Date: 20101130
Docket: IMM-299-10
Citation: 2010 FC 1201
Ottawa, Ontario, November 30,
2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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BLANCA LUCIA OROZCO VELASQUEZ AND LUIS
MIGUEL DUQUE OROZCO (A.K.A. LUIS MIGUEL DUQUE, BY HIS LITIGATION GUARDIAN
BLANCA LUCIA OROZCO VELASQUEZ)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I.
Overview
[1]
Ms. Bianca
Lucia Orozco Velasquez was politically active on behalf of the Conservative
Party in Colombia in the 1990s. As a
consequence, the Revolutionary Armed Forces of Colombia (FARC) harassed and
threatened her and her children. They fled to the United States in 1999. In 2008, Ms. Orozco and her
son, Luis Miguel, sought refugee protection in Canada.
[2]
A panel of
the Immigration and Refugee Board dismissed Ms. Orozco’s claim because it found
that she could live safely in Bogota. Ms. Orozco contends that the
Board erred in law by failing to consider the specific nature of the risk she
and her son face in Colombia and, in addition, arrived at
unreasonable conclusions about Colombia’s ability to protect them.
[3]
I agree
with Ms. Orozco that the Board erred by failing to consider to determine the
nature of the risk she might face in Colombia.
I will, therefore, grant this application for judicial review. It is
unnecessary to consider her alternative submissions regarding the
reasonableness of the Board’s conclusions.
II. Factual Background
[4]
Ms. Orozco
was an active member of the Conservative Party in Colombia. She was also involved in charities that
distributed food to needy citizens in her home town of Belalcazar. She was openly critical of FARC. In
1998, FARC members stopped a supply truck in which she was travelling. She and
the driver were tied up and threatened. FARC told them to stop distributing
food.
[5]
After
that incident, FARC members continued to threaten Ms. Orozco and her children.
She reported the threats to the police.
[6]
In January
1999, one of her son’s friends was abducted. A FARC member called her home to
tell her that her son had been the intended abductee. The caller also made a
death threat. Ms. Orozco packed and took her children to her parents’ home in Pereira, where she continued to
receive threats. After the boy who had been abducted was killed, Ms. Orozco
began making arrangements to leave the country. She travelled to the United States in May 1999.
[7]
Even after
she left the country, Ms. Orozco’s parents continued to receive threatening
calls. Her sister and brother-in-law were killed, as was her cousin. Based on
these events, Ms. Orozco claims to fear reprisals from FARC if she were to
return to Colombia.
III. The Board’s Decision
[8]
The Board
made no findings of fact regarding the claims. It appears to have accepted Ms.
Orozco’s version of events in its entirety.
[9]
The Board
identified the main issue as “internal flight alternative” (IFA); that is,
whether Ms. Orozco could live safely in Bogota. The Board then reviewed the documentary
evidence pertaining to state protection in Bogota. In summary, the Board concluded as
follows:
∙ Colombia is a democratic country with
civilian control over the military and police.
∙ Crimes,
including human rights crimes and crimes committed by members of security
forces, are prosecuted and the conviction rate is 60%.
∙ The number
of killings committed by security forces is going down.
∙ FARC’s
political support, command structure and membership are dwindling.
∙ Colombia has expanded the presence of
security forces in remote areas.
∙ FARC is
concentrating on rural areas instead of cities and focussing on military
targets, not civilians.
∙ FARC’s
activity in urban areas mainly involves terrorism.
∙ FARC
deserters move to Bogota to evade reprisals from FARC.
∙ FARC is now
relying more on drug trafficking than kidnapping and extortion.
[10]
The Board
concluded from this evidence that Colombia
is making serious efforts to provide protection to its citizens against FARC.
In addition, Colombian security forces will protect civilians from crime and
human rights abuses.
[11]
The Board
then examined documentary evidence tendered by Ms. Orozco. It noted that:
∙ FARC
mounted a rocket attack on a town in Cauco.
∙ Casualties
among police and security forces have increased 51%.
∙ Those most
affected by FARC include farmers, minorities, elected officials, journalists,
and human rights activists.
∙ FARC is
contracting other groups to commit terrorist acts in some areas, such as Bogota, but does not appear to
out-source attacks on former targets.
[12]
The Board
concluded that this evidence showed FARC was concentrating on areas outside
large urban centres, and that Colombian security forces were making efforts in
those areas. Overall, FARC’s strength is waning; its activities are mainly
confined to small-scale guerrilla and terrorist acts. In addition, the Board
found that Ms. Orozco does not fit the profile of the groups most targeted.
[13]
The Board
discounted, therefore, Ms. Orozco’s fear of living in Bogota and, given her 14 years of education,
concluded that it would be reasonable for her to reside there.
IV. Did the Board Err in Failing to Consider
the Specific Risk at Issue?
[14]
As noted,
the Board made no findings about Ms. Orozco’s experiences in Colombia. It appears to have accepted
all of her evidence relating to her fear of FARC. The Board’s decision is
confined to an analysis of country condition documents from which it concluded
that she could live safely in Bogota.
[15]
The
concept of an IFA is an inherent part of the Convention refugee definition
because a claimant must be a refugee from a country, not from a particular
region of a country (Rasaratnam v Canada (Minister of Employment and
Immigration), [1992] 1 FC 706 at para 6). Once an IFA has been proposed by
the Board, it must consider the viability of the IFA according to the
disjunctive two part test set out in Rasaratnam. The claimant bears the
onus and must demonstrate that the IFA does not exist or is unreasonable in the
circumstances. That is, the claimant must persuade the Board on a balance of
probabilities either that there is a serious possibility that he or she will be
persecuted in the location proposed by the Board as an IFA, or that it would be
unreasonable to seek refugee in the proposed IFA given his or her particular
circumstances.
[16]
There may,
however, be an overlap between the Board’s consideration of an IFA and its
analysis of state protection. The first branch of the IFA test is met where
there is no serious possibility of persecution in the particular location. That
finding may flow either from a low risk of persecution there or the presence of
state resources to protect the claimant, or a combination of both. But, in
either case, the analysis can only be carried out properly after the particular
risk facing the claimant has been identified.
[17]
Indeed,
the Board’s failure to consider the specific risks feared by a claimant in an
IFA analysis will constitute an error of law (Gutierrez v Canada (Minister of Citizenship and
Immigration),
2010 FC 1010). It is an error, therefore, for the Board to make a blanket
finding that an IFA is available to a refugee claimant, without reference to
the type of persecution feared by the claimant or that person’s particular
circumstances. Again, the first question the Board must answer when a proposed
IFA is in issue is whether, on a balance of probabilities, there is a serious
possibility that the claimant will be persecuted in the location proposed by
the Board. Generally speaking, that question cannot be answered if the nature
of the person’s fear has not been specifically identified.
[18]
Similarly,
in the context of a state protection analysis, it is an error of law for the
Board to conclude that state protection is available if it fails to make any findings
about the applicant’s personal circumstances (Moreno v Canada
(Minister of Citizenship and Immigration), 2010
FC 993). In Moreno, the Board found that the applicant, a native of Bogota, would not be targeted by
FARC in that city, contrary to his testimony. That conclusion necessarily
implied that the Board did not accept the applicant’s account of events, yet it
made no explicit adverse credibility findings. Therein lays one of the dangers
in assessing state protection or IFA without analyzing the applicant’s
particular allegations -- adverse credibility findings may creep into the
analysis without explanation.
[19]
Here,
having raised IFA as the determinative issue, the Board was required to
determine whether, on a balance of probabilities, there was a serious
possibility that Ms. Orozco would be persecuted in Bogota. The Board was further required to
consider whether relocation to Bogota was unreasonable given Ms.
Orozco’s particular circumstances.
[20]
I find
that the Board’s failure to identify the particular risk Ms. Orozco claimed to
fear resulted in a faulty IFA analysis. The Board found, for example, that Ms. Orozco
did not fall within the groups most targeted by FARC. However, she claimed to
be an active member of the Conservative Party and a humanitarian worker who
spoke out against FARC. It is not clear why the Board felt she was unlikely to
be targeted, even if she was not a farmer, or an elected official, a journalist,
or a member of some other group specifically mentioned in the documentary
evidence. In addition, Ms. Orozco stated that she had gone to police, but the
threats against her continued and family members were subsequently killed. That
evidence was obviously relevant to the issue of whether the state could protect
her, and ultimately, whether there was a serious possibility that she would be
persecuted in Bogota. Yet, the Board did not
mention it.
[21]
It may
have been the case, as in Moreno, above, that the Board did
not believe all of Ms. Orozco’s allegations. If so, it had an obligation to
make explicit credibility findings. The analysis of a proposed IFA is not a
substitute for those findings.
[22]
In my
view, this is not one of those rare cases where the IFA analysis could stand on
its own, without reference to the particular risk from which the claimant
sought protection. The Board was obliged to consider both whether Ms. Orozco
faced a serious risk of persecution in Bogota and whether relocating to Bogota was, in any event, reasonable
for someone in Ms. Orozco’s particular circumstances. Without this inquiry, the
IFA analysis is merely an abstract exercise. Here, the Board’s discussion did
not address the risk faced by someone in Ms. Orozco’s unique circumstances.
That omission amounts to an error of law and I must, therefore, allow this
application for judicial review on that basis.
V. Conclusion and Disposition
[23]
The
Board failed to analyze the specific risk faced by Ms. Orozco on her return to Columbia. As a
result, its analysis of the question of whether a viable IFA could be found in Bogota was
deficient. In the circumstances, I must allow this application for judicial
review and order a new hearing before a different panel of the Board. No
question of general importance is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is allowed.
2.
The
matter is referred back for reconsideration by a different panel of the Board.
“James
W. O’Reilly”
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