Date: 20050429
Docket: IMM-3272-04
Citation: 2005 FC 585
OTTAWA, Ontario, April 29th, 2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
RUBEN DARIO GOMEZ ACEVEDO
DAVID GOMEZ RESTREPO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated March 11, 2004, in which the applicants were found not to be Convention Refugees or persons in need of protection because they have an internal flight alternative (IFA) in Colombia.
FACTS
[2] The principal applicant (the applicant) is a 42-year old Colombian national who fears that he will be subject to extortion attempts by paramilitary forces if returned to Colombia. He states that he will be harmed or possibly killed if he does not accede to the extortion requests. The applicant has a 15 year-old son who also claims refugee protection in Canada.
[3] The applicant alleges that while living in Caldas, Colombia, he owned and operated a photography business. In mid-1999, he began receiving demands for protection money from members of the paramilitary. He never paid the extortionists and was never harmed. However, he chose to close his business in March 2001 to avoid further extortion demands when he was approached in the street by paramilitary members who demanded payment. The applicant reported the incident to the authorities who recommended that he leave Colombia or at least the town of Caldas.
[4] The applicant and his son went to Spain in April 2001 for a three week vacation and on return to Colombia relocated to the city of Itagui. In Itagui, the applicant testified that he was afraid to work openly as a photographer. Accordingly, he did not have a public telephone number where he held himself out as a photographer. Instead, the applicant accepted photography work from referrals whom he trusted. The applicant did not receive any extortion demands in Itagui from May 2001 to April 2002. The applicant alleges that in February 2002, three men, whom he assumes to be members of the paramilitary, came towards his son on the street. His son fled on a bicycle and was not harmed. As a result of this incident, the applicant and his son travelled to Canada on April 29, 2002 and made a claim for refugee protection at the port of entry.
THE DECISION
[5] The Board rejected the applicants' claim for protection on the basis that they had an IFA in the city of Itagui, Colombia. The Board did not question the applicant's credibility or consider whether the applicant and his son had a well-founded fear of persecution in their home town of Caldas, Colombia before they relocated to Itagui.
[6] In concluding that there was an IFA, the Board relied on the fact that the applicant had lived in Itagui without incident from May 2001 until April 2002. It found that the applicant had worked openly as a photographer, had not lived "in hiding" and found "employment with companies".
[7] The Board considered the documentary evidence with respect to paramilitary activity in Colombia. It noted that paramilitary forces have large reach throughout the country and that they often make extortion demands from business owners. However, the Board found that because the applicant had not been involved in political or community activities and because he was no longer a business owner, it was unlikely that the paramilitaries would seek him out in another region.
[8] At the hearing, the applicant testified that his cousin, a barber who lived in Itagui, had been murdered in December 2003 because he was unable to pay protection money to the paramilitaries. The Board found that the situation surrounding the cousin's death was very different from the circumstances encountered by the applicant. The applicant had received demands for a number of years, yet he was never harmed, either in Caldas or in Itagui. By contrast, the cousin had been shot dead immediately after he refused to pay the extortionists. The Board concluded that the cousin's death did not assist in assessing the risk to the applicant.
[9] Lastly, the Board found that there was nothing sinister about the three men who had moved towards the applicant's son in February 2002. There was no reason to believe that the men were paramilitaries or that they wanted to harm the son in any way. The Board concluded that the applicants could return to Itagui and live with the same freedom as before and that it was reasonable for them to do so since the principal applicant had family and business contacts there.
ISSUES
[10] The applicants raise the following issues:
1. Did the Board err in adopting a retrospective rather than prospective analysis of the IFA?
2. Did the Board err by ignoring relevant evidence?
ANALYSIS
Issue No. 1
Did the Board err in adopting a retrospective rather than prospective analysis of the IFA?
[11] The applicants submit that the test for determining whether a claimant has an IFA is prospective, not retrospective, and that the Board erred by basing its conclusion that there was an adequate IFA on the lack of past persecution in Itagui.
[12] The Court agrees that a refugee analysis is prospective and that the Board must decide whether a claimant faces a serious risk of persecution upon return to his home country. See Nimaleswaran v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 559 (F.C.) at paragraph 17. In order to make this forward-looking decision, the Board must necessarily look to information about what has happened in the recent past. In the present case, the Board considered the applicant's prior experiences in Itagui as well as documentary evidence regarding paramilitary activity in Colombia. This was relevant evidence and the Board did not error by taking into account.
[13] However, upon review of the decision, it is clear that the Board erred in its appreciation of the facts. One of the Board's central findings was that the applicant had not encountered difficulties with the paramilitaries in Itagui from May 2001 until April 2002 while working publically as a photographer. The evidence is that the applicant was not employed with a company and worked in a low profile, non-public manner to avoid detection. The Court concludes that the Board made a patently unreasonable finding of fact in this regard. This was a material finding of fact because it may explain why he did not receive any extortion demands in Itagui.
Issue No. 2
Did the Board err by ignoring or misapprehending relevant evidence?
[14] The applicants submit that there was considerable documentary evidence before the Board indicating that internal flight alternatives are not realistic in Colombia because the paramilitaries have wide reach. They submit that the Board erred by failing to explain why this documentary evidence, which belies the conclusion reached by the Board, was not accepted. They further submit that the Board failed to appreciate that the basis of their claim was not community or political involvement, but business activity.
[15] The relevant portion of the Board's decision on this matter reads as follows:
Documents before the panel deal with the subject of Internal Flight Alternatives for Colombian citizens. The comments in these documents are not unanimous but it is clear that the paramilitaries as a large group have a reach throughout the country. However, the panel relies, in the circumstances of this claim, on the comments of the Canadian Embassy's Refugee Unit in Bogota that, "while both the FARC and the AUC (the largest paramilitary group) do have the capacity to act throughout Colombia the "overwhelming majority of threatened and displaced persons are of limited interest to (these groups) once they stop their community/political activities and leave "their region." The Refugee Unit further states that, "for [refugee] applicant[s] to use the claim that they cannot flee internally, [they] must satisfy the interviewing officer that they have a stature and a role in the conflict that would justify a high level of motivation in FARC or AUC to follow them across a large country." The panel lacks any evidence that the principal claimant was involved in any community/political activities in Colombia.
[16] The record indicates that there was important, relevant and credible evidence before the Board that was not referred to in its decision. In particular that:
1. it is difficult to escape "the long arm" of guerrilla and paramilitary groups in Columbia. They have a network of contacts. It is "virtually impossible" to relocate;
2. the guerrillas and paramilitary will track a person who has been threatened from one area of Colombia to another regardless of his lack of politicalprofile; and
3. the UNHCR reports that, generally, the notion of IFA should not be applied when assessing refugee claims from Columbia.
[17] The failure of the Board to address this important, relevant and credible evidence, which contradicts the Board's finding that the applicant did not have "a stature and role in the conflict" such that the guerillas or paramilitary would track him across the country, is an error of law. See Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.), Evans J. (as he then was) at paragraphs 27 and 28.
CONCLUSION
[18] The Court concludes that:
1. the Board made a patently unreasonable finding of fact by finding that the applicant worked openly as a photographer in Itagui; and
2. the Board erred in law by failing to refer to important, relevant and credible evidence which contradicts its finding on an important aspect of the IFA.
[19] For these reasons, this application will be allowed. Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, the decision of the Board dated March 11, 2004 is set aside and the matter is remitted to a different panel of the Board for redetermination.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3272-04
STYLE OF CAUSE: RUBEN DARIO GOMEZ ACEVEDO ET AL
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, APRIL 19, 2005
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: FRIDAY, APRIL 29, 2005
APPEARANCES BY: Mr. John W. Grice
For the Applicants
Mr. Laden Shahrooz
For the Respondent
SOLICITORS OF RECORD: Davis & Grice
Barristers & Solicitors
Toronto, Ontario
For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20050429
Docket: IMM-3272-04
BETWEEN:
RUBEN DARIO GOMEZ ACEVEDO ET AL
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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