TB9-03791

RAD File / Dossier de la SAR : TB9-03791 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 July 30, 2019 Date de la décision Panel T. Card Tribunal Counsel for the person who is the subject of the appeal Vino Shanmuganathan 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 [1] XXXX XXXX XXXX XXXX (the "Appellant") is a citizen of Colombia. He is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] I allow the appeal. BACKGROUND [3] The Appellant is a citizen of Colombia and alleges to be a member of the Green Party (Youth Section). [4] The Appellant and his family experienced a number of incidents where he was threatened by the Clan Usuga criminal gang as a result of his Green Party activities in 2017. The Appellant and his family moved several times in Colombia, and also asked the police and Attorney-General's office for assistance. [5] The Appellant and his family eventually decided to leave Colombia in XXXX 2017. The Appellant travelled to Canada via the United States (US) and made his refugee claim in Canada. The Appellant's wife and child travelled separately and entered Canada from the US at a port of entry, also made refugee claims and the claims were heard together by the RPD. [6] The claims was refused by the RPD on the grounds the Appellant's allegations were found not to be credible. [7] All three claimants appealed their decisions to the RAD. However, in a decision made by RAD Member Morrish, the Appellant's wife and child's appeals were denied on the basis that they had no right of appeal to the Refugee Appeal Division (RAD) due to the safe third country agreement with the US. The Appellant's appeal was allowed to proceed. This decision relates to his appeal alone. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [8] In support of this appeal, the Appellant proposed the admission of the following documents as new evidence: a) Affidavit by the Appellant dated 21 February 2019;1 b) Green Party tax receipts;2 and, c) Country documentation dated XXXX XXXX 2018 and XXXX XXXX 2018;3 [9] S.110(4) of the Immigration and Refugee Protection Act (IRPA)4 provides that the Appellant may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected5 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of s.110(4) and how that evidence relates to the Appellant.6 [10] In addition, if the new evidence meets one of the explicit legislative factors in s.110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.7 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 to the admission of new evidence, which is a consideration for s.110(6) and the request for an oral hearing.8 Affidavit rejected [11] In relation to the Appellant's new affidavit, the Appellant argues that it is relevant and contains attachments that can disprove findings of the RPD. However, upon closer inspection, the affidavit is little more than a cover letter stating his case had been refused by the RPD asking for the admissibility of the other above-mentioned documents. The affidavit does not contain any actual testimony about events that took place after the RPD or any actual new evidence. The affidavit therefore is not new evidence and is rejected. Tax Receipts rejected [12] In relation to the Green Party tax receipts, the Appellant notes that "the RPD requested the tax receipts and the Appellant explained that he would need to obtain them from his accountant."9 The Appellant then goes on to explain that he "...was not aware he would need to provide tax receipts at the hearing, until the RPD requested them."10 [13] I note that there was a period of almost three months between the second RPD sitting (13 September 2018) and the date of determination (11 December 2018). There is nothing in front of me to indicate that the Appellant made attempts to get these documents, or requesting an adjournment to allow him time to get them prior to the RPD determination. It is the RPD determination date, not the date of the final sitting, that is the relevant date when considering whether a proposed piece of evidence is new, or was not reasonably available or that the person could not reasonably have been expected in the circumstances to have presented at the time of the rejection. [14] I am not satisfied that the evidence was not reasonably available nor that the Appellant could not reasonably have been expected in the circumstances to have presented this evidence at the time of the RPD hearing given that he knew of the RPD asking about the receipts but not doing anything to get them until after the RPD decision. [15] I therefore find the tax receipts do not meet the requirements of s.110(4) of the IRPA and reject them. Articles rejected [16] The Appellant also submitted two country documents about the Clan Usuga. The Appellant has stated that these are about ongoing developments in Colombia which could not have reasonably been presented, and implied that matters had happened since the hearing. [17] Again, it is important to restate that the relevant date when considering new evidence is the date of the RPD Decision (11 December 2018) not the date of the sittings. [18] In relation to the first article11 the article is dated 23 October 2018 and relates to a general history about the Clan Usuga, the content of which almost completely predates the first RPD sitting, and completely predates the second. The last event cited in the article relates to negotiations between Clan Usuga and the Colombian government having virtually collapsed by the time President Ivan Duque took office in August 2018. [19] I find that the evidence does not post-date the RPD rejection. The article was also readily available, and the Appellant knew that he would have to put his best case forward when presenting to the RPD. Accordingly, I find the article does not meet the requirements of s.110(4) of the IRPA and is rejected. [20] In relation to the second article12 this relates to an attack by the Clan del Golfo that took place on 11 April 2018. The article itself was published on 12 April 2018. [21] The event took place before the RPD sittings and decision and was readily available over the internet. It is also not clear of the relevance of the article, given that the alleged perpetrator was a different clan from the one the Appellant fears. If the article is meant to show a general situation of criminal gang violence, I am not satisfied the article would satisfy the relevance or newness factors of Singh and Raza even if it did satisfy s.110(4) of the IRPA. [22] In this case, I find the article does not satisfy s.110(4) of the IRPA as it arose before the rejection, was reasonably available, and the Appellant could reasonably have been expected to have presented the document if he was trying to use this to present evidence about criminal gangs in Colombia generally. [23] For these reasons, the article is rejected as new evidence. NO ORAL HEARING [24] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.13 [25] As no new evidence has been accepted, the requirements of subsection 110(6) of the IRPA have not been met, and an oral hearing cannot be held. ISSUES IN APPEAL [26] The Appellant argues the following issues in his appeal: a. The RPD breached procedural fairness by finding the letter from Mr. XXXX of the Green Party14 was fraudulent without putting its concerns about the letter to the Appellant. b. The RPD otherwise erred in its analysis of the Appellant's evidence about his Green Party membership and activities and its subsequent finding that he was not politically active with them. c. The RPD failed to consider relevant evidence submitted including reports from the Attorney-General,15 the Ombudsperson,16 psychological report17 and letter from the Appellant's brother.18 d. The RPD erred by failing to consider the Appellant's risk under s.97 of the IRPA. [27] I find that the determinative issues in this appeal are: a. Credibility; b. Whether the Appellant has a political profile due to activities with the Green Party, and; c. If the Appellant does have a political profile due to his activities with the Green Party, would he face a serious possibility of persecution if he is returned to Colombia as a result of this profile. RAD ANALYSIS [28] I have conducted an independent analysis of the evidence concerned, including reviewing the record of the RPD hearing, as well as considering the Appellant's Memorandum,19 the RPD Decision,20 and the Appellant's Basis of Claim (BOC) form.21 Green Party letter is genuine [29] The RPD gave the letter from the Green Party22 no weight on the basis that it was not satisfied the Appellant was truly a member of the party, and because the letter did not make specific reference to the five incidents the Appellant alleges took place with the Clan Usuga. [30] In relation to the RPD's finding that it was not satisfied the Appellant was truly a member of the party, this was based on the fact that the Appellant did not demonstrate a clear understanding of the political process of the party and the methods used to attain its goals, nor an understanding of the political process in Colombia. [31] The Appellant argued that the RPD erred in two ways regarding its treatment of the letter. Firstly, the Appellant argued that the RPD breached procedural fairness by finding the letter was fraudulent without putting its concerns about the letter to the Appellant. Secondly, the Appellant argued the RPD otherwise erred in its analysis of the letter itself. [32] On the first point, I note that the RPD firstly did not treat the letter as fraudulent per se, but instead gave it no weight. The RPD appears to accept that the letter has come from the Green Party, but that its contents do nothing to assist the Appellant's credibility about his political activities or his membership. The RPD's findings on giving the letter no weight were based predominantly on questions put to the Appellant about his activities and on the omission of the five incidents. [33] From that standpoint, I find that the RPD's concerns were properly put to the Appellant and that the RPD did not breach procedural fairness as alleged by the Appellant. [34] On the second point, however, I do find that the RPD did err in its analysis of the letter itself. [35] Firstly, I agree with the point made by the Appellant that per Mahmud23 documents should be assessed by what they do say, rather than what they do not say. The letter from the Green Party is a one page summary about the Appellant's activities, rather than a full blow-by-blow narrative. In that context, I also accept the Appellant's statement that in fact a general reference to threats, rather than a blow-by-blow narrative of these threats, was made in the letter. I find that the RPD was incorrect in discounting the explanation and in drawing a negative credibility finding on the basis that the letter did not give a complete account of each individual incident. [36] Furthermore, I concur with the Appellant's argument that the letter overall does not contradict the Appellant's evidence in the manner described by the RPD. What the letter does give is the Appellant's involvement and membership details with the Green Party, and a general description of the Appellant's activities with vulnerable families and individuals. [37] I find that the RPD erred in its assessment of the letter in assigning it no weight, and I substitute a finding that the letter carries some weight in establishing the Appellant's involvement with the Green Party. [38] Although the RPD did not explicitly make a finding that the letter was fraudulent, for the purpose of clarity, I make my own finding that on a balance of probabilities, the letter is genuine. Appellant was a Green Party member [39] Related to the RPD findings discussed above, I further do not concur with the RPD's overall finding that the Appellant was not a Green Party member as claimed. [40] Part of the RPD's assessment was that the Appellant did not demonstrate a clear understanding of the political process of the Green Party and how it attains its goals. [41] The Appellant has argued that in fact he answered the RPD Member's questions about the party and that the RPD has erred in its analysis and conclusion relating to the Appellant's evidence. [42] I concur with the Appellant that in fact he did answer the RPD Member's questions. The Appellant did answer questions relating to when the party was founded, who its founder was and that it participates in elections. Conversely, I find the RPD did not provide adequate reasons about what it was the Member did not find satisfactory about the Appellant's answers, nor what answers it was expecting. From that standpoint alone, I find the RPD erred in its findings. [43] The RPD also stated that the Appellant "did not appear to have an understanding of any political process in Colombia" but again did not provide adequate reasons in how it reached this conclusion. In conducting my own analysis, I note that the RPD Member asked questions such as when the previous Colombian elections were, and the Appellant answered that they were every four years, and that he expected an election in the current year as the previous one was four years prior.24 I find that the RPD therefore erred in its finding that the Appellant has no knowledge of politics in Colombia. [44] I also take into account the Green Party Letter which gave a history of the Appellant's involvement, and his membership number. As stated previously, I find the letter carries some weight, and therefore adds weight to the Appellant's allegation for his involvement. [45] In reviewing the RPD Hearing record, it does appear that many of the activities done by the Appellant have been on the social justice aspect rather than the political aspect. It seems this may have influenced the RPD Member's decision to find the Appellant does not have a political profile. [46] I find the RPD erred in its analysis. While it is true that the Appellant's activities are not particularly political per se, he was doing these activities within the framework of a political organisation. It is important to remember that the allegation made is that he was targeted for his affiliation with the Green Party by Clan Usuga, and that this could be considered as imputed political opinion, even if the Appellant's activities themselves were not political by nature. [47] Based on this independent analysis of the evidence, I find the RPD erred on two counts. Firstly, I find the RPD erred in finding the Appellant is not a Green Party member as claimed. I overturn this finding and substitute a finding on a balance of probabilities that the Appellant is a Green Party Member as claimed. [48] Secondly, I find the RPD erred in finding the Appellant not credible about his account. I overturn this finding and substitute a finding on a balance of probabilities that the Appellant is credible. Appellant faces a serious possibility of persecution [49] The Appellant also argued that the RPD failed to consider certain pieces of evidence such as the reports from the Attorney-General,25 the Ombudsperson,26 psychological report27 and letter from the Appellant's brother.28 [50] While it is true that the RPD need not refer to every individual piece of evidence in its decision, in this case, I find that the RPD erred by failing to refer to a large number of documents in its decision, including those mentioned above. [51] In reviewing the evidence, I find that the reports from the Attorney-General and Ombudsperson carry some weight in relation to the Appellant's allegations that he faces threats from Clan Usuga. [52] The documentary evidence in the National Documentation Package (NDP) also confirms that gang violence is still a problem. The types of incidents of threats and attempts at recruitment correspond to incidents described in the NDP, and adds weight to the Appellant's allegations. [53] When these are taken with the findings already made that the Appellant is credible and was a member of the Green Party, I find on a balance of probabilities that the Appellant would face a serious possibility of persecution for his imputed political opinion due to his Green Party involvement at the hands of Clan Usuga. Insufficient state protection [54] The experiences of the Appellant have been that he has approached the authorities several times for assistance. While the authorities have been sympathetic and attempted to help, the evidence becomes clear that the authorities do not have the ability to provide adequate protection for the Appellant. [55] The experiences the Appellant has testified about also reflect much of what is in the NDP, that the authorities are having difficulties in offering adequate state protection. [56] When taking this evidence together, I find on a balance of probabilities that the Appellant cannot benefit from adequate state protection if he is returned to Colombia. No Internal Flight Alternative (IFA) [57] In relation to IFA, I note that the Appellant and his family moved to several locations in Colombia but continued to be threatened after each move. The Appellant's evidence on this has been credible, and as a result, I cannot identify a safe IFA for the Appellant in Colombia. [58] As I result, I find on a balance of probabilities that there is no safe IFA for the Appellant in Colombia. CONCLUSION [59] Pursuant to s.111(1)(b) of the IRPA, the determination of the RPD is set aside. I substitute my determination that the Appellant is a Convention refugee due to his imputed political opinion stemming from his membership of the Green Party. [60] The appeal is allowed. (signed) "T. Card" T. Card July 30, 2019 Date 1 Exhibit P-2, Appellant's Record, Pages 3-4. 2 Ibid., Pages 24-32. 3 Ibid., Pages 36-42. 4 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 5 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 6 Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(g)(iii). 7 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, cited in Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96, Paragraph 64. 8 Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96, Paragraph 64. 9 Exhibit P-2, Appellant's Record, Page 97, Paragraph 33. 10 Ibid., Paragraph 34. 11 Ibid., Pages 36-41. 12 Ibid., Page 42. 13 Immigration and Refugee Protection Act, S.C. 2001, c. 27, subsection 110(6). 14 Exhibit RPD-1, RPD Record, Exhibit 7, Pages 173-174. 15 Ibid., Exhibit 9, Pages 370-374. 16 Ibid., Exhibit 7, Pages 211-213. 17 Ibid., Exhibit 8, Pages 343-348. 18 Ibid., Pages 338-341. 19 Exhibit P-2, Appellant's Record, Pages 91-108. 20 Exhibit RPD-1, RPD Record, RPD Decision, Pages 8-19. 21 Ibid., Exhibit 2, Pages 20-36. 22 Ibid., Exhibit 7, Pages 173-174. 23 Mahmud v. Canada (M.C.I.), 1999 FCJ No 729. 24 Exhibit P-2, Appellant's Record, Page 63. 25 Exhibit RPD-1, RPD Record, Exhibit 9, Pages 370-374. 26 Ibid., Exhibit 7, Pages 211-213. 27 Ibid., Exhibit 8, Pages 343-348. 28 Ibid., Pages 338-341. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-03791 RAD.25.02 (April 04, 2019) Disponible en français 12 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