Date: 20101012
Docket: IMM-1851-10
Citation: 2010 FC 1006
Ottawa, Ontario,
October 12, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
WILLINGTON
VIVEROS VELES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division (the Board), dated January 21, 2010, where
Willington Viveros Veles (the applicant) was found not to be a Convention
refugee or a person in need of protection.
[2]
The
application for judicial review shall be dismissed for the following reasons.
[3]
The
applicant is a refugee claimant from Colombia who fears persecution by the
Revolutionary Armed Forces of Colombia (FARC).
[4]
The
applicant decided to flee Colombia out of fear for his
safety in July 2001. He stayed in the United States for a period of
approximately seven years before coming to Canada on May 12,
2008, where he claimed asylum.
[5]
The
main issue in this case is whether or not the determination by the Board that
the applicant had an Internal Flight Alternative (IFA) in Cartagena is
reasonable.
[6]
The
standard of review applicable to issues relating to an IFA is reasonableness
Guerilus v Canada (Citizenship and
Immigration), 2010 FC 394. Consequently, the Court will only
intervene if the decision does not fall within “a range of possible, acceptable
outcomes which are defensible in respect of the facts and the law” (Dunsmuir
v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, para 47).
[7]
In
Thirunavukkarasu v Canada (Employment and
Immigration), [1994] 1 FC 589, the Court stated :
The question is whether, given the persecution
in the claimant’s part of the country, it is objectively reasonable to expect
him or her to seek safety in a different part of that country before seeking a
haven in Canada or elsewhere. Stated another
way for clarity, the question to be answered is, would it be unduly harsh to
expect this person, who is being persecuted in one part of his country, to move
to another less hostile part of the country before seeking refugee status
abroad?
An IFA cannot be speculative or
theoretical only; it must be a realistic, attainable option. Essentially, this
means that the alternative place of safety must be realistically accessible to
the claimant. Any barriers to getting there should be reasonably
surmountable. The claimant cannot be required to encounter great physical
danger or to undergo undue hardship in travelling there or staying there.
[8]
In
the case at bar, I find that the Board stated and applied correctly the
two-pronged test for an IFA in Cartagena.
[9]
First,
the Board did not accept that the incidents – the disappearance of the
applicant's brother, Jorge in 2005; the death of another brother, Hector in
2006; and the assault on his father in 2005, were linked to the FARC or to the
applicant.
[10]
The
Board gave cogent reasons to come to such a conclusion (see paras 15 to 17 of
the decision).
[11]
Second,
the Board asked itself if FARC would be a threat to the applicant if he were to
move to Cartagena. Following
an analysis of the alleged events that took place in 2001 and a subsequent
incident with the applicant’s sister combined with the country conditions, the
Board determined that the applicant's fear in Cartagena was not
personal but generalized risk.
[12]
There
is no reason to substitute my opinion to the Board's conclusion on this first
part of the test.
[13]
Third,
the Board went on to see if it would be reasonable for the applicant in the
circumstances to relocate to Cartagena.
[14]
In
its decision the Board stated at paragraph 27:
The claimant is well-placed to seek
safety in another Colombian city such as Cartagena. Each is young and has a wide variety
of work experience such as an auto repairs, construction and sales. Certainly,
it would be a big step to move to a new location but the claimant has already
indicated his willingness to make such a step by fleeing first to the United
States than Canada, where he had to start a new
job, as well as learn a new language and culture. The claimant would not be
required to encounter great physical danger or to undergo hardship in traveling
to or staying in Cartagena. In this case, the claimant
could reasonably be expected to take advantage of an internal flight
alternative in Cartagena.
[15]
There
is no reviewable error here also.
[16]
Fourth,
the Board distinguished properly the persuasive decision MA4-04467 of the
Refugee Protection Division with the facts it had to consider in the case at
bar (para 29 of the decision).
[17]
In
conclusion, I find that the determination by the Board that the applicant had
an IFA in Cartagena was reasonable.
[18]
No
question of general importance was submitted and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
APPENDIX
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27.
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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