Docket: IMM-4500-11
Citation: 2012 FC 255
Ottawa, Ontario, February 23,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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LUISA FERNANDA AYALA NUNEZ
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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]
The
applicant seeks judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated June
16, 2011, which held that the applicant was not a Convention (United Nations’
Convention Relating to the Status of Refugees, [1969] Can TS No 6) refugee
or person in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow, the application is dismissed.
Facts
[2]
The
applicant is a citizen of Colombia, and alleges a
well-founded fear of persecution at the hands of the Revolutionary Armed Forces
of Colombia (FARC). In November 2006, the applicant’s mother was threatened by
the FARC because she was working on the sale of a property they allegedly used.
The applicant was also threatened. The applicant states that her mother
ceased working on the sale, and reported the threats to the police.
[3]
The
applicant alleges that on November 27, 2009, she and her mother heard screams
from their neighbour’s house and saw several men that appeared to belong to the
FARC taking their neighbour, a young girl, from the home. The applicant states
that she saw one of the men coming towards her house so she and her mother fled
through a window and hid. The men searched their home and called the
applicant’s name. The applicant and her mother went to the police station but
the police said they were powerless against the FARC.
[4]
The
applicant’s mother then sent the applicant to live in Bogota with her
grandmother. The applicant and her mother continued to receive threatening
phone calls. When a threatening letter was discovered at the applicant’s home
her mother decided to send her to Canada. She arrived on June
4, 2010 and made her refugee claim on June 7, 2010. The applicant states that
her mother has continued to receive threats from the FARC and has gone to the
police again but was again told that they could not protect her from the FARC.
Decision Under Review
[5]
In
the reasons for its decision, dated June 16, 2011, the Board found that the
determinative issue was the availability of state protection.
[6]
The
Board reviewed the principles to be applied in the state protection analysis,
including the presumption that a state is capable of protecting its citizens
which must be rebutted with clear and convincing evidence, and that, in a
functioning democracy such as Colombia, a claimant must do more than merely
show she went to see members of the police force and those efforts were
unsuccessful, rather, the claimant must exhaust all courses of action
reasonably available to her.
[7]
The
Board then reviewed the documentary evidence on Colombia’s ability to
protect its citizens from the FARC. The Board noted Colombia’s historical
challenges fighting the FARC but found that advances have been made in recent
years due to increased army and police efforts. The Board found that the size
and strength of the FARC had been depleted and there was a decline in crimes
such as homicide, kidnapping and extortion.
[8]
The
Board acknowledged problems of police corruption and collusion with the FARC
but found that the state had made efforts to address this problem and punish
those responsible. For example, the Board stated at paragraph 14:
In certain areas, such as Antioquia,
Cordobra, Narino and Meta, corrupt dealings reportedly
continued between local military and police forces and new illegal armed
groups, which included some former paramilitary members. Although impunity for
these police and military personnel remained a problem, the Ministry of Defence
carried out investigations and handed over culpable parties to civilian
authorities in a number of high profile cases…
[9]
The
Board noted that there was conflicting evidence regarding whether the FARC
pursued victims who relocated or returned to Colombia after a
prolonged absence. The Board noted that the evidence of FARC pursuing victims
stated that individuals of high value to the FARC were those most likely to be
pursued. The Board also found evidence that the FARC was not capable of
pursuing victims who relocate.
[10]
Based
on the documentary evidence the Board found that the applicant had not
presented clear and convincing evidence that state protection was not
available. The Board noted the applicant’s evidence that she and her mother
went to the police and they said they were powerless against the FARC; however,
the Board found that the applicant did not seek protection in another
jurisdiction or at the state or federal level, which, based on the documentary
evidence, may have been better equipped to provide protection.
[11]
The
Board went on to note several inconsistencies and implausibilities in the
applicant’s evidence. The Board found that the November 2006 denunciation
filed by the applicant’s mother was vague regarding whether the threats came
from the FARC but the November 2009 denunciation stated definitively they were
from the FARC; the Board also noted that the applicant’s testimony differed from
the November 2009 denunciation regarding the details of the incident.
[12]
The
Board found that the applicant was inconsistent in some of her testimony,
including the timing of when the girl approached her with threats from the
FARC. The Board concluded that the applicant had not rebutted the presumption
of state protection with clear and convincing evidence and her claim was
rejected.
Issue
[13]
The
only issue in this application is whether the Board’s conclusion regarding
state protection was reasonable.
Analysis
[14]
The
applicant has challenged several of the credibility findings made by the Board.
I agree that some of these findings were erroneous; however, that conclusion
does not assist the applicant. The determinative issue in the claim was state
protection and it is not affected by the credibility issues.
[15]
The
Board’s review of the documentary evidence regarding state protection in Colombia was thorough
and nuanced; the Board acknowledged the problems of continued fighting with the
FARC and police corruption and also recognized areas in which the evidence was
conflicting. However, the Board concluded that the preponderance of the
evidence showed that Colombia had made advances in
combating the FARC and as a result crime had decreased and the state’s ability
to protect had substantially improved. The Board supported these conclusions
with detailed references to the documentary evidence.
[16]
Thus,
contrary to the applicant’s submissions, this was not a decision in which the
boilerplate statements regarding state protection were made without actual
consideration of the evidence. Rather, the Board thoughtfully considered and
weighed the conflicting evidence and reached a conclusion that was reasonable
and well supported.
[17]
The
applicant submits that the Board failed to consider all the evidence. Specifically,
the applicant argues that the Board’s decision was unreasonable because it
failed to refer to the most recent Response to Information Request regarding
the FARC and a comprehensive report about the FARC titled Continued
Insecurity: Documenting the Permanence of the FARC-EP within the Context of Colombia’s Civil War.
[18]
Neither
of these arguments is persuasive: the content of the Response to Information
Request does not differ in substance from the other evidence referred to by the
Board in its analysis; like the other evidence, it states that the FARC
presents a continued problem for the state, but notes that the FARC has been
weakened in recent years and is less coordinated as a result of military and
police efforts. Thus, I agree with the respondent that the substance of the contrary
evidence was considered and the failure to refer to this specific piece of
evidence does not amount to an error: Gilbert v Canada (Minister of
Citizenship and Immigration), 2010 FC 1186 at para 34.
[19]
Regarding
the Continued Insecurity report, the Board in fact refers to it in its
analysis. The Board notes the evidence of “a professor of Sociology at Acadia University”
when discussing some of the evidence that contradicts its conclusion. Thus,
while the Board does not cite the report by its name, the Board clearly
considered the report in its analysis but found it was outweighed by other
evidence.
[20]
The
failure of local authorities to provide state protection is not determinative of
the issue. The question of refusal to provide protection should be addressed
on the same basis as the inability to provide protection, namely at a national
level: Zhuravlvev v Canada (Minister of
Citizenship and Immigration), [2000] 4 FC 3. The Board concluded that,
in light of the documentary evidence, protection would have been forthcoming if
the applicant and her mother had sought it from another jurisdiction or at the
state or federal level after local police failed to assist them.
[21]
Insofar
as the unreasonableness of the Board’s finding that the applicant, as a minor,
could have approached the army or other aspects of the government for
protection, the Board did have before it evidence that the applicant’s mother
did know how to approach the army. The Board did not expect the applicant, as
a minor to seek protection, but it was reasonable for it to have expected her
family to have pursued the matter; see, for example Velasquez v Canada
(Citizenship and Immigration), 2009 FC 109 at para 22 and Osorio v
Canada (Citizenship and Immigration), 2012 FC 37 at para 38 for similar
applications of this principle.
[22]
This
finding was reasonably open to the Board: Kadenko v Canada (Solicitor
General)
(1996), 143 DLR (4th) 532 at paras 5-6. Thus, I do not accept the
applicant’s argument that the Board failed to consider the applicant and her
mother’s attempts to obtain state protection. While the Board erroneously
states at one point that it was the applicant rather than her mother who was
required to seek protection, I accept that this was inadvertent and the Board’s
reasons as a whole demonstrate that the Board was aware the applicant was a
minor at the relevant time and it was her mother who was obligated to seek
protection on her behalf.
[23]
Therefore,
the Board’s conclusion that state protection was available was reasonably open
to it and its decision can be upheld on that basis regardless of any errors in
its credibility findings.
[24]
The
application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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