Date: 20100511
Docket: IMM-5659-09
Citation: 2010 FC 514
Ottawa, Ontario, May 11, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
GENITH
IBARGUEN MURILLO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant is a citizen of Columbia, of Afro-Colombian
ethnicity. She claims that she began working as an active member of Columbia’s Liberal
Party in 2003. After spending four years helping to provide better health care
and education to impoverished black communities in her native city of Buenaventura, she began
to work with displaced women in the city of Jamundi. During her
stay in that city, she held meetings of the Liberal Party approximately twice
each month.
[2]
Shortly
after arriving in Jamundi, she claims that she was involved in establishing a
development plan for displaced women with children. This required her to travel
to the rural areas around Jamundi. Among other things, she and her colleagues
provided food and clothing, helped to promote literacy and hygienic practices,
and sensitized women about guerrilla movements, the guerrillas’ involvement in
drugs and violence, and their recruitment of children.
[3]
In
May 2008, the Applicant returned to Jamundi after having spent three weeks
visiting her mother, who had been very sick. Upon her arrival there, on May 21,
2008, she claims that she found two communiqués at her home that had been sent
by the Revolutionary Armed Forces of Columbia (FARC). The first one, dated
April 30, 2008, stated:
Mrs. Genith Ibarquen Murillo,
We inform you that we know you are
carrying out political activities in the rural area of Jamundi, telling the
peasants that you are against our principles and against our ideals. Resign
from your work! Otherwise, you’ll find out what we do with our enemies. Any
report to the authorities will result in our revolutionary reaction!
Commander,
LUIS CARLOS
[4]
The
second pamphlet, dated May 20, 2008, stated:
You f[…]ing bitch. Do you think we’re
fooling? As you didn’t pay attention to our previous communiqué, a
revolutionary tribunal has set you on trial and accused you of hiding behind
your position as representative of the Liberal Party; through Resolution 005
you’re declared a Military Objective and you’re condemned to death, as well as
your family.
Commander,
LUIS CAROLS
[5]
The
Applicant claims that she immediately arranged to be taken to the police
station in the trunk of a friend’s car. After making a report, she stayed with
her cousin until June 8, 2008. During that time, she claims that the telephone
would frequently ring but no one would ever answer when she picked it up.
Finally, on June 8, 2008, the phone rang and a man stated: “That son-of-a-bitch
Genith is there.”
[6]
After
receiving this telephone call, the Applicant claims that she immediately moved
to a friend’s house where she spent the night and then made another report to
the police the following day.
[7]
The
Applicant then left Colombia on June 11, 2008. She travelled through Mexico,
where she met with a smuggler who took her into the USA on June 21, 2008.
She went to Miami where she
stayed with a friend until she could contact her sister to send her citizenship
card to her. She used this card to obtain a new Colombian passport on August 5,
2008. She then departed for Canada on August 27, 2008 and arrived two days
later, when she claimed refugee protection.
The Decision under Review
[8]
In
a decision dated October 27, 2009, the Refugee Protection Division
(RPD) of the Immigration and Refugee Board rejected the Applicant’s claim to
refugee protection under sections 96 and 97 of the Immigration and Refugee
Protection Act (IRPA).
[9]
The
focus of the entire decision was upon whether the Applicant has a viable
internal flight alternative (IFA) in Bogota.
[10]
What
is particularly striking about the decision is that, after the introductory
material that is set out on the first page, the remaining ten pages of the
decision is virtually identical to another decision issued by the RPD on October
30, 2009, in respect of another matter that was heard by the RPD on the same
day that it heard this matter. The only material difference is in paragraph 19,
where it is noted that since the Applicant’s problems did not begin until after
May 2007, a report issued prior to that date would be given less weight than
another report that was discussed in the decision.
Issues
[11]
The
Applicant alleges that the RPD erred by:
i.
Misinterpreting
and failing to address important evidence;
ii.
Failing
to apply the two part test applicable to the assessment of an IFA and to
provide adequate reasons in respect of the second part of that test;
iii.
Improperly
assessing the issue of the recent changes in country conditions in Colombia; and
iv.
Failing
to assess whether there are “compelling reasons,” arising out of past
persecution, for the Applicant to refuse to avail herself of the protection of
her country, as contemplated by subsection 108(4) of the IRPA.
I. Analysis
A.
Did
the RPD err by misinterpreting or failing to address important evidence?
[12]
This
issue is reviewable on a standard of reasonableness (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 51 – 56).
[13]
Among
other things, the Applicant alleges that the RPD erred by failing to materially
address the specific risk that she would face, whether in Bogota or elsewhere
in Colombia, as a result of being declared a Military Objective and being
condemned to death by FARC.
[14]
I
agree. It was unreasonable for the RPD to have failed to materially address that
specific, personalized risk faced by the Applicant.
[15]
As
mentioned at paragraph 10 above, the Board’s decision was virtually identical
to the decision it issued in respect of another matter that it heard on the
same day that it heard this matter. I also heard the applications for judicial
review of both decisions on the same day. I am satisfied that the evidence
adduced by this Applicant, particularly the two aforementioned letters sent to
her by FARC, is so qualitatively different from the evidence adduced by the
applicants in the other matter, that it was unreasonable for the RPD to have
failed to discuss that evidence and the implications that it may have for the
risk the Applicant may face in Bogota.
[16]
The
two aforementioned FARC letters were arguably the most important evidence adduced
by the Applicant, particularly given that some of the recent documentary
evidence adduced by the Applicant states that FARC continues to successfully
target grassroots activists and humanitarian workers, either directly or by
sub-contracting its violence to criminal gangs, including gangs in Bogota. In this
specific context, the failure
of the RPD to give reasons that addressed this evidence was unreasonable. (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425; Surajnarain v. Canada
(Minister of Citizenship and Immigration), 2008 FC 1165, [2008] F.C.J. No.
1451, at paras. 6 and 7; and Uluk v. Canada (Minister of Citizenship and
Immigration), 2009 FC 122, [2009] F.C.J. No. 149, at paras. 16 and 32.)
[17]
Given my conclusion on this issue, it is
unnecessary for me to address the other issues raised by the Applicant.
II. Conclusion
[18]
The
application for judicial review will be allowed. The decision dismissing the Applicant’s
claim to be recognized as a Convention refugee and a person in need of
protection is set aside. This matter is remitted to a differently constituted
panel of the Board.
[19]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application for judicial review is
granted. The decision dismissing the Applicant’s claim to be recognized as a Convention
refugee and a person in need of protection is set aside. The matter is remitted
to a differently constituted panel of the Board to determine, according to law
and in light of the foregoing reasons, whether the Applicant is a Convention
refugee within the meaning of s. 96 of the IRPA and/or is a person in need of
protection within the meaning of s. 97 of the IRPA.
“Paul S. Crampton”
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