TB8-21808

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 / Dossier de la SAR : TB8-21808 TB8-21809 / TB8-21810 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 26, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal Michael F Loebach Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Principle Appellant or PA) her husband XXXX XXXX XXXX XXXX and their minor child, XXXX XXXX XXXX, citizens of Colombia appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. They have not submitted new evidence in support of this appeal. The Appellants are not requesting an oral hearing. The Appellants ask the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The PA alleges that she and her father were being extorted by the National Liberation Army (ELN) of Colombia. The PA alleges that the ELN threatened to kill her, her father and her husband if she failed to comply with the ELN's demands for extortion money. Greater detail may be found in the Appellant's Basis of Claim (BOC) and narrative.1 RPD's Reasons [3] In its reasons, the RPD found that the Appellants had failed to satisfy their burden of proving that their claim was credible. Further, the panel found that there was state protection available, should they need it and that there was a viable internal flight alternative (IFA) available in XXXX. [4] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed Appellant's Issues [5] The Appellant raises four issues at the RAD: 1) Did the tribunal err in deciding that the Appellants are not Convention Refugees nor Persons in need of protection? 2) Did the tribunal err in its credibility determination? 3) Did the tribunal err its state protection analysis? 4) Did the tribunal err in determining that XXXX is an Internal Flight Alternative (IFA)? ANALYSIS Determinative Issue [6] The determinative issues in this appeal are the availability of state protection and the availability of a viable IFA. Credibility is also an issue. Standard of Review [7] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.2 Admissibility of New Evidence [8] The Appellant submitted as new evidence, her affidavit. This is not new evidence but merely a rehash of the Appellant's story. As her affidavit is relevant, it will be taken into consideration in my decision. [9] In her affidavit, the Appellant stated that she would be submitting late evidence when she receives it. As of this date of writing, no such new evidence has been disclosed. [10] There does not appear to be a request for an oral hearing. As no new evidence has been allowed, the statutory requirements for an oral hearing have not been met. Therefore, if I have somehow missed the request for an oral hearing, such a hearing would be denied in accordance to section 110(6) of the IRPA. ARGUMENTS Credibility [11] Counsel argues that the panel erred when it found that the allegation of being threatened by the ELN was not credible, based on alleged contradictions in the female Appellant's testimony. Specifically, the female Appellant testified that she had received the initial threat in January 2016 while her BOC said she was in XXXX during February 2016. [12] The female Appellant has written in her BOC that the first threat she received was on January 4, 2016 while she was in XXXX. She received a threat on February 14 or 15 while she was in XXXX XXXX Reading the transcript, it appeared to me that there was a basic misunderstanding of the question, by the Appellant. The Appellant appeared to be earnest in trying to clarify the situation for the panel.3 [13] However; I was not present and must defer this issue to the RPD as the panel had a distinct advantage over me inasmuch as the panel was able to make determinations with the help of demeanour and other possible visible affects that I cannot see. [14] Counsel argues that the panel erred by finding a lack of subjective fear because the Appellants lived in the US for about six months, even giving birth to their child in the US but failed to seek refugee protection. Counsel argues that the Appellants gave a reasonable explanation for that failure to claim. The explanation was that they could not afford to pay for counsel and that Donald Trump got elected as President. [15] These are not sufficient reason for their failure to claim in the US. Although counsel is an important part of the refugee process, counsel is not a mandatory player. These Appellants are highly educated professionals who are sophisticated enough that they could access all of the information they required in order to begin a claim for protection. It is reasonable for the panel to find that, if the Appellants truly feared returning to Colombia, then they would logically seek protection as soon as possible and that would have been shortly after arriving in the US, if not immediately upon arrival. [16] In a recent Federal Court case, Justice Shore said that two weeks in the US without a claim "strongly indicates a lack of subjective fear"4 The Appellants spent about six months in the US without making a claim. [17] I find that the panel made a reasonable finding based on the evidence before it. There was no error in that finding. [18] Counsel argues that the panel erred by finding that the letter from the female Appellant's uncle carried no weight because the letter was nothing more than a re-iteration of what the female Appellant told her uncle. The panel, finding that the female Appellant was not credible also found that the letter from her uncle based on the female Appellant's story which the panel did not believe was also not credible. Consequently the panel afforded the letter little to no weight. The panel's assignment of weight to that letter would be an error if the female Appellant was a credible witness however; the panel found that she was not credible. Up to this point, I have seen no argument which would lead me to find the panel in error on this issue. State Protection & IFA [19] Counsel argues that the panel's finding of adequate state protection is in error. However, counsel only cites passages from the National Documentation Package (NDP)5 which speaks to the humanitarian disasters of displaced persons in certain areas of Colombia. Those displaced persons have been driven from their homes in the areas controlled by the ELN and other illegally armed groups. Colombia actually has the highest number of displaced persons in the world. [20] However; the documents which speak to this mass displacement also clearly indicate the areas where the ELN, the armed group allegedly feared by the Appellants, operate. Although that area included XXXX, where at least one of the alleged threats occurred, the operational area of the ELN does not include one of the IFAs suggested by the panel. That is the city of Barranquilla, in the far northwest of Colombia. [21] The Appellants were asked about Barranquilla as a possible IFA and the male Appellant responded that, in Barranquilla, he doesn't know anything or anybody. [22] In assessing whether a viable IFA exists, the Board is guided by the cases of the Federal Court of Appeal. If there is a safe haven for claimants in their own country, where they could live free from harm, they are expected to avail themselves of it, unless they can show it is objectively unreasonable or unduly harsh for them to do so.6 The IFA must be realistic, attainable and accessible. Barriers to getting to the IFA must be reasonably surmountable and the claimant cannot be required to encounter great danger or undergo undue hardship either in travelling there or in remaining there. Claimants should not be compelled to hide out in an isolated region of their country, like a cave in the mountains, or in a desert or a jungle, if those are the only areas of internal safety available. But neither is it enough for refugee claimants to say that they do not like the weather there, have no friends or family in the region or are not able to find suitable work there. The fact that a claimant may be better off in Canada economically, physically or emotionally, than they would be in their own country, is not a factor to consider when assessing the reasonableness of an IFA.7 If it is objectively reasonable to live in the IFA without fear of persecution or risk of harm, then IFA exists and the claimant is not a refugee. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so. It is not a matter of the claimant's convenience or the attractiveness of the IFA, but whether one should be expected to make do in that location before traveling half-way around the world to seek a safe haven, in another country.8 [23] In order to determine whether a viable IFA exists, the Board must consider a two-pronged test: 1. The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the Appellants being persecuted, or in this case, that the Appellants would not be subject personally to a risk to their lives or a risk of cruel and unusual treatment or punishment or to a danger of torture, in the part of the country to which it finds an internal flight alternative exists; and 2. Conditions in that part of the country must be such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for the claimant to seek refuge there.9 [24] The claimant always bears the burden of proof to show that he would be subject personally, on a balance of probabilities,10 to a risk to life or a risk of cruel and unusual treatment or punishment in the entire country and specifically in the potential IFA area named.11 [25] The male Appellant was asked if they could reside Barranquilla so as to avoid the ELN. The male Appellant testified that they could not live in Barranquilla because they did not know anyone there. [26] Having canvassed the documentary evidence,12 I can find no information which would suggest that the ELN has the capacity to find the Appellants if the Appellants were living in an area outside of the ELN's sphere of influence. According to that documentary evidence, Barranquilla is far outside of the ELN's sphere of influence. [27] Barranquilla has a metropolitan population in excess of 2,370,000 people. It is home to the First Division of the National Army of Colombia and close to the No. 3 Air Combat Command, located in the nearby town of Malambo. [28] Barranquilla is one of the most important regional headquarters of many Colombian state entities. The Judiciary and Superior Courts and the Attorney General's Office and the Comptroller General's Office, the Administrative Security Department, National Police and many more important government entities are located here. [29] Aside from the massive government presence here, the municipality of Barranquilla has been designated a "Special Industrial District" and is a major industrial centre with dynamic economic activity in industry, commerce, finance, services and fishing. [30] Barranquilla is home to several universities, museums, hospitals and has all of the necessary infrastructure to support a bustling population. [31] With the educational level of these Appellants, I see no reason that they could not thrive in Barranquilla as a family. [32] I have considered the evidence, and notwithstanding the Appellant's testimony, I determine that there is an IFA for the claimant in Barranquilla. Therefore, the Appellants have not established, on a balance of probabilities, that they would be subject personally to a risk to life or to a risk of cruel and unusual treatment or punishment in Barranquilla at the hands of the ELN. [33] As the availability of a viable IFA is determinative, I will proceed no further for the adult Appellants. As the minor child is a citizen of the United States of America and has made a claim against the USA, I will deal with that separately. [34] With respect to the child born in the US, namely, XXXX XXXX XXXX XXXX as she is a citizen of the United States, she enjoys the rights and privileges of that country. She would be able to benefit from the social safety networks of the US and the United States would be able to extend protection to this child who is a national of that country. [35] Furthermore, counsel informed the panel that he will not be providing any evidence against the United States claiming persecution should the child return. [36] Therefore, I find that the minor child born in the US is neither a Convention refugee, nor a person in need of protection. Therefore, I am rejecting her claim for protection. Summary [37] The Appellants have failed to show that there is no viable IFA for them in Colombia. I have shown that there is a viable IFA in Barranquilla. This is determinative. Disposition [38] The RAD has found that the RPD decision will stand. CONCLUSION [39] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed (signed) "David Lowe" David Lowe November 26, 2018 Date 1 Exhibit RPD-1, RPD Record, at pp. 10-68. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 RAD-1, Transcript of the RPD hearing of August 7, 2018, at pp. 11-13. 4 Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013; 2013 FC 1241. 5 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Colombia (30 April 2018), item 1.6, United Nations. Office for the Coordination of Humanitarian Affairs., Colombia 2018 Humanitarian Needs Overview, November 2017. 6 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 7 M.C.I. v. Ranganathan, Rohini (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. Reported: Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.). 8 Thirunavukkarasu, supra, footnote 6 9 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 10 Li, Yi Mei v. M.C.I. (F.C.A., no. A-31-04), Rothstein, Noël, Malone, January 5, 2005, 2005 FCA 1. Reported: Li v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 239 (F.C.A.). 11 Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 97(1)(b)(ii). 12 Exhibit RPD-1, RPD Record, NDP for Colombia (30 April 2018), item 1.1, United States. Central Intelligence Agency., Colombia, 2008, item 1.2, Colombia Reports, Colombia's illegal armed groups' areas of influence, 18 February 2018 and item 4.4, Insight Crime, ELN, 3 March 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-21808 TB8-21809 / TB8-21810 RAD.25.02 (September 18, 2018) Disponible en français 7 RAD.25.02 (September 18, 2018) Disponible en français