Docket: IMM-5635-11
Citation: 2012 FC 245
Ottawa, Ontario, February 22,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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MARTHA SOFIA SERNAS DE TORO AND MARIA
CECILIA CERNAZ HAMANN
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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 JUDGMENT AND
JUDGMENT
[1]
This
application for judicial review concerns a determination by the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
July 19, 2011, that sisters Martha Sofia Sernas de Toro and Maria Cecilia
Cernaz Hamann were not Convention refugees or persons in need of protection
within the meaning of sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27.
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
The
Applicants are citizens of Colombia. On September 25,
2009, they claimed refugee protection in Canada based on a
fear of the Revolutionary Armed Forces of Colombia (FARC).
[4]
The
husband of the Principal Applicant (Maria Sofia Sernas de Toro) was shot and
killed by FARC guerrillas as a result of an incident on November 2, 2002. He
was directed to drive his taxi to an empty lot where the FARC guerrillas jumped
in the car and threatened him. He managed to get out of the car but was shot
in the process. The police responded quickly and apprehended those
responsible.
[5]
When
the prosecutor (or Fiscalia) came to the hospital, the Principal Applicant’s
husband did not identify the FARC as the perpetrators. He died one month
later.
[6]
The
Principal Applicant was told to appear at the Fiscalia to make a formal
denunciation. She also commenced a lawsuit to receive compensation for her
husband’s death in February 2003. The lawsuit was subsequently withdrawn out
of fear as the Principal Applicant claims to have received a phone call from
the father of one of the perpetrators suggesting that her husband was killed
because he refused to carry out his duties.
[7]
In
January 2009, the Applicants received a phone call telling them that they had
to pay a debt to compensate for the six years that one of the perpetrators had
spent in jail. They decided to relocate from Cali to Bogota. Shortly
after this move, they learned that their apartment in Cali had been
robbed.
[8]
On
July 21, 2009, the Principal Applicant alleged having received another call on
her cell phone from the FARC in Bogota. The caller demanded
300 million pesos, failing which they would be killed. As a result, the
Applicants fled to Canada.
II. Decision
Under Review
[9]
The
Board found that there was no nexus to a Convention ground in the Applicants’
case. While it accepted that the FARC have political objectives, the Principal
Applicant’s husband was extorted because of his vehicle and perception that he
had money and the Applicants were in turn targeted as a result of that
incident. The objective behind this extortion was purely criminal in nature,
rather than the consequence of any real or imputed political opinion.
[10]
There
were also some concerns expressed regarding the Applicants’ credibility. When
the Principal Applicant was asked to explain the gap in her Personal
Information Form (PIF) narrative between 2003 and 2009, she referred to
threatening phone calls in 2006. The Board gave no weight to this evidence;
however, since it was not in the PIF and the only explanation provided when
pressed was that she focused more on the 2009 incident. In addition, on being
questioned about the phone call received after fleeing to Bogota, the Principal
Applicant acknowledged that this was received on her cell phone at the same
phone number she used in Cali. This did not translate to her having
been located in Bogota.
[11]
The
Board concluded that the Principal Applicant, at no time, approached the
police. As a consequence, she had not provided clear and convincing evidence
of the state’s inability to protect her. Colombia was
considered a constitutional, multiparty democracy. Although significant human
rights abuses remain, the Board noted that the government continues to make
efforts to confront and address these issues.
[12]
Examining
the documentary evidence specific to the threat posed by FARC, the Board
concluded that the group continues to operate in rural areas but has been
weakened in most urban centres. It was acknowledged that security forces fear
FARC will attempt to win back status in urban areas through terrorism, and
there were signs of these efforts recently. However, these incidents were not
generally considered targeted attacks.
[13]
The
Board referred to classes of individuals currently considered targets of the
FARC. While the group continues to murder these targets, there was no
documentation that persons who do not meet that profile, such as the
Applicants, were being targeting in cities or towns.
[14]
The
Board also found that the Applicants had a viable Internal Flight Alternative
(IFA) in Bogota. The call
received by the Principal Applicant was at the same number and cell phone as
used in Cali.
[15]
Considering
documentary evidence related to the likelihood of FARC tracking the Applicants
in Bogota, the Board
suggested that this depended on the value of the target. The FARC were angry
that the Principal Applicant espoused contrary views but she was not a
high-value target being extorted or coerced to cooperate and provide technical
assistance. The Board concluded that it was not likely she would be located in
Bogota and that, if
she were, state protection would be reasonably forthcoming.
III. Issues
[16]
The
issues raised in this application can be stated as follows:
(a) Was the Board’s assessment of
state protection reasonable?
(b) Was it reasonable for the Board
to find that the Applicants had a viable IFA?
IV. Standard of Review
[17]
The
standard of review for the Board’s assessment of state protection is reasonableness
(Mendez v Canada (Minister of Citizenship and Immigration), 2008 FC
584, [2008] FCJ No 771 at paras 11-13). This standard must also be applied to
the finding of an IFA (Diaz v Canada (Minister of
Citizenship and Immigration), 2008 FC 1243, [2008] FCJ no 1543 at para
24; Guerilus v Canada (Minister of
Citizenship and Immigration), 2010 FC 394, [2010] FCJ no 438 at para.
10).
[18]
Reasonableness
is concerned with “the existence of justification, transparency and
intelligibility” as well as “whether the decision falls within the range of
possible, acceptable outcomes defensible in respect of the facts and law” (Dunsmuir
v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
A. State
Protection
[19]
The
Applicants contest the Board’s state protection finding for failing to consider
their explanation as to why they did not approach authorities for protection
following the receipt of telephone threats. Having filed a denunciation for
her husband’s death, the Principal Applicant was targeted and threatened by the
FARC. She was therefore unwilling, out of fear, to approach the authorities in
response to threats against her and possibly other family members.
[20]
The
Respondent maintains that the Board considered the Principal Applicant’s
testimony and explanations regarding her failure to approach state authorities.
The Board also made clear why it was giving part of her testimony no weight.
[21]
On
examining the Board’s decision, I am inclined to agree with the Respondent’s
position. At paragraph 23 of its decision, the Board explicitly refers to the
Principal Applicant not having gone to police when she was threatened and that
“[h]er reason for not doing so was fear and her belief that the FARC have
infiltrated the police.” It was also acknowledged that it may have been
reasonable at the time for her not to have approached police in Cali, which
supported further consideration of the viability of an IFA in the final portion
of the decision.
[22]
Since
there is no clear failure to consider the Principal Applicant’s testimony, the
concern raised is with the weight accorded to her explanation. On its own, the
Applicants’ concern does not warrant the intervention of this Court. The Board
is entitled to weigh the evidence submitted in its assessment of state protection.
[23]
The
Applicants further assert that the Board was selective in its review of
documentary evidence regarding state protection in that it failed to consider
contradictory material.
[24]
As
the Respondent stresses, however, the Board conducted a thorough analysis of
this evidence and acknowledged contradictions before analyzing the Applicants’
individual circumstances. Ongoing corruption and conflict were recognized
along with efforts involving government programs and officials to address these
problems. The Board directed its attention to the risk posed by FARC as well
as its weakened presence in urban centres, such as Bogota.
[25]
The
Board expressly addressed contradictory evidence regarding the availability of
state protection. Failing to mention every piece of documentary evidence does
not amount to a reviewable error (see Hassan v Canada (Minister of
Employment and Immigration) (1992), 147 NR 317, [1992] FCJ no 946
(FCA); Florea v Canada (Minister of Employment
and Immigration), [1993] FCJ no 598 (FCA)).
[26]
The
Applicants had to provide clear and convincing evidence that state protection
was inadequate (see Carillo v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, 2008 CarswellNat 605 at
para 38). The burden for doing so is higher in a democratic state (see Hinzman
v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, [2007] FCJ no 584 at
para 57). Having considered all of the testimony and documentary evidence, the
Board was convinced that the Applicants had not sought police assistance and
state protection would be reasonably forthcoming in other areas of Colombia. This was
within the range of possible, acceptable outcomes.
[27]
Since
the Board’s assessment of state protection was closely linked to its IFA
finding, I must also turn my attention to that issue.
B. Internal
Flight Alternative (IFA)
[28]
The
Applicants dispute the conclusion that they have a viable IFA in Bogota, Colombia. They
insist the Board failed to consider the Principal Applicant’s testimony,
supported by the available documentary evidence, that she did not approach
police for protection because the FARC has infiltrated the Colombian police
force throughout the country. According to the Applicants, this evidence
contradicts the suggestion that although it may have been reasonable that they
did not approach police in Cali, protection would have been available in Bogota.
[29]
However,
I am not persuaded that the Board ignored the Principal Applicant’s testimony
in this regard. Indeed, paragraph 49 of its reasons specifically notes that
“she testified that she would not be afforded state protection as the police
have infiltrated the FARC.”
[30]
The
Board proceeded to assess the documentary evidence as to the threat of the FARC
in Bogota. Although
it acknowledged the group’s presence in the area, it was possible to relocate
and live safely if an individual was not considered a high-value target. Since
the Applicants did not meet the profile of primary FARC targets, the Board
found they would not likely be located and, if they were, state protection
would be reasonably forthcoming in Bogota.
[31]
This
is consistent with determinations by the Federal Court of Appeal in Thirunavukkarasu
v Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 22 Imm
LR (2d) 241 and Ranganathan v Canada (Minister of Citizenship and
Immigration) (2000), [2001] 2 FC 164, [2000] FCJ no 2118 at paras
13-15 that an IFA can be found if the applicants will not be at risk at the
location and it is objectively reasonable to expect the applicants to seek
refuge there.
[32]
It
was therefore reasonably open to the Board, having considered the Principal
Applicants’ testimony and documentary evidence, to find that Bogota represented
a viable internal flight alternative. The Applicants initially relocated there
because they must have thought they would be safer and could return to the
city. Once again, the Court is being asked to reweigh the evidence where the
Board is appropriately given deference in the matter.
VI. Conclusion
[33]
Since
the Board considered the Applicants’ testimony and documentary evidence to
reach reasonable findings on state protection and the viability of an IFA in Bogota, the
application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that this application for
judicial review is dismissed.
“ D.
G. Near ”
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