VC0-01561

RAD File / Dossier de la SAR : VC0-01561 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 March 4, 2021 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person who is the subject of the appeal Jose Godoy (TOKU) 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 is a citizen of Colombia. His initial Basis of Claim form (BOC) states a member of the Cali Cartel tried to kill him and his family at the age of 10 because of his father's involvement with a member's love interest. Constantly sought out, they travelled around South America, going to XXXX, XXXX and XXXX. An amended BOC indicates the cartel's interest follows his father's witnessing of their disposal of body parts. [2] The Minister of Immigration, Refugees and Citizenship Canada (Minister) intervened raising the Appellant's possible exclusion based on Article 1E and credibility issues, highlighting: - his residency status substantially similar to that of Chilean nationals with a right to work, study and return, and the recognition of Chile as a Designated Country of Origin which does not normally produce refugees, respects human rights and offers state protection; - limited details pertaining to reasons for having left Colombia and Chile. [3] The Refugee Protection Division (RPD) found the Appellant is neither a Convention refugee nor a person in need of protection, citing numerous credibility issues namely: - returning to Colombia and residing in the very area where the alleged troubles began from XXXX to XXXX 2016 and at a subsequent time for a period of XXXX months; - lack of veracity of his initial BOC; - inconsistent statements concerning his whereabouts; - family members who have continued to reside at the same place for an extended period of time; - failure to claim in the United States and inconsistent evidence as to the time spent there; - discrepancies in the content of the medical report submitted as evidence; - discrepancies in his whereabouts at the time of certain alleged events. [4] Furthermore, the RPD also examined the claim based on racial issues in Colombia and concluded the level of discrimination does not amount to persecution. [5] The Appellant's memorandum submits the RPD erred in that: - it did not effectively evaluate the discrimination against the ethnic identity of Mr. XXXX; - failure to claim protection in the United States did not consider the similar treatment given to its afro-descendant citizens facing conditions like which he was fleeing. [6] The determinative issue is credibility. DECISION [7] 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. ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.1 Discrimination against the ethnic identity of Mr. XXXX [9] The memorandum argues the RPD failed to effectively evaluate the discrimination carried out against Mr. XXXX based on his ethnic identity as an Afro-Colombian. [10] From the onset, the ire of powerful cartel members directed at Mr. XXXX family stems either from his father's amorous liaison with a cartel member's spouse or his being a gruesome witness to the cartel's disposal of dismembered bodies. Importantly in the context of the appeal, the nature of the alleged difficulties does not constitute a Nexus to a Convention ground. [11] Furthermore, contrary to the argument posited by the Appellant, the RPD's credibility findings are not a microscopic examination of the Appellant's history. First and foremost, among credibility issues, Mr. XXXX confirms having made up underlying events and supporting elements of the initial BOC. [12] In his second BOC, the Appellant's explanations of events which unfolded, and the travels undertaken to flee, appear to be contradicted by evidence establishing whereabouts at different periods. These contradictions concerning timelines are not slight with a notable one covering a period of one year. Whereas passport stamps indicate one day spent in Ecuador, the Appellant claims having remained there one year, supplementing this affirmation with narration of a sequence of events which does not conform to such a timeline. It therefore follows that, on a balance of probability, what is alleged to have happened in Ecuador is not credible. [13] Additional timeline discrepancies concern time spent in the United States. Depending on various exhibits and forms, it ranges from two weeks (Exhibit 4 page 16), two months (Schedule A question 8) to seven months (Exhibit 6 pages 90 and 93). These lead the RPD to correctly conclude to a significant amount of time spent in the United States, further undermining the Appellant's credibility. [14] Important timeline discrepancies also pertain to medical evidence submitted as proof of injuries sustained. Notwithstanding the discrepant duration of Mr. XXXX unconscious state at the time of the event, the extent of injuries testified to are not correlated in the medical reports submitted as evidence. Furthermore, the timing of the alleged incidents does not correlate to the timeline of his geographical whereabouts. These are important contradictions that go to the core of his credibility. [15] His apparent lack of credibility also translates to his claims of being a victim of persecution from his father's agents of harm. The RPD correctly identified that his parents both live in Chile and have done so for some time indicating an absence of fear on their part. His comings and goings to and from Colombia speak to a lack of subjective fear furthered by his apparent lack of fear of deportation to Colombia, a risk to which his irregular presence in the United States exposes him. [16] The memorandum pleads Mr. XXXX limited experience in Colombia should not have been a decisive factor on his claim as it is not necessary for claimants to have suffered past harm to fear the risk of it in the future. Evidence during the hearing indicates employment opportunities existed in Colombia for his family and does not indicate significant difficulties with respect to employment or education. Considering the lack of credibility of his explanations for having left Colombia, his returning there and his overall actions which indicate a lack of subjective fear of being returned, I consider the RPD correctly concluded that, on a balance of probabilities, Mr. XXXX is neither a Convention refugee nor a person in need of protection. CONCLUSION [17] 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) Me Richard Sheitoyan Richard Sheitoyan March 4th, 2021 Date RS/lp 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-01561 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