Docket: IMM-5348-11
Citation: 2012 FC 275
Toronto, Ontario,
February 29, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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NICOLAS
HERNANDO MONROY BELTRAN BY HIS LITIGATION GUARDIAN PATRICIA MONROY
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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]
This is an application for judicial review pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27, of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board that held that the applicant was neither a Convention refugees nor a
person in need of protection.
[2]
For the reasons that follow, this application is allowed.
Background
[3]
Nicolas Beltran is a citizen of Colombia. He was 17 at the time of his
hearing before the Board; his aunt acted as his designated representative.
[4]
Mr. Beltran testified and he was found to be credible. During the last
two years of high school, he carried out community work for the Colombian Civil
Defence. He performed functions such as rescue, vigilance and massive event
control. On November 20, 2010, his father was working in his office when he
received a telephone call from a commander of the Fuerzas Armadas Revolucionarias
de Colombia (FARC). His father was told that the obligatory contribution
(vacuna) had not been paid. When his father refused to pay, the FARC demanded
the applicant as a recruit. A denunciation was filed to the National Police
that same day.
[5]
On December 8, 2010, the applicant left Colombia alone. He went to the United
States where he stayed for two days before claiming refugee protection at the
Canadian border. His aunt who had been granted refugee protection in Canada
approximately seven years ago was waiting for him.
[6]
The Board believed the applicant’s allegation that members of the FARC
threatened to recruit him when his father did not accede to their “vacuna”
demands. This risk, it found, did not provide a nexus to a Convention ground
and was generalized in Colombia. The Board found that the perpetrators were
acting in a criminal manner and although the FARC is an organization with
political objectives, its modus operandi is not as political as it was
in the past. There was no evidence that the applicant or his father were
questioned on their political views. Moreover, when the Board questioned the
applicant as to whether his community involvement had anything to do with the
recruitment demands, the applicant candidly said it did not. Although the
“UNHCR considers that forcibly recruited and/or trafficked children in Colombia
may be a risk on the ground of membership of a particular social group,” the
Board did not accept that this overrode subparagraph 97(1)(b)(ii) of the Act
dealing with generalized risk.
[7]
The risk of recruitment, as admitted by the applicant, was found to
apply to many young people in Colombia. Additionally, the Board found that
there was no evidence adduced surrounding the effect of a possible recruitment.
Both the Board and the applicant agreed that vacuna demands from people who are
perceived to have money, such as the applicant’s father, were part of the
FARC’s modus operandi. The Board pointed to various passages of the
documentary evidence to support a finding that the risk faced by the applicant
was generalized in Colombia. The Board, stating that it was relying on
jurisprudence from this Court, concluded that Mr. Beltran was not eligible for
refugee protection: Ventura De Parada v Canada (Citizenship and
Immigration), 2009 FC 845 [Ventura De Parada], Rodriguez Perez v Canada
(Citizenship and Immigration), 2009 FC 1029 [Rodriguez Perez ], and Prophète
v Canada (Citizenship and Immigration), 2008 FC 331 [Prophète].
Issues
[8]
The memorandum filed and signed by the applicant
and his litigation guardian does not specifically identify any issues in dispute.
At the hearing counsel for the applicant addressed three issues; however, having
reviewed the entire record and listened to oral submissions it is my view that
there are only two relevant issues:
1.
Was the Board’s finding that the applicant’s
risk had no nexus to a Convention refugee ground reasonable?
2.
Was the Board’s finding that the applicant’s
risk is a risk faced generally by others in Colombia reasonable?
[9]
It is noted that the Board stated at the
beginning of its decision that “[t]he determinative issues are nexus, failure
to claim elsewhere, and generalized risk.” As noted by the applicant, the
Board did not provide any reasons on the issue of “failure to claim
elsewhere.” It is clear from the transcript that the Board, which raised it as
an issue at the commencement of the hearing, was satisfied with the evidence of
the applicant and the reference to the issue in the decision was in error. Nothing
turns on this. The basis of the decision was nexus and “generalized risk.”
Analysis
1. Nexus
[10]
The applicant submitted that his fear of persecution had a nexus to two
Convention refugee grounds: political opinion and particular social group.
[11]
It was submitted that FARC is a political group and if the applicant
were to be forcibly recruited to it then he would have to engage in acts to
which he was opposed. This does not amount to a fear of persecution on the
ground of political opinion. In order to have a nexus to a Convention refugee
ground the applicant would have to have a fear of persecution “for reasons of”
his political opinion. It is clear, as he candidly admitted at the hearing
before the Board, that his political work or opinion has no relationship to his
fear of forced recruitment.
[12]
Similarly, it is not evident that his fear of forced recruitment has any
relationship to him being a child. On the other hand, the Board’s rejection of
that submission is problematic. The applicant cited and relied upon the ‘UNHCR
Eligibility Guidelines for Assessing the International Protection Needs of
Asylum-Seekers from Colombia’ in the National Documentation Package before the
Board and, more specifically, the following statement: “UNHCR considers that
forcibly recruited and/or trafficked children in Colombia may be at risk on the
ground of membership of a particular social group.” The Board dismissed that
submission by saying:
The Board does
not concur that this statement by UNHCR overrides Section 97(1)(b)(ii) of the
IRPA. Moreover, there was no evidence adduced surrounding the effect of a
possible recruitment. While I take note of the UNHCR document, I am bound by
the jurisprudence of the Court.
There are three difficulties with
this statement.
[13]
First, the UNHCR report was tendered with respect to protection as a
Convention refugee under section 96 of the Act and clearly was not
intended to have any connection or relevance to section 97. Further, no
submission was made to the effect that the UNHCR statement did override any
provision of the Act, although the statement suggests otherwise.
[14]
Second, there was evidence before the Board as to the effect of forced
recruitment. While this was not specific to the applicant, the record is
replete with information from UNHCR, the US Department of State, Human Rights
Watch, and others as to the consequences for children who are forcibly
recruited by FARC, including sexual abuse, being forced to kill, and other
horrendous consequences.
[15]
Third, as counsel for the respondent candidly and responsibly admitted
there is no jurisprudence of this Court, nor is any cited by the Board, that
holds that the forcible recruitment of children in Colombia by FARC is not
entitled to protection under section 96 of the Act on the basis of there
being no nexus to a Convention ground.
2. “Generalized
Risk”
[16]
The Board correctly identified that the applicant feared being forcibly
recruited by FARC. However, the Board then states: “As stated in Ventura
De Parada, this claimant was not targeted personally; rather she, as a
business person, who was perceived to be well-off, had been targeted.”
[17]
The Board in this statement and others conflated the risk and fears of
the applicant’s father who was being subjected to extortion to the fear and
risk of his son which, while caused by the father’s refusal to pay, had nothing
to do with his father’s fears and risk. All of the decisions of this Court
cited by the Board, including Ventura De Parada, Rodriguez Perez,
and Prophète dealt with situations where the claimants seeking
protection had been victims of crimes.
[18]
More critically, the Board’s analysis of the applicant’s fear was simply
that his fear of forcible recruitment was the fear of “many young people in Colombia.”
It failed to examine the personal circumstances of this applicant. In Corado
Guerrero, 2011 FC 1210, I reiterated the requirement that the Board must conduct
an individualized inquiry when examining a claim under subsection 97(1) of the Act
and not simply look to the fear and ask whether the applicant’s fear is one shared
by others generally in the country.
[19]
The situation here is similar to that described by Justice Rennie in Vaquerano
Lovato v Canada (Minister of Citizenship and Immigration),
2012 FC 143, at para 14:
As noted in Vivero
[2012 FC 138], section 97 must not be interpreted in a manner that strips it of
any content or meaning. If any risk created by “criminal activity” is always
considered a general risk, it is hard to fathom a scenario in which the
requirements of section 97 would ever be met. Instead of focusing on whether
the risk is created by criminal activity, the Board must direct its attention
to the question before it: whether the claimant would face a personal risk to
his or her life or a risk of cruel and unusual treatment or punishment, and
whether that risk is one not faced generally by other individuals in or from
the country. Because the Board failed to properly undertake this inquiry in
this case, the decision must be set aside.
[20]
Because the Board failed to conduct the required individualized inquiry,
it simply accepted that his risk of forced recruitment was the same as many
other young boys in Colombia. In so doing, it completely ignored that unlike
those young boys, the applicant was specifically targeted for forced
recruitment because his father had refused the demands made by FARC. He was
not simply one of the many boys that FARC attempts to recruit in order to fill
its ranks. While there may be a general risk of forced recruitment in that
FARC targets boys indiscriminately, that is not the situation in which the
applicant found himself. Because the Board failed to conduct the proper assessment
under subsection 97(1) of the applicant’s risk, this decision is unreasonable
and must be re-determined.
[21]
Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application is allowed,
the applicant’s claim for protection is referred back to the Board for
determination by a different Member, and no question is certified.
"Russel W. Zinn"
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