Docket: IMM-273-11
Citation: 2012 FC 37
Ottawa, Ontario, January 11,
2012
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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DAYANA ALEXANDER OSORIO
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Applicant
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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
[1]
Ms.
Dayana Alexander Osorio applies for judicial review of the December 21, 2010
decision by the Immigration and Refugee Board’s Refugee Protection Division
(RPD) which found that she is not a Convention refugee or a person in need of
protection.
[2]
The
Applicant is a Colombian citizen. She claims a fear of persecution by FARC. She
alleges the FARC attempted to extort one million pesos from her grandparents in
Colombia in 2001. The
Applicant had been living in the United States since 1988. In 2009,
the Applicant made a refugee claim in Canada; she and her mother had
taken no previous steps to claim protection.
[3]
The
RPD found that the Applicant and her mother’s failure to claim asylum status in
the US was not
consistent with a subjective fear of persecution in Colombia. The RPD
found that this was fatal to the Applicant’s claim. In the alternative, the RPD
found that the Applicant had failed to rebut the presumption of adequate state
protection in Colombia.
[4]
I
dismiss this application for judicial review for the reasons that follow.
Facts
[5]
The
Applicant, Dayana Alexander Osorio, is a citizen of Colombia. The
Applicant’s parents brought her to the United States to seek a
better life when she was nine years old. She has never been back to Colombia since that
time.
[6]
In
September 2001, when the Applicant was 13 years old, her grandparents allegedly
received demands for one million pesos from the FARC. At the time, the
Applicant was living with her parents who were in the US without any legal
status; they did not take any steps to claim asylum in the US.
[7]
In
2007, four of the Applicant’s relatives came to Canada to claim
refugee protection. They were all granted refugee protection on May 11, 2009,
based on the 2001 demands from the FARC.
[8]
In
January 2009, the Applicant’s mother married a US citizen and
was able to regularize her status. The Applicant was not included in her
mother’s application for residency, because she was almost 21 years old by this
time.
[9]
In
October 2009, when the Applicant was 21 years old, she came to Canada and made a
refugee claim at the port of entry on the basis of the 2001 FARC threats
against her grandparents.
[10]
The
Applicant relied on the narratives of her relatives, and attached three Personal
Information Form (PIF) narratives from her relatives to her own PIF. These
narratives describe the 2001 incident with the FARC in some detail,
particularly the narrative of her aunt Maria Isabel Osorio Mejia, who was
present when the alleged persecutory incidents occurred. Ms. Mejia states that
the family initially received threatening phone calls from individuals who
identified themselves as members of FARC. The callers stated that they knew
everything about the family; they knew they had relatives in the US, and demanded
that they make a monthly payment of one million pesos.
[11]
The
family changed their phone number, but the calls did not stop. At the end of
October 2001, FARC members came to the house. They were armed, pointed a gun at
the family members, and asked for money. They also asked Ms. Mejia to put
properties that the FARC had taken from others in her name, so they could be
sold. If the police came after the person who was involved in the land
transaction, she would be seen as the person responsible. The FARC members said
that if Ms. Mejia did not comply they would immediately kill all her family
members in front of her.
[12]
After
the FARC members left the home, the Columbian family members fled to Medellin. They stayed
in hiding at different locations until they were able to flee Colombia in November
2001. They went to the United States. They never contacted
the police in Colombia.
[13]
The
family members learned after they had fled that the FARC continued to ask their
neighbours about their whereabouts.
[14]
Ms.
Mejia’s narrative states that they did not apply for asylum in the US because they
were advised they could not do it because they had no status and did not have
valid visas or passports.
[15]
The
Notice of Decision showing that four of the Applicant’s relatives were granted
refugee status was also before the RPD; however, the reasons for the Notice of
Decision were not included in the record before the RPD.
Decision Under Review
[16]
The
RPD found that the family’s failure to claim asylum status in the US was not
consistent with a subjective fear of persecution in Colombia. The RPD
noted that the Applicant testified that 14 members of her family left Colombia
and went to the US, but none of them claimed protection in the US.
[17]
The
RPD also noted that the Applicant’s mother took no action to normalize her
status or her daughter’s status for seven years after learning of the alleged
persecutory events in 2001. The Applicant’s uncle was found by the US
authorities and deported back to Colombia in 2007, where he still
lives.
[18]
The
RPD found that there was no explanation why the Applicant’s mother took no
steps until 2009 to regularize her status. The RPD concluded that the
Applicant’s failure to claim refugee protection for eight years was fatal to
her claim.
[19]
The
RPD recognized that a number of the Applicant’s relatives were granted refugee
protection, but concluded that, “I am not bound by those decisions as I am not
privy to the evidence that was presented at the hearing”.
[20]
The
RPD analyzed the availability of state protection in the alternative. The RPD
briefly reviewed some jurisprudence on state protection, and then reviewed at
least 10 country documents in some detail, concluding that the Applicant failed
to rebut the presumption of state protection.
[21]
The
RPD concluded that the documentary evidence showed that the state had been
effective at responding to the needs of individuals, and was addressing
corruption at the highest levels. The RPD recognized that the FARC was still
operating, but its sphere of influence was getting smaller and is reduced to
some remote border mountain areas. The defence forces have been going after the
FARC, and other paramilitary groups, and have been achieving tangible results.
Because of this, the RPD concluded that Colombia can provide
adequate though not perfect state protection.
Legislation
[22]
The
Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA)
provides:
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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…
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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,
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Issues
[23]
This
application for judicial review raises two issues:
1. Was the RPD’s
finding that the Applicant’s delay in claiming was determinative of her claim
unreasonable?
2. Was the RPD’s
state protection analysis unreasonable?
Standard of Review
[24]
Determinations
of delay in claiming protection are essentially fact based: Rios v Canada (Minister of
Citizenship & Immigration), 2006 FC 1437, 304 FTR 192 at para 28. The
appropriate standard of review for questions of fact is that of reasonableness:
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 53.
[25]
Questions
of the adequacy of state protection are “questions of mixed fact and law
ordinarily reviewable against a standard of reasonableness”: Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, 282 DLR (4th)
413 at para 38.
Submissions of the Applicant
Delay as a determinative
issue
[26]
The
Applicant submits the RPD failed to consider her explanation as to why she did
not make a claim for political asylum in the US. The
Applicant submits that she was a minor at the time, and had no say in whether a
claim was made. By the time she reached the age of majority she was precluded from
making a claim in the US.
[27]
The
Applicant submits that if delay is not generally a determinative factor, then
it cannot constitute sufficient grounds on which to dismiss a claim. In support
of this position, the Applicant relies on Saez v Canada (Minister of
Employment and Immigration) (1993), 65 FTR 317, 21 Imm LR (2d) 15 at
paragraph 5 where Justice Dubé held that “delay in making a claim, while relevant,
is not a decisive factor in itself”.
[28]
The
Applicant also points to the Federal Court of Appeal’s decision in Huerta v
Canada (Minister of Employment and Immigration) (1993), 157 NR 225, 40 ACWS
(3d) 487, where the Court confirmed at paragraph 4 that delay was not a
decisive factor, but it was a relevant element which a tribunal could take into
account.
[29]
The
Applicant submits that even if there are exceptions to the general rule that
delay is not determinative, the facts of this case do not amount to circumstances
where the delay should be determinative of the claim.
State Protection
[30]
First,
the Applicant argues that the RPD has selectively considered the evidence on
state protection. The Applicant submits the evidence before the RPD was mixed
and often ambiguous. Rather than weigh this conflicting evidence, the Applicant
argues the RPD only cited examples from the documentary evidence which support
the RPD’s position that adequate protection exists. The Applicant has provided
a number of examples from the documentary evidence which contradict the RPD’s
findings. In general, these demonstrate that the FARC is still active.
[31]
Second,
the Applicant criticizes the RPD’s summary of the country conditions in two
paragraphs of the decision. The Applicant notes the member has not included a
source for these paragraphs. The Applicant asserts that the RPD is not an
expert witness, and cannot simply put forward its own views about the existence
of state protection in Colombia.
[32]
Third,
the Applicant asserts that the RPD is biased. The Applicant points to the RPD’s
selective reliance on the country documents, as well as the RPD’s expression of
its own views on state protection in Colombia. The Applicant also
points to the fact that the RPD brought its own documentary evidence to the
hearing. The Applicant argues there was no need to supplement the documentary
evidence available at the hearing. There was no recent change in country
conditions which would require introducing new country evidence.
[33]
Finally,
the Applicant contends that the RPD ignored probative evidence that goes to
determinative issues; in particular the Applicant’s own evidence, and the
Immigration and Refugee Board’s Response to Information Request. The Applicant
provided her own documentation, which indicated that the FARC had gained
territory and maintained its fighting capacity, and was re-arming for extortion
in Bogota. According
to the Applicant, this information was particularly important to the decision,
because it indicates that the FARC could track their victims over the long
term, even when individuals return to Colombia after being away for an
extended period of time.
Analysis
Was
the RPD’s finding that the Applicant’s delay in claiming was determinative of
her claim unreasonable?
[34]
Delay
can be a determinative factor in certain circumstances, where the Applicant
fails to provide an explanation for the delay: Espinosa v Canada (Minister of
Citizenship & Immigration), 2003 FC 1324, 127 ACWS (3d) 329 at para
17.
[35]
The
Court has upheld findings that the delay pointed to a lack of subjective fear.
In Rahman v Canada (Minister of Citizenship & Immigration), 2006 FC
729, the Court upheld a finding that a seven year stay in the US before
claiming protection in Canada demonstrated a lack of subjective fear. In Mantilla
Cortes v Canada (Minister of Citizenship &
Immigration), 2008 FC 254, 165 ACWS (3d) 509, the Court upheld a finding
that a 5 year delay in the US was inconsistent with a subjective fear.
In Espinosa, above, the Court upheld a finding that a 14 month delay in
seeking protection was inconsistent with a subjective fear. Finally, in Jeune
v Canada (Minister of Citizenship & Immigration), 2009 FC 835, the
Court upheld a negative credibility finding based in part of a failure to claim
protection at the first opportunity without a satisfactory explanation.
[36]
In
this case, the RPD found that the length of the delay was significant. The
genesis of the Applicant’s claim occurred in September 2001, but she did not
claim protection until October 2009. The RPD considered the Applicant’s
explanation for this eight year delay; the Applicant stated she was only a
minor and that she had no say in whether to claim asylum status in the US. This
required the RPD to consider the actions and any explanation of the mother.
[37]
The
RPD found that there was no explanation as to why the Applicant’s mother took
no steps until 2009 to claim protection. The Applicant’s mother did not testify
on behalf of the Applicant to provide the RPD with an explanation for the
delay. The only explanation provided by the Applicant as to the mother’s
failure to claim protection was that her mother got advice from lawyers and
they told her that it was too late.
[38]
I
am satisfied the RPD’s finding on the issue of delay is well within the
reasonable outcomes available based on the evidence before the RPD. The RPD
properly took into account the fact that the Applicant herself was unable to
claim protection while a minor and focused on the actions of the Applicant’s
mother. While the Applicant’s aunt testified at the hearing, it was the reasons
for the Applicant’s mother’s failure to claim asylum that were directly
relevant to this issue.
[39]
The
Applicant was unable to provide a satisfactory explanation for the delay and
the RPD’s finding on this issue, including the finding that this is
determinative of the case, is reasonable. The application for judicial review
can be dismissed on this issue alone.
Was the RPD’s state
protection analysis unreasonable?
[40]
The
RPD undertook a review of country documents from UNHCR, the US Department of
State, Amnesty International, UK Home Office, Europa World Year book, and the
International Crisis Group. The RPD noted that this evidence indicated that
some FARC guerrillas were demobilized, government officials had been prosecuted
for corruption, and government operations against the FARC had tangible results
and resulted in the deaths of several members of the FARC central command. The
FARC had largely withdrawn to the jungle and mountains, and is not active in
large urban centres. FARC fronts were driven out of Cali, Bogota and Medellin in the early
2000s.
[41]
The
RPD acknowledged the existence of evidence setting out a contrary view.
Specifically, the RPD acknowledged that the FARC has not been completely
disarmed or disabled, and has continued to carry out attacks against civilians.
Selective use of country document evidence does not necessarily amount to an
error: Gilbert v Canada (Minister of
Citizenship & Immigration), 2010 FC 1186, 378 FTR 179. The RPD is
expected to glean relevant aspects from the evidence. It is only when the RPD
fails to mention the substance of critical documentary evidence which runs
contrary to their findings that a reviewing court is likely to interfere; a
failure to refer to the particularities of any specific article does not amount
to a reviewable error. I find the RPD did consider the substantive content of
the contrary evidence.
[42]
I
see no issue with the RPD bringing documents to the hearing. Rule 29(2) of the Refugee
Protection Division Rules, SOR/2002-228 specifically provides that
documents may be disclosed, not only by a party, but also by the RPD. These articles
were relevant as they portrayed recent significant attacks by the government
against the FARC occurring a month before the hearing. In any event, these
articles are only mentioned in one paragraph of the decision, while there are
nine pages of discussion of other country documents.
[43]
Finally,
I find the Applicant has failed to meet the high threshold for bias. The
Applicant did not raise this issue during the RPD hearing. If there is any
issue with bias, the Applicant waived it by failing to raise it at the earliest
opportunity.
[44]
I
conclude the RPD applied the relevant legal principles and thoroughly reviewed
the documentary evidence. The RPD’s state protection analysis finding is reasonable.
Conclusion
[45]
The
Applicant’s application for judicial review is dismissed.
[46]
Neither
party has proposed a question for certification and none is certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The
application for judicial review is dismissed.
2. No question
of general importance is certified.
“Leonard S. Mandamin”
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