TB9-28118

RAD File / Dossier de la SAR : TB9-28118 TB9-28119 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 6, 2020 Date de la décision Panel Cynthia Pay Tribunal Counsel for the persons who are the subject of the appeal Adela Crossley Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This decision is about XXXX XXXX XXXX XXXX XXXX XXXX/principal Appellant) and her son XXXX XXXX XXXX XXXX (associate Appellant), who are citizens of Colombia. The Appellants claim that they fear persecution there based on XXXX gender and their fear that XXXX has been targeted for recruitment by ex-members of the Fuerzas Armada Revolucionarias de Colombia (FARC.) They claim that XXXX was a victim of extortion by members of this group, and that they decided to flee Colombia when she was told to bring XXXX to a meeting, which they feared meant he would be forcibly recruited by the organization. They are appealing a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection on the basis of credibility based on a number of inconsistencies and omissions in their evidence. Based on my review of their arguments and the record, I agree with and uphold the RPD's finding that the Appellants have not established that they are Convention refugees or persons in need of protection. DECISION [2] After considering their arguments and all of the evidence, I dismiss the Appellant's appeal and confirm the RPD decision that they are not Convention refugees or persons in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND [3] The Appellants claim that they fear persecution by ex-members of FARC, who despite disbanding have continued to work together in organized crime and guerrilla activities. XXXX alleges that she worked as a XXXX who travelled in rural areas XXXX XXXX. She claims that in 2016, while in a small town for work, she was contacted by a member of this organization who stated that they knew her name and all about her, including where she travelled for work, and demanded money in exchange for her safety. She complied out of fear, as in the past both her father and husband had been killed by members of this group, and began to make significant and regular payments to the organization every three months. The first payment was collected by a member who came to her home, and the next time a meeting was arranged at one of the small towns that XXXX travelled to for work. This arrangement continued for almost two years. In XXXX 2018, she claims that she was approached by a man who said that she must attend another meeting and also that she had to bring her son this time. He stated that if they did not attend, they will make her son a military target and "disappear" him. She was afraid and felt they had no option but to flee. She and XXXX had existing United States visas, as they had previously travelled to visit Disney World in Florida in 2017. In XXXX 2018, she and XXXX travelled to Miami, made their way to New York, and then to Canada, where they made their refugee claims. [4] The Appellants' refugee claims were heard by the RPD on July 15, 2019 and September 9, 2019. In its reasons dated September 11, 2019, the RPD rejected the Appellants' claims on the basis of credibility. The Appellants have appealed this decision to the Refugee Appeal Division (RAD), and provided new evidence in support of their appeal. [5] Based on my review of the record and arguments, I find that the RPD did not err in its credibility findings, and uphold its determination that the Appellants have not established that they are Convention refugees or persons in need of protection. [6] I turn now to explain my reasons for reaching this conclusion. ROLE OF THE RAD [7] As held by the Federal Court of Appeal in Huruglica,1 the RAD must review RPD decisions on a correctness standard with respect to questions of law and findings of fact (and mixed fact and law) which raise no issue of the credibility of oral evidence. Deference may be required when the RPD is in an advantageous position with respect to the assessment of oral evidence.2 In this appeal, I was able to review and clearly understand the record, including the recording of the hearing, and I do not find that the RPD was in an advantageous position in assessing this evidence. NEW EVIDENCE Test for new evidence [8] Subsection 110(4) of the IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims, that was not reasonably available, or that could not reasonably have been expected in the circumstances to have been presented at the time of the rejection of the claims. If the new evidence meets one of the criteria set out in subsection 110(4), then the RAD may assess its admissibility further based on its credibility, relevance and newness.3 [9] The Appellants have submitted one piece of new evidence to the RAD, a letter dated XXXX XXXX XXXX 2019 from XXXX sister, XXXX, with an accompanying English translation.4 This letter states that XXXX requested XXXX bank statements, but that the bank could only respond to a personal request by XXXX accompanied with her citizenship identification. [10] The Appellants argue that this letter meets the criteria for acceptance as the RPD misapprehended the oral evidence on this issue, and it addresses one of the RPD's concerns regarding XXXX willingness to attempt to get the bank records. [11] As noted by the Appellants, one of the RPD's findings was that the Appellants lacked corroboration of their claim that XXXX made regular, significant payments to the ex-FARC members, such as obtaining copies of her bank account records. The Appellants argue that the RPD misapprehended the evidence on this point, which will be discussed below. Notwithstanding this argument, I find that the letter does not meet the criteria for new evidence. Although the letter and attempt to contact the bank post-date the rejection of their claims, the Appellants have not established that this evidence was not reasonably available, or could not reasonably have been expected in the circumstances to have been presented at the time of the rejection of their claims. It is important to note that the role of the RAD is not to provide an opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.5 There is no evidence that XXXX ever looked into obtaining corroboration of her claimed payments to the FARC members until after the negative RPD decision was received, or that there was any barrier to her or her sister doing so before the rejection of the Appellants' claims. Further, XXXX claim of extortion was central to her narrative, so the need to provide evidence in support of this allegation would not have been unexpected. I find that the letter does not meet the criteria for new evidence, and I do not admit it. The evidence itself is not probative at any rate, as it does not establish the allegation or demonstrate that the bank records are not available. [12] The Appellants have also requested an oral hearing if deemed necessary by the RAD. Subsection 110(6) of the IRPA provides that the RAD may hold an oral hearing if there is new documentary evidence that, if accepted, raises a serious issue with respect to the Appellant's credibility; that is central to the decision; and that would justify allowing or rejecting the refugee protection claim. In this case, no new evidence was admitted, and there is no basis to hold an oral hearing. ANALYSIS The RAD finds that the RPD did not err in its credibility findings Omission of report to the Attorney General's office [13] During the RPD hearing, XXXX testified that she had sought state protection by making a report by electronic means to the Attorney General's (AG) office two days after the FARC members demanded that XXXX attend at a meeting. When asked if she had a copy of the report, she stated that she had been told by her previous lawyer that it was not important. When the panel asked why she did not include this claimed report in her Basis of Claim (BOC) narrative, she gave the same explanation, that she was told by her first lawyer that it was not important. The RPD rejected these explanations, and made a negative inference based on the omission of the claimed report to the AG from the narrative, especially as they were represented by experienced counsel; and the fact that they made no effort to obtain a copy of this report, which it found would likely be available to them. [14] Based on my review of the Appellants' Memorandum and Appellants' Record, I find that they do not challenge this negative inference, and I see no basis to find that the RPD erred in it. Based on my review of the recording of the hearing, I confirm that XXXX testified that she did not include her claim that she made a report to the AG in her BOC because she was advised by her lawyer that it was not important, and for the same reason did not attempt to obtain a copy of her electronic report,6 and I also reject this explanation, as she was represented by a lawyer at her hearing, and there was no allegation of negligence against any previous legal representative, or attempt to amend the narrative prior to her hearing. I find that this omission diminishes the credibility of the narrative. Inconsistency regarding alleged calls to XXXX mother after they fled [15] The RPD made another negative inference on the basis of an omission from a letter from XXXX mother. XXXX testified that a day or two after she and XXXX left their home, her mother received a threatening call asking about her. The RPD noted that XXXX mother's letter states that she only received threatening phone calls a couple of months after the Appellants left Colombia. The RPD asked about this discrepancy and XXXX stated that she did not know why her mother did not include the threatening call allegedly received immediately after the Appellants left their hometown of XXXX. [16] The Appellants argue that the RPD erred in this finding, as it cannot impugn their credibility based on what a supporting document does not say. Even if a document contains an error, it does not mean that it is not probative or credible. The Appellants submit that the RPD erred in failing to consider her explanation that she did not know why her mother's letter did not mention the first alleged call, as she was not the author of the letter, and her mother was not under oath. [17] I disagree with the Appellant's argument. While I agree that the RPD errs if it impugns a document by focusing only on what it does not say instead of considering what it does say, that is not what the RPD has done in this case. Its credibility finding is more accurately characterized as a finding of an inconsistency rather than an omission from the mother's letter. Based on my review of the mother's letter, I find that it is inconsistent with XXXX testimony. XXXX initially testified that her mother received a threatening phone call within one or two days after they left their home, on XXXX XXXX or XXXX XXXX 2018, and that her mother received a call one month later.7 When asked by the RPD why her mother stated that her mother received "the first two calls...in the months of XXXX 2018 and XXXX 2018,"8 XXXX testified that she did not know why her mother did not mention the initial call, as she was not the author of the letter.9 She then said that her mother got the first call immediately after they left home, and then later the other two calls that were referenced in the mother's letter.10 I find this testimony to be evolving, and also inconsistent with her initial testimony that her mother received two calls, the first one on XXXX XXXX or XXXX XXXX 2018, and a second one month later. I find that the evolving testimony and these inconsistencies diminish the credibility of the Appellants' allegations, especially their claim that their alleged agents of persecution are actively pursuing them. The Appellants' actions prior to leaving Colombia [18] The RPD found that the Appellants' actions prior to leaving Colombia were not consistent with their allegations. After being told by the FARC member that she had to bring XXXX to a meeting eight days later, XXXX stated that they remained in their home for one month before leaving the country. When asked why she would do so, when she had been located there in the past by the alleged agents of persecution, she explained that this was all she could do at the time, and that XXXX did not go to school or out alone. The RPD found that their return to their known place of residence for almost a month after directly disobeying the orders from FARC members for both of the Appellants to attend the meeting was not consistent with the actions of people who have a great risk of being located and harmed, and drew a negative inference. It further found that XXXX testimony on this point was evolving. She initially stated that she kept XXXX home from school during this period. When asked by the panel why she did not mention this in her BOC narrative, she explained that his classes ended at the same time and it was his school vacation. The panel found that this testimony was evolving, and that this further detracted from her credibility. [19] The Appellants argue that the RPD erred in doing so, as it only asked them if they had returned home, and did not put its concern to them during the hearing to allow them to respond. It also failed to consider the mindset of the Appellants, who would have believed that the FARC could track them if they went to another area, and because many of their interactions with XXXX took place in rural areas where she travelled for her work, may have believed that they were planning to intercept her when she had to travel to one of these smaller towns. [20] Based on my review of the record, I find that the RPD did not fail to allow the Appellants to respond to its concerns. Regarding its questioning about the issue of why the Appellants returned to their home despite disobeying the alleged order to attend the meeting, I find that the panel did not ask only one question on this issue as argued by the Appellants. The panel first asked if the Appellants had any problems after being asked to go to the meeting while still in Colombia. Then it asked if she returned to her residence, to which XXXX answered "yes." The panel followed up to ask why she would return to her house, when the FARC members knew where she lived, and she had directly disobeyed their orders to attend the meeting with XXXX eight days later.11 I find that the RPD communicated its concerns in the wording of its question, asking why the Appellants returned home when they had disobeyed the orders and the FARC members knew where they lived, and that XXXX had an opportunity to respond. Her answer was to ask what more she could do, she took refuge in her home and with her family, and began to plan her escape.12 I agree with the RPD that the Appellants' actions appear to be inconsistent with their claimed fear that XXXX would become a military target if he did not attend the meeting, and the fact that there was no contact by the FARC members over the weeks before the Appellants left Colombia also diminishes the credibility of their allegations. [21] Regarding the RPD's finding that XXXX testimony about keeping XXXX at home during the time before they left Colombia was evolving, I agree. Based on my review of the recording of the hearing, I agree that she first testified that she kept him at home, and later, when asked why this was not mentioned in the BOC narrative, that she stated that maybe she forgot to include it, but that since it was in XXXX, it was actually XXXX school vacation time anyway. I agree with the RPD that the omission of this allegation as well as the evolving character of the testimony further diminishes the credibility of their allegations. Lack of corroboration of extortion payments [22] The RPD drew a negative credibility inference based on XXXX failure to be willing to make an effort to see if she could obtain her bank records to corroborate her claim of making substantial extortion payments over a period of almost two years. It asked if she had tried to get copies of her bank statements to show large withdrawals in order to make these payments. XXXX answered by stating that she had not, but that she had closed her bank account before leaving Colombia. When asked if she would be willing to contact the bank, she stated that she was not sure how easy it would be to do so, as she had cancelled her account. [23] The Appellants argue that the RPD erred in making its finding, as it mischaracterized XXXX evidence, as she did not refuse to even attempt to obtain these bank records, and that this was a fundamental flaw in a significant credibility assessment by the RPD. [24] I disagree with these arguments, and find that the RPD did not err. As noted by the Appellants, the RPD was inaccurate in its wording regarding the Appellants' willingness to make an effort to obtain the records, and I agree with its argument that XXXX did not indicate that she was unwilling to make an effort to obtain the bank records. I do not agree, however, that this is fatal to their overall finding. XXXX did not provide corroboration, such as bank records, of her claimed payments to the FARC members, nor did she make any effort to obtain these records. [25] I recognize that, in general, negative inferences cannot be drawn solely from the failure to produce corroborating evidence. The failure to provide corroboration can be considered, however, when there are valid reasons to doubt the claimant's credibility,13 or where the explanation for failing to provide this evidence when it would reasonably be expected is not accepted.14 Here there are credibility concerns that make it appropriate to consider a lack of corroboration of the Appellants' allegations. I find that the RPD did not err in considering the lack of corroboration of the Appellants' claims, and agree with the RPD that this lack of corroboration diminishes the credibility of their allegations. Other evidence: The Appellants' Testimony [26] XXXX and XXXX both provided testimony in support of their claims. They argue that the RPD did not make any credibility findings regarding XXXX testimony, and that XXXX provided detailed testimony about her interactions with the FARC, but the RPD did not challenge or reject the credibility of this testimony. [27] I disagree with this argument. As discussed above, the RPD made credibility findings regarding XXXX testimony with respect to her claimed report to the AG, claimed phone calls to her mother after they left their town, and her claim that she kept XXXX home from school before they left Colombia, and I have upheld these findings. The RPD did not comment on the testimony regarding XXXX interactions with the FARC, but does not need to make a finding on every aspect of her testimony. Further, it did make a finding regarding these specific allegations with respect to her lack of effort to obtain corroboration of the alleged extortion payments, which I have also upheld. [28] Regarding XXXX testimony, I find that it is not fatal to the RPD's decision that it made no specific credibility findings about it. His claim rests on his mother's evidence, as he stated he had no direct knowledge of the threats except for what his mother had told him. Further, he provided very little testimony during the hearing. He only stated that he was not directly threatened but that his mother told him about the threat;15 and that it would be unsafe and there would be no opportunities in the proposed internal flight alternative locations proposed by the RPD, and that he wanted to stay in Canada to study another language, which was his dream.16 The Appellants' claims do not turn on his testimony, as I find that he provided only minimal oral evidence, and that the RPD did not err in not addressing it. [29] The RPD stated that XXXX is a sophisticated and resourceful individual, and that the Appellants were articulate and confident in answering questions. The Appellants challenge this, arguing that XXXX is a single mother who had to spend time away from her son to work, and XXXX was a minor who grew up without a father. I do not find that the RPD erred in this assessment, as XXXX is university-educated, ran her XXXX XXXX, and had the resources to travel to the United States to visit Disneyland with her son. I agree with the RPD that both Appellants did answer questions in a confident and articulate manner. XXXX is a young person, but he spoke articulately, and as discussed above, gave very little testimony at any rate. I do not find that the RPD erred in its assessment of their abilities. Support letters [30] The Appellants also provided a number of letters from neighbours, friends and XXXX sister XXXX in support of their allegations. The RPD found that, in light of its credibility concerns, the letters were insufficient to establish the Appellants' allegations, as the letters were unsworn, vague and cursory. [31] The Appellants did not challenge this finding except to say that the letters were overlooked by the RPD in a cursory way because they were handwritten. I see no basis to find that it erred. I agree with the RPD that the letters are unsworn and provide little detail. The Appellants' neighbour XXXX letter, for example, states that a few young people riding a motorcycle intercepted me and asked me if I know of the location of XXXX XXXX XXXX and her son, or if I knew when they would return.17 The people who are allegedly looking for the Appellants are unnamed and unidentified, and nothing more is said regarding why they were asking about them or what XXXX said in response. A letter by XXXX, a family friend, just states that he is "aware" that "they still prowl their house" but does not explain how he has this knowledge.18 XXXX letter is very general and provides no specific information about the allegations.19 As a result, I agree with the RPD that these unsworn and vague letters do not overcome the other credibility concerns discussed above. Gender guideline [32] The Appellants argue that the RPD erred in failing to take Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Gender Guideline)20 into account, as the FARC has a long history of using sexual violence as a tool of war against women, and the FARC will be especially angry that XXXX defied them, as she is a woman. [33] I disagree with this argument. Based on my review of the recording of the hearing and the RPD reasons, I saw nothing in the way the hearing was conducted or the decision that indicates any error in relation to the Gender Guideline. The questions and findings do not appear to be based on any myths or stereotypes about violence against women or women in general. Although persecution by the FARC may have a gendered element, I have already found that the Appellants' allegations about the FARC have not been credibly established. Consideration of whether the Appellants are persons in need of protection under s.97 [34] The Appellants argue that the RPD erred in failing to carry out an analysis of their risk under section 97 of the IRPA regarding whether they are persons in need of protection based on a risk to life, cruel and unusual treatment or punishment, or danger of torture. [35] I disagree. In the present appeal, the RPD made specific findings regarding the allegations, and it found that the Appellants had not established them on a balance of probabilities, and I agree. As a result, there is no further need to assess the Appellants' risk under section 97, as no risk has been established. [36] In summary, there were a number of credibility concerns arising from the Appellants' evidence, such as omissions, inconsistencies and evolving testimony, as well as a lack of corroboration that would be expected. Even if some of those issues on their own might be relatively minor, I find that their cumulative effect is to undermine the credibility of their allegations. I further find that the remaining evidence was insufficient to overcome these concerns. As a result, I find that the Appellants have not established their allegations and that they are not Convention refugees or persons in need of protection. CONCLUSION [37] On the basis of the findings outlined above, I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Cynthia Pay" Cynthia Pay February 6, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, FCA 93. 2 Ibid., Huruglica, at para 70; and X(Re), 2017 CanLII 33034 (CA IRB). 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 64. 4 Exhibit P-2, Appellants' Record, pp. 15 to 19. 5 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 54. 6 RPD Hearing Recording, September 9, 2019, at approx. 1:10 to 1:13. 7 RPD Hearing Recording, September 9, 2019, at approx. 1:19. 8 Exhibit RPD-1, RPD record, Exhibit 6, p. 192. 9 RPD Hearing Recording, September 9, 2019 at approx. 1:22 to 1:24. 10 Ibid.,at approx. 1:22. 11 Ibid., at approx. 1:13 to 1:16. 12 Ibid.,at approx. 1:15 to 1:16. 13 Amarapala v. Canada (Minister of Citizenship and Immigration), 2004 FC 12. 14 Rojas, Yoany Alexander v. M.C.I. (F.C., no. IMM-6992-10), Rennie, July 8, 2011, 2011 FC 849, at para 6. 15 RPD Hearing Recording, September 9, 2019, at approx. 0:30. 16 Ibid., at approx. 1:36. 17 Exhibit RPD-1, RPD record, Exhibit 6, at p. 180. 18 Exhibit RPD-1, RPD record, Exhibit 6, at p. 184. 19 Exhibit RPD-1, RPD record,Exhibit 6, at p. 197. 20 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Subsection 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-28118 TB9-28119 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