Docket: IMM-5066-15
Citation:
2016 FC 847
Ottawa, Ontario, July 20,
2016
PRESENT: The
Honourable Mr. Justice LeBlanc
|
BETWEEN:
|
|
JUAN ANDRES
RODRIGUEZ MARIN
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of a
decision of the Refugee Appeal Division [the RAD], dated October 20, 2015,
which dismissed the Applicant’s appeal of the refusal of his refugee claim by the
Refugee Protection Division [RPD].
II.
Background
[2]
The Applicant is a twenty-eight year old citizen
of Colombia. His claim for refugee protection was based on the following
allegations. While in Colombia, the Applicant ran a distribution business with
his father. On January 17, 2014, he received a call at work from a man who
identified himself as a member of the “Black Eagles,”
a criminal group with a political agenda involved in drug trafficking,
extortion, looting, kidnapping and murder. This man asked the Applicant for
money to be applied to the Black Eagle’s “social
cleansing” cause. The Applicant explained that he did not have any money
to give. The man told him that he did not have to give the money right away,
that he could take some time to think about it and “do
what is right” for himself and his family in order to work in peace.
[3]
The calls continued and at first, the Applicant
did not pay much attention to them because this type of threat is very common
in Colombia. The Applicant always told the caller that he had no money to give.
In February 2014, the caller became more vulgar and aggressive. The caller was
now saying that if the Applicant did not pay him, then he would be placing
himself and his family at risk and he would be an enemy of the Black Eagles.
[4]
On March 5, 2014, the Applicant received a
letter from the Black Eagles demanding a financial contribution to their cause
and four days later, when he arrived at work, he found a funeral wreath and an
envelope with the name of the Black Eagles on it. He reported this incident to
the police who told him that they would investigate. The Applicant then spent one
week at home. After returning to work, he began receiving more calls from the
Black Eagles. On March 25, 2014, feeling distressed, he decided to travel to
the United States for a week. When he returned to Colombia, the Applicant took
precautions regarding his family and business activities, however, the phone
calls and threats got worse towards the end of April 2014.
[5]
In June 2014, the Black Eagles sent the
Applicant another threatening letter, this time demanding payment of $50
million pesos within fifteen days, or he would be sentenced to die. The
Applicant brought the letter to the police who gave him advice on how to
protect himself.
[6]
On June 18, 2014, while in a taxi, two men on a
motorcycle began shooting at the Applicant. The taxi driver tried to avoid the
shots and ended up crashing into a light post. Following this incident, the
Applicant proceeded to file a criminal complaint against the armed group with
the Office of the Prosecutors and requested protection. He further filed a
petition with the Office of the Ombudsman and asked it to protect his life. The
Applicant alleges that the Office of the Ombudsman recommended that he leave
the country.
[7]
The Applicant then started to change residence,
but every time he moved, he received a phone call from the Black Eagles who
proceeded to describe his new location and would ask for a contribution.
[8]
This led the Applicant to panic and decide to
leave Colombia. He flew to the United States and illegally crossed the border
into Canada on or about July 15, 2014. He claimed refugee protection in
December 2014. In support his claim, the Applicant filed a police report where
he reported the funeral wreath incident as well as pictures of the funeral
wreath and the letter from the Black Eagles submitted to the police. He also provided
photos of the taxi that he was in when he was allegedly shot at.
[9]
The main reason why the RPD found that the
Applicant was neither a Convention refugee nor a person in need of protection
was because of a lack of subjective fear. In this regard, the RPD found
that given the Applicant’s education, profession and economic class, it
was inconceivable that he would not understand that his life, and that of his
family, was at risk and that he would not use his financial resources to
explore numerous options, including those suggested by the police, to keep him
and his family safe from the alleged harm he asserts he faced for over six
months at the hands of the Black Eagles, a well-known and well-documented
criminal and extortionist group in Colombia. The RPD found that the
Applicant’s failure to act was evidence of a lack of subjective fear and that
the lack of subjective fear negatively affected his credibility.
[10]
The RPD also drew negative credibility inferences
from the fact that the Applicant entered Canada illegally, waited four months
to file for protection, failed on two occasions to claim asylum in the United
States or to explore any other legal means to remain in that country, reavailed
himself of the protection of Colombia when he returned to that country in March
2014 after spending a week in Miami, and did not tell either of his parents
that their lives were at risk until he left Colombia in July 2014.
[11]
The RPD further concluded that the Applicant’s
corroborating evidence was not credible. Notably, the RPD found that the
pictures of the shot up taxi were not credible since “photos
of taxis that are blown up and shot at, are not uncommon sights in Colombia.” In this regard, the RPD stated “[w]e do not have
the police report when the police showed up, when the taxi was allegedly shot
at and hit a light post. The claimant testified that the police came to the
scene. We do not have the insurance report. We do not have any report from the
cab driver. We only have the claimant’s evidence and his evidence is not
credible.”
[12]
Before the RAD, the Applicant sought to have new
evidence entered pursuant to section 110(4) of the Act. The new evidence
included the personal ID card and business cards of the Applicant’s counsel in
Colombia [Mr. Aldana]; a letter drafted by Mr. Aldana to the Office of
the Prosecutor [the Prosecutor] requesting information on the status of the
Applicant’s file and copies of the proceeding; and a letter by the Prosecutor
replying to Mr. Aldana’s request, which enclosed copies of various records and
reports such as a record of a patrol officer delivering certain items that were
seized after the taxi incident to the Prosecutor, a record of the Applicant going
to the police station on June 18, 2014 to record the seizure of items such as
photos of the funeral wreath with the Black Eagle’s badge, three bullet casings
and photos of the taxi damaged by bullet holes. Also included was a first responder’s
report from the day the Applicant was attacked in the taxi as well a document
entitled “labeling of evidentiary items” from
the Prosecutor describing the evidence collected on the date of that incident
and a record of the evidence’s “chain of custody.”
[13]
In its assessment of whether it should allow the
filing of the new evidence, the RAD found that there were two competing approaches
from this Court regarding the criteria the RAD must consider. One approach
allowed for the importation of the criteria set out in Raza v Canada
(Citizenship and Immigration), 2007 FCA 385 [Raza] in the context of
the application of subsection 113(a) of the Act respecting the admission of new
evidence where a foreign national is entitled to a pre-removal risk assessment
[PRRA], while the other approach rejected the importation of the Raza criteria.
The second approach, explained in Singh v Canada, (Citizenship and
Immigration), 2014 FC 1022, 466 FTR 187 [Singh FC], preferred
interpreting subsection 110(4) of the Act with sufficient flexibility so as to not
limit a claimant’s ability to get a “full fact-based
appeal” rather than constricting subsection 110(4) of the Act by the
application of the Raza criteria” (Singh FC, at paras 54-55).
[14]
The RAD found that if the first approach applied,
the new evidence would be inadmissible since it was in existence and reasonably
available to the Applicant prior to the rejection of his refugee claim. In this
respect, the RAD found that an appeal to the RAD is not intended to give the
appellant a “do over” for poor strategic
decisions made before the RPD. The RAD also found that if Singh FC applied,
the new evidence was still inadmissible since the rejection of the new evidence
would not affect its ability to conduct a full fact based review.
[15]
With respect to the RPD’s credibility findings,
the RAD noted that those were the only findings that it could afford deference
to on appeal. It then indicated that it made its own assessment of the
Applicant’s credibility based on a thorough review of the RPD record and reasons
and agreed with the RPD’s findings in the following terms:
[64] The RPD came to a negative credibility
finding based on a number of factors. They included failure to claim in the
U.S. on two occasions (March 25, 2014 to April 1, 2014 and July 13, 2014 to
July 15/16, 2014); re-availment to the country where the alleged agents of harm
were located by leaving the U.S. and returning to Colombia on April 1, 2014,
delay in departure from Colombia, and delay in claiming refugee protection once
in Canada.
[65] The appellant must make a serious
effort to apply for asylum in a foreign country. The Court has said that
reasons for not claiming refugee status in a foreign country must be valid in
order to avoid an adverse inference. The RPD questioned the appellant
extensively on all of the subjective fear issues. Indeed the hearing audio
recording has four hours and twenty-seven minutes of questions to the
appellant, mostly posed by the RPD and mostly dealing with the subjective fear
issues listed above. It is clear that the RPD considered the appellant’s
evidence and identified in the Reasons why it placed little weight on the
explanations offered by the appellant.
[66] It is not necessary for me to restate
in different words what the RPD adequately explained in its decision. The RPD
clearly set out what inconsistencies and subjective fear issues it was
concerned with and why it was not satisfied with the explanation offered by the
appellant.
[16]
The RAD proceeded to expand on one additional
inconsistency that its review of the evidence revealed. Namely, the RAD found
that the Applicant’s explanation of how he came to acquire copies of pictures
of the taxi to be implausible.
[17]
The Applicant testified that he initially ran
from the scene of the shooting but returned twenty to thirty minutes later to
collect his belongings. When he returned, he saw the taxi driver’s insurance
company representatives taking pictures of the taxi using a digital camera and
asked them if they could provide him with copies of the pictures. The Applicant
testified that they took the camera to a local shop to have the pictures
printed and then went to a Notary to have the pictures certified. These were
the pictures the Applicant submitted as evidence rather than originals.
[18]
The RAD did not find this evidence to be
credible, stating:
[69] He testified that the insurance company
employees were using a digital camera. If this was the case they would be able
to print as many originals as they wanted not just the one as the appellant
testified to. There would be no reason to make one copy and then photocopy the
original. The evidence of the appellant in this regard defies common sense and
I find it not to be credible.
[19]
The Applicant contends that the RAD erred in
rejecting the new evidence and violated the principles of procedural fairness
by failing to provide the Applicant with an opportunity to respond to its
concerns. As the Applicant did not pursue the procedural fairness argument
during the hearing before me, this argument is not discussed in these reasons.
[20]
The Applicant also argues that the RAD failed to
conduct an actual independent assessment on the RPD’s credibility finding. Instead,
the RAD merely assessed whether the RPD’s decision was reasonable, contrary to
the teachings of this Court. He further submits that the RAD erred by
failing to conduct a section 97 assessment. The Applicant contends that had the
RAD taken the new evidence into account, the RPD’s negative credibility finding
would not stand.
III.
Issues
[21]
This application for judicial review raises the
following two issues:
- Was the RAD’s decision not to admit new evidence
reasonable?
- Was the RAD’s finding that the Applicant is neither a
Convention refugee nor a person in need of protection reasonable?
IV.
Analysis
A.
Refusal to Admit New Evidence
[22]
It is now firmly established that questions
regarding the admission of new evidence before the RAD under subsection 110(4)
of the Act are reviewable by this Court against the standard of reasonableness
(Singh v Canada (Citizenship and Immigration), 2016 FCA 96, at
para 29 [Singh FCA]).
[23]
In Singh FCA, which post-dates the RAD’s
decision in this case, the Federal Court of Appeal held that in order to
determine the admissibility of evidence, the RAD must always ensure compliance
with the explicit requirements set out in subsection 110(4) and can, in this
regard, be guided, subject to some necessary adaptations, with the implicit
criteria made by that Court in Raza (Singh FCA, at para 74). It
therefore rejected the position taken by this Court in Singh FC, that
because subsections 110(4) and 113(a) concern different proceedings and
different decision-makers, it was not appropriate to apply, mutatis mutandis,
the restrictive approach developed in Raza to interpret subsection
110(4) and that, as a result, a more flexible approach was warranted in order
to allow the RAD to fulfill its mission.
[24]
According to the explicit conditions set out in
subsection 110(4) of the Act, which the Federal Court of Appeal found the RAD
had no discretion to disregard (Singh FCA, at para 63), only the
following evidence is admissible:
- Evidence that arose after the rejection of the claim;
- Evidence that was not reasonably available; or
- Evidence that was reasonably available, but the person could
not reasonably have been expected in the circumstances, to have presented
at the time of the rejection.
[25]
The Raza conditions are credibility,
relevance, newness and materiality (Raza, at para 13). Yet, as explained
by the Federal Court of Appeal, the materiality criterion must be assessed in
the context of subsection 110(6), for the sole purpose of determining whether
the RAD may hold a hearing (Singh FCA, at para 47).
[26]
The Applicant in this case does not contest the
availability of the “new” evidence at the time
of the rejection of its claim by the RPD. On the contrary, the Applicant’s
previous counsel’s explanation for failing to provide the “new” evidence to the RPD was to the effect that the
Applicant “could not have been expected to know that
the RPD would reject the entirety of his corroborative evidence as a
“fabrication” […] and did not expect, or anticipate this occurring, given the
amount of corroborative evidence he had provided.” In sum, the Applicant
is arguing that he did not think that the documents were necessary to support
his claim before the RPD.
[27]
It was not unreasonable for the RAD to find this
explanation wanting. Refugee claimants bear the burden of proving their claim,
which means that they must put their “best foot
forward” in applications before the RPD and present all the evidence
that is available at the time (Abdullahi v Canada (Citizenship and
Immigration), 2016 FC 260, at para 14). This also means that a refugee
claimant is not entitled to submit new evidence “every
time he or she is surprised by the RPD’s decision” (Canada (Citizenship and Immigration), v Desalegn, 2016 FC 12, at para 23).
[28]
As the Federal Court of Appeal stated in Singh
FCA, the role of the RAD “is not to provide the
opportunity to complete a deficient record submitted before the RPD but to
allow for errors of fact, errors of law or mixed errors of fact and law to be
corrected” (Singh FCA, at para 54). It was therefore reasonable
for the RAD to find that if other police reports were readily available to the
Applicant upon request, he should have requested the documents prior to the
rejection of his claim and presented these documents to the RPD instead of
waiting until the appeal to do so.
[29]
I see no reason to interfere with the RAD’s
finding respecting the admissibility of the Applicant’s new evidence.
B.
Reasonableness of the RAD Decision
[30]
The RAD determined that the standard espoused by
Justice Michael Phelan in Huruglica v Canada (Citizenship and Immigration),
2014 FC 799, 461 FTR 241 [Huruglica FC] applied to its assessment of the
RPD’s evidence. The RAD member stated in this regard that “the RAD 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” and did afford the RPD “such recognition and respect regarding its finding regarding
the credibility of the appellant in the matter before me” (Decision of
the RAD, at para 61).
[31]
However, in Huruglica FCA, which, as Singh
FCA, was rendered after the RAD’s decision in the present case, the Federal
Court of Appeal determined that the RAD must assess the degree of deference it
owes to findings of fact or mixed fact and law made by the RPD on a
case-by-case basis (Huruglica FCA, at para 70). Although it held that the
Act recognizes that there may be cases where the “RPD enjoys
a meaningful advantage over the RAD in making finds of fact or mixed fact and
law” when assessing the “credibility and or
weight to be given to oral evidence”, the Federal Court of Appeal
determined that the RAD must decide, on a case-by-case basis, the degree of
restraint it will exercise before substituting its own determination by
assessing “whether the RPD truly benefited from an
advantageous position, and if so, whether the RAD can nevertheless make a final
decision in respect of the refugee claim” (Huruglica FCA, at para
70). In this regard, the Federal Court of Appeal recognized that the RPD may
have no real advantage over the RAD on credibility issues where, for instance, “a claimant was not found credible because his story was not
plausible based on common sense” (Huruglica FCA, at para 72).
[32]
Although the choice of the Huruglica FC standard,
as articulated by the RAD member in this case, does not, in and of itself, amount
to a reviewable error in the context of Huruglica FCA, this Court has
found, in light of the teachings of Huruglica FCA, that in order to
sustain the reasonableness of the RAD’s decision, this Court must be satisfied
that the RAD truly acted as an appeal tribunal and came to its own conclusions
(Ali v Canada (Citizenship and Immigration), 2016 FC 396). In this
respect, the RAD must conduct “in substance, a
thorough, comprehensive, and independent review of the kind endorsed in Huruglica
FCA” (Gabila v Canada (Citizenship and Immigration), 2016 FC
574, at para 20).
[33]
I find, in the case at bar, that the RAD failed
to conduct, in substance, an independent assessment of the evidence, and that
this failure amounts to a reviewable error.
[34]
The RAD’s only assessment of the Applicant’s
credibility, which was the determinative issue in the RPD’s decision, is found
in the excerpt at paragraph 15 above. This excerpt demonstrates that the RAD
accorded complete deference to the RPD’s credibility finding without first assessing
whether the RPD truly benefited from an advantageous position in its assessment
of the Applicant’s credibility. I find that had the RAD truly conducted a
thorough, comprehensive and independent review of the evidence, it may have come
to a different conclusion with respect to the RPD’s credibility findings since
the evidence demonstrates that:
- The Applicant began reporting the threats to the police after
receiving the funeral wreath, which was two months after the phone calls
began and the moment the Applicant realized that the threats from the
Black Eagles were real;
- He began changing his habits to see if the threats would stop
by working from home and by spending a week in the United States;
- Following the taxi shooting, the Applicant filed complaints
against the Black Eagles with the Office of the Prosecutors and the Office
of the Ombudsman and neither organization was able to provide the
Applicant with protection;
- Once the Applicant realized that the Black Eagles were tracking
his whereabouts throughout Colombia, he decided to leave Colombia for good; and
- From the time the Applicant perceived the threats were real, it
took him approximately four months to leave Colombia for good.
[35]
This failure to conduct an independent
assessment of the evidence of the kind endorsed in Huruglica FCA is all
the more unreasonable since the RPD’s credibility finding rests in large part
on its contention that if the Applicant truly feared for his life, he would
have left Colombia sooner and would have acted quicker to make his parents
aware of the threats against him and his family. This, in my view, is a
question related to the plausibility of the Applicant’s story rather than the
quality of the Applicant’s oral testimony. In light of Huruglica FCA,
it seems clear that the RAD was, in such context, under a duty to assess
whether the RPD truly benefited from an advantageous position warranting
deference on its part. As this was clearly not done, I find that the Applicant
was deprived access, in a material way, to the appeal process Parliament
created to the benefit of failed refugee claimants.
[36]
The RAD’s decision will therefore be remitted
back to a different RAD member to decide the issue with the benefit of the
teachings from Huruglica FCA.
[37]
The application for judicial review is allowed.
No question has been proposed for certification.
Email this Content