Docket: IMM-5497-11
Citation: 2012 FC 366
Ottawa, Ontario, March 28,
2012
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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LINA JINETH OSORIO GARCIA
JUAN SEBASTIAN JIMENEZ
OSORIO
ESTABAN JIMENEZ OSORIO
LAURA DANIELA JIMENEZ OSORIO
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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
is an application for judicial review by Lina Jineth Osorio Garcia and her
family challenging a decision by the Refugee Protection Division of the
Immigration and Refugee Board (Board) by which their claims to refugee
protection were denied.
[2]
The
Board’s negative decision was based on findings that state protection was
available to the Applicants and that there was a viable internal flight
alternative (IFA) in either Bogota or Cartegena, Colombia.
Background
[3]
The
Board found the claimants to be credible witnesses and it is implicit from the
reasons that their risk allegations were accepted as truthful. The principal
claimant, Lina Osorio, testified that she had been the target of politically
motivated death threats connected to her support for socially progressive
political organizations in Colombia. This risk was
heightened by the high-profile involvement of two of Ms. Osorio’s uncles
in the trade union movement and in left-wing political causes. Ms. Osorio
worked for her uncles during a 1997 election campaign. In that capacity, they
had all received death threats from a paramilitary group (AUC) that supported,
and was tacitly supported by, the governing regime. Ms. Osorio also came
to understand that she and her uncles had been targeted for execution.
[4]
During
the 1997 election, Ms. Osorio claimed that 35 candidates were executed,
200 kidnapped and more than 1200 forced to withdraw from the campaign. In ten
municipalities, the election was cancelled. There is no doubt from the record
before the Board that persons with political views of the sort held by
Ms. Osorio and her uncles were, at that time, profoundly at risk in
Colombia with little, if any, available state protection.
[5]
In
1998, threats were again made to Ms. Osorio, to her uncles and to other
political and trade union leaders. Ms. Osorio was fearful for her safety
and, in 1999, she fled with her family to the United States.
[6]
The
family was hopeful that the political climate would improve in Colombia so that they
could return. According to Ms. Osorio, the situation in Colombia did not
allow for their return and in 2010 the family came to Canada and made
refugee claims. Ms. Osorio’s explanation for the delay in seeking
protection was accepted by the Board and it formed no basis for the Board’s
negative decision.
Issue
[7]
Did
the Board err in its assessment of the current risk environment faced by the
Applicants with particular reference to the availability of state protection?
Analysis
[8]
The
Board was required to assess a forward looking risk. After 13 years away from Colombia, the Board
reasonably concluded that the persecutory risk that had caused the Applicants
to flee was no longer extant. The political party that Ms. Osorio had
been associated with in 1997 and 1998 had been disbanded and the AUC that had
threatened her life had been substantially dismantled. Accordingly, there was
evidentiary support for the Board’s finding “that the former AUC members who
had targeted the now defunct [Movimiento Alternativo Regional] in the late
1990’s would have no interest or reason to pursue [Ms. Osorio] today”.
The Board also doubted that the AUC would be capable of finding the claimants
even if it had a continuing interest in their whereabouts.
[9]
The
issue of concern, however, is with the Board’s assessment of the evidence of a
new risk to Ms. Osorio if she returned to Colombia and resumed,
as she said she would, her political and socially progressive activities. The
Board appears to have accepted her evidence on this point but it carried out no
meaningful analysis of the evidence bearing on her current risk profile.
[10]
In
its IFA assessment the Board simply repeats its state protection finding that
the risk that prevailed in 1997 and 1998 was no longer relevant. The Board’s
only other assessment of current risk conditions was limited to the observation
that the evidence on point was “mixed” as reflected in a few passages from
country-condition reports. What is notably absent from the Board’s reasons is
any attempt to reconcile the country-condition evidence and to connect that
evidence to Ms. Osorio’s situation if she returned to Colombia and again took
up political causes in opposition to the governing regime or contrary to the
interests of the AUC or its paramilitary successors.
[11]
It
is not a sufficient justification in cases like this one to draw bare
conclusions about the adequacy of state protection in the face of apparently
reliable and contrary evidence like the following:
During the year the Prosecutor General's
Human Rights Unit issued 518 arrest orders for armed forces personnel involved
in extrajudicial killings, the majority of which took place prior to 2009.
However, claims of impunity continued to be widespread, due in some cases to
obstruction of justice, a lack of resources for investigations and protection
for witnesses and investigators, and inadequate coordination among government
entities. Many human rights groups criticized the Prosecutor General's Office
for indicting low-ranking military personnel only while avoiding investigations
of high-ranking intellectual authors.
…
Prominent human rights NGOs complained
that the government arbitrarily detained hundreds of persons, particularly
social leaders, labor activists, and human rights defenders. CINEP reported
that security forces arbitrarily detained 113 persons during the first six
months of the year, compared with 224 in the same period of 2008. Many of these
detentions took place in high-conflict areas (notably in the departments of
Santander, Antioquia, Arauca, and Narino), where the
military was involved in active hostilities against insurgents.
…
The government stated that it did not
hold political prisoners. Some human rights advocacy groups characterized as
political detainees some detainees held on charges of rebellion or terrorism in
what the groups reported were harassment tactics by the government against
human rights advocates (see section 5). According to INPEC, there were 3,698
detainees accused of rebellion or aiding and abetting insurgence in the year.
The government provided the ICRC access to these prisoners.
…
New illegal groups and paramilitary
members who refused to demobilize killed journalists, local politicians, human
rights activists, indigenous leaders, labor leaders, and others who threatened
to interfere with their criminal activities, showed leftist sympathies, or were
suspected of collaboration with the FARC. They also reportedly committed
massacres or "social cleansing" killings of prostitutes, gay men and
lesbians, drug users, vagrants, and gang members in city neighborhoods they
controlled. New illegal groups and paramilitary members who refused to
demobilize, according to CINEP, were responsible for the deaths of 279
civilians from January through June, an 89 percent increase from the 148 deaths
reported during the same period in 2008. On February 26, an illegal armed group
allegedly killed a transgender sex worker in Dabeiba (Antioquia). Members of
the group were reported to have bragged that they killed a gay drug user.
…
New illegal groups, paramilitary members
who refused to demobilize, and the FARC threatened and killed government officials
(see section 1.g.). According to the Presidential Program for Human Rights,
eight municipal council members were killed through November, compared with 12
in the same period 2008.
…
Despite advances in the JPL process, the
application of the law continued to face many challenges, including zero
convictions of paramilitary leaders since 2005, thousands of former
paramilitary members who remained in legal limbo, and no land or money
reparations of properties confiscated from paramilitary leaders. NGOs and
victims criticized the slow pace of determining the truth, while the Prosecutor
General's Office said pressure to reveal all truths behind paramilitary crimes
delayed prosecutions.
U.S. Department of State, 2009 Country
Reports on Human Rights Practices: Colombia (11 March 2010), online: <http://www.state.gov/j/drl/rls/hrrpt/2009/index.htm>.
The coordinator of specialized
prosecutors investigating the successor groups also pointed to alleged links
between the groups and state agents as a problem in Urabá: “There are links
with the public security forces, prosecutors, police, and DAS. They move like
fish in the water. Whenever there’s an operation, they’re alerted and they
leave. That makes it difficult to arrest them. They have a complex network of informants,
going from the woman in the store to the guy driving the motorcycle taxi. With
one phone call, that’s it. They’re very strong.” The same problem, she said,
presented itself in Meta, where “there are links with the public security
forces, which block the arrests of Cuchillo and [notorious drug lord] El Loco
Barrera.... The problem of links is difficult because if it’s not one
institution it’s another. In all the institutions there are good and very bad
people. And at any level, the information can be very useful for them.”
[Footnotes omitted]
Human Rights Watch, Paramilitaries'
Heirs: The New Face of Violence in Colombia (February 2010), online: < http://www.hrw.org/sites/default/files/reports/colombia0210webwcover_0.pdf>.
The Colombian government still has much
to do to end threats and attacks against trade unionists, human rights
defenders, and community leaders, which have continued and even escalated since
the new government took office in August 2010. The Colombian National Labor
School (ENS) reports that 42 trade unionists were killed in 2010 as of December
15th 2010. The National Indigenous Organization of Colombia (ONIC) reported
that over 105 indigenous persons were killed in 2010. Paramilitary and
emerging illegal armed groups, which still act in many areas with the collusion
or tolerance of the Colombian armed forces, continue to control areas of the
countryside. The Colombian think-tank INDEPAZ’s recent report indicates that
there are 6,000 armed men operating in 29 Colombian departments with between
7,400 and 12,000 persons supporting these structures. The implementation of
even the best-intentioned land law will face major challenges due to the
on-going internal armed conflict and dominance of illegal armed groups’
operations in areas designated for returns. A number of leaders of displaced
communities who have reclaimed their land rights were killed in recent months.
The new administration has so far failed
to demonstrate significant advances in prosecuting cases of extrajudicial executions
attributed to Colombian security forces. Cases involving some 3,000 civilians
killed are stalled in the civilian justice system. Many are failing to advance
or are advancing slowly, while many other cases are still improperly handled by
the military justice system instead of being transferred to civilian courts.
[Emphasis omitted]
The Washington Office on Latin America, The
U.S. Must Wait for Colombia to Improve Human Rights Record before Considering
Free Trade Agreement (26 January 2011), online:
<http://www.wola.org>.
The rise in killings of trade unionists
coincided with the rise of right-wing paramilitary groups in the 1980s and
1990s, and these groups are considered responsible for over 60 percent of the
murders. Another 30 percent are blamed on the country's leftist guerrillas, who
assassinate union members as part of their struggles for ideological and
economic domination. The remaining killings are perpetrated by a variety of
culprits, including members of the security forces. The government has at times
described many of the murders as the result of either common crime or guerrilla
infiltration of unions. However, unions claim that a majority of murders and
threats occur in the context of labor strife and note that many of those killed
are union leaders, not rank-and-file members. Unions and human rights groups
also assert that spurious legal charges and rhetorical attacks against
unionists by state officials have contributed to an environment that is
conducive to violence.
In 2006, the government formed a special
unit within the prosecutor's office to focus on union slayings. It had obtained
189 convictions by the end of 2009. Still, a backlog of over 1,300 cases
remains to be prosecuted. In addition to murders, many union activists have
faced death threats, displacement, kidnapping, and torture. Teachers were the
unionized workers most likely to suffer violent attacks; 15 of the union
members murdered during 2009 were teachers.
Freedom House, The Global State of
Workers’ Rights – Colombia (31 August 2010), online: <http://www.unhcr.org/refworld/docid/4d4fc803c.html>.
[12]
It
is impossible to tell whether the Board considered this evidence to be
unconvincing or simply ignored it. On its face, this evidence contradicted the
Board’s conclusion that adequate state protection was available to the
Applicants if Ms. Osorio once again became active in socially progressive
political or trade union causes. The decision cannot be justified in the
absence of a meaningful consideration of Ms. Osorio’s risk profile in the
context of all of the relevant country condition reports.
[13]
The
Respondent’s reliance on recent Federal Court jurisprudence dealing with the
availability of state protection from the Revolutionary Armed Forces of
Colombia (FARC) is not persuasive. Ms. Osorio’s risk was based on her
profile as a political opponent to the governing interests in Colombia. The record
indicates very clearly that the historical links among state security forces,
some government representatives and paramilitary groups have not disappeared in
Colombia and that
human rights advocates and trade union leaders remain at risk with questionable
recourse to state protection.
[14]
I
am not satisfied that the Board’s decision is justified by the reasons it
gave. In the result, the application must be redetermined on the merits by a
different decision-maker.
[15]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is allowed with the matter to be redetermined on the merits by a
different decision-maker.
"R.L.
Barnes"
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