Date : 20041221
Docket : IMM-83-04
Citation : 2004 FC 1766
OTTAWA, ONTARIO, DECEMBER 21, 2004
Present : THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN :
ARMANDO RAMIREZ GRANADA
MARTHA SORAYA FACUNDO VARGAS
VALENTINA RAMIREZ FACUNDO
HECTOR FACUNDO NUNEZ
MARIA GLADYS VARGAS ANZOLA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Immigration and Refugee Board (the Board) dated November 26, 2003 in which the applicants were found not to be Convention refugees or persons in need of protection pursuant to sections 96 and 97 of the Act.
[2] The applicants are citizens of Colombia. They allege a fear of persecution at the hands of the Revolutionary Armed Forces of Colombia (the FARC) on the basis of their political opinion and their relationship with other family members who served in the police or the army in Colombia. The claims involve two sets of applicants. The first set includes Armando Ramirez Granada (the principal applicant), his wife Martha Soraya Facundo Vargas and their child, Valentina Ramirez Facundo (the claims of the wife and daughter are based upon that of the principal applicant). The second set of applicants is Hector Facundo Nunez (the other principal applicant) and his wife Maria Gladys Vargas Anzola who are the parents of the principal applicant's wife.
[3] In both cases, the Board concluded that there was no credible evidence that the applicants were ever personally targeted by the FARC. Moreover, based on the evidence on record, the Board concluded that there is not a reasonable chance that the applicants would be so targeted on return to Colombia.
FIRST SET OF APPLICANTS
[4] Both the principal applicant and his wife originate from the area of Garzon Huila in the south of Colombia. The principal applicant studied to be a psychologist in Bogota. After he completed his degree, he went to live in Garzon for awhile. In Garzon, his father was a career police officer who retired in 1985 and apart from directing a social service organization, was also a leading member of a local political party founded by ex-army officers called Vamos Colombia. There, the applicant worked together with his father in his community work and with the party Vamos Colombia. However, once accepted in the army, the principal applicant moved back to Bogota with his wife but kept close contact with their family in Huila. The principal applicant served in the Colombian army as a psychologist from 1996 until 2000. The principal applicant used his professional skills at military bases all over Colombia and also in Garzon Huila. His father was murdered by the FARC in July of 2000. This murder was followed by the murder of the principal applicant's great uncle, a retired army general, by the FARC. Shortly afterwards, the principal applicant, his wife and daughter stopped visiting Garzon Huila. Furthermore, they sought refugee protection through the Canadian embassy in Bogota. Their claims were rejected. According to the principal applicant, the FARC made telephone threats against him and his family while they were in Bogota but only after their claims were first rejected. Meanwhile, another ex-policeman in Garzon Huila was killed. This was the seventh killing of an active or retired military person in the past months in this particular department. The applicants decided to leave Colombia. Travelling via the U.S.A. and staying there for a while, the applicants arrived in Canada on August 8, 2001 at which time they claimed refugee protection.
[5] The Board had before it documents attesting to the murder of the principal applicant's father and the FARC's Plan Pistola to murder police and military, active or retired. Based on those documents, the Board found, on a balance of probabilities, that the principal applicant's father and his great uncle were murdered in Garzon Huila by the FARC because of their high position in the army and the police - general and colonel - and as part of the FARC's Plan Pistola. The Board also accepted that the principal applicant did serve in the military (as a lieutenant) and that he provided such service in a non-combatant fashion from 1996 to 2000. That said, the Board did not find that the principal applicant's familial relationship with his father is such that there is a reasonable chance that he would face persecution, risk to his life or risk of cruel and unusual treatment or punishment based on that familial relationship. Moreover, the Board did not find that the principal applicant's profile in Huila Garzon as a professional psychologist working for the army and who is also occasionally involved in community work and in the political party Vamos Colombia, is such as to put him in a position where there is a reasonable chance that he would face persecution or risk to his life or risk of cruel and unusual treatment or punishment at the hands of the FARC. Moreover, the Board did not believe that the principal applicant had received the alleged six threatening phone calls from members of the FARC while he was living in Bogota. The Board also took into account that the principal applicant's brother and sister continue to live in Colombia and there is no evidence that they have faced or are facing hostile actions from the FARC. The Board's findings were applied to the principal applicant's wife and daughter's claims.
SECOND SET OF APPLICANTS
[6] Besides being the parents of the principal applicant's wife, the other principal applicant and his wife are the parents of Mauricio, a former Colombian military pilot who resigned in 2003. The other principal applicant alleges that he and his wife had to move from place to place in Colombia because they were receiving death threats from the FARC in connection with their son's military position and had two encounters with armed members of the FARC. Following these events, they moved to Bogota. They allege that the FARC succeeded in locating them in Bogota and continued to threaten them thereafter. They decided to leave Colombia and travel to Canada. They claimed refugee protection on their arrival to Canada on April 19, 2002.
[7] As for the second set of applicants, the Board found that they did not have a well founded fear of persecution. Neither of them has served in the military. Furthermore, there was no evidence that their son, who had been a pilot in the Colombian army, received any threats from the FARC. In addition, there was no evidence that their other children, who are still living in Colombia, received or are receiving any threats from the FARC. Moreover, the Board questioned the other principal applicant's testimony with respect to the alleged threats. On this matter, the Board noted that some parts of his testimony were illogic especially with respect to the payment of a sum of ten million pesos and Mauricio's resignation from the Colombian Air Force. Consequently, the Board's finding were applied to his wife's claim.
NO REVIEWABLE ERROR MADE BY THE BOARD
[8] The determinative issue in these claims was the applicants' failure to provide credible evidence that they would be personally targeted by the FARC living as they previously had in Bogota. The principal applicant, his wife, his daughter and his wife's parents are citizens of Colombia. The principal applicant's father and great uncle had been murdered by the FARC in the area of Garzon Huila in July 2000 because of their high positions in the army and the police. Further, the applicant's wife's parents alleged fearing persecution at the hands of the FARC because their son is a resigned Air Force Pilot. The Board determined that these applicants' respective stories of persecution were not credible.
[9] The applicants have failed to convince me that the Board's findings are patently unreasonable.
[10] First, the principal applicant and his family had already had an overseas refugee claim rejected at Canada's Embassy in Colombia because the principal applicant had failed to provide any evidence of personal persecution and the family had a viable living solution in Bogota. In the Court's opinion, the Board made no reviewable error when it found the applicants' report of six threatening phone calls since the time of their refugee claim to be an invention to support the claim. Further, the Board made no reviewable error when it found the principal applicant's wife's parents' stories of being threatened by the FARC because their son was a resigned Air Force Pilot, to be not credible. The Board noted several inconsistencies in the applicants' story, as well as noting the fact that their son continues to live in Colombia today without incident. There was no evidence that he had ever been personally targeted.
[11] Second, in the Court's opinion, the Board properly considered the documentary evidence on the FARC's Plan Pistola. The Board considered the evidence cited by the applicants that was properly before it (but not the late article cited by the applicants that was specifically excluded by the Board). It was not patently unreasonable for the Board to conclude that the applicants could not be targets of the FARC's plan, as these applicants had not provided sufficient credible evidence that they would be personally targeted. Based on the evidence on record, it was reasonably open to conclude that the principal applicant's father and great uncle were killed because of their high position in the military or the police. No reviewable error has been made in this regard.
[12] The applicants have submitted that the Board misconstrued the evidence because the Response to Information Request (OL41482.E, May 22, 2003) states that both active and retired officers are targeted. Despite the fact that the Response to Information Request makes no distinction based on grade, age or status, the applicants have failed to convince me that this is enough to render the Board's findings in this case patently unreasonable. Here, the Board specifically cited this article and agreed that retired officers could be targeted. However, in light of the principal applicant's own profile as a non-combatant psychologist living in Bogota and the lack of credible evidence that any problems had arisen in Bogota for either of the applicant families, the Board concluded that these applicants were not a risk.
[13] Moreover, an applicant's lack of credibility may affect the weight given to documentary evidence and in appropriate circumstances may allow the Refugee Division to discount that evidence. Refugee status does not exist at large, and the applicants must credibly establish that the agents of persecution are targeting them personally (Songue v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1020 (F.C.T.D.) (QL); Hossain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 160 (F.C.T.D.) (QL); Nasim v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1199, [2003] F.C.J. No. 1624 (F.C.T.D.) (QL); Waheed v. Canada (Minister of Citizenship and Immigration), 2003 FCT 329, [2003] F.C.J. No. 466 (F.C.T.D.) (QL)). In light of the Board's clear negative credibility determination that the threatening phone calls in Bogota were an invention to bolster their refugee claim, it was entirely reasonable for the Board to conclude that based on the applicants' own stories and the documentary evidence cited above, these applicants would not be at risk.
[14] Third, in the case at bar the Board did not find that the principal applicant's familial relationship with his father is such that there is a reasonable chance that he would face persecution, risk to his life or risk of cruel and unusual treatment or punishment based on that familial relationship. Likely, because the other principal applicant is 74 years old and that his son Mauricio has resigned in 2003 from the Air Force, the Board could not find that there is a reasonable chance that based on his familial relationship with his son he would face persecution from the FARC, that his life would be at risk or that he would face cruel and unusual treatment or punishment at the hands of the FARC. These findings should not be disturbed.
[15] It is trite law that to establish a claim to refugee status, there must be a clear link between a refugee claimant and one of the five prescribed grounds in the Convention refugee definition. Membership to a particular social group is a recognized ground under section 96 of the Act. However, indirect persecution does not constitute good grounds for a Convention refugee claim. Indirect persecution does not require the claimant to have a well-founded fear of persecution or to be persecuted; it arises out of the fact that the claimant is the unwilling spectator of violence against other members of the social group. Moreover, while personal targeting is not required, refugee claimants must nonetheless establish a link between themselves and persecution for a Convention reason. They must be targeted for persecution in some way, either personally or collectively: Rizkallah v. Canada (Minister of Employment and Immigration) (1992), 156 N.R. 1 (F.C.A.). One cannot be deemed to be a Convention refugee because one has a relative who is being persecuted (Devrishashvili v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1528 (F.C.T.D.) (QL)). There has to be a clear nexus between the persecution that is being levelled against one of the family members and that which is taking place against the others.
[16] The family can only be considered to be a social group in cases where there is evidence that the persecution is taking place against the family members as a social group: Al-Busaidy v. Canada (Minister of Employment and Immigration) (1992), 139 N.R. 208 (F.C.A.); Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (F.C.T.D.); Addullahi v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 150; Lakatos v. Canada (Minister of Citizenship and Immigration), 2001 FCT 408, [2001] F.C.J. No. 657 (F.C.T.D.) (QL). However, membership in the social group formed by the family is not without limits, it requires some proof that the family in question is itself, as a group, the subject of reprisals and vengeance or, in other words, that the applicants are targeted and marked simply because they are members of the family even though they themselves have never been involved in politics and never will be so involved. (Canada (Minister of Citizenship and Immigration) v. Bakhshi, [1994] F.C.J. No. 977 (FCA) (QL)). For example, in Montoya v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 701 (F.C.T.D.) (QL), the Court found that the family in question could be considered as a social group. The applicant and his mother were living in the same house in Chili. The applicant's mother received five threatening letters in connection with the fact that the applicant's uncle was a member of the C.N.I.. One day while they were out, their house was severely damaged. In Germain v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1577 (F.C.T.D.) (QL), the Court also found that the family in question could be considered as a social group. The applicant was living with her son and her grandson. The applicant was questioned and beaten in connection with her son's political activities. In the case at bar, the applicants were not living in Garzon or in La Jagua (both in the department of Huila) where the assassinations of the principal applicant's father and great uncle took place. The principal applicant had not been back to that area since his father was killed. Furthermore, the evidence of personal threats was found to be not credible; a conclusion that the applicants have not seriously challenged before this Court. Further, the other principal applicant's son, Mauricio, was a resigned military pilot who had never been targeted by the FARC. Clearly, the required nexus was not satisfactorily established by the applicants.
[17] In conclusion, the Board, after considering all the evidence presented by the applicants, concluded that there was no serious possibility that these applicants would face persecution in Colombia. Despite the sympathy this Court entertains in view of the fact that the principal applicant prematurily lost his father and great uncle who have been assassinated by the FARC, the Board's finding is reasonable in the circumstances and should not be disturbed. No question of general importance has been proposed for certification and none shall be certified by the Court.
ORDER
THIS COURT ORDERS that the present judicial review application be dismissed.
"Luc Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-83-04
STYLE OF CAUSE: ARMANDO RAMIREZ GRANADA ET AL. v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 15, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: DECEMBER 21, 2004
APPEARANCES:
MR. MICHAEL KORMAN FOR THE APPLICANTS
MR. BERNARD ASSAN FOR THE RESPONDENT
SOLICITORS OF RECORD:
MR. MICHAEL KORMAN FOR THE APPLICANTS
OTIS & KORMAN
TORONTO, ONTARIO
DEPUTY ATTORNEY GENERAL OF CANADA FOR THE RESPONDENT
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