TB9-09187

RAD File / Dossier de la SAR : TB9-09187 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 Toronto, ON Appel instruit / entendu à Date of decision February 28, 2020 Date de la décision Panel Victoria Kondo Tribunal Counsel for the person who is the subject of the appeal Pablo Andres Irribarra Valdes Barrister and Solicitor 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), a citizen of Colombia, appeals a decision of the Refugee Protection Division (RPD) dated March 22, 2019, rejecting her claim for refugee protection, pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA).1 [2] For the reasons below, I dismiss this appeal. I confirm the determination of the RPD that the Appellant has a viable internal flight alternative (IFA) in Sincelejo in the department of Sucre, Colombia. [3] The Appellant fears persecution and risk to her life from the National Liberation Army (Ejército de Liberación Nacional - ELN). She says that, on XXXX XXXX, 2017, she and her brother were travelling in their truck through XXXX XXXX in the department of Santander to make a delivery when they were stopped at a roadblock by members of the ELN, forced to exit their truck and held at gunpoint while gasoline was poured on their truck. The truck was searched and documentation taken. Fortunately, the ELN withdrew, and the Appellant and her brother continued their journey. In the weeks that followed, the Appellant and her brother received suspicious cell phone calls. According to the Appellant in her Basis of Claim (BOC) form, in one of these calls to the Appellant, the caller said he was the commander of the ELN and instructed her to support their cause. She refused. The Appellant and her brother moved to Bogota and then to an uncle's farm in XXXX in the department of Santander where she remained until leaving Colombia on XXXX XXXX, 2018 on a Canadian visitor's visa. [4] The Panel was satisfied that the Appellant was targeted based on imputed political opinion because of her refusal to support the ELN cause. However, in regard to credibility, the RPD was not satisfied, on a balance of probabilities, that the person who called the Appellant had identified himself as an ELN commander. In her testimony, the Appellant said the caller was a "member of the ELN" and only changed her testimony to identify the caller as a commander when confronted by the Panel Member with the inconsistency with her BOC. Although the RPD found the Appellant not to be credible with respect to this incident, the Panel found the Appellant to be otherwise credible in regard to her allegation of persecution. The RPD went on to consider internal flight alternative, and it found that a viable IFA existed in Sincelejo in the department of Sucre, Colombia. [5] The Appellant argues that the RPD erred in its credibility assessment of the Appellant, and it erred in its conclusion that the Appellant does not face a serious risk of persecution or a subsection 97(1) risk in the proposed IFA. The Appellant does not challenge the RPD's conclusion that relocation to Sincelejo would not be unreasonable in her particular circumstances. DECISION [6] I dismiss this appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. PROCEDURAL HISTORY [7] Both the Appellant and her brother originally sought refugee protection. The RPD dismissed both claims on the basis of a viable IFA. Both appealed to the Refugee Appeal Division (RAD). On April 23, 2019, both appeals were dismissed for lack of jurisdiction because the appeals were in respect of a decision by the RPD for which no appeal may be made under paragraph 110(2)(d) of the amended IRPA. Subsequently, on May 14, 2019, the RAD re-opened the appeal in respect of the Appellant, as it came to the RAD's attention that only the Appellant's brother was affected by paragraph 110(2)(d) of the IRPA. As a result, the Appellant's appeal was allowed to proceed, and the brother's appeal remained dismissed for lack of jurisdiction. NEW EVIDENCE and ORAL HEARING [8] The Appellant submitted with her appeal record the following as new evidence: (a) the National Documentation Package (NDP) for Colombia, dated March 29, 2019; (b) an affidavit of the Appellant, sworn April 29, 2019; and (c) an affidavit of Appellant's brother, sworn April 29 , 2019. Admissibility of New Evidence Subsection 110(4) of the IRPA and Singh/Raza Factors [9] Subsection 110(4) of the IRPA states that, on appeal, the person who is the subject of the appeal may present only evidence that: (a) arose after the rejection of their claim; or (b) was not reasonably available at the time of the claim's rejection, or (c) the person could not reasonably have been expected in the circumstances to have presented, at the time of the claim's rejection. [10] If the new evidence meets the requirements of subsection 110(4), the RAD must then apply the adapted Raza factors endorsed in Singh.2 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality, which is a consideration for subsection 110(6) and the request for an oral hearing. [11] RAD Rule 3(3)(g)(iii) provides that an appellant seeking the admission of new evidence must provide full and detailed submissions regarding how the evidence meets the requirements of subsection 110(4) and how that evidence relates to the appellant. National Documentation Package, dated March 29, 2019 [12] At the RPD hearing, the NDP entered as Exhibit 4 was the version dated April 30, 2018. The Appellant seeks to have admitted on this appeal the NDP package of March 29, 2019, which was released seven days after the RPD's decision on March 22, 2019. A post-decision NDP package meets the requirements of subsection 110(4) and Singh/Raza. Furthermore, and in any event, the Immigration and Refugee Board's (IRB's) policies that govern the RAD oblige the RAD to consider any updated NDP issued after the RPD's decision. Section 5 entitled "General Principles" in the IRB's Policy on National Documentation Packages in Refugee Determination Proceedings states as follows: "The RPD and RAD will consider the most recent NDP(s) in support of assessing forward-looking risk." As a result, I have considered the latest NDP for Colombia when assessing this appeal. The latest NDP package for Colombia is dated May 31, 2019. There are no material differences relevant to this appeal between the current NDP and the March 29, 2019 version. Affidavit of Appellant, sworn April 29, 2019, Not Admissible on Appeal [13] The Appellant's Memorandum does not provide any submissions as to how this affidavit meets the requirements of subsection 110(4). Although the affidavit is dated after the RPD's rejection of the claim, it largely restates the Appellant's version of events, and this retelling does not constitute evidence that arose after rejection of the claim in the sense envisioned by subsection 110(4). In addition, the Appellant seeks to explain in her affidavit why she did not mention at the hearing that the caller had identified himself as a "commander" of the ELN. She says that she was nervous and did not fully understand what information the Panel Member was seeking because of the way in which the Panel Member asked various questions. This post-hearing explanation for the difficulty with her testimony identified by the RPD is not new evidence. It is an issue more properly addressed in the Appellant's Legal Memorandum based on a review of the RPD record. As a result, the Appellant's affidavit is not admissible on appeal. Affidavit of Appellant's Brother, sworn April 29, 2019, Not Admissible on Appeal [14] The Appellant's Legal Memorandum does not provide any submissions as to how the affidavit of her brother meets the requirements of subsection 110(4). Although this affidavit post-dates rejection of the claim, it is not evidence in the sense contemplated by subsection 110(4). The affidavit is an attempt to have reversed the RPD's adverse credibility finding against the brother based on his omission of certain information from his BOC and testimony. As such, the affidavit consists of submissions with respect to evidence adduced at the hearing rather than new evidence that was not reasonably available at the time of the claim's rejection or could not have reasonably been expected to be presented at the time of the claim's rejection. The affidavit does not meet the requirements of any of the paragraphs of subsection 110(4) and is therefore not admissible on this appeal. ORAL HEARING: Subsection 110(6) of the IRPA [15] The Appellant requests an oral hearing. However, given that no evidence has been admitted on appeal, the RAD does not have jurisdiction to conduct an oral hearing, pursuant to subsection 110(6) of the IRPA. SCOPE OF THE RAD APPEAL [16] I have considered the Appellant's appeal with a view to whether the decision below is correct. In doing so, I have carried out my own independent assessment of the RPD record to determine if the RPD erred. In this matter, I have found that the RPD had no meaningful advantage over the RAD in evaluating the evidence, and therefore I have afforded no deference to its findings.3 ANALYSIS [17] The determinative issue in this case is IFA and, in particular, the correctness of the RPD's finding on prong 1 of the IFA test, i.e. whether there is a serious possibility of persecution or a subsection 97(1) risk to life, danger of torture, or risk of cruel and unusual treatment or punishment in the proposed IFA location. Prong 2 of the IFA test, i.e. whether the proposed IFA location is reasonable, is not challenged on this appeal. I have nonetheless considered the various factors that comprise prong 2, and I am satisfied that the RPD was correct in concluding that the Appellant has not met her burden of showing that, in her particular situation, it would be unreasonable for her to relocate to Sincelejo. No Serious Possibility of Persecution or Subsection 97(1) Risk in Sincelejo The ELN's Area of Operations [18] The ELN is a guerrilla group that has an estimated 3,000 armed members, mainly in the countryside. It carries out terrorist attacks mainly on state targets or oil infrastructure targets in remote areas.4 According to the World Factbook, the ELN operates mainly in the rural and mountainous areas in the northeast, especially in Arauca department, and is active in the northern and southwestern regions and along the borders with Venezuela and Ecuador.5 According to the IRB's Response to Information Request (RIR) dated April 23, 2018,6 the ELN does not have a presence in the department of Sucre where Sincelejo, the capital city, is located.7 Its activities have included kidnapping, launching bomb attacks targeting police officers, government targets, economic infrastructure, recruiting children, using landmines, and killing and displacing civilians.8 The RIR states that information on the ELN's ability to track victims was scarce. The Americas Director at Amnesty International states that ELN groups are in constant dialogue and given the ELN's increased presence in several parts of the country, it is possible that the ELN can monitor a target across Colombia. I do not find that this statement renders Sincelejo a non-viable IFA for the Appellant because of the country condition evidence that the ELN does not have a presence in the department of Sucre. In addition, the Director says that monitoring may be "possible". This does not necessarily make it so, on a balance of probabilities. [19] In her Memorandum, the Appellant cites and quotes excerpts from a number of documents: (a) the United States Department of State reports for 2018 and 2017, entitled "Colombia. Country Reports on Human Rights Practices"; (b) the report from the Inter-American Commission on Human Rights, entitled "Colombia. Chapter V - Follow-Up on Recommendations made by the IACHR in its Country and Thematic Reports. Annual Report of the Inter-American Commission on Human Rights 2016"; (c) the United States Department of State report, entitled "Colombia. Country Reports on Terrorism 2016"; (d) the report from International Crisis Group, entitled "Colombia's Armed Groups Battle for the Spoils of Peace. Latin America Reports No63"; and (e) the IRB's RIR previously referenced. [20] I have reviewed these reports and, where available, any updated version in the current NDP of May 31, 2019. While these reports show that Colombia continues to be a country plagued by violence at the hands of guerrilla groups like the ELN, the reports do not show that the ELN would pose a serious possibility of persecution or a subsection 97(1) risk for the Appellant in the proposed IFA where the group does not operate. The four media articles entered as Exhibit 8 at the RPD hearing similarly confirm that the ELN is a group that resorts to violence, but the articles do not show that such violence occurs in the proposed IFA. The ELN's Means and Motivation to Find the Appellant [21] Given that the ELN does not operate in Sincelejo or the department of Sucre at large, the ELN's means or ability to pursue the Appellant would be virtually nil or, at best, extremely low. [22] The Appellant argues that the RPD's two negative credibility findings-one against the Appellant and the other against her brother-impacted the RPD's IFA analysis in regard to the means and motivation of the ELN to locate the Appellant. [23] Firstly, the Appellant submits that the RPD erred in making a negative credibility finding regarding her omission in her testimony of the caller's rank in the ELN. She argues that the Panel Member's manner of questioning contributed to her confusion as to what information the Panel Member was seeking. She contends that this error resulted in the RPD not taking into account in its IFA analysis the fact that the caller was a commander in the ELN. The unknown caller simply identifies himself as a commander. Even assuming, without deciding, that the RPD's credibility finding was erroneous, I do not find the fact that the caller said he was a commander is sufficient in itself to meet the Appellant's burden of showing, on a balance of probabilities, that the caller was a commander or that he had the ability and level of interest in her to mobilize ELN's resources to locate her, particularly in a geographic area where the organization has no presence. [24] The Appellant also argues that the RPD erred in finding that the driver hired by the Appellant's brother had not been confronted by two hooded men on motorcycle while making a delivery, an error which meant that the RPD did not consider this incident in its analysis of the ability and motivation of the ELN to locate the Appellant and her brother. The replacement driver says he was stopped and told to tell his boss not to hide because they were going to find him. Again, even assuming, without deciding, that the RPD erred in concluding that this incident did not occur, I do not find that this incident establishes, on a balance of probabilities, that, going forward, the ELN are able or motivated to pursue the Appellant. The hooded men do not identify themselves as associated with the ELN, and their instruction to the driver is to relay their message to his boss, and they would find "him". The message is one directed to the Appellant's brother, not the Appellant. [25] Furthermore, in regard to the ELN's motivation to find the Appellant, I note that the Appellant is a 36-year-old university graduate who worked as an XXXX in Colombia for XXXX months in 2017, has had many XXXX positions in Colombia between 2008 and 2015, has spent time as an international student in Montreal, and otherwise has been unemployed. She does not have government, police or terrorist group connections. She is not wealthy. Given the type of activities and targets focused on by the ELN as described in the RIR, I agree with the RPD that the profile of the Appellant is not such as to make her a high value target of interest worth expending time, money or resources to pursue in a part of the country where the ELN has no presence. [26] Furthermore, the ELN did not locate the Appellant when she lived on a farm from XXXX XXXX to XXXX XXXX XXXX 2018 before departing the country. There is no evidence that the ELN attempted to find her there. While in Bogota, the Appellant's brother received a call from the ELN saying they knew he was in Bogota. However, other than this call, there is no evidence that the ELN took steps to locate the Appellant or her brother in Bogota. There is also no evidence from family or friends who remain in Colombia that the ELN continue to be interested in pursuing the Appellant going forward. [27] For the above reasons, I am satisfied, on a balance of probabilities, that the ELN does not have the means or motivation to pursue the Appellant in the proposed IFA upon return to Colombia. I find there would not be a serious possibility of persecution, nor would there be a danger of torture, a risk to life, or risk of cruel and unusual treatment or punishment in the proposed IFA. CONCLUSION [28] Pursuant to paragraph 111(1)(a) of the IRPA, 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) "Victoria Kondo" Victoria Kondo February 28, 2020 Date 1 As enacted by S.C. 2001, c. 27, as amended. 2 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145 4 NDP for Colombia (May 31, 2019), item 1.2, Colombia Reports, "Illegal armed groups' territories", March 15, 2019. 5 NDP for Colombia (May 31, 2019), item 1.5, US Central Intelligence Agency, Colombia: The World Factbook, April 22, 2019. 6 NDP for Colombia (May 31, 2019), item 7.23, IRB, RIR COL106085.E, "The National Liberation Army (Ejército de Liberación Nacional - ELN), including number of combatants and areas of operation; activities, including ability to track victims; state response and protection available to victims (2016-April 2018)", April 23, 2018. 7 Ibid., NDP for Colombia (May 31, 2019), item 7.23, at pp. 15-16 (InSight Crime ELN map and Fundaçion Paz & Reconciliaçion ELN map). 8 Ibid., NDP for Colombia (May 31, 2019), item 7.23, at pp. 5-6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-09187 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