Date: 20100519
Docket: IMM-5661-09
Citation: 2010 FC 537
Ottawa, Ontario, May 19, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
WILSON
FERNANDO IDARRAGA CARDENAS
DELIO YACZON ZAPATA GRANDA
ADRIANA PATRICIA IDARRAGA
ALEJANDRO JESUS ZAPATA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Background
[1]
The
Applicants are citizens of Colombia who claim to have a
well founded fear of persecution at the hands of the Fuerzas Armadas Revolucionarias de Colombia
(FARC), due
to their perceived political opinion.
[2]
The Applicants are all
members of the same family: Mr. Wilson Fernando Idarraga Cardenas (“Cardenas”) and Ms. Adriana Patricia Idarraga (“Idarraga”) are
siblings, Mr. Delio Yaczon Zapata Granda (“Granda”) is Ms. Idarraga’s husband,
and Alejandro Jesus Zapata (“Zapata”) is their son.
[3]
Cardenas and one of his
other sisters were working at their mother’s business in August 2000 while
their mother was visiting their brother in the United States. During that
period, he received a telephone call from an unidentified caller who demanded
that he pay money for the protection of the business. He claims he contacted
his mother and told her of the telephone call, and that she told him not to
worry, as it was probably some thugs attempting to scare money out of them.
[4]
He claims that he then
received a number of subsequent telephone calls, each of which was increasingly
more threatening than the previous one. At his mother’s instruction, he allegedly
reported those telephone calls to the police, who stated that all they could do
was to send an officer around to monitor the premises approximately twice per
week. Cardenas claims that he only saw a policeman near the business premises
on two occasions.
[5]
On September 29, 2000, Cardenas and his sister were opening the store when
three armed, masked men arrived on the scene and forced them inside. He claims
that the men identified themselves as members of FARC and told them that they
had to face the consequences of not paying the protection money that they had
requested. Cardenas claims that he was then beaten, tied up, and locked in the
bathroom while his sister was raped.
[6]
Cardenas
further claims that, after the
men left, he and his sister called an ambulance and informed the rest of the
family of the incident. On October 3, 2000, after his mother returned from the
United States, he claims that he and his mother went to file a report with the
police. However, because they did not believe that the police would be able to
do anything, they decided to leave for the United States. They ultimately left on December 29, 2000. After
being denied permanent resident status in the U.S. in August 2006, Cardenas
came to Canada on October 30, 2008 and immediately claimed refugee status.
[7]
Granda claims that his
family owned a delivery business in the town of Itagui, and that in 1998 members of the family began receiving telephone phone
calls demanding that they pay money or be killed. As a result of those threats,
he claims that his family moved their business to Medellin, and that in early
1999, they once again began to receive the same types of threatening telephone
calls. He further claims that the persons who made these latter telephone calls
identified themselves as members of FARC. After receiving such calls for
approximately seven months, he claims that his father was attacked and beaten
by FARC guerrillas as he was leaving work. He also stated that his father was
told not to tell the authorities and that if he did so his life and the lives
of his family would be at risk. As a result, his father fled to the United States on August 13, 1999, after transferring the business
to Granda and his sister.
[8]
Granda further claims
that one of his delivery trucks was stolen in January 2000. It was apparently found
later by the police, but all the goods it contained had been stolen. He
allegedly reported this incident to the police, but never received news that
the police had made an arrest. He claims that after this incident, he again
began to receive telephone calls from unidentified callers who demanded money
from him and threatened that if he didn’t pay, he and his family members would
be killed. He further claims that he was warned not to go to the police station
to identify any suspects they may have or to have any other contact with the
police. As a result, Granda and Idarraga decided to flee Colombia. Ultimately,
they fled to the United States in February 2000.
[9]
Idarraga is currently a
permanent resident of the United
States and Zapata is an
American citizen. However, Granda currently has no status in the United States. Idarraga and Zapata arrived in Canada on November
30, 2008 and immediately
submitted refugee claims. Granda entered Canada on January 7, 2009 and
immediately submitted a refugee claim.
[10]
The Applicants’ claims
were heard together on October
16, 2009. In a decision dated
October 30, 2009, the Refugee Protection Division (RPD) of the Immigration and
Refugee Board rejected their claims. The Applicants seek judicial review of
that decision.
II. The Decision under Review
[11]
At the outset of its
decision, the RPD rejected the claims of Idarraga and her son on the basis that
neither of them had adduced any evidence or made any submissions regarding a
potential risk of harm in the U.S. or inadequate state protection in the U.S.
[12]
With respect to
Cardenas and Granda, the decision focused on whether there would be a serious
possibility of their being harmed should they return to Colombia and live in Bogota. The RPD also considered whether it would be
reasonable for Granda, who lived in Medellin prior to fleeing the country, to
relocate to Bogota. The RPD did not consider it necessary to address this
second prong of the internal flight alternative (IFA) test for Cardenas, as
Cardenas lived in Bogota prior to fleeing Colombia.
[13]
After discussing a substantial
number of documents that had been submitted by the Applicants, as well as other
documents that it independently obtained, the RPD summarized the documentary
evidence. Among other things, it noted the following:
i.
FARC’s bases of
operation are now confined to rural areas of Colombia;
ii.
FARC no longer has the
ability to track an individual from one area of the country to another, due to
the surveillance of security forces and their ability to interrupt
communications;
iii.
Security forces
maintain close control of roads and rivers connecting urban centres with areas
of combat; and
iv.
FARC’s activities in
urban areas now appear to be limited to (i) attempts to influence youth at
universities, to provide a new political base, and (ii) random attacks on
government offices, to show a continued presence. The only reported attack in an
urban area in 2008 appears to have been in Cali.
[14]
Earlier
in its decision, the RPD also observed that “security forces currently have
made it difficult for the FARC to move freely out of [its rural bases of
operation]” and that “threats without the capacity of the FARC to carry out
these threats in urban centres would not raise the risk of persecution to the
required level to qualify for Canada’s protection.” In addition, the RPD noted
that there was “no evidence that FARC has been able to carry out any threats of
personal harm against any individual who resides in Bogota in the last 12
months.”
[15]
Based
on the foregoing, the RPD concluded that the Applicants had not established
that there is a serious possibility that they will be persecuted or seriously
harmed should they live in Bogota. The RPD also stated that Granda had provided
no evidence to support his claim that Bogota would be an
unreasonable area for him to live, and that Bogota therefore meets
both prongs of the test for a viable IFA.
III. Issues
[16]
The
Applicants allege that the RPD erred by:
i.
Misinterpreting
and failing to address important evidence;
ii.
Failing
to apply the two-prong test applicable to the assessment of an IFA and to
provide sufficient 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 were “compelling reasons,” arising out of past
persecution, for the Applicants to refuse to avail themselves of the protection
of Colombia, as contemplated by subsection 108(4) of the IRPA.
IV. Standard of review
[17]
The first and
third issues that have been raised by the Applicants, as well as the second
part of the second issue, are reviewable on a standard of reasonableness (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 51 - 56; and Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paras. 45-46).
[18]
In Khosa, at para. 59, reasonableness was articulated by Justice Ian Binnie as
follows:
Where the reasonableness standard applies, it
requires deference. Reviewing courts cannot substitute their own appreciation
of the appropriate solution, but must rather determine if the outcome falls
within "a range of possible, acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir, at para. 47). There might
be more than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
[19]
However, the fourth issue, namely, whether the
RPD erred in failing to assess whether the Applicants met the requirements
subsection 108(4) of the IRPA, and the issue of whether the RPD applied the
proper test in assessing whether an IFA exists, are reviewable on a standard of
correctness (Khosa, above at para. 44; and Decka v. Canada (Minister
of Citizenship and Immigration), 2005 FC 822 at para. 5).
V. Analysis
A.
Did
the RPD err by misinterpreting or failing to address important evidence?
[20]
The
Applicants allege that the RPD erred by dismissing evidence that was contained
in a 2005 report issued by the United Nations High Commissioner for Refugees
(UNHCR). The RPD drew an adverse inference from the fact that a more recent
report, which the RPD incorrectly characterized as being from the same agency,
did not contain similar statements. However, given that the RPD also relied on
a significant amount of other evidence, all of which is more recent than the
2005 UNHCR report, in reaching its conclusion that the Applicants can avail
themselves of adequate state protection in Bogota, I am satisfied that this
error was not material. The fact that there was a substantial amount of more
recent evidence supporting the RPD’s conclusion distinguishes this case from Ibarra-Lerma
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1611 at para.
9; and Escobar v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 1436 at para. 7.
[21]
The
Applicants also allege that the RPD erred by failing to address evidence
contained in a report dated August 20, 2009 by Dr. Mark Chernick, and by
failing to explain why it preferred other evidence. I disagree. The RPD
specifically addressed that evidence at paragraphs 19 to 21 and paragraphs 32
to 35 of its decision. However, it preferred other recent evidence, including two
reports by International Crisis Group (ICG), dated April 2008 and March 2009,
which were extensively summarized at paragraphs 46 to 48 of its decision. The
RPD noted that ICG “is guided by well known and respected international
personalities, including a former Prime Minister of Canada and an
internationally recognized Canadian jurist.” Having specifically discussed the
Chernick report as well as a significant amount of other evidence submitted by
the Applicants, and having explained at various points throughout its decision
why it did not accept much of that evidence, it was reasonably open to the RPD
to prefer other evidence, all of which was fairly recent.
[22]
Provided
that the RPD reasonably takes into account important evidence in the record
that may contradict its conclusions, there is no requirement for the RPD to
refer to every piece of documentary evidence or every passage from cited
sources which contradict the information that the RPD has chosen to cite, so
long as the RPD’s decision is within the bounds of reasonableness (Rachewiski
v. Canada (Minister of Citizenship and Immigration), 2010 FC 244 at para.
17).
[23]
The
burden was on the Applicant to adduce clear and convincing evidence to satisfy
the RPD, on a balance of probabilities, that state protection in Bogota is
inadequate (Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689 at
724-725; Hinzman v. Canada (Minister of Citizenship and Immigration),
2007 FCA 171 at para. 54; Carrillo v. Canada (Minister of Citizenship and
Immigration), 2008 FCA 94 at para. 30). In this case, the RPD found that
the Applicant had failed to discharge that burden.
[24]
In
short, I am unable to conclude that the RPD’s decision was unreasonable. In my
view, its conclusion regarding the adequacy of state protection was well within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
B. Did the RPD
err by failing to properly apply the test for an IFA and to provide adequate
reasons for its conclusion?
[25]
The
Applicants allege that the RPD erred by relying on documentary evidence that
civilian populations in cities “feel safer,” in finding that the Applicants
would be able to avail themselves of adequate state protection in Bogota. They
state that the test for determining whether or not a state is able to provide
adequate protection, and whether or not an IFA exists, “is not an exercise in
relativity.” That is to say, it is not a question of whether or not residents
in urban centres are “safer” than residents elsewhere in the country. Rather, they
submit that the test is whether (i) a refugee claimant would face a serious
possibility of persecution in the identified IFA area, and (ii) whether or not
it is reasonable, in all of the circumstances, including circumstances
particular to the claimant, for the claimant to seek refuge in that area.
[26]
I
agree with the Applicants’ characterization of the two prongs of the test for determining
whether or not an IFA exists, and with their position that the first prong of
that test is absolute, rather than relative, in nature. (Rasaratnam v. Canada
(Minister of Employment and Immigration), [1992] 1 F.C. 706 at 711 (C.A.); Ranganathan
v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 at
paras. 13-15 (C.A.); Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 at
597-599 (C.A.).)
[27]
However,
I disagree with their submission that the RPD incorrectly applied the proper
test. In my view, a reading of the RPD’s decision in its entirety reveals that
the RPD did apply the proper test, as opposed to the “relative” test alleged by
the Applicants, in reaching its conclusion that the Applicants would not face a
serious possibility of being harmed should they return to Colombia and live in
Bogota. This correct test was articulated repeatedly at the outset of the RPD’s
decision (at paras. 8, 12, 13 and 17) and then again at the end of the decision
(in para. 56). Accordingly, I am unable to conclude that the RPD erred in
applying the wrong test when it assessed the issue of whether there would be a
serious possibility of the Applicants being harmed should they return to Colombia and live in Bogota.
[28]
Granda
also claims that the RPD erred when it dealt with the second part of the IFA
test by simply making the statement that he had “provided no evidence to
support [that] Bogota would be an unreasonable area for him to live.” I am
unable to conclude that this constituted a reviewable error on the part of the
RPD. The burden was on Granda to adduce sufficient evidence to establish, on a
balance of probabilities, both prongs of the IFA test. He failed to do so. This
Court’s decision in Syvyryn v. Canada (Minister of Citizenship and Immigration), 2009 FC 1027 at para.
6, is distinguishable, as the RPD in that case appears to have relied solely on
the fact that the Applicant had over 20 years of experience in the accounting
field, in reaching the conclusion that it was not unreasonable for the
applicant to seek refuge in Kiev. In the present case, Granda adduced no
evidence to support his claim. So it was not unreasonable for the RPD to have
failed to more fully discuss this claim. In short, there was nothing further to
discuss.
[29]
Granda
claims that the country documentation that was submitted to the RPD contained
significant evidence relating to the issue of whether it would be reasonable
for him to avail himself of an IFA in Bogota.
[30]
I
disagree. That information went to the first part of the IFA test, namely,
whether he would face a serious possibility of being persecuted in Bogota. Once
the RPD determined that he would not face such a possibility, the only
remaining issue was whether it would be reasonable for him, considering all of
the circumstances, including circumstances personal to him, to avail himself of
that IFA. That issue is separate from the persecution issue, and relates to
whether there are conditions that “would jeopardize the life and safety of [Granda]
in travelling or temporarily relocating to” Bogota, (Ranganathan,
above at para. 15, (emphasis added)); or whether the place of safety is an
unreasonably isolated part of the country (Thirunavukkarasu, above at
para. 14). As stated above, Granda adduced no evidence on this point. It was
therefore not unreasonable for the RPD to have failed to say more about this
matter.
C. Did the RPD err by improperly
assessing the issue of the recent changes in country conditions in Colombia?
[31]
The
Applicants submit that the RPD erred by failing to explicitly assess the
stability of Colombia’s ability to provide adequate state protection against
FARC. I disagree. The RPD’s lengthy discussion of country documentation and
its detailed summary of that documentation make it very apparent that the RPD
was of the view that FARC had been successfully pushed back and sustainably contained
to rural areas of the country. As at the time of the RPD’s decision, this
situation had prevailed for approximately two years.
[32]
The
cases cited by the Applicants in support of their position on this point are
distinguishable.
[33]
In Chowdhury
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 290 at para. 15, it was specifically
noted by the Court that at the time of the RPD’s hearing, the stability of the
coalition government in Bangladesh was questionable and it was faced with a
requirement for mandatory elections in the year following the decision.
Moreover, the political history of that country indicated that its governments
were not long-lasting and that power had passed back and forth between the two
main competing parties with the periodic intervention of the army.
[34]
In Ibarra-Lerma,
above at para. 9, the Court explicitly found that there was “absolutely no
evidence on the record to substantiate the finding that after a ‘6-year gap’ a
viable IFA exists for the Applicants in Mexico City.” Indeed, the Court found
that there was substantial evidence supporting the contrary conclusion.
[35]
Considering
the RPD’s decision as a whole, and particularly given that the evidence
reasonably demonstrated that the government of Colombia has achieved increasing
success, over a sustainable period of time, in pushing back and containing the FARC,
I am satisfied that it was not unreasonable for the RPD to have failed to
explicitly assess the stability of Colombia’s ability to provide
adequate state protection against FARC. I am satisfied that the RPD properly
assessed whether the Applicants would face a serious possibility of
persecution in Bogota (Yusuf v. Canada (Minister of Employment and
Immigration), [1995] F.C.J. No. 35, at para. 3 (C.A.)).
D. Did the RPD err by failing to
assess whether the Applicants met the requirements of subsection 108(4) of the
IRPA?
[36]
The
Applicants submit that, having concluded that a viable IFA exists in Bogota
because of a change in country conditions, the RPD was required to consider
whether or not the exception set forth in subsection 108(4) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27, was applicable.
That provision states:
|
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27
108.
(4) Paragraph (1)(e) does not apply to a person who establishes that there
are compelling reasons arising out of previous persecution, torture,
treatment or punishment for refusing to avail themselves of the protection of
the country which they left, or outside of which they remained, due to such
previous persecution, torture, treatment or punishment.
|
|
Loi sur l'immigration et la protection des réfugiés, L.C. 2001, c. 27
108.
(4) L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des
raisons impérieuses, tenant à des persécutions, à la torture ou à des
traitements ou peines antérieurs, de refuser de se réclamer de la protection
du pays qu’il a quitté ou hors duquel il est demeuré.
|
[37]
I
disagree with the Applicants’ position. The RPD is not required to conduct the
analysis contemplated by subsection 108(4) of the IRPA unless an applicant for
refugee protection first establishes that he or she has suffered, at some point
in the past, a form of persecution, torture, treatment or punishment
contemplated by sections 96 or 97 of the IRPA. (Hassan v. Canada (Minister of Employment
and Immigration),
[1992] F.C.J. No. 946 (C.A.); Canada (Minister of Employment and
Immigration) v. Obstoj, [1992] 2 F.C. 739 at 747-748 (C.A.); Decka,
above at para. 10; Brovina v. Canada (Minister of Citizenship and
Immigration), 2004 FC 635 at para. 5; and Nadjat v. Canada (Minister of
Citizenship and Immigration), 2006 FC 302 at paras. 50-51.)
[38]
In
this case, the Applicants never met that pre-condition, which triggers the
requirement that the RPD consider whether there were compelling reasons as
contemplated by subsection 108(4). Accordingly, the RPD did not commit a
reviewable error in failing to conduct an assessment under subsection 108(4).
[39]
I am
also satisfied that the RPD did not deliberately choose to avoid having to
conduct an assessment under subsection 108(4) by not making a finding that the
Applicants had suffered previous persecution, torture, treatment or punishment
contemplated by sections 96 and 97 of the IRPA.
VI. Conclusion
[40]
The
application for judicial review is dismissed.
[41]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT this application for judicial
review is dismissed.
“Paul S. Crampton”
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