Docket: IMM-5694-11
Citation:
2012 FC 163
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
February 7, 2012
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
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LUCY STELLA DELGADO RUIZ,
JOHAN FERNANDO MEDINA
DELGADO AND JESSICA IVONNE MEDINA DELGADO
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Applicants
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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
ORDER AND ORDER
[1]
For
several years, Ms. Delgado Ruiz, a citizen of Colombia, worked at the Colombian
embassy in Guatemala. In the performance of her duties, she was responsible for
document applications by Colombian citizens in Guatemala, to whom she would
send various documents such as Colombian passports, birth certificates,
marriage certificates and other identity documents. Over time, she started to
receive some requests without any supporting documents, and therefore had to
call those applicants to an interview. Following the interviews, she received
threats from the FARC (Revolutionary
Armed Forces of Colombia) and the Maras indicating that she should
facilitate the issuance of documents to their members.
[2]
Ms.
Delgado Ruiz refused to cooperate. She resigned from her position at the
embassy and bought a restaurant in Guatemala. In retaliation, members of the
FARC and Maras attacked her son by firing shots at his car and threatened her
at work.
[3]
In
the end, she came to Canada with her two children to claim refugee protection.
Even though the Refugee Protection Division (RPD) of the Immigration and
Refugee Board of Canada believes that, at a certain point in time, Ms. Delgado
Ruiz did face a risk from the FARC if she were to return to Colombia, it is of
the opinion that that risk has dissipated since that time given that she no
longer works for the Colombian government and is no longer able to help them.
This is an application for judicial review of that decision.
[4]
It
is important to note, as a preliminary remark, that it has been well
established that Ms. Delgado Ruiz and her children have no legal status in
Guatemala. The only country of reference is Colombia.
[5]
It
has also been established that the panel member of the RPD committed a number
of errors of fact. However, I am of the opinion that none of these errors are
material to the decision reached (Miranda v Canada (Minister of Citizenship
and Immigration), 63 FTR 81, [1993] FCJ No 437 (QL)).
[6]
Specifically,
and contrary to the panel member’s findings of fact, Ms. Delgado Ruiz does not have a sister
in the United States. This erroneous finding was the basis for the omission
alleged, that is, that she failed to claim asylum in the United States.
Ms. Delgado Ruiz spent only one night in New York when she was in transit
to Canada. In any event, the delay in claiming refugee protection at the
earliest opportunity is not a determinative factor (S.D.J. v Canada
(Minister of Citizenship and Immigration), 2010 FC 1283, [2010] FCJ
No 1593 (QL); Liblizadeh v Canada (Minister of Citizenship
and Immigration), 81 ACWS (3d) 332, [1998] FCJ No 979 (QL); Gurusamy v
Canada (Minister of Citizenship and Immigration), 2011 FC 990, [2011] FCJ
No 1217 (QL); Rodriguez v Canada (Minister of Citizenship and Immigration),
2012 FC 4, [2012] FCJ No 16 (QL)).
ISSUE
[7]
The
only issue is whether the RPD’s finding that Ms. Delgado Ruiz would no
longer be at risk in Colombia on the grounds that she no longer works for the
Colombian government and is no longer able to issue passports and other
identity documents was reasonable.
ANALYSIS
[8]
It
is understandable that, in the abstract, logic and common sense support the
RPD’s decision. Why target someone who is no longer able to advance the
objectives of these organizations? It is unnecessary to consider Ms. Delgado
Ruiz’s allegation that she is still useful to the FARC because she is familiar
with the system.
[9]
However,
the RPD’s finding is contrary to the documentary evidence on the FARC situation
in Colombia. It is abundantly clear that FARC members are vindictive. The
following is according to response to information request COL103286.E,
dated February 23, 2010:
In correspondence with the Research
Directorate, the Senior Researcher with Human Rights Watch indicated that
"[d]ue to their presence in vast sectors of Colombia and extensive
information networks, it is likely that the FARC, ELN and successor groups to
the AUC have the capacity to pursue victims even after they have spent many
years outside the country" (Human Rights Watch 9 Nov. 2009). Furthermore,
in the view of the Professor of Sociology at Acadia University, the FARC and
ELN "would continue to view persons, it deems as a ‘class’ enemy,
regardless of time duration or geographical location" (19 Jan. 2010).
The Professor at Stetson University,
explaining that the following statements apply also to the ELN, addressed this
issue as follows:
[It] depends on the ongoing value of that
individual to the FARC. … The FARC is capable of monitoring over the long term
the movement of Colombian nationals from and into Colombia by flagging names
that will signal an alert when that individual returns to Colombian soil. Also,
there is some risk to a targeted individual who continues to reside outside
Colombia, especially if that individual is a high value target and resides in a
nation where the FARC maintains a significant covert presence (other Andean
states, Argentina, Paraguay, Mexico, Costa Rica, Panama, and some parts of the
United States, particularly Florida and Georgia). … at some point, the paper
trail of an individual’s daily routine and lifestyle would expose that
individual to possible identification by the FARC.
Moreover, there is a stigma attached to
Colombian nationals who return to Colombia from the United States, Canada, and
Europe. Many criminals and illegal armed groups such as the FARC are under the
impression that expatriates returning to Colombia bring back with them money
that can be extorted. … This false assumption places many returning Colombians
at risk of being targeted by groups who must include extortion in their arsenal
of criminal activities in order to survive. Therefore, even if several years
have elapsed, there is simply no way to assure that a repatriated Colombian
national who was once targeted and persecuted by the FARC can live securely and
in peace. (Professor, Stetson University 21 Jan. 2010).
[10]
In
this case, Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), 157 FTR 35, [1998] FCJ No 1425 (QL), applies. Mr.
Justice Evans, later appointed to the Federal Court of Appeal, explained
the following at paragraph 17:
However, the more important the evidence
that is not mentioned specifically and analyzed in the agency's reasons, the
more willing a court may be to infer from the silence that the agency made an
erroneous finding of fact "without regard to the evidence": Bains
v. Canada (Minister of Employment and Immigration), (1993), 63 F.T.R. 312
(F.C.T.D.). In other words, the agency"s burden of explanation increases
with the relevance of the evidence in question to the disputed facts. Thus, a
blanket statement that the agency has considered all the evidence will not suffice
when the evidence omitted from any discussion in the reasons appears squarely
to contradict the agency's finding of fact. Moreover, when the agency refers in
some detail to evidence supporting its finding, but is silent on evidence
pointing to the opposite conclusion, it may be easier to infer that the agency
overlooked the contradictory evidence when making its finding of fact.
[11]
Furthermore,
the fact that Ms. Delgado Ruiz returned to Colombia for less than three weeks
to complete certain steps relating to her resignation from her position at the
embassy, and the fact that she did not experience any problems during her stay
in Colombia, does not mean that she would not have been at risk if she had
stayed there longer. This is especially true when we consider that
Ms. Delgado Ruiz received threats in Guatemala City immediately before her
departure for Colombia.
[12]
Consequently,
I am of the opinion that the decision by the panel member is unreasonable and I
refer it back to another decision-maker for redetermination. The new decision
will have to take into account the availability of state protection and an
internal flight alternative in Colombia.
[13]
As
agreed by the two parties during the hearing, there is no serious question of
general importance to certify.
ORDER
THE COURT
ORDERS AND ADJUDGES that:
1.
The
application for judicial review of the decision by a member of the RPD, of the
IRB, dated August 1, 2011, that the applicants are not Convention refugees or
persons in need of protection is allowed.
2.
The
said decision dated August 1, 2011, is set aside and the matter is referred
back for redetermination by a different panel member of the RPD, of the IRB.
The new decision will have to take into account the availability of state
protection and an internal flight alternative in Colombia.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
Certified
true translation
Janine
Anderson, Translator
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