MB4-03195

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 File No. / No de dossier de la SAR : MB4-03195 MB4-03196 MB4-03197 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision December 3, 2015 Date de la décision Panel Me Alain Bissonnette Tribunal Counsels for the persons who are the subjects of the appeal Me Iris Simixhiu Me Julius Grey Conseils des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentante désignée Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX, the female appellant, XXXX XXXX XXXX, her minor daughter, and XXXX XXXX XXXX XXXX, the principal appellant, all citizens of Colombia, are appealing against the decision of the Refugee Protection Division (RPD). They submit that the RPD committed errors in finding that they had not demonstrated the existence of their subjective fear, in concluding that they did not have grounds to fear a serious possibility of persecution and in failing to consider the fact that the Colombian authorities had not protected them. [2] The female appellant was previously designated to act as representative for her minor daughter and, pursuant to the Refugee Appeal Division Rules, the representative is deemed to have been designated by the Division.1 [3] An initial determination by the Refugee Appeal Division (RAD) dismissed the appeal.2 However, in this case, the application for judicial review was allowed by the Federal Court, which set aside the first determination and referred the matter to the RAD for re-determination.3 II. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD allows the appeal, sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely, that XXXX XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are "refugees" under section 96 of the IRPA. III. BACKGROUND A. Basis of the claims [5] In the Basis of Claim Form (BOC Form), which he signed on September 18, 2013, the principal appellant states that in XXXX 2004 he began working as a XXXX XXXX with the XXXX XXXX XXXX XXXX XXXX XXXX XXXX and that on XXXX XXXX XXXX 2007, XXXX offered him the position of XXXX XXXX, but that one month later he was dismissed because he had not authorized that a contract be awarded to the XXXX XXXX. He goes on to state that to justify themselves, they falsely accused him of having falsified a diploma in his résumé to obtain the position.4 [6] He also states that a complaint was lodged against him alleging falsehood, but that strangely enough, on XXXX XXXX, 2007, he received an official communication from the XXXX XXXX XXXX asking him to comment on a written remark. He further states that the XXXX also sent him a copy of an anonymous text that appeared in the newspaper XXXX XXXX, in which an XXXX employee faithfully describes the actual cause of his dismissal.5 [7] The principal appellant states in his BOC Form that after two years the criminal investigation launched against him for falsifying a document was closed, and that he was acquitted.6 [8] He also states that on XXXX XXXX, 2009, he filed a complaint concerning corruption in the XXXX XXXX XXXX and in XXXX regarding the awarding of XXXX XXXX XXXX XXXX, and that this is when he again started having problems. He clarifies that he filed this complaint directly with the XXXX XXXX XXXX XXXX XXXX XXXX XXXX and provided all the evidence, and that following his complaint and the concrete evidence regarding the obvious irregularities, XXXX XXXX dismissed five public servants.7 [9] In his BOC Form, the principal appellant states that when the XXXX XXXX XXXX XXXX XXXX XXXX XXXX referred the corruption complaint to the XXXX XXXX, after the evidence had been disclosed to XXXX XXXX on XXXX XXXX XXXX XXXX, 2009, it was obvious that he had been the one to submit the complaint to XXXX XXXX XXXX XXXX XXXX. He goes on to state that a few days later, he received death threats from people mentioned in the complaint and that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX who had been dismissed, threatened him verbally with threats of a political nature, and that in Colombia, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.8 [10] He further states that in the face of the threats, they sought protection directly from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX, where an advisor promised to protect them, but that this protection never materialized. He adds that on XXXX XXXX, 2009, they moved to another apartment, changed telephone numbers and took all necessary security measures.9 [11] In his BOC Form, the principal appellant states that in XXXX 2009, the XXXX XXXX reopened the criminal investigation against him, but that they did not learn of this until XXXX 2011, XXXX XXXX XXXX. He states that this investigation was reopened with no new evidence and that offences were added, demonstrating that they wanted not only to put him in prison but also to make it impossible for him to expose the corruption in light of all the evidence he had.10 [12] He also states that he asked his lawyer how the process that had been closed could be reopened and to understand how they were not notified of the new process. He states that on XXXX XXXX, 2011, they went to the XXXX XXXX to obtain information and demonstrate their willingness to cooperate, but also to explain that what was happening to him was in relation to the complaints he had filed against the acts of corruption.11 [13] In his BOC Form, the principal appellant states that after filing a complaint and bringing evidence to the XXXX XXXX, they received other threats, that they always felt very unsafe no matter where they went and that his mother was attacked with a firearm in her house in XXXX. He states that in view of the gravity of the situation, he filed a complaint about all these things with the XXXX XXXX and again requested protection, but that they did nothing to protect him or his family.12 [14] In his BOC Form, the principal appellant states that in XXXX 2012, the trial involving him began, that at the last minute the XXXX XXXX called a witness, XXXX XXXX XXXX XXXX XXXX, and that his lawyer objected to this witness being called illegally, too late and without their having been notified. The trial was adjourned until XXXX XXXX, 2013; on that date, a final witness was called, whom the XXXX led to tell lies under oath.13 [15] He also states that they realized that their enemies wanted to silence him at any cost and that it was obvious that even the XXXX was influenced by outside orders, that she was doing everything to get him convicted and that they then understood the power wielded by XXXX XXXX XXXX, who was manipulating the trial, the latter having stated a few months previously that he would not rest until he saw the principal appellant rotting in a prison.14 [16] In his BOC Form, the principal appellant states that the trial was then adjourned, that it then went ahead on XXXX XXXX, 2013, that they presented their last witness, and that the arguments ended around noon before the judge adjourned to give herself time to render her judgment. He states that they noticed fear on the judge's part.15 [17] In his BOC Form, the principal appellant states that on the recommendation of his lawyers, they decided to act before it was too late and to flee Colombia, which he did on XXXX XXXX, followed by his wife and their daughter in XXXX. They met up in Panama, and on XXXX XXXX, 2013, they left Panama for Canada, arriving here on XXXX XXXX, 2013.16 [18] The female appellant and her minor daughter based their refugee protection claims on the information provided by the principal appellant.17 [19] In addition to their BOC Forms, the appellants, referred to at the time as claimants, submitted a number of documents into evidence before the RPD.18 B. Minister's intervention before the RPD [20] The Minister of Public Safety (the Minister) intervened before the RPD but, after examining the documents submitted into evidence by the claimants, withdrew his notice of intervention concerning a possibility of exclusion under Article 1F(b) of the Refugee Convention.19 C. RPD's decision [21] The hearing before the RPD took place on July 10, 2014, and the decision to reject the refugee protection claims was rendered on July 24, 2014.20 [22] The RPD indicated that the claimants gave detailed testimony, adding that while there were omissions and certain inconsistencies between their account and their testimony, the facts were established and credible on the whole. That being said, the RPD found that it appeared from the evidence that the claimants feared prosecution by their country, but not persecution by reason of their political opinion and that they failed to demonstrate that their lives would be in danger if they had to return to Colombia.21 [23] In its reasons for decision, the RPD indicates that if the male claimant was dismissed on XXXX XXXX, 2007, no reason appears in the dismissal letter. That being said, the RPD indicates that it is possible that the male claimant was dismissed after making a verbal complaint against the XXXX people, his testimony having been credible in this regard.22 [24] The RPD was also of the opinion that in XXXXr 2009, the male claimant again reported individuals to the XXXX XXXX XXXX XXXX XXXX XXXX XXXX, presenting as evidence a recording on which XXXX XXXX worker and other individuals can be heard engaging in corruption.23 [25] Because the male claimant moved only XXXX XXXX from his previous home and continued to go about his business without any problems, the RPD concluded that he had failed to demonstrate persecution or fear for his or his family's life in 2007 and in XXXX 2009 after the two denunciations.24 Extending its analysis to the subsequent years and taking into account the testimony and explanations provided, the RPD arrived at the same conclusion.25 [26] Now, as for the trial against the male claimant, the RPD indicated that there was no evidence corroborating the claimants' statements about the links between XXXX XXXX, the trial and the verdict, finding this to be speculation. In its opinion, a decision was rendered by a Colombian judge in a legal context that appears legitimate and not rushed; in fact, the male claimant's recourse against this decision had not been exhausted.26 [27] Lastly, the RPD found that the claimants' behaviour was not that of persons who feared persecution or saw their lives endangered; they did not claim asylum in Panama, and the principal claimant, for his part, did not claim asylum in the United States.27 D. Grounds of appeal and decision sought [28] Two memoranda were presented on appeal by the appellants.28 [29] The first memorandum submits that the principal appellant was the victim of persecution and not simply criminal prosecution, that the RPD imposed an excessive burden of proof and that its remarks on the principal appellant's subjective fear are speculative and unreasonable.29 [30] The second memorandum submits that the RPD made a number of errors that warrant setting aside its determination: (I) Given that the evidence and Appellants were deemed credible, the RPD erred in finding that Appellants lacked subjective fear; The RPD clearly ignored, misread and misunderstood Appellant's evidence and testimony; (II) The RPD erred in finding that Appellants had not shown that there was a serious possibility of persecution; The RPD erred in not considering the cumulative effects of harassment on Appellant; (III) The RPD erred in disregarding that Appellants' fear of persecution was objectively grounded; The RPD erred in disregarding the failure of the Colombian state to offer protection to Appellants.30 [31] The appellants are asking the RAD to allow the appeal, set aside the determination of the RPD and substitute its own determination or to refer the matter to the RPD for re-determination by a new member.31 [32] The appellants did not present evidence under subsection 110(4) of the IRPA, nor did they request a hearing before the RAD.32 IV. APPROACH TO BE TAKEN IN THIS APPEAL A. The appellants' position [33] In their first memorandum, the appellants submit that the RAD has the jurisdiction to hear appeals de novo, and that it must analyze the evidence presented to it and draw its own conclusions, since no error by the RPD should be tolerated.33 [34] In their second memorandum, the appellants refer to the Federal Court decision in Huruglica and submit that the RAD must proceed with an independent analysis of the refugee protection claims. They add that given the privileged position of the RPD member who saw and heard the testimony, the RAD must proceed with its analysis of the refugee protection claims, relying on the fact that the claimants were found to be credible.34 B. A brief summary of certain Federal Court decisions [35] In Huruglica, Justice Phelan states that the RAD must conduct an independent assessment of the claim for refugee protection in order to arrive at its own opinion and that it is not necessary, in order to trigger this remedial power, that the RAD must find error by the RPD on some standard of review basis.35 The Federal Court of Appeal will soon be ruling on these issues.36 [36] In Akuffo, Justice Gagné states that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings, although opinions within the Federal Court diverge on the level of deference that is owed.37 [37] In Sajad and Bui, Justice Shore states that the RAD owes a measure of deference to the RPD's findings when they primarily concern the credibility of the person claiming refugee protection.38 That being said, the RAD must conduct an independent assessment of the record on appeal, in other words, conduct its own assessment of the evidence, consider the parties' submissions and then confirm or dismiss the RPD's findings regarding the credibility of the refugee protection claimant(s).39 [38] In Balde, Justice Mosley states that the different strands in the jurisprudence to date within the Federal Court have all accepted the principle that the RAD must show deference to the RPD's findings of credibility, given that the RAD does not typically hold oral hearings and is therefore at a disadvantage in comparison to the RPD.40 C. A somewhat deferential independent assessment [39] Relying as much as possible on the Federal Court decisions rendered to date, I am of the opinion that, in this case, while conducting an independent assessment of the record, I owe deference to the RPD's findings regarding the credibility of the appellants' testimony.41 V. ANALYSIS OF THE MERITS OF THE APPEAL [40] Having proceeded with an independent review of the record and read all of the evidence as well as the transcript of the hearing before the RPD,42 I find that the appellants have established, on a balance of probabilities, that they have a well-founded fear of being persecuted if they had to return to live in Colombia. Here is why. A. The principal appellant's fear of being persecuted if he had to return to live in Colombia [41] Although refugee protection claimants must establish their claim on a balance of probabilities, they do not, however, have to prove that persecution would be more likely than not. In other words, the evidence must not necessarily show that a claimant has suffered or will suffer persecution. Indeed, as I understand the case law in that regard, what the evidence must establish is that the refugee protection claimant has a well-founded fear of persecution on one of the grounds set out in the IRPA.43 Moreover, in order to conclude that there is a reasonable fear of persecution or, in other words, a reasonable chance or serious possibility of persecution, there need not be more than a 50% chance (i.e., a probability), but there must be more than a minimal possibility,44 given that there is no intermediate ground between the two limits.45 [42] Persecution is generally defined as the serious interference with a basic human right,46 and the word "persecute" means to harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently.47 While it is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the case law indicates that discrimination will only amount to persecution when it is serious or systematic enough to be characterized as persecution.48 In drawing on two decisions of the Supreme Court of Canada, Madam Justice Bédard states that before finding that persecution exists, there is a need to consider whether a basic right was violated and then verify whether the violation was repetitive or systematic.49 [43] In the case at hand, the RPD indicated in its reasons for decision that the male claimant may have been dismissed for making a verbal complaint against the XXXX people, his testimony having been credible in this regard.50 The RPD also believed that in XXXX 2009, the male claimant made another verbal complaint to the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX producing evidence that included a recording on which XXXX XXXX worker and others can be heard engaging in corruption.51 As for the other complaints allegedly made by the principal claimant, including the one in 2011 while he himself was being prosecuted, the RPD does not seem to have indicated whether or not it believed the male claimant.52 B. Decision by the Colombian court [44] It bears noting again that the test for whether state protection might reasonably be forthcoming is an objective one.53 [45] To rebut the presumption of state protection, relevant, reliable and convincing evidence that this protection is inadequate or non-existent must be adduced, the applicable standard of proof being the balance of probabilities.54 Where a state is in effective control of its territory, has military, police and civil authorities in place, and makes serious efforts to protect its citizens, the mere fact that it is not always successful at doing so will not be enough to rebut the presumption of the existence of state protection.55 That said, state protection does not need to be perfect, but it does have to be effective.56 [46] Citizens are required to seek the protection of the authorities in their country, unless it is objectively reasonable not to do so; in other words, unless such protection would not, in any case, be forthcoming.57 In this regard, it is not reasonable to require refugee protection claimants to put their lives or the lives of their families in danger, or to suffer greater persecution (which may consist of repeated discriminatory acts amounting to persecution), simply to demonstrate that state protection is ineffective.58 That being said, the fact that police officers act illegally within a specific region of a country does not support a conclusion that the state, as a whole, is itself an agent of persecution or that it fails to offer protection to victims of these officers' actions.59 Also, failure to solve a particular crime does not prove that a police force is ineffective.60 Lastly, the existence of deficiencies in fundamental rights must be considered when analyzing the presumption of state protection for citizens. In this regard, the independence and impartiality of the judiciary and its components are not negotiable. These are fundamental values in any country which claims to be a true democracy.61 [47] In the case at hand, the RPD made no reference to the information contained in the documentary evidence relating to the adequacy or inadequacy of the protection offered in Colombia by the country's authorities, or to human rights problems identified there.62 But according to this documentary evidence, impunity, an ineffective judiciary and corruption figure among Colombia's gravest human rights problems.63 Corruption is found in the highest ranks of the army, but also among members of the government.64 [48] In its reasons for decision, the RPD indicates that it believes in the principal claimant's credibility regarding the corruption complaints he filed with his country's XXXX XXXX XXXX XXXX. That being said, it does not believe that the ruling in his case could have been the result of a process where the impartiality of the trial judge could have been compromised. In this regard, the RPD indicates in its reasons for decision that there was no evidence corroborating the claimants' statements as to the links between XXXX XXXX, the trial and the verdict, finding this to be speculation. In its opinion, a decision was rendered by a Colombian judge in a legal context that appears legitimate and not rushed; in fact, the male claimant's recourse against this decision had not been exhausted.65 [49] In their first memorandum, the appellants reference the documentary evidence and indicate that judicial staff members are subjected to intimidation by influential people, particularly in corruption cases. They also reference the documents filed in evidence before the RPD concerning the complaint against the principal appellant, and they point out that after being shelved in 2009, the investigation resumed three years later.66 Here is the main argument in this regard: [translation] 60. When the hearing began in XXXX 2012, Mr. XXXX testified that there had been a number of irregularities. Witnesses lied under oath and fabricated evidence. The judicial process was tainted by corruption, and then in XXXX 2013 Mr. XXXX was found guilty of crimes for which his guilt had not been demonstrated. 61. Mr. XXXX provided evidence from independent individuals confirming that his hearing in Colombia had not been impartially conducted. These documents detail how his trial was conducted in violation of the principles of natural justice.67 [50] In their second memorandum, the appellants submit that the RPD had scarcely paid attention to several pieces of evidence directly addressing the injustice experienced by one of them.68 [51] The RPD's conclusion that the appellants' allegations concerning the irregularities of the investigation conducted against the principal claimant were purely speculative does not strike me as consistent with the body of evidence. [52] In their first memorandum, the appellants submit that the RPD erred in stating that the male claimant had to [translation] "demonstrate" to it that XXXX XXXX was responsible for the irregularities of his trial and sentence. They further submit that the burden of proof associated with this aspect of the claim should have been that which is attributed for persecution, and not evidence, on a balance of probabilities, that Mr. XXXX did in fact influence the trial.69 [53] In their second memorandum, the appellants submit that the RPD's conclusion that the Colombian judicial system was not manipulated with a view to persecuting the principal appellant is unreasonable and arbitrary. They further submit that in the current context, reporting acts of corruption constitutes the expression of a political opinion and that the RPD did not conduct an objective analysis of the Colombian state's willingness to protect the principal appellant. They add that in the case at hand, the persecution was carried out by agents of the state, namely a corrupt judiciary, and that in view of this, Colombia is clearly incapable of protecting him.70 [54] For my part, having conducted an independent review of the entire record, I find that the principal appellant established, on a balance of probabilities,71 a well-founded fear of persecution, givent that the process culminating in his conviction contained irregularities. I would add that in light of all the documentary evidence, he cannot be required to exhaust every form of recourse that exists on paper in his country, when in fact in practice, the Colombian judiciary is not effective and is subjected to influences that compromise its impartiality. C. Analysis of the claims for refugee protection under section 96 of the IRPA [55] According to the case law, in order for immediate family to be considered a particular social group within the meaning of section 96 of the IRPA, the person claiming refugee protection must establish a clear nexus between the persecution faced by the family member and the persecution he or she experienced. In other words, when the main victim does not meet the Convention refugee definition, a derivative claim based on membership in the family group cannot be allowed.72 [56] In the case at hand, the principal appellant alleges that he is being persecuted for having reported acts of corruption by certain persons in authority. It is my opinion that interference in the regular application of the law may constitute persecution, and that retaliation against someone who reported acts of corruption may constitute persecution.73 [57] Consequently, I find that one can conclude that the female appellant and her minor daughter established a reasonable fear that they too might be persecuted, as members of the principal appellant's family. D. Failure to claim asylum in Panama and the United States [58] Although failure to claim asylum abroad or a delay in doing so upon arrival in Canada is usually not determinative in itself,74 it does not prevent one from concluding that the behaviour in question is not that of a person who fears for their life, and it may undermine the credibility of the persons concerned. [59] It is well established in the case law that the failure to immediately claim international protection can impugn the credibility of a person claiming refugee protection in Canada.75 When no convincing or reasonable explanation is provided, failing to claim refugee protection at the first opportunity can negatively affect a claimant's credibility.76 [60] But in this regard, it should be pointed out that the RPD had to take account of the explanations provided. And in my opinion, the claimants' explanations that they wanted to be together and as far away from Colombia as possible in order to make their refugee protection claims are reasonable. I would add that, in any event, failure to claim refugee status at the first opportunity does not constitute a waiver of a person's right to claim that status in another country, as refugees are not required by the Convention to seek protection in the country nearest their home, or even in the first state to which they flee.77 Moreover, the failure to claim refugee protection at the first opportunity must be only one of many reasons for finding that a refugee protection claimant is not credible. In other words, that fact by itself does not constitute a sufficient basis for rejecting a claim for refugee protection.78 VI. CONCLUSION [61] For these reasons, I set aside the determination of the RPD and substitute the determination that, in my opinion, should have been made, namely, that XXXX XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are "refugees" under section 96 of the IRPA. [62] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette December 3, 2015 Date IRB translation Original language: French 1 RAD Rules, SOR/2012-257, rule 23, paragraph 1. 2 RAD reasons and decision, January 28, 2015, 13 pages. 3 XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 4 Principal appellant's BOC Form, paragraphs 2 to 5, page 30 of the RPD record. 5 Idem, paragraph 6, page 30 of the RPD record. 6 Idem, paragraph 7, pages 30 and 31 of the RPD record. 7 Idem, paragraph 9, page 31 of the RPD record. 8 Idem, paragraphs 10 and 11, page 31 of the RPD record. 9 Idem, paragraphs 12 and 13, page 31 of the RPD record. 10 Idem, paragraph 14, pages 31 and 32 of the RPD record. 11 Idem, paragraphs 15 and 16, page 32 of the RPD record. 12 Idem, paragraphs 17 and 18, page 32 of the RPD record. 13 Idem, paragraphs 19 and 20, pages 32 and 33 of the RPD record. 14 Idem, paragraphs 21 and 22, page 33 of the RPD record. 15 Idem, paragraphs 23, 24 and 25, page 33 of the RPD record. 16 Idem, paragraphs 26 and 27, page 33 of the RPD record. 17 BOC Form of the female appellant and her minor daughter, pages 14 to 23 and 38, 39 and 40 of the RPD record. 18 The list of these documents is reproduced at pages 188, 189, 190, 428, 431 and 432 of the RPD record. The documents themselves are reproduced at pages 191 to 427, 429 and 430, and 433 to 626 of the RPD record. 19 Withdrawal of notice of intervention, July 4, 2014, reproduced at pages 51 and 52 of the record prepared for the Federal Court. 20 RPD's reasons for decision, pages 3 to 13 of the RPD record. 21 Idem, paragraph 18, page 6 of the RPD record. 22 Idem, paragraphs 22 and 23, page 7 of the RPD record. 23 Idem, paragraphs 24 to 29, pages 7 and 8 of the RPD record. 24 Idem, paragraphs 30 and 31, page 8 of the RPD record. 25 Idem, paragraphs 32 to 43, pages 8, 9 and 10 of the RPD record. 26 Idem, paragraphs 45 to 53, pages 10, 11 and 12 of the RPD record. 27 Idem, paragraphs 54 to 57, page 12 of the RPD record. 28 Appellants' memorandum, August 26, 2014, pages 188 to 213 of the record prepared for the Federal Court. Additional Memorandum of Arguments, November 24, 2015, 30 pages. 29 Appellants' memorandum, paragraph 37, page 194 of the record prepared for the Federal Court. 30 Additional Memorandum of Arguments, paragraph 62, page 7. 31 Idem, page 30. 32 Appellants' memorandum, paragraph 2, page 188 of the record prepared for the Federal Court. 33 Idem, paragraphs 38 to 41, pages 194 to 198 of the record prepared for the Federal Court. 34 Additional Memorandum of Arguments, paragraphs 63, 64 and 65, pages 7 and 8. 35 Huruglica v. Canada (Minister of Citizenship and Immigration), No. IMM-6362-13, Phelan, November 7, 2014; 2014 FC 799, at paragraph 47. 36 Minister of Citizenship and Immigration v. Huruglica, A-470-14, the hearing having been held on September 29. 37 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 38 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 22. Bui v. Canada (Minister of Citizenship and Immigration), No. IMM-1654-14, Shore, November 28, 2014; 2014 FC 1145, at paragraph 25. See also to that effect: Malambu v. Canada (Minister of Citizenship and Immigration), No. IMM-7972-14, Noël, June 17, 2015; 2015 FC 763, at paragraph 42. 39 Hamidi v. Canada (Minister of Citizenship and Immigration), No. IMM-5049-14, Shore, February 26, 2015; 2015 FC 243, at paragraphs 1, 22, 23, 24 and 30. Brodrick v. Canada (Minister of Citizenship and Immigration), No. IMM-5986-13, Diner, April 17, 2015; 2015 FC 491, at paragraphs 34, 35 and 36. Abdul Fasit Fida v. Canada (Minister of Citizenship and Immigration), No. IMM-5921-14, Zinn, June 24, 2015; 2015 FC 784, at paragraph 10: "The RAD examined the various findings of the RPD upon which it based the finding that the applicant was not credible. It is clear from the decision that it conducted its own independent analysis of that evidence." 40 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015; 2015 FC 625, at paragraph 25. See also to that effect: Palden v. Canada (Minister of Citizenship and Immigration), No. IMM-4907-14, Locke, June 25, 2015; 2015 FC 787, at paragraphs 10 and 11. 41 Dowansingh v. Canada (Minister of Citizenship and Immigration), No. IMM-6581-14, Diner, July 30, 2015; 2015 FC 933, at paragraph 21: "This Court has repeatedly held that RPD's conclusions on issues of credibility based on testimony clearly warrant some measure of deference." (citations omitted). 42 Transcript of the hearing held on July 10, 2014 before the RPD reproduced at pages 17 to 50 of the record prepared for the Federal Court. 43 Parampsothy v. Canada (Minister of Citizenship and Immigration), No. IMM-421-12, Mandamin, August 16, 2012; 2012 FC 1000, at paragraph 24. See also Mugadza v. Canada (Minister of Citizenship and Immigration), No. IMM-1324-07, Mandamin, January 30, 2008; 2008 FC 122, at paragraphs 20 to 22. 44 Idem. 45 Florea v. Canada (Minister of Citizenship and Immigration), No. IMM-5443-04, Lemieux, November 3, 2005; 2005 FC 1472, paragraphs 21 to 24. Arrinaj v. Canada (Minister of Citizenship and Immigration), No. IMM-224-04, O'Keefe, May 31, 2005; 2005 FC 773, paragraph 43. 46 Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), Mosley, [2004] F.C.J. No. 316, 2004 FC 282, at paragraph 29, as cited by the Honourable Justice Zinn in Warner v. Canada (Minister of Citizenship and Immigration), March 23, 2011, No. IMM-4283-10; 2011 FC 363, at paragraph 7. 47 Rajudeen v. Canada (Minister of Employment and Immigration), (1984), 55 NRF 129 (FCA), as cited by the Honourable Justice Zinn in Warner v. Canada (Minister of Citizenship and Immigration), March 23, 2011, No. IMM-4283-10; 2011 FC 363, at paragraph 7. 48 Ramirez v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1888, 88 F.T.R. 208, at paragraph 8, as cited by the Honourable Justice Zinn in Warner v. Canada (Minister of Citizenship and Immigration), March 23, 2011, No. IMM-4283-10; 2011 FC 363, at paragraph 7. Also see the analysis of the Honourable Justice Near on the same subject in Mallampally v. Canada (Minister of Citizenship and Immigration), February 27, 2012, No. IMM-5626-11; 2012 FC 267, at paragraphs 22 to 24. 49 Portuondo Vasallo v. Canada (Minister of Citizenship and Immigration), Bédard, May 31, 2012, No. IMM-8526-11; 2012 FC 673, at paragraph 15. 50 RPD's reasons for decision, paragraphs 22 and 23, page 7 of the RPD record. 51 Idem, paragraphs 24 to 29, pages 7 and 8 of the RPD record. 52 Idem, paragraphs 32 to 34, pages 8 and 9 of the RPD record. 53 Judge v. Canada (Minister of Citizenship and Immigration), (No. IMM-5897-03), Snider, August 9, 2004, 2004 FC 1089, at paragraph 10. 54 Canada (Citizenship and Immigration) v. Flores Carrillo, (A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94, at paragraphs 30 and 38; Ruiz Martinez v. Canada (Citizenship and Immigration), No. IMM-1563-09, Gibson, November 16, 2009, 2009 FC 1163, at paragraph 42. 55 M.E.I. v. Villafranca, Igancio (F.C.A., A-69-90), Hugessen, Marceau and Décary, December 18, 1992. 56 Canada (Citizenship and Immigration) v. Flores Carrillo, (A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94, at paragraphs 25 and 30; Valerio Cueto v. Canada (Citizenship and Immigration), No. IMM-232-09, Frenette, August 10, 2009, 2009 FC 805, at paragraph 29. 57 Trejo Soto v. Canada (M.C.I.), (No. IMM-282-05), Pinard, December 20, 2005, 2005 FC 1654, paragraph 7; Castro, Karen Rutter v. M.C.I., (No. IMM-4187-06), Kelen, January 17, 2007, 2007 FC 40, at paragraph 14. 58 Ramirez Chagoya v. Canada (Minister of Citizenship and Immigration), No. IMM-4705-07, Martineau, June 9, 2008, 2008 FC 721, at paragraph 5. 59 Luthra v. Canada (Minister of Citizenship and Immigration), No. IMM-1385-08, Teitelbaum, September 22, 2008, 2008 FC 1053, paragraph 13. Ghotra v. Canada (Minister of Citizenship and Immigration), No. IMM-233-09, Beaudry, July 28, 2009, 2009 FC 764, at paragraph 19. 60 Paguada v. Canada (Minister of Citizenship and Immigration), No. IMM-3861-08, de Montigny, April 6, 2009, 2009 FC 351, at paragraph 22. 61 Vigueras Avila v. Canada (Minister of Citizenship and Immigration), No. IMM-4106-05, Martineau, March 20, 2006, 2006 FC 359, at paragraph 31: "Of course, if corruption is widespread it may ultimately lead to undermining the trust individuals may have in government institutions, including the judicial system. As the Supreme Court has noted, 'democracy in any real sense of the word cannot exist without the rule of law' (Reference Re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at paragraph 67). Due process of law and equality before the law are the vital strength of any democracy and create a legitimate expectation in individuals that the state will do what is necessary to go after criminals and bring them to justice, and if necessary to stamp out corruption. The independence and impartiality of the judiciary and its components are not negotiable. These are fundamental values in any country which claims to be a true democracy. Therefore, the degree to which a state tolerates corruption in the political or judicial apparatus correspondingly diminishes its degree of democracy."; Zaatreh v. Canada (Minister of Citizenship and Immigration), No. IMM-3846-09, Russell, February 23, 2010, 2010 FC 211, at paragraph 45: "After reviewing the Decision and the record, I have to conclude that the RPD's state protection analysis contains reviewable errors. Generally speaking, the Board failed to review the evidence of inadequate state protection at an operational level and it failed to consider the evidence about persons similarly situated to the Applicant who have been let down by the state. As in Balogh, the RPD in this case did not test the presumption of state protection against the evidence led by the Applicant." 62 Immigration and Refugee Board (IRB), National Documentation Package on Colombia, April 30, 2014. The index of this version of the Package is reproduced at pages 42 to 67 of the RPD record. 63 Idem, Document 2.1: United States, Department of State, Colombia. Country Reports on Human Rights Practices for 2013, February 27, 2014, page 1. The same information is found in the most recent documentary evidence: IRB, National Documentation Package on Colombia, July 17, 2015, Document 2.1: United States, Department of State, Colombia. Country Reports on Human Rights Practices for 2014, June 25, 2015, page 1. 64 Idem, under the title Section 4. Corruption and Lack of Transparency in Government. 65 RPD's reasons for decision, paragraphs 45 to 53, pages 10, 11 and 12 of the RPD record. 66 Appellants' memorandum, paragraphs 52 to 59, pages 200 and 201 of the record prepared for the Federal Court. 67 Idem, paragraphs 60 and 61, pages 201, 202 and 203 of the record prepared for the Federal Court. 68 Additional Memorandum of Arguments, paragraphs 177, 178 and 179, page 24. 69 Idem, paragraphs 68 to 80, pages 205 to 211 of the record prepared for the Federal Court. 70 Additional Memorandum of Arguments, paragraphs 186 to 206, pages 25 to 29. 71 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, at paragraph 45: " ... in determining an application for refugee status, it was up to the female applicant to establish, on a balance of probabilities, the facts on which she based her application". 72 Acevedo Beza v. Canada (Minister of Citizenship and Immigration), No. IMM-4301-05, Shore, April 12, 2006; 2006 FC 478, at paragraphs 32 and 33. Zaidi v. Canada (Minister of Citizenship and Immigration), No. IMM-8779-04, Martineau, August 9, 2005; 2005 FC 1080, at paragraph 4. 73 Najera v. Canada (Minister of Citizenship and Immigration), No. IMM-5307-01, Noël, October 30, 2002; 2002 FCT 1125, at paragraph 18, citing Klinko v. Canada (M.C.I.), [2000] 3 F.C. 327 (C.A.). 74 Milovic v. Canada (Minister of Citizenship and Immigration), No. IMM-7773-14, LeBlanc, August 25, 2015; 2015 FC 1008, at paragraph 17: "Although a delay in claiming refugee protection is not determinative with respect to the outcome of a refugee claim it may constitute sufficient grounds for rejection in itself, in the right circumstances. This would generally be the case when the refugee claimant cannot provide a satisfactory explanation for the delay in claiming." 75 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, at paragraph 11. 76 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27, 2012; 2012 FC 1374 at paragraph 28. 77 Ntunzwenimana v. Canada (Minister of Citizenship and Immigration), No. IMM-6821-05, Shore, June 29, 2006; 2006 FC 826, at paragraphs 45 and 47. 78 Idem, at paragraph 48. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-03195 MB4-03196 MB4-03197 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB4-03195 MB4-03196 MB4-03197 2