MB6-05980

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 : MB6-05980 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXXXXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision July 28, 2017 Date de la décision Panel Me Marie-Claude Roberge Tribunal Counsel for the Appellant(s) Me Shane Molyneaux 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] In this case, the Refugee Protection Division (RPD) rendered a decision on March 24, 2015, rejecting the refugee protection claim of the appellant, XXXX XXXX XXXX XXXX. The Refugee Appeal Division (RAD) has previously rendered a decision in this case, confirming the RPD's decision. The case was then referred to the Federal Court when an application for judicial review was filed and, in a decision rendered on July 20, 2016, the Court ordered that the appeal be heard again by differently constituted RAD panel. [2] The appellant is asking that the RAD set aside the RPD's decision and allow the appeal. [3] The appellant has produced new evidence as part of his appeal and is asking that a hearing be held. [4] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [5] Under subsection 111(1) of the IRPA, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" under section 97 of the IRPA. [6] The appeal is dismissed. BACKGROUND Summary of facts [7] The appellant is originally from Colombia. He, along with his father, is a shareholder in a family business. In January 2014, he began receiving numerous threats from the "Aguilas Negras" (Black Eagles), which intensified in the months that followed. [8] He filed a complaint with the police in March 2014. He took certain measures to protect his family and his business. He also went to the United States for one week in XXXX 2014. [9] On June 18, 2014, shots were fired at him as he was getting into a taxi. The appellant filed a complaint and asked the fiscalia [national attorney general's office] for protection. He also went to the ombudsman's office. [10] On XXXX XXXX XXXX XXXX, the appellant left Colombia for the United States. He illegally crossed the Canadian border a few days later, around XXXX XXXX XXXX XXXX XXXX He filed a refugee protection claim in December 2014. IMPUGNED DECISION [11] The decision rejecting the refugee protection claim was rendered orally on March 24, 2015. [12] The RPD rejected the appellant's refugee protection claim based on the lack of subjective fear, which undermined his credibility. In assessing the appellant's credibility, the RPD also drew a negative inference from his delay in filing his refugee protection claim, his having returned to Colombia, and his failure to claim asylum in the United States. [13] Before the RAD, the appellant wished to submit new evidence, in accordance with subsection 110(4). This request was denied by the RAD, and the Federal Court did not intervene with respect to the RAD's initial determination regarding the inadmissibility of that evidence. However, the Federal Court did state that the RAD had erred by deferring to the RPD's credibility findings without assessing whether the RPD had enjoyed a meaningful advantage in its assessment of the evidence. APPELLANT'S ARGUMENTS [14] In his appeal memorandum, the appellant argues that the RPD erred by concluding that the appellant lacked credibility regarding the essential elements of his refugee protection claim, when the extensive evidence filed on the record corroborated his allegations. ADMISSIBILITY OF NEW EVIDENCE A. Documents presented on appeal [15] The appellant presented new documents as part of his appeal. Those documents were obtained after the RPD rendered its decision, following a request made by his Colombian counsel to the fiscalia. The following documents were produced, which I will treat as a single document, given that they correspond to the fiscalia's file on the incident that occurred on June 18, 2014, and documents attesting to how they were obtained: * Letter from XXXX XXXX XXXX XXXX to State Office of the Prosecutor, dated 14 April 2015; * Personal ID card of XXXX XXXX XXXX XXXX; * Business card of XXXX XXXX XXXX XXXX; * Professional card of XXXX XXXX XXXX XXXX; * Letter for District Office of the Prosecutor 79 to XXXX XXXX XXXX XXXX XXXX * Record of Delivery of Evidentiary Items, dated 18 June 2014; * First Responder Report, dated 18 June 2014; * Labelling of Evidentiary Items, dated 18 June 2014; * Record of Chain of Custody, dated 18 June 2014. B. Admissibility criteria [16] Subsection 110(4) sets out that the person who is the subject of the appeal may present only new evidence: (a) that arose after the rejection of their claim; or (b) that was not available; or (c) that the person could not reasonably have been expected in the circumstances to have presented, at the time of rejection. [17] The Federal Court of Appeal also confirms that the admissibility criteria set out in Raza are also applicable under subsection 110(4), subject to certain adaptations in the context of the RAD, namely, the credibility, relevance and newness of the new evidence.1 It also specifies that subsection 110(4) must be narrowly interpreted. [18] In his memorandum, the appellant argues that filing the new evidence became necessary following the reasons for the RPD's decision, because they counter the RPD's findings regarding the appellant's lack of credibility and the probative value of the photographs provided as evidence corroborating his testimony regarding the alleged attack against him on June 18, 2014. He alleged that he could not have reasonably expected that all of the evidence he had submitted would be rejected in its entirety and that, consequently, he had to submit new evidence corroborating his allegations. [19] I am of the opinion that the documents do not meet the criteria set out in subsection 110(4). First, although the documents arose after the rejection of the claim, they do not concern events that occurred after the RPD's decision. I also find that they are documents that one could have expected to be filed before the rejection of the claim, considering that they corroborate an important element: the claimant's allegation concerning the attack on his person as he was getting into a taxi. The appellant had been able to take steps to obtain the documents corroborating his allegations through a Colombian lawyer less than one month after the RPD rendered its decision. Nothing explains why those steps were not taken in preparation for the hearing before the RPD, especially when, at that hearing, the appellant explained that he had obtained the photographs through the taxi company's insurance company, but that he had been unable to obtain the report from the insurance company because [translation] "he had no contact from whom to obtain the information."2 Despite this, less than one month after the RPD rendered its decision, he was able to hire a Colombian lawyer, who obtained a copy of the appellant's file from the fiscalia, without apparent difficulty. It was up to the appellant to "present all the evidence that is available at the time".3 Consequently, I find that one could have expected the appellant to obtain those documents in preparation for his hearing before the RPD, because he was represented by experienced counsel and because the documents were available and constituted independent and objective evidence of his allegations. As a result, I find that the RPD's decision has no incidence on the relevance and availability of the documents prior to the rejection of the decision. [20] For these reasons, I reject the admissibility of the documents submitted as new evidence, because they do not meet the explicit conditions set out in subsection 110(4) of the IRPA. [21] Subsection 110(6) stipulates that the RAD may hold a hearing if, in its opinion, there is new documentary evidence that meets the three conditions set out therein. In this case, having found that the documents are inadmissible as new evidence, I cannot hold a hearing. C. Documents or written submissions not previously provided [22] On September 6, 2016, the appellant made written submissions and filed an affidavit not previously provided. The appellant stated that he provided those submissions and a new affidavit in response to a letter sent by the RAD, informing him of the Federal Court's decision and asking him to make submissions in response to said decision. The appellant's counsel argued that the appellant's affidavit attests to his lack of knowledge of the existence and availability of the new evidence (the fiscalia's file) and to the fact that the new evidence was obtained after his lawyer paid a bribe to the Colombian police. The appellant does not provide any other submission to explain how the documents meet the requirements set out in subsection 110(4) of the IRPA. [23] These submissions were made after the appellant's record was filed. No explanation was given as to why the appellant had been unable to provide the document (the appellant's affidavit of August 30, 2016) and the submissions not previously provided with the appellant's record that included his request for new evidence to be admitted. His affidavit explains why he had been unaware that he could access the police documents submitted as new evidence. I find that these explanations should have been provided with his request for documents to be admitted as new evidence. In the absence of an explanation, I find that the criteria set out in subsection 110(4) have not been met. I therefore do not allow this document to be admitted as new evidence. ROLE OF THE RAD [24] The RAD is an appeal tribunal and its role is to intervene when the RPD has erred in law, in fact or in fact and law.4 However, an appeal before the RAD is not a de novo proceeding.5 The role of the RAD is to correct the errors that, according to the appellant, may have been made by the RPD6 and to render the decision that should have been rendered in light of the most recent evidence on the record.7 [25] 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 and of mixed fact and law that are based on the credibility of the oral testimony, by assessing whether the RPD enjoyed a meaningful advantage in its assessment of the evidence.8 [26] 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."9 [27] I will conduct an independent analysis of the evidence to determine whether the RPD erred in the ways alleged by the appellant. 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. ANALYSIS OF THE MERITS OF THE APPEAL [28] Having reviewed the record in its entirety, listened to the electronic recording of the hearing, and considered the arguments set out in the appeal memorandum, I do not find that the RPD erred by concluding that the appellant failed to establish the essential elements of his refugee protection claim for the reasons that follow. A. Credibility [29] In its decision, the RPD found that the appellant lacked subjective fear and credibility. The RPD concluded that, given the appellant's education, occupation and social class, it was inconceivable that he had not understood that his life was in danger or that his family was also at risk, and that he not use his financial means to explore different options, including those suggested by the police, to protect himself and his family from the danger posed by the Aguilas Negras during a period of more than six months. The appellant's failure to take the necessary measures to protect himself and his family demonstrates a lack of subjective fear, pursuant to section 96 of the IRPA and undermines his credibility, thus affecting the basis of his claim under section 97 of the IRPA. [30] The RPD drew negative inferences from the fact that the appellant did not claim asylum during his two trips to the United States and that he did not try to stay there, that he returned to Colombia in XXXX 2014, to his residence in Bogota and went back to work; that he waited until July 2014 to tell his parents that their lives were under threat; and lastly, that he illegally entered Canada, then waited four months before filing his refugee protection claim in Canada. [31] The RPD did not find the evidence corroborating his testimony to be credible, especially the photographs of the car accident, following the attempt on his life when he was in a taxi on June 18, 2014. [32] As noted by the Federal Court,10 I will conduct an independent analysis of all of the evidence by considering elements that include the following: * After receiving the funeral wreath, the appellant reported the threats received from the Aguilas Negras to the police, two months after the telephone threats started, when he realized that the threats were real; * The appellant changed his routine to see whether the threats would stop, by working at home and spending a week in the United States; * Following the shots fired at the taxi, the appellant filed a complaint with the office of the attorney general (fiscalia) and the ombudsman's office to obtain protection, to no avail; * When the appellant realized that the Aguilas Negras were tracking his movements in Colombia, he decided to leave the country for good; * From the moment he realized that the threats were real, it took him nearly four months to leave Colombia for good. Appellant's behaviour in light of threats received from the Aguilas Negras [33] In its decision, the RPD considered the documentary evidence that discusses at length the threat posed by the Aguilas Negras and the fact that extortion is common in Bogota. The appellant was aware of the group's reputation, he knew that the group killed people. Despite this, he waited until March to go to the police, he continued to live and work in Bogota until June 2014, and he took no measures to ensure his safety or even to comply with their demand. The RPD therefore found that the appellant's behaviour was not credible and rather indicated a lack of subjective fear. [34] In its decision, the Federal Court states that the RPD's finding regarding the appellant's failure to act rapidly or otherwise following the threats made by the Aguilas Negras is a question concerning the plausibility of the appellant's account rather than the quality of his oral testimony.11 As the decision by the three-member panel states, "[i]n most cases, the RPD will enjoy no meaningful advantage over the RAD in making an implausibility finding. The RAD is equally able to draw inferences based on rationality and common sense, and to consider whether the facts presented are outside the realm of what could reasonably be expected or conflict with objective evidence."12 The RAD will therefore conduct an independent analysis of the evidence and no deference regarding the assessment of the appellant's credibility on this issue will be owed. [35] In his account, the appellant alleges that the threats from the Aguilas Negras began in January 2014, following a telephone call threatening him and his family, demanding a monetary contribution to the [translation] "social cause" and that he had to pay the money immediately. In the beginning, he explained that he ignored the threats, knowing that such calls were common in Bogota. At the hearing, the appellant explained that sometimes such calls stopped.13 He also had not taken the threats seriously because of the fact that groups outside the law sometimes used the name of the Aguilas Negras in their activities.14 However, he knew of the reputation of the Aguilas Negras, he listened to the news, he was aware that the group was made up of former paramilitary members who engaged in extortion, including of business people, in drug trafficking, in homicides and other activities. However, he was not aware that the group was also active in Bogota.15 He did not know how to deal with such a situation, he knew no one to whom that had happened, he did not want to talk to anyone about it and he preferred to ignore the calls and keep his family away from all that.16 He also feared to talk to anyone about it, even to his father who was his partner in the family business.17 [36] According to his Basis of Claim Form (BOC Form), in February 2014, the tone of the telephone calls became more vulgar, aggressive. He was told that if he refused to collaborate, he was putting himself and his family in danger and not paying implied that he was collaborating with the enemy. He received calls once or twice a week, along with death threats.18 [37] When asked to explain why he had not gone to the police during that period, he stated that he had continued to believe that it was best to do nothing, to not pay, thinking that the threats would maybe stop. He explained that he had not gone to the police because he had nothing concrete to show them up until that point, that in Colombia, his statement alone was insufficient and that he needed something tangible. [38] The appellant admits that he received a dozen threatening calls, but that was not sufficient; the police needed something more tangible. Yet once he filed a complaint with the police in March 2014, one of the measures taken by the police was to go to his business several times to trace the origin of the telephone calls.19 March 2014: receipt of a letter and a funeral wreath and changes to his routine [39] The appellant truly began fearing for his life in March 2014.20 According to the evidence filed by the appellant and his testimony, on March 5, 2014, he received a letter from the Aguilas Negras addressed to him as the general manager (gerente general) of the family business, demanding that he pay his contribution to their cause. On March 9, 2014, a funeral wreath was left in front of the door to the family business, along with an envelope with the name Aguilas Negras on it. In a state of panic, the appellant called the police and filed a complaint. [40] Given the seriousness of the situation, he stayed home for a week while continuing to run the business; he received no calls from the Aguilas Negras during that period. He then went back to work at his business, changing the routine of his comings and goings (route and schedule), as suggested by the police. He also screened incoming calls at his business, so he could decline suspicious ones.21 [41] In his account, the appellant adds that he followed up with the police to find out the results of the investigation and he was told his case was not unique and that they had many other cases to deal with. At the hearing, he specified that the police had done nothing to protect him. However, he stated that they did come to trace the calls two or three times.22 [42] Shaken by the threatening calls that had resumed, on XXXX XXXX XXXX XXXX, the appellant decided to leave Colombia to go and rest in the United States. At that time, he did not want to claim asylum there, because he felt that he had a good life in Colombia with his business and family. He returned to Colombia one week later. He returned to work and continued to live at his home in Bogota until June 2014, while changing his routine. He also stated at the hearing that he had to return, because he looked after his mother financially, and he had to find a balance between protecting his life and running his business.23 [43] Despite the numerous threats received, the appellant told neither his mother nor his father. At the hearing, when asked to explain his behaviour,24 he stated that he was the target of the threats, that the wreath and letter left by the Aguilas Negras were addressed to him, that it was a personal matter with no ties to the business, and that he was the one they were demanding money from, the business was not targeted, the business was not mentioned in the letter. He also explained that he saw his father only once a month or so and only when his father decided to come to work. [44] I find the appellant's explanation inconsistent: it contradicts his account and also contradicts the evidence filed by the appellant. In his account, the appellant states that, when he received calls, the caller tried to convince him to pay, telling him that it would be good for his business, because the "social cleaning" helped business persons: The person was trying to convince me that the financial contribution would be good for my business because the social cleaning would help business persons. I always replied I have no money, that my family is not wealthy, that it is with great effort that I work and employ some people in the family business owned by my father of which I am a legal representative. In February the calls changed and the person became more vulgar and aggressive and told me that if I refuse to collaborate there is a risk to me and my family and that if I did not pay them it means that I support the criminal and an enemy of the Black Eagles. [45] Upon reading the letter from the Aguilas Negras, I note that the business is named, as is the appellant's position in the business; the funeral wreath and the letter were left at the business's door, not at his residence; the telephone calls threatening him and his family were made to the business's telephone number. All of these elements demonstrate that the business was targeted, contrary to the appellant's explanation. This contradiction undermines the appellant's credibility. I therefore find that the RPD did not err in finding that the contradiction undermined the appellant's credibility. [46] I also find it to be inconsistent that appellant stated that during the threatening calls, the caller told him that he knew that the appellant had filed a complaint with the police, while indicating that this meant nothing because the group used the police to contact business people.25 I shall explain. [47] The letter from the Aguilas Negras dated March 5, 2014, demands that the appellant exercise discretion with respect to the request for collaboration so as to avoid escalating the situation. I rather find there is an inconsistency between the demand for discretion in the letter and the caller's nonchalant reaction when he stated he knows that the appellant had filed a complaint with the police, as alleged by the appellant. It is also inconsistent with his account26 and the letter of June 10, 2015, filed by the appellant, which criticizes him for having filed a complaint with the police and that threatens his life as a result of his action.27 This inconsistency undermines the appellant's credibility. [48] I therefore find that the RPD did not err by drawing a negative inference regarding the appellant's credibility from the fact that the appellant did not inform his parents of the threats against him and his family; that the measures taken by the appellant to ensure his protection against the threats to his life were insufficient, considering that he continued to live and work in Bogota, changing only his daily routine despite the risk posed by the group and the police's recommendation that he leave Bogota, having not paid the money demanded; and that he returned to Colombia after spending one week in the United States, without claiming protection, when he alleged that he already feared for his life. Letter of June 10, 2014 [49] On June 10, 2014, the appellant received another letter from the Aguilas Negras and, according to the terms of the letter, he was facing death if he did not pay the amount demanded. According to his account, the appellant returned to the police to give them the original copy of the letter as additional proof in support of the complaint he had already filed.28 [50] At the RPD hearing, the RPD asked the appellant to explain why he had gone back to the police to give them the original copy of the letter from June 10 if he knew that the Aguilas Negras worked with the police. The appellant replied that he had not gone to the police, but rather to the fiscalia, that it was not the same organization, that it was a higher level.29 Yet, in his account, it clearly states that he went to the police to file the original copy of the letter "as additional evidence for my existing complaint." I do not find the appellant's explanation satisfactory, because it contradicts the appellant's own testimony. This inconsistency undermines his credibility. Little probative value is granted to the letter of June 10, 2014. [51] Consequently, the RAD finds that the RPD did not err by drawing a negative inference with regard to the appellant's credibility on this issue. June 18 taxi attack [52] The appellant alleged that, on June 18, 2014, shots were fired at him when he was in a taxi. The taxi driver ran into a pole while trying to avoid the bullets. In his account, the appellant indicates that, after the accident, he ran to his business to take refuge there for a short while. He then went back to the scene of the incident to collect his personal effects before going to the fiscalia to file a complaint against the Aguilas Negras and to request protection. The fiscalia told him that it could do nothing until the investigation was completed. Realizing that the fiscalia was refusing to protect him, he went to the ombudsman's office to request protection; it was then recommended to him that he leave the country. [53] At the hearing, the appellant provided greater detail. The appellant stated that when he returned to the scene of the incident 20 to 30 minutes later, two officers from the fiscalia were there.30 With the help of the taxi driver, the insurance company reportedly provided him with photographs of the accident so that he could attach them to his own statement, approximately one hour after the incident. After the photographs were developed near the scene of the incident, he went to the notary to have them certified, as he had only copies, because the insurance company had taken the originals.31 He then went to the fiscalia to file a complaint;32 he was told that they would obtain the police file to proceed with the investigation and that all they could do in the meantime was give him a brochure.33 He then went to the ombudsman's office. [54] Upon reviewing the documentary evidence filed by the appellant, I note that the time shown on the complaint filed with the fiscalia is 2:55 p.m., whereas the notary apparently certified the authenticity of the appellant's signature on the complaint filed with the fiscalia at 9:30:01 a.m. The documentary evidence not only contradicts the chronology of the events, as described by the appellant at the hearing, but is implausible. I cannot understand how the notary could have attested to the authenticity of the appellant's signature on a document and its contents, when the document was apparently produced after the certification. The appellant also testified that he had gone to the notary after obtaining the photographs, and then to the fiscalia to file a complaint, and finally to the ombudsman's office. The accident photographs and his signature on the complaints filed with the fiscalia and with the ombudsman's office were apparently certified at 9:28:31; 9:28:31 and 9:30:01, respectively. I therefore give no probative value to those documents and I find that the inconsistency and implausibility of the appellant's testimony undermine his credibility. Considering the above-mentioned credibility issues regarding key elements of his refugee protection claim, namely, the inconsistencies in the appellant's testimony regarding the persons targeted by the Aguilas Negras's threats and what is indicated in the documentary evidence; the little probative value given to the threatening letter of June 10, 2014; and the inconsistencies and implausibilities in the chronology of events that occurred on June 18, 2014, the day of the attempt on his life; I find that the RPD did not err in concluding that the appellant's behaviour is not credible and rather indicates a lack of subjective fear. Delay in leaving Colombia and delay in claiming refugee protection [55] Delaying in leaving the country of persecution, failing to claim refugee protection at the first opportunity, failing to request protection in other countries, returning to the alleged country of persecution or even delaying in filing a refugee protection claim in Canada are relevant, although non-determinative factors34 that the panel may take into consideration to assess the appellant's claims. There is a presumption that anyone with a real fear of persecution claims refugee protection at the first opportunity.35 In Assadi, Justice Teitelbaum states that "[f]ailure to immediately seek protection can impugn the claimant's credibility, including his or her testimony about events in his country of origin."36 A negative finding may render the objective aspect of the fear superfluous and may in itself warrant the dismissal of the claim.37 [56] Although these factors are relevant, it is essential to allow the claimant to explain his delay and to assess whether the explanation given is reasonable. The reasons for the delay are also reviewed within the context of the specific circumstances of each case. Lastly, all of the evidence must be weighed in order to make a finding regarding the credibility of the claimant's explanation for his behaviour. [57] In this case, the appellant alleges in his account that he changed residences after the attack; first he was at the family's country house, approximately 1.5 hours from Bogota, then realizing that he was still wanted by the group, he left for Armenia, located approximately 7 hours from Bogota. When he received another call, realizing that he was being followed and fearing for his life, he decided to leave Colombia. He arrived in the United States on XXXX XXXX XXXX XXXX, and in Canada two days later, wanting to get as far away as possible from Colombia. He filed his claim for refugee protection on December 29, 2014. [58] At the hearing, the RPD asked the appellant to explain why he took the risk of crossing the border illegally, when he was an educated man and risked being deported to Colombia, where he claims he fears for his life. The RPD was able to ascertain which questions to ask and to assess the testimony given in response and to hear the appellant's explanation for this inconsistency. 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.38 I will therefore show deference and assess the RPD's finding on this point on the basis of reasonableness, by adapting this standard to the context of the RAD. [59] In this case, the appellant explained that, at that time, he was overwhelmed by the situation and he feared for his life. First, he did not think of going to the police in the United States, because he did not know that he could obtain protection in the United States and he had never been in such a situation. He considered his options only once he had arrived at the Canadian border; he had no plans. He added that, once in Bellingham, in the United States, he took a bus around the town, it was a tourist town, and he arrived at the Canadian border, which was when he began thinking about the possibility of coming to Canada. The RPD asked him whether he had walked to the border, considering that it was 37 km from Bellingham; he changed his testimony, stating that he had in fact taken several buses and gotten off and walked to the border without his suitcase. He crossed the border without being registered. He had taken that chance. He thought that he would stay in Canada for a while, until things calmed down, and then he would return to Colombia. [60] The appellant waited until December 2014, more than five months later, to file his refugee protection claim. During that time, he had no status in Canada. He explained that he did not know anyone in Canada, that he did not speak or read English; he trusted no one. He then met someone who gave him some advice and he then did some Internet research and found out that he could claim refugee protection in Canada. He also explained that in October 2014, he learned that his parents had themselves become targets, and he then realized that he could not return to Colombia. He submitted as evidence the complaint his mother had filed with the fiscalia to corroborate the allegations according to which his mother, his father and his sister were now at risk.39 [61] Although this element is relevant, I find that it fails to explain his delay in claiming refugee protection in Canada, considering that he had feared for his life since March 2014; that he left Colombia in XXXX 2014 because he felt he was being tracked in Colombia despite his attempts to change residences; and that the Aguilas Negras had already involved his family, from the very first threatening calls made in January and February 2014. [62] Considering the appellant's level of education; the fact that he already feared for his life in March 2014 and ended up leaving Colombia in XXXX 2014, because he no longer felt safe there despite the changes in his daily routine and residence; the fact that the information on the process for claiming refugee protection in Canada is easily accessible on the Internet; the fact that he failed to claim refugee protection at the first opportunity upon his arrival in the United States; and the fact that he waited five months before filing his refugee protection claim in Canada having entered the country illegally; I am not satisfied as to the explanations given by the claimant. I find that the RPD did not err by drawing a negative inference regarding the appellant's credibility from his having delayed filing his refugee protection claim. [63] Taking into account the above-mentioned credibility issues relating to important elements of his refugee protection claim, notably the inconsistencies in the appellant's testimony regarding the persons targeted by the Aguilas Negras's threats and what is indicated in the documentary evidence; the little probative value given to the threatening letter of June 10, 2014; the inconsistencies and implausibilities of the chronology of events that occurred on June 18, 2014, the day of the attempt on his life; and lastly, his delay in claiming refugee protection in Canada, without any reasonable explanation being given; the RAD determines that the appellant failed to establish the essential elements of his refugee protection claim, on a balance of probabilities. CONCLUSION [64] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee", under section 96 of the IRPA, nor a "person in need of protection", under subsection 97(1) of the IRPA. [65] The appeal is dismissed. Marie-Claude Roberge Marie-Claude Roberge July 28, 2017 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, paragraph 35. 2 Recording of the hearing before the RPD, hearing CD, February 23, 2015, 02:46. 3 Abdullahi v. Canada (Minister of Citizenship and Immigration), 2016 FC 260, paragraph 14. 4 Minister of Citizenship and Immigration v. Huruglica, No. A-470-15, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paragraph 78. 5 Idem, paragraph 79. 6 Ghauri v. Canada (Minister of Citizenship and Immigration), No. IMM-3426-15, Gleeson, May 16, 2016; 2016 FC 548, paragraphs 30 to 34. 7 Huruglica, supra footnote 4, paragraphs 96, 97 and 98. 8 Idem, paragraphs 70-73. 9 Reasons and Decision of the RAD, No. TB6-03419, May 17, 2017, amended on May 23, 2017 (X (Re), 2017 CanLII 33034 (CA IRB)), at paragraph 116. 10 Juan Andres Rodriguez Marin v. Minister of Citizenship and Immigration, 2016 FC 847, at paragraph 34. 11 Juan Andres Rodriguez Marin v. Minister of Citizenship and Immigration, 2016 FC 847, paragraph 35. 12 (Re), 2017 CanLII 33034 (CA IRB), at paragraphs 55 and 56. 13 Recording of the hearing before the RPD, hearing CD, February 23, 2015, 01:01-01:02. 14 Ibidem, 00:56. 15 Ibidem, 00:51-00:54. 16 Ibidem, 00:57-01:05. 17 Ibidem, 01:07-1:09. 18 Recording of the hearing before the RPD, hearing CD, February 23, 2015, 01:12. 19 Recording of the hearing before the RPD, hearing CD, March 24, 2015, 00:56-00:59. 20 Recording of the hearing before the RPD, hearing CD, February 23, 2015, 01:36-01:37. 21 Ibidem, 01:47. 22 Recording of the hearing before the RPD, hearing CD, March 24, 2015, 0:56-00-69. 23 Ibidem, hearing CD, February 23, 2015, 01:50-01:51. 24 Ibidem, 01:25-01:35. 25 BOC Form, pp. 2-3. 26 BOC Form, p. 3. 27 Letter of June 10, 2014, from the Aguilas Negras, RPD record, p. 142. 28 Account, p. 3. 29 Recording of the hearing before the RPD, hearing CD, February 23, 2015, 02:17-02:21. 30 Ibidem, 02:38. 31 Ibidem, 02:46-02:49. 32 Ibidem, 03:02. 33 Recording of the hearing before the RPD, hearing CD, March 24, 2015, 00:55. 34 Hue, Marcel Simon Chang Tak v. M.E.I. (F.C.A., No. A-196-87), Marcel, Teitelbaum, Walsh, March 8, 1988; Heer, Karnail Singh v. M.E.I. (F.C.A.) Head, Marceau, Lacombe, April 13, 1988; and Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., No. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993. Published decision: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 35 John, Shontel Dion v. M.C.I. (F.C., No. IMM-1683-10), Bédard, December 14, 2010; 2010 FC 1283, para. 23. 36 Assadi, Nasser Eddin v. M.C.I. (F.C.T.D., No. IMM-2683-96), Teitelbaum, March 25, 1997, para. 14. 37 Ahoua, Wadjams Jean-Marie v. M.C.I. (F.C., No. IMM-1757-07), Blais, November 27, 2007; 2007 FC 1239, para. 16. 38 (Re), 2017 CanLII 33034 (CA IRB), at paragraph 50. 39 Document filed into evidence before the RPD, pp. 168-9, RPD record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB6-05980 2