MB6-03128

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 : MB6-03128 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision August 14, 2017 Date de la décision Panel Me Marie-Claude Roberge Tribunal Counsel for the Appellant(s) Me Alfredo Garcia Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION INTRODUCTION [1] The principal appellant, XXXX XXXX XXXX, and her spouse, XXXX XXXX XXXX XXXX, are appealing against the decision of the Refugee Protection Division (RPD), which rejected their refugee protection claim by determining that they are neither "Convention refugees" nor "persons in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellants did not present any new evidence under subsection 110(4) of the IRPA. They are asking the Refugee Appeal Division (RAD) to set aside the RPD's decision and allow the appeal. [3] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are neither "Convention refugees" under section 96 of the IRPA nor "persons in need of protection" within the meaning of section 97 of the IRPA. [5] The appeal is dismissed. BACKGROUND Summary of facts [6] The appellants are originally from Colombia. [7] The principal appellant and her family had to leave the department of XXXX in 2002, in the wake of threats from the FARC. They settled in Cali and appealed to the XXXX XXXX XXXX XXXX XXXX XXXX (XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, "XXXX"). [8] The appellants were the victims of several acts of violence between 2012 and 2014: thefts from their vehicle and their apartment; physical assault and thefts while they were on vacation near XXXX XXXX, Magdalena. The appellants were also allegedly followed numerous times while they were driving. The principal appellant allegedly received threatening telephone calls and on January 12, 2016, a [translation] "bouquet of funeral flowers." She alleged that the purpose of the incidents was to intimidate her. [9] The principal appellant stated that she was afraid of the FARC, given their ties with government authorities, colluding with them in extortion activities against displaced persons receiving XXXX benefits. The FARC are allegedly still interested in pursuing her, in part because of her past in XXXX. [10] The appellants left Colombia on XXXX XXXX, 2016, and filed their refugee protection claim on February 18, 2016. IMPUGNED DECISION [11] The decision rejecting the refugee protection claim was rendered on May 11, 2016. [12] The RPD rejected the appellants' refugee protection claim on May 11, 2016. The RPD believed that the principal claimant was recognized as a displaced person in Colombia and had no doubt that the thefts of June 2012 and January 2013 had occurred, but it did not believe that the FARC had assumed the principal appellant's identity to collect benefits and had threatened her because of this. The RPD found that the allegations on which the appellants' refugee protection claim was based were not credible. APPELLANTS' ARGUMENTS [13] It is alleged that the RPD erred in its assessment of the principal appellant's credibility, making erroneous findings in the analysis of the statements, explanations and documentary evidence. THE RAD'S ROLE [14] The RAD is an appeal tribunal and its role is to intervene when the RPD is wrong in law, in fact or in fact and law.1 However, an appeal before the RAD is not a de novo proceeding.2 The role of the RAD is to correct the errors that, in the appellants' opinion, may have been made by the RPD3 and to render the determination that should have been made or that must be made in light of the most recent evidence on the record.4 [15] With regard to the level of deference owed by the RAD, it is for the RAD to determine, in each case, the level of deference it owes to the findings of fact or mixed fact and law that are based on the credibility of the oral evidence, by determining whether the RPD truly benefited from an advantageous position in its assessment of the evidence.5 [16] In the recent decision rendered by a three-member panel, the RAD determined the scope and the level of deference applicable when it reviews RPD decisions with respect to the credibility of oral testimony. In that decision, it specifically states that "[w]here the RPD enjoys a meaningful advantage in making a particular finding, the RAD may assess that finding using a standard of reasonableness, modified to apply to the RAD context."6 [17] I will conduct an independent analysis of the evidence to determine whether the RPD made the errors alleged by the appellants. If an error of fact, law or mixed fact and law was made, I will intervene using one of the means set out in section 111 of the IRPA. [18] At the hearing, the RPD questioned the principal appellant so that she could explain certain inconsistencies between her account and her testimony regarding the FARC, which allegedly wanted to assume her identity in relation to the benefits to which she was entitled as a displaced person. The RPD had the opportunity to determine which questions to ask and was able to assess the testimony given in response and to hear the female appellant's explanations regarding these inconsistencies. In this case, I find that this is a situation in which the RPD enjoyed a meaningful advantage over the RAD, as defined in the decision recently rendered by the three-member panel. I will therefore show some deference and assess the RPD's finding on this point based on reasonableness, modifying this standard to apply to the context of assessing the female appellant's credibility on this issue. ANALYSIS OF THE MERITS OF THE APPEAL [19] Having reviewed the entire record, listened to the electronic recording of the hearing and considered the arguments presented in the appeal memorandum, I find that the RPD did not err in its analysis regarding the assessment of the appellants' credibility. Credibility [20] At the basis of her refugee protection claim, the principal appellant stated that she fears the FARC, which allegedly assumed her identity to collect the XXXX benefits to which she was entitled as a displaced person.7 The FARC allegedly intimidated her by following her and uttering threats by telephone. Through this intimidation, the FARC wanted to ensure that she would continue to meet the XXXX program's criteria for continuing to receive benefits, that is, she had to be in an unsafe situation. With the threats, they kept her in a state of fear, which allegedly led her to report the situation. When she did this, the government concluded that she was not safe and therefore could not leave the program for the [translation] "displaced persons group," even though her economic situation was good.8 Thus, the FARC allegedly continued to collect her benefits. Once she realized their strategy, she reported the situation. Separation from the family unit [21] The female appellant states in her Basis of Claim Form (BOC Form) that in September 2015 she applied to the XXXX to have her file separated from that of her father (initial family unit), thereby enabling her father to obtain more benefits, since the female appellant's financial and personal situation was preventing her father from obtaining certain benefits to which he was entitled.9 As a result, her name was removed from her father's file.10 [22] At the hearing, though, she stated that the government automatically separates children from the initial family unit once the child reaches the age of 18.11 The RAD therefore infers that, 11 years earlier, as of July 2004, the date on which the female appellant turned 18, she would have been automatically separated from her father's file. This is inconsistent with her BOC Form. When asked to explain this inconsistency and why the fact that she was married and in a good financial position was affecting the benefits that her father could receive if her file had been separated from his, the female appellant stated that in fact what she had wanted was to receive her own benefits so she could give them to her father.12 The principal appellant stated that she did not know why she had written it like that in her BOC Form, [translation] "but that was what she had in her head."13 This explanation does not explain the inconsistency. [23] At the hearing, the RPD asked the female appellant what benefits she could receive by withdrawing from the displaced persons program; she stated that they included economic benefits, land restitution, a monthly sum and a lump-sum payment. Two conditions must be met to withdraw from the program: be reintegrated into society and be in a situation where the government can ensure our safety.14 The RPD asked her how she was able to receive a sum for land restitution when it was not her but her father who was the owner. She explained that this was the initial step to find out how to proceed, to then get her father to do it.15 This explanation seems inconsistent and does not explain how the request to separate from the family unit was necessary to obtain information about how to proceed to help her father in his efforts relating to the restitution of his land. [24] Furthermore, the female appellant stated that she had learned that separation from the family unit was automatic only after these steps were taken in 2015. She also acknowledged that she had received a loan for her education from 2005 to 2008, when she was already an adult and therefore separated from the family unit. The evidence submitted by the female appellant indicates that information regarding the family unit is periodic, which is why it is stipulated that it must be updated every year.16 This is also reflected in the notice of interruption of humanitarian assistance that the female appellant submitted into evidence, which refers to cooperation among various administrative agencies to analyze information about victims of forced displacement. Therefore, I find that the information regarding displaced persons is updated regularly and that it includes the information related to the assistance the female appellant received for her education when she was an adult, and therefore already separated from the initial family unit. This contradicts her BOC Form, and these inconsistencies undermine her credibility. [25] Given these inconsistencies, the RAD finds that the RPD could reasonably find that the female appellant was not credible regarding the steps she allegedly took with the XXXX to separate her file from that of her father and thereby obtain certain benefits. Threats from the FARC [26] The female appellant maintains that initially the FARC were threatening her to keep her in a state of fear, thereby leading her to report the situation and thus ensuring that she remained eligible to receive benefits as a displaced person. The FARC were therefore allegedly behind the thefts from her apartment and her vehicle in 2012 and 2013, as well as the assault in November 2013, and had chased her on a motorcycle in December 2013. [27] The RPD did not doubt that the thefts of June 2012 and January 2013 had taken place; however, it did not believe that the principal appellant was [translation] "personally targeted by the FARC"17 and it was of the opinion that the thefts were instead attributable to the crime rate in Cali, the most violent city in Colombia. [28] According to her BOC Form, the female appellant alleges that in April 2012, her documents were stolen from her vehicle. In June 2012, her documents were again stolen, along with some belonging to her spouse, from the latter's vehicle. In January 2013, the appellants' apartment was burglarized and several items were stolen, including the television, refrigerator, alcoholic beverages and the female appellant's documents, but not those of the male appellant. In her BOC Form and at the hearing, the female appellant explained that it had seemed strange to them that only her documents had been stolen, and not those of her husband, just like in the thefts from the vehicle in 2012 and 2013. At the hearing, the male appellant explained that at the time of the theft at their apartment, his wallet was with him, not in the apartment. The female appellant's papers, however, were in her purse, in the living room, and it was stolen along with other items. The female appellant also explained that at the time of the theft from her spouse's vehicle in June 2012, her purse was under the seat and contained her papers and the keys to the apartment;18 the thieves took what interested them.19 The male appellant's wallet was not there; he was carrying it with him.20 [29] In November 2013, the appellants were assaulted and robbed while on vacation near XXXX XXXX, in Magdalena. The appellants filed a complaint with the local police. At the hearing, the principal appellant explained that, for them, that day confirmed that the FARC were persecuting them,21 that they wanted them to remain intimidated.22 The FARC did not, however, identify themselves as such, just like in the other incidents.23 In the BOC Form, as there is no evidence whereby the FARC identified themselves at the time of the incidents committed against the appellants, I find that the RPD could reasonably find that the appellants had not demonstrated, on a balance of probabilities, that the FARC were responsible for the thefts, chases and assaults that the claimants had suffered, and that the appellants were being targeted by the FARC, but that they were instead victims of random acts. Threats after XXXX XXXX [30] According to the documentary evidence on the record, the principal appellant was given a notice of personal notification on XXXX XXXX, 2015, regarding the suspension of humanitarian assistance to which she was entitled as a displaced person.24 It was following that decision that the female appellant allegedly understood the FARC's strategy, since she had not received any benefits since she had turned 18, and that someone else must have assumed her name. On December 5, 2015, she sent a letter to the victims' assistance and full compensation unit, asking it to send her information about the people who had allegedly received benefits in her name and the collection proof for them. [31] On XXXX XXXX, 2015, she received threats, but this time demanding that she keep quiet.25 She explained at the hearing that this meant they were asking her to conceal the situation, to not make any reports, to keep things as they were.26 On XXXX XXXX, 2016, she received a [translation] "bouquet of funeral flowers." [32] On XXXX XXXX, 2016, the appellants filed a report with the fiscalia about all the incidents that had happened to them. The fiscalia gave an order to activate protection measures that were to be carried out by the Cali police. [33] The XXXX decision indicates that the affected individual can appeal the decision.27 When asked whether the female appellant had appealed the decision in order to rectify the error, if there was an error, and if necessary to report the fraud to the XXXX, the principal appellant stated that she did not appeal the decision, that she had not known that she had to proceed by means of an appeal and that she had first wanted to receive information about the people who had allegedly received the benefits that were hers.28 That is what she did in her letter of December 5, 2015. Given the female appellant's claims about the FARC's strategy/fraud, the threats that she had allegedly received and her willingness to provide financial assistance to her impecunious father, one might have expected the female appellant to use her right to appeal, as clearly indicated in the XXXX notice of decision. I find that it was reasonable for the RPD to draw a negative inference from the fact that the principal appellant did not appeal. [34] The principal appellant continued to receive calls from an unidentified number; she systematically refused to answer them. She also alleged that she received a funeral bouquet on XXXX XXXX but was unable to provide evidence corroborating her allegations, such as a photograph, something specifying who the sender was or a message from that person. On XXXX XXXX, the appellants were again pursued by a motorcycle, and given the behaviour of the motorcycle's passengers-there were two of them although that was illegal in Cali-the female appellant deduced that it was the FARC chasing her. I find that this is merely a hypothesis and that the RPD could find that, in a city like Cali, the appellants might have been followed, but that in itself did not demonstrate that it was the FARC who was pursuing the female appellant. I find it reasonable that the RPD did not find it credible that the FARC had threatened the female appellant, that the funeral bouquet had been sent by the FARC, or that the anonymous calls were coming from them. [35] The RPD also asked the female appellant to explain why, in her opinion, she had received threats after XXXX XXXX. The female appellant explained that by making a report directly to Bogota, to the source, to the ministry of the interior and justice, she was jeopardizing the business associated with collecting benefits through identity theft. Confronted with the discrepancy in her testimony, according to which, prior to December 2015, she was being threatened to ensure that she would live in fear and report the threats, whereas since December 2015, it was the reverse, the principal appellant explained that she became a problem in December 2015 because by reporting the situation, she was exposing the entire strategy put in place and the corruption between the XXXX and the FARC.29 The RAD finds this explanation unsatisfactory for the following reasons. First, the report to the fiscalia was not filed until XXXX XXXX, 2016, more than a month after she had received the threats demanding that she [translation] "keep quiet;" the letter of December 5 was not a complaint, but rather sought explanations. Then, the existence of fraud related to displaced persons was a criminal activity that officials already knew about: the police officer who had investigated the burglary of their apartment had talked about the existence of such fraud in December 201330 and the fraud had already been reported in the newspapers, so other people had already exposed the scheme.31 [36] Given all of the inconsistencies, I find that the RPD did not err in finding that the appellants did not establish the credibility of the allegations on which their refugee protection claim was based, namely, that the FARC had assumed the identity of the principal appellant to collect benefits and that they had allegedly threatened her because of this. CONCLUSION [37] For these reasons, the RAD confirms the RPD's determination that XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are neither "Convention refugees" under section 96 of the IRPA nor "persons in need of protection" under subsection 97(1) of the IRPA. [38] The appeal is dismissed. Marie-Claude Roberge Marie-Claude Roberge August 14, 2017 Date IRB translation Original language: French 1 Minister of Citizenship and Immigration v. Huruglica, No. A-470-15, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paragraph 78. 2 Idem, paragraph 79. 3 Ghauri v. Canada (Minister of Citizenship and Immigration), No. IMM-3426-15, Gleeson, May 16, 2016; 2016 FC 548, paragraphs 30 to 34. 4 Huruglica, supra, footnote 1, paragraphs 96, 97 and 98. 5 Idem, paragraphs 70-73. 6 (Re), 2017 CanLII 33034 (CA IRB), at paragraph 116. 7 Female appellant's account, paragraph 49, and female appellant's testimony before the RPD, April 6, 2016, 01:25-01:26; April 12, 2016, 00:58. 8 Female appellant's testimony before the RPD, April 6, 2016, 01:22-1:23. 9 Account, para. 38. 10 Idem. 11 Female appellant's testimony before the RPD, April 6, 2016, 0:41-0:42. 12 Ibidem, 00:43-00:44. 13 Ibidem, 00:49. 14 Ibidem, 00:44-00:47. 15 Female appellant's testimony before the RPD, April 6, 2016, 00:48. 16 "Avis de Interruption d'Aide Humanitaire" [notice of interruption of humanitarian assistance], pp. 80-83, and "Résultat du plan d'aide, Assistance et Dédommagement integral" [outcome of the assistance plan, assistance and full compensation], p. 97 of the RPD record. 17 RPD reasons and decision, paras. 31, 34-35. 18 Female appellant's testimony before the RPD, April 12, 2016, 00:07-00:08; 00:54. 19 Ibidem, 00:11-00:12. 20 Ibidem, 00:09. 21 Ibidem, 00:28. 22 Ibidem, 00:30. 23 Ibidem, 01:01. 24 "Avis de Notification Personnelle" [notice of personal notification], December 12, 2015, p. 89 of the RPD record, and Exhibit C-18, "Avis de Interruption d'Aide Humanitaire," pp. 77-84 of the RPD record. 25 Account, para. 41. 26 Female appellant's testimony before the RPD, April 12, 2016, 00:37-00:38. 27 "Avis de Interruption d'Aide Humanitaire," p. 84 of the RPD record. 28 Female appellant's testimony before the RPD, April 6, 2016, 01:46-01:48. 29 Female appellant's testimony before the RPD, April 6, 2016, 02:15-02:20. 30 BOC Form, para. 26. 31 Female appellant's testimony before the RPD, April 6, 2016, 01:53-01:54. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB6-03128 11