Date: 20061220
Docket: IMM-7231-05
Citation: 2006 FC 1526
Ottawa, Ontario, December 20, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
LORENA PASTRANA VIAFARA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Ms.
Lorena Pastrana Viafara is a citizen of Columbia whose claim to refugee
protection was dismissed by the Refugee Protection Division of the Immigration
and Refugee Board (Board). On this application for judicial review of that
decision I have concluded that the Board erred in law by failing to assess
whether Ms. Pastrana had a well-founded fear of persecution by reason of her
membership in a particular social group: the common-law spouse of Mr. Giovanni
Andres Malagon Ortiz. As a result, for the reasons which follow, the
application for judicial review is allowed and the matter is remitted to the
Board member who considered Ms. Pastrana's claim for consideration of this
issue.
Background
Facts
[2] Ms. Pastrana's claim was heard together
with that of her common-law spouse, Mr. Malagon. While she and Mr.
Malagon are both citizens of Columbia, they met in the United States. They were never together in Colombia.
[3] Mr. Malagon alleged that in Columbia he was targeted by the
Revolutionary Armed Forces of Colombia (FARC) because of his military service
and his knowledge of military weapons and operations. His claim was accepted
by the Board.
[4] Ms. Pastrana's claim was advanced essentially
on the basis that she feared family members who had assaulted and threatened
her mother over a disputed inheritance. There was some suggestion that members
of FARC had threatened her father and that the feared family members had some
sort of a relationship with FARC. The Board found that while it believed Ms. Pastrana's
testimony, her evidence with respect to FARC was too vague to establish a
well-founded fear of persecution by reason of a Convention ground. (On this
application for judicial review Ms. Pastrana's counsel very fairly conceded
that any nexus to FARC was too speculative on the evidence adduced). Ms.
Pastrana’s stated fear of family members was found by the Board not to be
related to a Convention ground. Further, the Board found that Ms. Pastrana, a
child when she left Columbia with her family, had not obtained sufficient
information from her parents in order to establish a claim to a risk to her
life or a risk of cruel or unusual treatment in Colombia. The fact that her parents had lived illegally in the United
States for the past 12 years without making any claim for protection cast
doubt, in the Board’s view, on the existence of any fear on their part. In the
words on the Board "it does not appear as if they are acting as people who
are in fear of being sent back to Columbia".
Particular Family Group:
Spouse of Mr. Malagon
[5] In
fairness to the Board, Ms. Pastrana's former counsel did not specifically
advance a claim to refugee status on this ground. Indeed, Ms. Pastrana's
former counsel made no intervention when the presiding member at the start of
the hearing advised the parties that “each claim will be determined on its own
merits”. The presiding member went on to state:
PRESIDING MEMBER: Now,
in order for me to find that you are Convention refugees or persons in need of
protection, I must find that there is more than a mere possibility that you
would be persecuted for a Convention refugee ground, or that you face a risk to
your life or a danger of torture, or that you would be subjected to cruel or
unusual punishment or treatment should you return to Colombia. I must make an
assessment on all of the evidence, including your testimony today. I must be
satisfied that the evidence is credible and trustworthy. Credibility is an
issue in all claims and will be an issue in your claims as well. Identity is
always an issue. However, we have sufficient identity documents that you are
who you claim to be. The major issue in both of your claims, although they
are based on independent and separate stories in relation to what happened in
Colombia, is the amount of time that you spent in the United States.
[underlining added]
[6] However,
in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at pages 745
and 746, the Supreme Court of Canada confirmed that the Board must consider all
of the grounds for making a claim to refugee status, even if the grounds are
not raised during a hearing by a claimant. This flows from the direction at
paragraph 67 of the United Nations High Commissioner for Refugees (UNHCR)
Handbook on Procedure and Criteria for Determining Refugee Status that it is
not the duty of a claimant to identify the reasons for their persecution.
[7] In
the present case, the Board accepted that Ms. Pastrana was the common-law spouse
of Mr. Malagon, that he was a former military conscript, and that FARC
"is described as a brutal and pervasive organization that pressures young
men to join their ranks, and resort to threats, intimidation, extortion and
kidnapping in order to achieve their goals". Documentary evidence before
the Board included the March 2005 document prepared by the UNHCR entitled
"International Protection Considerations Regarding Colombian
Asylum-Seekers and Refugees". There, the UNHCR noted that "[a]gainst
the background of widespread violations of human rights and international humanitarian
law, certain groups of persons [in Colombia] can be identified as being more
frequently targeted than others". Included as a group were "[f]ormer
conscript[s] or professional soldiers and police, as well as their
families".
[8] This
evidence, in my respectful view, coupled with the possibility that Mr. Malagon
might choose to return to Columbia with Ms. Pastrana, was sufficient to require
the Board to consider whether Ms. Pastrana had a well-founded fear of persecution
as the common-law spouse of Mr. Malagon.
The Other Asserted Errors
[9] Two
other reviewable errors were asserted on Ms. Pastrana's behalf (the balance of
the arguments contained in her written memorandum of argument were either not
pursued, or not pursued seriously, during oral argument). The first asserted
error was that the Board ignored evidence, the second was that the Board erred
by importing the requirement of the existence of a subjective fear of
persecution into a claim for protection under section 97 of the Act.
[10] Turning
to the first asserted error, I agree that when the Board stated "[a]ll of
the information that you have is second-hand with the exception, of course, of
the automobile accident in which your family was involved" that the Board
overlooked Ms. Pastrana's evidence that on one occasion she saw one of her
mother's relatives hit her mother in the face. Ms. Pastrana also
testified that the relative then grabbed Ms. Pastrana's hair, pushed her
towards the floor, and threatened her mother that she should stop meddling and
forget the inheritance, or her family would suffer the consequences.
[11] I
am satisfied, however, that this error was not material. The point the Board
was making was that Ms. Pastrana knew little or nothing about why her family
left Columbia. That view is wholly supported by careful reading of Ms.
Pastrana's Personal Information Form and the transcript of the hearing before
the Board. While the Board's overgeneralization of Ms. Pastrana's
evidence was unfortunate, it was not material.
[12] As
to the second asserted error, again, I find no reviewable error. The point, I
believe, that the Board was making when it referred to the lack of subjective
fear on the part of Ms. Pastrana's parents, was that while Ms. Pastrana
knew little about her parent’s situation in Colombia, the reality of her fear
(which flowed directly from that situation) was undermined by the fact that her
parents did not act as if they feared returning to Columbia.
The Appropriate Remedy
[13] The
sole reviewable error I have found is the Board's failure to consider a
Convention ground not expressly raised before it. Therefore, I consider it to
be appropriate to return this matter to the Board member who considered Ms.
Pastrana's claim with a direction that the Board consider whether Ms. Pastrana
has a well-founded fear of persecution as a result of being in the particular
social group that is the common-law spouse of Mr. Malagon.
[14] If
the member of the Board who dealt with this claim is not available, the matter
may be considered by any other member of the Board.
[15] Counsel
posed no question for certification, and I agree that no question arises on
this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed to the extent
that the matter is remitted to the Board member who determined this application
with the direction that the Board shall consider whether Ms. Pastrana has a
well-founded fear of persecution as a result of being in the particular social
group that is the common-law spouse of Mr. Malagon.
2. If the member of the Board who dealt with this claim is not
available, the matter may be considered by any other member of the Board.
“Eleanor R. Dawson”
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