Date: 20101117
Docket: IMM-1030-10
Citation: 2010 FC 1114
Ottawa, Ontario, this 17th
day of November 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Lucas VELEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a member of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”), pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, (the “Act”) by Lucas Velez (the “applicant”). The Board determined
that the applicant was neither a Convention refugee nor a person in need of
protection pursuant to sections 96 and 97 of the Act.
* * * * * * *
*
[2]
The
applicant is a Colombian citizen, from Medellin, Colombia. Prior to his departure from Colombia, he worked for the
logistics arm of a paper products company and was in charge of supporting the
Ecuadorian market for their products. His responsibilities included organizing
the movement of delivery trucks to and from Ecuador.
[3]
The
applicant alleges that in July 2007, a man came to his workplace and introduced
himself as a member of the Revolutionary Armed Forces of Colombia (FARC). The
man demanded the use of the company’s trucks to deliver unnamed goods across
the Ecuadorian border. The man informed the applicant that he would be
returning in several months to organize the use of the trucks. The applicant
was fearful for his life and applied for a Canadian visa.
[4]
The
applicant claims that five weeks after the first incident, the same FARC man
came to his apartment and informed him that the trucks and drivers would be
needed soon. The applicant was told that he would have to organize a meeting
between FARC and the drivers within two months.
[5]
The
applicant quit his job, informing his boss that he was going to Canada to study French in
Montreal, and left Colombia on October 2, 2007. He
applied for refugee status in early January 2008.
[6]
The
Board’s decision was made on January 20, 2010, and received by the applicant on
February 12, 2010.
* * * * * * * *
[7]
The
Board found the applicant not to be credible with regard to the
well-foundedness of his fear of FARC. The Board further found that even if
credibility were not in issue, the applicant had a viable internal flight
alternative in Bogota. The Board found, based
on the documentary evidence, that FARC no longer has much support in big
cities, and therefore would not be able to track the applicant within Bogota. The Board cited in
support of this finding the changes between a 2005 UN High Commissioner for
Refugees report and a 2008 UN High Commissioner for Human Rights report, as
well as two International Crisis Group reports. The Board found that it would be
reasonable for the applicant to live and work in Bogota.
* * * * * * * *
[8]
There
are two issues in this application:
a.
Did the Board err in
its credibility finding?
b.
In the alternative,
did the Board err in finding an internal flight alternative in Bogota?
[9]
The
parties agree that the standard of review applicable to a Board member’s
findings on credibility is reasonableness, as it is a question of fact, to
which deference is owed by the Court, as per Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190, paragraphs 47, 53, 55 and 62; also Canada (Minister of
Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, paragraphs 52
to 62; and Malveda v. Minister of Citizenship and Immigration, 2008 FC
447, paragraphs 17 to 21.
[10]
The
parties also agree that the standard of review applicable to the finding of an
internal flight alternative is reasonableness, as it is a mixed question of
fact and law, to which deference is owed, as per Singh v. Minister of
Citizenship and Immigration, 2009 FC 158, paragraph 17, citing Dunsmuir.
* * * * * * * *
[11]
Dealing
first with the internal flight alternative issue, the Board, in finding that
Bogota would be an acceptable internal flight alternative for the applicant,
relied in part on the supposed difference between a 2005 UN High Commissioner
for Refugees report, which stated that groups such as FARC “have the capacity
to track down victims throughout Colombia,” and a 2008 UN High Commissioner for
Human Rights report, which did not contain this paragraph. The Board determined
that the paragraph had been removed because it was no longer accurate.
[12]
In
the recent case Diaz v. Minister of Citizenship and Immigration, 2010 FC
797, at paragraphs 30 to 32, Justice Russell Zinn quashed a Board decision that
relied on this very ‘difference’ between the two reports. Justice Zinn noted
that the reports were prepared by different organisms, with different
commissioners and different mandates, and stated that to conclude that a
paragraph had been removed for the 2008 report was “perverse”. Therefore, the
Board member was erroneous in relying on this report in support of his
conclusion.
[13]
The
respondent notes, however, that unlike in Diaz, the Board in this case
relied on more than just the UN reports in making its internal flight
alternative finding. Extensive reference was made to two International Crisis
Group (“ICG”) reports. The applicant argues that the Board drew extracts from
the ICG reports to support its conclusions regarding the reduction of FARC’s
activities in urban centres, while ignoring portions of the reports that lead
to the opposite conclusion. The applicant cites cases that criticize Board
members who rely only on chosen passages while ignoring contradictory evidence
in the documentation, such as King v. Minister of Citizenship and Immigration,
2005 FC 774, at paragraph 22, and Lewis v. Minister of Citizenship and
Immigration, 2009 FC 282, at paragraph 9.
[14]
In
my opinion, however, the Board member did not ignore the passages that the
applicant labels ‘contradictory’. I agree with the respondent that the
additional passages of the ICG reports cited in the applicant’s memorandum, as
well as the passages of the Immigration and Refugee Board’s own Colombia
Documentary Package of 2009 cited by the applicant, are all capable of
supporting the Board’s conclusion that FARC “no longer has the ability to track
an individual from one area to another, due to surveillance by government
security forces and their ability to interrupt communications”. The Board did
not conclude, as the applicant alleges, that FARC has no activity at all in
urban centres, but merely that it is unlikely that FARC would be able to track
the applicant within Bogota. While the documentary
evidence cited by the applicant points to the existence of violence perpetrated
by FARC in Bogota, it does not lead to
the conclusion that FARC would be capable of tracking the applicant within Bogota. On the basis of the
documentary evidence cited by both sides, the Board’s finding appears to be
“within the range of possible, acceptable outcomes” as required by Dunsmuir,
above.
[15]
The
applicant also argues that the Board should have considered a July 2009 Board
decision finding that there was no internal flight alternative in Bogota for people who have
been targeted by FARC. The applicant notes that the Board in that case relied
on the same 2005 UN High Commissioner for Refugees report referred to in this
case, and argues that while Board decisions are not binding, they are
persuasive, and in the interests of preserving the perception of justice, the
Board in this case should have explained why it disagreed with the conclusion
reached in that case.
[16]
In
my opinion, however, the cases are distinguishable, as in this case the Board
relied on other country documentation to reach its decision, including several
reports released in 2009. Furthermore, as the respondent notes, this Court has
previously found that each Board decision turns on its own facts, and the Board
is not required to reconcile every previous decision (as per Justice Paul Crampton
in Michel v. Minister of Citizenship and Immigration, 2010 FC 159, at
paragraph 43).
[17]
As I
find, therefore, that it was reasonable for the Board to find that an internal
flight alternative was available to the applicant, this is determinative in
this case and it is not necessary to deal with the applicant’s credibility
issue.
* * * * * * * *
[18]
Consequently,
the application for judicial review is dismissed.
[19]
No
question is certified.
JUDGMENT
The application for judicial
review of the decision of a member of the Refugee Protection Division of the Immigration
and Refugee Board dated January 20, 2010 is dismissed.
“Yvon
Pinard”
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