VC1-03125

RAD File / Dossier de la SAR : VC1-03125 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 November 8, 2021 Date de la décision Panel J. Lourenço Tribunal Counsel for the person who is the subject of the appeal Corinne G Rothecker 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] XXXX XXXX XXXX XXXX (the Appellant) is a citizen of Colombia. He appeals a decision of the RPD dated April 12, 2021. He alleges that he was threatened by Fuerzas Armadas Revolucionarias de Colombia (FARC) dissidents and faces a forward-looking risk to his life. The RPD found that the Appellant had not credibly established that he faced a forward-looking risk and rejected his claim. [2] For the reasons that follow, I agree with the RPD and dismiss the appeal. BACKGROUND [3] The Appellant alleges that his family was forced to leave their properties by the FARC in 1997 and 2005. The Appellant alleges that on those occasions, the FARC targeted the family to take control of their land and killed some members of his family in the process. The Appellant alleges that he was able to relocate within Colombia, where he was able to live safely. The Appellant alleges that after the ceasefire was signed in 2016 between the Colombian government and the FARC, he purchased a new parcel of land, where he began to raise cattle. In his Basis of Claim (BOC) narrative, the Appellant alleges that in XXXX 2019, armed individuals who identified themselves as members of the FARC came onto his land and threatened him. He alleges that they demanded his keys to take over the property and forced him to fire his farm hands immediately. The Appellant alleges that the assailants would not let him leave the property that night but ultimately demanded he pay them a ransom and allowed him to leave to obtain the funds. The Appellant alleges that he travelled to Bogota and went into hiding at his sister's residence. He alleges that his sister received phone calls from the FARC looking for him. The Appellant alleges that he feared for his safety and used his previously issued US visa to travel to the United States. [4] The Appellant first came to the Canadian border on XXXX XXXX, 2019 from the US, and at that time he sought entry as a visitor to see Niagara Falls. When he was interviewed by Canada Border Services Agency (CBSA) officers and asked if he feared anything in Colombia, he said he did not. He was denied entry and returned to the United States. The Appellant then returned to Canada on March 25, 2019 and made a refugee claim. [5] At his hearing, the Appellant alleged that his parents had moved into the property that was targeted since the beginning of the pandemic and had been visited intermittently by members of the FARC. [6] The Minister intervened in the Appellant's claim before the RPD, arguing that his allegations were not credible. The Minister is not intervening in this appeal. ROLE OF THE REFUGEE APPEAL DIVISION [7] 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. Unless specifically stated below, I have applied a correctness standard.1 ANALYSIS Appellant's Arguments [8] The Appellant argues that the RPD erred by suggesting that he could give up his property to stop the harassment at the hands of the FARC, and argues he has a right to live on his land as a homeowner. He argues that the RPD's analysis of his forward-looking risk and its credibility analysis were unreasonable. The Appellant also argues that his failure to make a refugee claim on his first travel to the Canadian border was reasonably explained and was not reflective of a lack of subjective fear. New evidence [9] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)2 sets out that an appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection. Where evidence meets the requirements of subsection 110(4), the RAD will then go on to consider the factors affirmed by the Federal Court of Appeal in Singh.3 [10] The Appellant submitted a number of undated photographs,4 including some of a white vehicle with what appears to be bullet holes, a picture of armed men in a vehicle, and a photograph of some cattle. The Appellant's memorandum describes these as "undated pictures of Claimant's farm"5 and states that he recently received these photos. He makes no reference to when the pictures were taken, how or when he received them, or any other relevant details about what these photographs are meant to depict. The Appellant has failed to establish that this evidence arose after the rejection of his claim. There is no indication that these photographs were not reasonably available to the Appellant before his claim was rejected. If the Appellant believed that these photographs corroborated his allegations of being targeted by the FARC, then he could have been reasonably expected to provide them to the RPD before the rejection of his claim. Therefore, I find that these photographs do not meet the statutory requirements for new evidence and will not be admitted with his appeal. Oral Hearing [11] The Appellant asked the RAD to hold an oral hearing as he believed that his new evidence demonstrated his on-going risk in Colombia. As I have not admitted the new evidence with the appeal, I cannot convene an oral hearing. The Appellant does not have a nexus to the Convention [12] The RPD found that the Appellant did not have a nexus to the Convention. The Appellant makes no specific arguments against this finding. I agree with the RPD and find that the Appellant's allegations are related to fear of criminal actions unrelated to a Convention ground and are to be assessed under section 97. The Appellant has not credibly established he faces a forward-looking risk The Appellant's failure to make a refugee claim on XXXX XXXX, 2019, at the land border detracts from the credibility of his allegations [13] The RPD found that the Appellant's failure to initiate a refugee claim when he arrived at the land border on XXXX XXXX, 2019, detracted from his credibility. The RPD also found that the Appellant's explanation that he did not have a fear of return on that day as he hoped things would be resolved contradicted his other evidence and was not credible. [14] The Appellant argues that RPD erred in finding he did not have subjective fear because he did not make a claim at the first opportunity. The Appellant argues he was clearly nervous at his hearing and argues he provided a reasonable explanation for his failure to claim on XXXX XXXX, 2019. He re-iterates the explanation that he provided, stating he was ignorant of the process and did not want to cause any discomfort to the family he was with on that day. [15] I find that the Appellant's failure to make a refugee claim when he arrived at the border on XXXX XXXX, 2019, and his explanations for this, detract from the credibility of his allegations. I note that the Appellant's narrative indicates that he feared for his safety and was in hiding before his departure from Colombia. The narrative states that the Appellant purchased his airline tickets to the US with the intention to come to Canada.6 The record sets out that when the Appellant arrived at the land border on XXXX XXXX, 2019, he was interviewed by CBSA officers. He told them that he was coming to Canada to see the "great falls" and sightsee.7 He was asked explicitly if he had a fear of returning to Colombia, to which he replied he did not. The officer then asked the Appellant if he knew that he could freely ask for protection, and the Appellant responded that he had no safety or security problems in his country.8 [16] When the RPD asked the Appellant about his failure to make a claim on XXXX XXXX, 2019, he initially testified that "At that time, I didn't fear anything."9 When the RPD asked what changed between XXXX XXXX, 2019, and XXXX XXXX, 2019 when he returned to Canada and made a claim, the Appellant testified that the FARC took over his farm. When the RPD asked the Appellant when this occurred, he replied XXXX XXXX, 2019.10 I note that the Appellant's narrative indicates that the takeover actually took place in XXXX 2019.11 The RPD then asked the Appellant about the allegation in his narrative that he was held captive by the FARC before he left Colombia, to which he replied that was accurate. When the RPD once again tried to understand why the Appellant did not have a fear of returning to Colombia on XXXX XXXX, 2019, the Appellant testified that he hoped the issue would be resolved as he reported it to the authorities. The RPD then asked the Appellant about why his narrative indicated that he did not go to the authorities since he believed they could not help him, the Appellant then responded it was not the police but rather the Ombudsman's office. However, the RPD then confirmed with the Appellant that the Ombudsman's office did not have the ability to arrest the assailants and at best could only maintain a record of his allegations.12 [17] When the Appellant was given an opportunity to make submissions at the end of his hearing, the Appellant then stated that he did not make a claim on XXXX XXXX, 2019, because he did not want to cause discomfort to the family members with whom he was travelling. He also then claimed that the farm was taken over and the threats escalated after XXXX XXXX XXXX 2019.13 [18] I find that the Appellant's evidence about when he feared for his safety, when his farm was taken by the FARC, and the reason he did not make a claim on XXXX XXXX, 2019, was contradictory and evolving. I find that the Appellant has not provided a reasonable or consistent reason for his failure to make a refugee claim on XXXX XXXX, 2019, and I agree with the RPD that this impugns the credibility of his allegations. The Appellant's evidence about the FARC's actions regarding his property was contradictory and evolving [19] The RPD found that the Appellant's evidence about the FARC's actions and alleged takeover of his property was evolving and contradictory. The RPD concluded that the Appellant was not credible when he claimed that the FARC took over his farm and accepted that at most the FARC dissidents would visit the farm asking for money or taking livestock. The Appellant argues that the RPD erred "in that the contradictions were more important to her than the ongoing harassment and threats the claimant was receiving from FARC dissidents."14 [20] I agree with the RPD and find that the Appellant's evidence about the alleged takeover of his property was contradictory and evolving. As noted by the RPD, the Appellant's narrative, which he confirmed was accurate at the start of the hearing,15 indicates that the FARC "demanded me to give them the keys to take over the house in My Finca. So I gave them the keys."16 The narrative then sets out that the FARC allegedly told the Appellant to fire his workers and to "make sure no one would come onto the land."17 [21] However, at his RPD hearing, the Appellant testified that his parents had been living in the house on his property since the start of the COVID-19 pandemic, along with a worker.18 When the Appellant was asked how his parents got the keys back to the farm, he first testified that the FARC dissidents come and stay for a while and then leave. When asked against specifically about the keys, the Appellant replied that the farm did not require keys, then stated that perhaps the legal representative added the reference to his narrative. He testified that the dissidents wanted possession of the farm and when he was asked how his parents obtained access to the farm, the Appellant then testified that the dissidents left when the army was in the area but come back intermittently.19 [22] I find that this is a significant contradiction that goes directly to the heart of the Appellant's claim and detracts from the credibility of his allegations. The Appellant's BOC narrative expressly mentions the FARC dissidents demanding his keys and indicates he gave them the keys and fired all his employees as no one was allowed to come onto the property. The Appellant's narrative indicates that the FARC has control of his property. This is a stark contradiction with his testimony that there are no such keys, that his parents live on the farm with a worker and that they are sometimes visited by FARC dissidents. I agree with the RPD that this evolving evidence impugns the credibility of the Appellant's allegation that FARC dissidents took over his farm. The Appellant's evidence about his parents' presence at the farm detracts from his alleged forward-looking risk [23] The RPD found that the Appellant's decision to move his parents onto his farm detracted from his allegation that he faces a forward-looking risk at the hands of FARC dissidents. The Appellant argues that he provided a reasonable explanation for his parents moving onto the farm. He reiterates his explanation that they moved there to isolate and help tend to the farm. [24] I agree with the RPD and find that the Appellant has failed to provide a reasonable explanation for his parents moving to the farm and this detracts from both the credibility of his allegations and his forward-looking risk. As I have outlined, the Appellant's initial evidence was that the FARC dissidents took over the farm, and later shifted to an allegation that dissidents would visit the farm that was now occupied by his parents. The Appellant was asked why his parents would move to the farm if he feared the FARC dissidents, and he replied that they moved to the farm because he could not find anyone else to look after the property and because they wanted to isolate.20 I agree with the RPD that this is not a reasonable explanation. I find that if the Appellant's farm was actually taken over and occupied by FARC dissidents who intended to harm or kill the Appellant, it is not reasonable that he would have his parents move onto that property. Even if I were to accept that the Appellant's farm was occasionally visited by dissidents in the area seeking money or cattle, the fact that his parents have remained on that farm with a worker demonstrates that the Appellant does not face a forward-looking risk. The Appellant has not credibly established that FARC dissents threatened him after he left his property or that they have been tracking him [25] The RPD found that the Appellant had not established that his sister or employees received calls from FARC dissidents. The RPD noted that the Appellant alleged his sister received calls from some individuals indicating that the Appellant owed them wages. The RPD found that the Appellant was speculating that the callers were FARC dissidents and found it was more likely than not that the calls were from his former employees. Further, the RPD noted that while there was some indication in the objective evidence that the FARC had previously infiltrated some state agencies, Colombia had improved their efforts to protect privacy and sensitive information. The RPD concluded that the Appellant had not established that the FARC dissidents had in fact tracked him or had access to databases or the authorities that would assist them in locating him. [26] The Appellant argues that the RPD erred as he testified that he had the means to pay his employees and did not owe them any wages. He argues that the RPD should have accepted that the calls were from the FARC dissidents. The Appellant also argues that while the police may not have access to unlimited information, the dissidents would have access to the information by infiltrating the police. [27] I agree with the RPD and find that the Appellant has not established that the FARC dissents called his sister looking for him. The Appellant's narrative indicates that employees at his grocery store and his sister received phone calls looking for him and alleging he owed the caller unpaid wages. There is no indication that the callers identified themselves with the FARC or made any threats. The Appellant's financial means to pay his workers would not make him immune to employees feeling they had not been paid appropriately. Given the credibility concerns I have outline about the Appellant's allegations of being targeted by FARC dissidents, I find that he has not established these calls were from FARC dissidents. Similarly, given my findings about the credibility of the allegations, I find that the Appellant has not established that the FARC dissidents have access to any databases that would allow them to track him or have tracked him or his family. I agree with the RPD's assessment of the objective evidence. Forward-looking risk [28] The RPD found that even accepting that FARC dissidents had occasionally gone to the Appellant's farm seeking money and taking cattle, he had not established he faced a forward-looking risk. The RPD noted that the Appellant's parents had lived on his farm for a significant period of time and had not been harmed. The RPD also remarked that the Appellant could avoid future extortion or theft by selling his farm. The RPD did not accept the Appellant's submission that the FARC dissidents would still target him as it found that he had not established that they had threatened him after he left the farm or harmed his parents. The RPD also found that even if it accepted that the Appellant made a complaint to the Ombudsman's office, this office would not have the ability to arrest the dissidents and the report would not elevate his risk. [29] The Appellant argues that he has a right to keep his farm and live there and that it would be unreasonable to expect him to move and give up this property. [30] For the reasons I have outlined, I find that the Appellant has not credibly established his allegations. I also agree with the RPD that even if I accept that FARC dissidents had attended the Appellant's farm and asked for money and/or stole livestock, he has failed to establish that these dissidents have any ongoing interest in harming him. I also agree that even if I accept that the Appellant approached the Ombudsman's office, according to his own testimony, this would not lead to any state action against the dissidents that might elevate his risk. For all the reasons I have set out, I conclude that the Appellant has failed to credibly establish he faces a forward-looking risk. [31] Alternatively, turning to the issue of the Appellant's farm, I am not persuaded he has the right to maintain ownership and occupancy of that property. As noted by the RPD, the Appellant had two other businesses which he could rely on for subsistence. I note that the court has held that it is reasonable to claimants to give up their interest in properties or money to avoid future harm. In Kenguruka, the Court held that the applicant's refugee claim that had been rejected by the RPD because his inheritance claim, which lead to threats of violence, did not constitute a basis for refugee protection. Justice XXXX stated (at para 7): [7] In light of the record, the panel did not act in an unreasonable manner when it decided that Mr. XXXX would not face persecution in Burundi if he abandoned his claim to the property that he inherited from his parents. ... If Mr. XXXX were arguing a right set out in the Convention and section 96, such as his right to freely practice his religion, he could not be forced to renounce his religion in order to avoid persecution.21 This reasoning is echoed by Justice XXXX in Malik22 where the Court held that it was reasonable for the RPD to conclude that the claimants could avoid a risk to life by no longer pursuing a lawsuit related to an inheritance dispute. In the circumstances, I agree that the Appellant could reasonably be required to sell his farm to avoid future risk of extortion or theft. CONCLUSION [32] 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) J. Lourenço J. Lourenço November 8, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157, at para. 103. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 4 Exhibit P-2, Appellant's Record, pp. 6-18. 5 Exhibit P-2, Appellant's Record, p. 28. 6 Exhibit RPD-1, RPD Record, Exhibit 2, p. 28. 7 Exhibit RPD-1, RPD Record, Exhibit 4, p. 119. 8 Exhibit RPD-1, RPD Record, Exhibit 4, p. 121. 9 Transcript of RPD Hearing, March 22, 2021, p. 10. 10 Transcript of RPD Hearing, March 22, 2021, p. 10. 11 Exhibit RPD-1, RPD Record, Exhibit 2, p. 26. 12 Transcript of RPD Hearing, March 22, 2021, pp. 12-13. 13 Transcript of RPD Hearing, March 22, 2021, p. 29. 14 Exhibit P-2, Appellant's Record, p. 26. 15 Transcript of RPD Hearing, March 22, 2021, p. 5. 16 Exhibit RPD-1, RPD Record, Exhibit 2, p. 26, para 31. 17 Exhibit RPD-1, RPD Record, Exhibit 2, p. 26, para 32. 18 Transcript of RPD Hearing, March 22, 2021, pp. 5-6. 19 Transcript of RPD Hearing, March 22, 2021, pp. 21-23. 20 Transcript of RPD Hearing, March 22, 2021, p. 7. 21 Kenguruka v. Canada (Citizenship and Immigration), 2014 FC 895 (CanLII). 22 Malik v. Canada (Citizenship and Immigration), 2019 FC 955 (CanLII). --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC1-03125 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