ms. XXXX XXXX son would have testified to his knowledge of the details of the extortion experienced by Ms. XXXX XXXX spouse which are set out in the Basis of Claim form that he filed to seek refugee protection after the hearing in this case. [21] In my view, neither of the above forms of evidence would have changed the result in this case. First, Ms. XXXX XXXX did testify at the hearing that that she believed the FARC could find her anywhere in Colombia and they are a national organization.12 In any event, for the reasons set out below, I find that it was unnecessary for the RPD to rely upon the Appellants' ability to move to another part of Colombia in order to deny their claims. Second, I note that the refugee claim filed by Ms. XXXX XXXX son was denied by the RPD in a separate proceeding and this conclusion was upheld by the RAD.13 Therefore, I find that, there is no reasonable probability that the result would have been different if the Appellants' former counsel had more extensively questioned Ms. XXXX XXXX son in this case. [22] As for the allegation that the Appellants' counsel failed to properly counsel them with respect to what corroborating evidence to obtain, the Appellants have not submitted any corroborating documentary evidence on appeal that they would have obtained and filed with the RPD if they had been counseled differently. [23] With respect to the Appellants' allegation that their counsel questioned Ms. XXXX XXXX as an adverse witness, having listened to the audio-recording of the hearing and read the transcripts, I do not agree with this characterization. There were in fact inconsistencies in Ms. XXXX XXXX evidence that her counsel was seeking to get her to explain or clarify. For example, in her Basis of Claim form Ms. XXXX XXXX stated that her spouse was withholding information from her about the XXXX 2016 call. However, at hearing she testified that he told her that he was continuing to pay extortion money to the FARC. She first testified that he told her this in XXXX 201614 and then she stated that he told her this after she arrived in Canada.15 In my view, the Applicant's former counsel posed the questions he did in an effort to get Ms. XXXX XXXX to satisfactorily explain the inconsistencies in her evidence regarding the XXXX 2016 call.16 [24] For all of the above reasons, I do not find that any ineffective representation that the Appellants may have received rose to the level of constituting a breach of procedural fairness. No nexus to the Convention as required under s. 96 of the IRPA [25] I do not agree with the Appellants that the RPD erred in finding that their claims had no nexus to a Convention ground. I do not agree with the Appellants that their claims fell under the Convention ground of a particular social group namely business people and/or association to a business person targeted for extortion. Claims related to extortion of the kind raised in the present case are claims of criminality that have no nexus to the Convention. Insufficient evidence of personal targeting as required under s. 97 of the IRPA. [26] I disagree with the Appellants that the evidence in this case established that they were specifically and personally targeted in a manner similar to the claimant in the Correa case.17 While I agree that the documentary evidence in the National Documentation Package for Colombia indicates that persons who resist extortion demands may be targeted for violent retaliation, the evidence in this case was insufficient to establish that this is what was occurring for Ms. XXXX XXXX spouse. I agree with the RPD that there was insufficient evidence linking the threatening phone call Ms. XXXX XXXX allegedly received in XXXX 2016 to the FARC or to the three prior incidents of criminality experienced by her husband. The only evidence linking the call to the FARC or the previous incidents was Ms. XXXX XXXX own belief that that there was a link based on her spouse's telling her that he was paying the callers and he would take care of it.18 [27] Ms. XXXX XXXX testified several times that she felt like her spouse was withholding information from her which could establish a link between the calls and the previous incidents and/or a link between the call and the FARC. The RPD correctly found Ms. XXXX XXXX evidence to be speculative and insufficient to establish a link between the XXXX 2016 call and the FARC or any of the previous incidents involving her spouse. For the reasons set out in the next section, I also find that the RPD correctly found that the police reports submitted by Ms. XXXX XXXX from 2004, 2007 and 2011 do not establish a pattern of threats from the FARC from which the RPD could infer a link to the XXXX 2016 call or a prospective risk of serious harm of the kind that would make the Appellants persons in need of protection in Colombia. [28] Finally, I do not agree with the Appellants that the RPD erred in failing to refer to the testimony provided by Ms. XXXX XXXX son at the hearing. A decision maker is not required to refer to every piece of evidence in the case. The Appellants have not pointed to any part of the son's testimony that had particular relevance and thus should have been referred to by the RPD. In my view, the son's testimony did not assist in establishing that the Appellants would be likely to be subjected to any of the forms of harm that would make them people in need of protection in Colombia. No errors in assessment of documentary evidence [29] I do not agree with the Appellants that the RPD erred in its assessment of the documentary evidence submitted by the Appellants. [30] The Appellants' main argument regarding the documentary evidence is that, if Ms. XXXX XXXX son had been properly questioned by the Appellants' previous counsel, his evidence could have supplemented the documentary evidence to establish a pattern of targeting of Ms. XXXX XXXX husband from 2004 up to and including the XXXX 2016 phone call. For the reasons, set out above, I do not agree that it is reasonably probable that any more detailed questioning of Ms. XXXX XXXX son would have provided the evidence necessary to make the connections between the events in this case that would be necessary to establish that, if they returned to Colombia, the Appellants would likely be subjected to any of the kinds of harm that would make them people in need of protection. [31] At most, the police reports establish that Ms. XXXX XXXX husband was targeted for extortion in 2004 and that he was the victim of a store invasion, robbery and assault in 2007 which may have been linked to the FARC. The documentary evidence did not establish any connection between the 2004 and 2007 incidents and the shot that was fired at Ms. XXXX XXXX husband when he was playing soccer in 2011. Therefore, at most, the documentary evidence supported the targeting of Ms. XXXX XXXX husband by the FARC ten years before the RPD hearing in this case. The only evidence that would link this prior targeting to the XXXX 2016 telephone call was Ms. XXXX XXXX own evolving evidence at the hearing that her husband told her, either in XXXX 2016 or after she arrived in Canada that he was continuing to "pay them" that he "made it understood" that it was the FARC, and that he would handle the situation.19 [32] In order to establish that they are persons in need of protection, the Appellants must establish more than ongoing extortion of a family member. They must establish on a balance of probabilities that, if they returned to Colombia, they would be subjected personally to a risk to their lives or to one of the other types of serious harm that would make them persons in need of protection. They must also establish that the risk they face is different than the risk faced generally by others in or from Colombia. Even if Ms. XXXX XXXX testimony were accepted as credible despite the inconsistencies with her Basis of Claim form (that is whether and when her spouse told her that he was continuing to be extorted) , at most, it establishes that her spouse experienced three incidents in the past and that he is continuing to pay extortion payments to the FARC or some other group. The only evidence of likely prospective harm to the Appellants lives or other serious harm arise from Ms. XXXX XXXX fears that her spouse is withholding information from her to protect her and her fear of what might happen if he were to suddenly have to stop paying extortion payments. The evidence just described, on its own, is insufficient to establish that, if the Appellants were to return to Colombia, they likely would be subjected personally to a risk to their lives or to any of the other kinds of harm that would make them persons in need of protection. No need to address ability to relocate [33] In my view, it was unnecessary for the RPD to rely upon the Appellants' ability to relocate to another part of Colombia. This part of the RPD's analysis was in essence an analysis of internal flight alternative without framing it as such. It may well be that the Appellants would have an internal flight alternative in Colombia; however, if the RPD wished to address this issue, it should have properly framed its analysis using the two-pronged test for an internal flight alternative. In addition, the RPD erred in finding the Appellants' failure to relocate demonstrated a lack of subjective fear which was an important consideration under both section 96 and 97 of the IRPA. The notion of subjective fear is only relevant to the analysis of persecution under s. 96 of the IRPA and not the analysis of serious harm of the kind that would make individual persons in need of protection under s. 97 of the IRPA. In this case, the RPD applied the notion of subjective fear to the analysis under s. 97 of the IRPA. This was an error. However, as noted above, it was not necessary for the RPD to rely upon the Appellants' ability to relocate to another location within Colombia. The lack of sufficient credible evidence of a prospective likelihood of one of the kinds of serious harm that would make the Appellants persons in need of protection for the reasons set out above was a sufficient reason to deny their claims. CONCLUSION [34] For the above reasons, the RAD dismisses the appeal. I confirm the decision of the RPD that XXXX XXXX XXXX XXXX and XXXX XXXX XXXX are neither Convention refugees nor persons in need of protection.20 (signed) Jo-Anne Pickel Jo-Anne Pickel January 10, 2020 Date JP/tm 1 Transcript of July 20, 2017, hearing at p. 21. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Appellants' Rule 37 Application to allow new evidence, filed February 2, 2018, marked as Appeal Exhibit P-3. 5 Notice from the RAD to the Appellants' counsel November 29, 2019 (Exhibit RAD-1). 6 Letter from Appellants' counel to the RAD, December 12, 2019 (Exhibit P-4). 7 Notice from the RAD to the Appellants' counsel, December 18, 2019 (Exhibit RAD-2). 8 Immigration and Refugee Protection Act (IRPA), s. 110 (4). 9 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 10 Brown v. Canada (Minister of Citizenship and Immigration), 2012 FC 1305 (F.C.) at para. 56 11 Srignanavel v. Canada (Minister of Citizenship and Immigration), 2015 FC 584, at para 17 and 18. 12 Transcript of July 20, 2017, hearing at p. 43; Transcript of August 3, 2017, hearing, p. 31. 13 Decision rendered August 12, 2019, in RAD file no. TB9-09085. 14 Transcript of July 20, 2017, hearing, pp. 28 and 32. 15 Transcript of August 3, 2017, hearing, p. 11. 16 Transcript of August 3, 2017, hearing, pp. 68-80. 17 Correa v. Canada (Citizenship and Immigration), 2014 FC 252. 18 Transcript of July 20, 2017, hearing, p. 32. 19 Transcript of August 3, 2017, hearing, p. 11; transcript of July 20, 2017, hearing, p. 32. 20 Section 111(1)(a) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-05412 MB8-05413 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français