VB5-00351

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. / N° de dossier de la SAR : VB5-00351 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision July 29, 2015 Date de la décision Panel Douglas Fortney Tribunal Counsel for the person(s) who is(are) Douglas Lehrer Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) 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 XXXX (the "appellant") appeals a decision of the Refugee Protection Division (the "RPD") rejecting his claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (the "Act" or "IRPA"),1 the Refugee Appeal Division (the "RAD") confirms the determination of the RPD that the appellant is neither a Convention2 refugee nor a person in need of protection. The appeal is rejected. BACKGROUND [3] The appellant fears return to Colombia as he alleges that the Revolutionary Armed Forces of Colombia (FARC) kidnapped him in about 2000 and that after the military raided or attacked the FARC camp, he was able to find freedom from that camp and escape. After his escape, the appellant made a complaint to the Colombian Attorney General's office (Fiscalia). The appellant did not follow up with his complaint due to fears the FARC might be infiltrated in the Fiscalia. [4] The appellant alleged that he could not return to his normal life and the business that he was operating and so he moved, in Colombia, to a different neighbourhood and then eventually started up in a different line of work as a XXXX XXXX. The appellant alleged that in XXXX and XXXX 2007, he received threatening pamphlets with the FARC logo on them. This caused him to flee to Spain in XXXX 2007, where he maintained a temporary resident status for about five years. [5] Thinking that conditions had improved in Colombia, he returned to Colombia in XXXX 2012. [6] In XXXX 2014, the appellant alleged that he received two threatening phone calls demanding the rest of the extortion payment that he did not make in the year 2000. The appellant fled Colombia to the US in August 2014. After being advised by friends that it may be difficult to obtain legal status in the US, he decided to come to Canada and claim refugee protection. The appellant entered Canada illegally in August 2014. He initiated his claim for refugee protection in November 2014. [7] The RPD heard the appellant's refugee protection claim on January 12, 2015. The RPD's reasons for the decision were rendered in writing with a Notice of Decision dated January 23, 2015. The RPD's reasons stated that the appellant's claim for refugee protection was rejected. The RPD found that the determinative issue was state protection. [8] The appellant is represented for this appeal by the same legal counsel as at his RPD hearing. SUBMISSIONS [9] Counsel for the appellant has identified the following grounds for this appeal: * that the RPD Member erred in focusing on the Colombian state's battle with the FARC as opposed to the adequacy of protection to targeted FARC victims; * that the RPD Member erred in finding that the evidence of professors Brittain and Chernick concerning adequate protection to FARC victims was outdated; * that the RPD Member made a speculative finding when he did not accept the appellant's explanation as to his failure to follow up on his initial complaint to the authorities; and, * that the RPD imposed an excessive burden on the appellant to demonstrate the failure of state protection. [10] The appellant has requested that the RAD set aside the determination of the RPD and find that the appellant is a Convention refugee or a person in need of protection or, in the alternative, order that the RPD refer the matter back to a different Member of the RPD for redetermination with such directions that the RAD considers appropriate. [11] The Minister has not intervened in this appeal. Consideration of New Evidence [12] No new evidence has been submitted for this appeal. Application for an Oral Hearing [13] The appellant has not requested an oral hearing at the RAD. STANDARD OF REVIEW/ROLE OF THE RAD [14] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [15] Counsel in his submissions stated that the standard of review that the RAD should employ in assessing the RPD's findings of fact, and mixed law and fact should be the correctness standard. I will now consider the broader issue of the role of RAD when conducting an appeal of a determination by the RPD. [16] Initially, RAD followed the Supreme Court of Canada (the "Supreme Court") case, Dunsmuir v. New Brunswick3 as the leading case on standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing administrative decisions: reasonableness and correctness. The standard of correctness applies to questions of law, while the standard of reasonableness applies to questions of fact and mixed fact and law. [17] In recent months, the Federal Court (the "Court") has issued several somewhat differing decisions on the role of RAD when conducting an appeal of the RPD determination. These decisions include the recent Court cases Iyamuremye,4 Eng,5 Alvarez,6 and Huruglica,7 among others. [18] In Iyamuremye the Court found that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness: That said, the Court finds that in assessing the reasonableness of the decision, the RAD should, at the very least, have reviewed the evidence that was presented before the RPD and conducted an independent assessment of all the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had properly considered the evidence and reasonably justified its' conclusion.8 [19] In Alvarez, Justice Shore said that, "the Court is of the view that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts."9 Justice Shore also stated that, "when analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or mis-assessed the facts to the point of making a palpable and overriding error."10 Justice Shore also stated that, "the RAD must perform its own assessment of all the evidence in order to determine whether the RPD relied on a wrong principle of law or mis-assessed the facts to the point of making a palpable and overriding error." 11 [20] In Huruglica, Justice Phelan found that the RAD erred in reviewing the RPD's decision on the standard of reasonableness and concluded that the RAD is required to conduct a hybrid appeal. "It must review all aspects of the RPD's decision and come to an independent assessment of whether the appellant is a Convention refugee or a person in need of protection." Justice Phelan also states that, "that notion may well justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Where there is no adverse finding of credibility, the policy rationale for deference is not sustainable. [21] Justice Phelan found that the RAD "must review all aspects of the RPD's decision and come to an independent assessment . . . Where its assessment departs from that of the RPD, the RAD must substitute its own decision." Justice Phelan also found that "In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a 'palpable and overriding error'." [22] While counsel in his submissions initially stated that the standard of review that the RAD should employ in assessing the RPD's findings of fact, and mixed law and fact should be the correctness standard, he also stated that the appellant is relying on the Huruglica case. [23] Justice Noël in Yin,12 found that it is appropriate for the RAD to employ a reasonableness analysis to credibility findings made by the RPD. Justice Zinn also adopted this position in Krishnapillai.13 [24] In this appeal, I have conducted a review covering all aspects of the RPD's decision and have conducted my own independent assessment of all the evidence to determine whether the appellant is a Convention refugee or a person in need of protection, while giving certain deference where the RPD enjoys a particular advantage. As well, it is clear from the many recent Court cases that have been previously mentioned that the standard of correctness should be used for any error of law found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [25] As noted above, the determinative issue in this claim for refugee protection was state protection. Credibility was not identified as an issue in the RPD reasons. [26] As the first ground of this appeal, the appellant submits that the RPD Member erred in focusing on the Colombian state's battle with the FARC as opposed to the adequacy of protection to targeted FARC victims. In reading the RPD Member's reasons, it is evident that the RPD Member has focused much of his analysis of state protection in Colombia, on how the security forces have had measurable progress in reducing FARC's threat as evidenced by his conclusion that "...Colombia has become a safer place as the country continues to negotiate with the FARC and the FARC are reduced in their numbers and in their influence." [27] However, the RPD Member does make the required link to the appellant's particular circumstances in that after being kidnapped in 2000, the appellant was freed after police and/or military intervention against the FARC camp where he was being held and that he submitted a complaint to the authorities shortly after being freed. The RPD Member also recognized the appellant's allegations that he had been threatened by the FARC militants in 2007 and 2014 but had not submitted a complaint to the authorities as he feared they may have been infiltrated by FARC. [28] I have reviewed the RPD Record and the audio recording of the RPD hearing to review actions of the appellant in seeking state protection. After having escaped the FARC camp on XXXX XXXX, 2000 and walking some nine days through the jungle or other countryside, the appellant filed his complaint to the Attorney General's office on XXXX XXXX, 2000. In this police report, the appellant related his experience of having been kidnapped and extorted by FARC and taken to a remote camp in the jungle. In this report he does request state protection as he stated the FARC knew where his family lives and that he was in great danger. At the hearing, the appellant testified that he had provided his sister's home telephone number for further contact by the authorities. However, the appellant testified that the authorities never contacted him again on his complaint and that he did not follow up due to his fear that FARC may have infiltrated the authorities. [29] I note that after having reviewed the text of the complaint to the authorities, there is in a practical sense no actionable material that has been related to the authorities. There is no identification of where these incidents took place or of the identities of his attackers beyond his identification of them as being FARC guerrillas. In the appellant's amended BOC narrative there is further information that could have been provided in his report to the authorities. For example, on XXXX XXXX, 2000 his family sent a portion of the money demanded by express delivery to the city of XXXX XXXX XXXX in a XXXX XXXX under the name of XXXX XXXX XXXX Such information could have been useful to the authorities in providing meaningful action to his complaint. [30] I also note that when asked as to what measures the appellant had taken to seek police protection after the threats he received in 2007 and 2014, the appellant responded that he was afraid FARC may have infiltrated the authorities. When later asked at the hearing as to why he believed the authorities cannot protect him, his testimony at approximately the 1:14 time mark in the audio recording of the RPD hearing was that perhaps they would be able to provide protection but that he did not have enough money to provide to the police, noting that corruption is a problem. [31] The recording of the RPD hearing indicates that counsel for the appellant had no questions for the appellant. Counsel's submissions were focused on the documentary evidence for state protection in Colombia. [32] The RPD Member's analysis of the Colombian state's battle against FARC is highly relevant to this case. The evidence submitted by the appellant indicates that the police and/or military action that resulted in his freedom in 2000 was not directly attributable to security forces acting to address his particular situation but rather an action of the security forces within the context of this greater battle between the Colombian state and FARC. I find that the RPD Member's analysis of state protection in Colombia did recognize the particular circumstances of the appellant. I also find that the nature of any state protection available to the appellant was compromised by the shortcomings of his initial complaint to the authorities, lack of follow-up to his complaint and failure to submit any complaint to the authorities on the threats he experienced in 2007 and 2014. [33] As the second ground of this appeal, the appellant submits that the RPD Member erred in finding that the evidence of professors Brittain and Chernick concerning adequate protection to FARC victims was outdated. In reviewing the audio record according to the RPD hearing, I note that counsel himself also acknowledged that these reports are somewhat dated, dating back to 2009/2010. In his reasons, the RPD Member does state that he considers these reports have become outdated but does expressly acknowledge that he accepts them as expert advice or expert evidence that he needed to consider. The RPD Member then goes on to illustrate how certain findings of these reports may no longer be valid given updated country documents. For example, the Brittain report concludes that due to fiscal capacity and the then current military structure, it would not be possible for Colombia to mount a military buildup needed to match the insurgency's challenge. However, since that time Colombia is in ongoing peace negotiations with the FARC and the government has had success in dismantling FARC camps and coca labs in the country. I find that the RPD Member did not discount the Brittain and Chernick reports but did consider that evidence in light of more recent documentary evidence in a transparent and balanced manner. [34] As the third ground of this appeal, counsel for the appellant submits that the RPD Member made a speculative finding when he did not accept the appellant's explanation of why he did not follow up his initial complaint to the authorities. The RPD Member found the appellant's explanation not to be reasonable because if he was afraid that the FARC had infiltrated the police or the attorney general's office he would not be going to them in the first place. This combined with the appellant's failure to seek police protection in 2007 and 2014 led to the RPD Member's finding that the appellant had not taken all reasonable efforts in his circumstances to seek state protection. [35] In reviewing the second ground of this appeal, I addressed the actions that the appellant had taken to seek state protection in Colombia. Given the content of his complaint to the authorities, it is difficult to understand what action he would have expected from the authorities on his behalf. While he did make a general request for protection, he did not follow up on his request. Under these circumstances, I find that the RPD Member did not make a speculative finding but that it was open for the RPD Member to question his explanation, that is, if the appellant was so concerned that FARC would have infiltrated the authorities why would he have made this complaint in the first place. [36] As the fourth ground for this appeal, counsel for the appellant submits that the RPD imposed an excessive burden on the appellant to demonstrate the failure of state protection. In his reasons, the RPD Member states that "...in a functioning democracy such as Colombia, the [refugee] claimant has a heavy burden when attempting to show that they should not have been required to exhaust all the necessary recourses that are available to them domestically before seeking refugee protection internationally."14 The RPD Member then goes on to recognize that given documentary evidence of corruption and the ongoing civil war in the country, that ". . . a claimant should make some 'reasonable attempts' to seek state protection before seeking protection internationally."15 [37] The relevant question then is, has the appellant indeed taken reasonable attempts to seek state protection in Colombia? As detailed above, the appellant only once filed a report with the authorities relating to his kidnapping and extortion in 2000. While the appellant stated he was seeking protection, there was no actionable information in this police report. The appellant took no action to follow up on this complaint with the authorities. The appellant took no action at all to seek state protection after receiving threats from FARC in 2007 and 2014. The appellant did not provide any testimony relating to his own personal knowledge of such infiltration by FARC in the security authorities of Colombia nor of corruption in the security forces. The appellant's argument relies almost wholly upon the documentary evidence. However, as recognized by the RPD Member, the documentary evidence on state protection in Colombia is mixed but the country has made progress in dealing with the threat from FARC and in dealing with corruption issues. Colombia is not a failed state and the documentary evidence does not support the contention that exceptional circumstances exist to exempt the refugee claimant from the obligation of seeking state protection. Refugee claimants must demonstrate at least reasonable efforts to seek state protection. [38] In his submissions, counsel for the appellant discusses several country documents indicating that protection programs for FARC victims in Colombia remain poorly resourced and inadequate. However, as discussed above in this case the appellant's actions to seek state protection were limited in 2000 and nonexistent in 2007 and 2014, due to his fear that state authorities have been infiltrated by FARC and/or are corrupt and thus he doubted that state authorities would be in a position to protect him. [39] Case law establishes that "Doubting the effectiveness of protection offered by the state, when one has not really tested it, does not rebut the existence of presumption of state protection".16 Country documents indicate that Colombia does have a functioning police force and judiciary system. [40] I agree with the RPD Member that the appellant has not provided persuasive evidence that the police were not willing or able to help him in Colombia. Taking into consideration the country reports and the appellant's lack of reasonable efforts to seek protection in his country, I find the appellant has not provided clear and convincing evidence that state protection was not available for him in Colombia. Nor is there any information before the RPD Member, or the RAD, that state protection is inadequate in Colombia. [41] A refugee claimant who alleges that the state protection is inadequate must persuade the Immigration and Refugee Board that the evidence establishes that the state protection is inadequate.17 The refugee claimant's (evidentiary) burden of proof is directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more claimants must do to exhaust all courses of action open to them.18 Clearly, the appellant's one attempt at seeking state protection is not sufficient to rebut the presumption of state protection. [42] Courts have said that "a state's efforts to provide state protection are a relevant consideration but these efforts must also translate into operational adequacy."19 However, the Federal Court has held that a standard of perfection is not required. Less than perfect protection is not a basis to determine that a state is either unwilling or unable to offer reasonable protection.20 State protection in Colombia is not perfect. As noted earlier, the protection need not be perfect.21 One measure of the adequacy of the protection is whether the state is making "serious efforts" to protect its citizens.22 [43] Finally, the Federal Court has said that, "in the absence of a compelling explanation, where the state is a functioning democracy with a willingness and the apparatus necessary to provide a measure of protection to its citizens, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim.23 This is so even where the protective services of the state have gaps or deficiencies.24 It is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system."25 [44] I find that the appellant has failed to rebut the presumption of state protection with clear and convincing evidence. The appellant has not provided any persuasive evidence that if he was to return to Colombia and encounter problems with the FARC that the authorities would refuse or be unable to investigate his allegations and refuse to arrest and prosecute the perpetrators if there was sufficient evidence. Where there is evidence that the government is taking steps to provide state protection to those affected by the FARC, in the absence of evidence to the contrary, it must be presumed that these steps will be effective.26 [45] In summary, having considered all the evidence, I find that the appellant has failed to rebut the presumption of state protection in Colombia. DECISION For all these reasons, I confirm the determination of the RPD in accordance with paragraph 111(1)(a) of the Act, namely, that the appellant is neither a Convention refugee nor a person in need of protection. This appeal is therefore dismissed. (signed) "Douglas Fortney" Douglas Fortney July 29, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Dunsmuir v. New Brunswick, 2008 SCC 9. 4 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 5 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 6 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 7 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 8 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494, para. 41. 9 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 27. 10 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 28. 11 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 33. 12 Yin v. Canada (Citizenship and Immigration), 2014 FC 1209, paras. 35-39. 13 Krishnapillai v. Canada (Citizenship and Immigration), 2015 FC 781. 14 RPDR, page 4. 15 Ibid. 16 Rio Ramirez, Leticia Lizet Del v. Canada (Minister of Citizenship and Immigration), 2008 FC 1214. 17 Canada (Minister of Citizenship and Immigration) v. Flores Carrillo, 2008 FCA 94, para. 20, 24. 18 Canada (Minister of Citizenship and Immigration) v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.), at 536. 19 Lopez, Jeronimo Ocampo v. Canada (Minister of Citizenship and Immigration), 2010 FC 1176. 20 Jaroslav, Spacil v. Canada (Minister of Citizenship and Immigration), 2011 FC 634. 21 Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.). 22 Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), at 132. 23 Camacho, Jane Egre Sonia v. Canada (Minister of Citizenship and Immigration), 2007 FC 830. 24 Salazar Santos, Marco Antonio v. Canada (Minister of Citizenship and Immigration),. 2007 FC 793. 25 Marquez Alvarez, Guillermo v. Canada (Minister of Citizenship and Immigration), 2010 FC 197 and Romero Castaneda, Manuel Alejandro v. Canada (Minister of Citizenship and Immigration), 2010 FC 393. 26 Manorath, Rahonie v. Canada (Minister of Citizenship and Immigration), (F.C.T.D., no. IMM-2369-94), Cullen, January 26, 1995. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ IAD File No. /Dossier : 2 RAD File No. / N° de dossier de la SAR : VB5-00351 RAD File No. / N° de dossier de la SAR : VB5-00351