Docket: IMM-5232-11
Citation: 2012 FC 605
Ottawa, Ontario, May 18,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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PABLO ORLANDO PION TARAZONA SILVANA
SOFIA TAVERA BARRANZA GABRIELA SOFIA PION TAVERA
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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 of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated July 15,
2011. The Board determined that the Applicants were neither Convention
refugees nor persons in need of protection under sections 96 and 97 of the
Immigration and Refugee Protection Act, SC 2001, c 27.
[2]
For
the reasons set out below, the application is dismissed.
I. Facts
[3]
Pablo
Orlando Pion Tarazona (the Principal Applicant) and his spouse, Silvana Sofia
Tavera Barranza and daughter, Gabriela Sofia Pion Tavera (collectively the
Applicants) are citizens of Colombia. Their refugee claim
in Canada is based on
a fear of the Autodefensas Unidas de Colombia (AUC).
[4]
The
Principal Applicant was a property manager for a condominium complex in which
several units were owned by the AUC. In March 2009, he found illegal cars
parked on the property and called the police. A building resident and member
of the AUC stole information from the Condominium Board. The Principal
Applicant also reported this incident to the police and filed a criminal
complaint on March 6, 2009.
[5]
The
Principal Applicant began receiving threatening telephone calls from members of
the AUC demanding that he resign and pay one hundred million pesos. Although
he paid them ten million pesos in a specified location, he was told to leave
the country if he did not want anything to happen to his family. The Applicant
left for the United
States of America on April 1, 2009 and arrived in Canada on September
8, 2009.
II. Decision
under Review
[6]
The
Board found the Principal Applicant failed to rebut the presumption of state
protection in Colombia. Country
conditions suggested that, although not perfect, there is adequate state
protection for victims of crime and serious efforts are being made to address
problems of criminality. Since the Principal Applicant was willing to call
police as a result of the initial issues with a member of the AUC and police
responded each time, the Board found there was no reason why he could not have
done so to address subsequent threats.
[7]
In
addition, the Board determined that the Principal Applicant would have a viable
Internal Flight Alternative (IFA) in Bogota as there was
insufficient evidence that he would face persecution or, on a balance of
probabilities, be at risk personally. Given that he complied with the AUC’s
demands, there was no ongoing motivation to seek him out, particularly since he
no longer served as an obstacle to obtaining a coveted security contract at the
condominium.
III. Issues
[8]
The
issues raised in this application can be addressed as follows:
(a) Did
the Board deny the Applicants a fair hearing by not granting their counsel the
right to make written submissions and accommodate her disability?
(b) Did
the Board err in its assessment of state protection?
(c) Did
the Board err by finding the Applicants had a viable IFA?
IV. Standard of Review
[9]
I
must adopt the correctness standard for matters of natural justice and
procedural fairness (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at para 43).
[10]
As
for the Board’s assessment of state protection and an IFA, I should employ the
reasonableness standard of review (see Mendez v Canada (Minister of
Citizenship and Immigration), 2008 FC 584, [2008] FCJ No 771 at paras
11-13; Galindo v Canada (Minister of
Citizenship), 2011 FC 1114, [2011] FCJ no 1364 at para 18).
[11]
In
applying that standard, I will consider the existence of justification,
transparency and intelligibility or whether the decision falls outside the
range of possible, acceptable outcomes (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
A. Fairness
of Hearing
[12]
The
Applicants contend they did not receive a fair hearing because the Board failed
to give their counsel the opportunity to make written submissions to
accommodate her back problems. Counsel had requested time for written
submissions from the Board since she could not carry country documents with her
to the hearing. According to the Applicants, the Board unreasonably refused
her request as akin to an adjournment without considering relevant factors. Since
the Board’s decision is based in part on an analysis of country conditions, the
Applicants insist they suffered prejudice as a result.
[13]
Considering
the relevant principles and surrounding circumstances, I am unable to accept
the Applicants’ position.
[14]
Rule
60 of the Refugee Protection Division Rules, SOR/2002-228 states that
representations must be “made orally at the end of the hearing unless the
Division orders otherwise.” Any possibility of written submissions would therefore
be solely at the Board’s discretion.
[15]
In
Xiao v Canada (Minister of Citizenship and Immigration), 2001 FCT 195,
[2001] FCJ no 349 at para
23, Justice Francis Muldoon rejected the argument that an applicant was denied
the full opportunity to present her case, noting that the Board is not
obligated “to provide the opportunity for written submission, or to provide the
applicant with an unlimited amount of time during which to make oral
submissions.”
[16]
In
this case, there were already several delays in scheduling a hearing. The
Applicants’ counsel had opportunities to make the Board Member aware of
complications arising from her condition and a potential request for further
written submissions, but failed to explicitly do so until well into the hearing.
[17]
Although
the Board Member denied counsel’s belated request after considering it in a
recess, she offered to provide her with copies of the relevant documents. Applicants’
counsel requested two specific documents and was permitted a recess to consult
them and locate passages in preparation for oral submissions. Her subsequent
submissions drew directly on portions of those documents. Indeed, the Board
references these submissions in its reasons.
[18]
The
Board was not required to provide counsel for the Applicants with an
opportunity to make written submissions and reasonably refused the request
under the circumstances as being within its discretion. No reasons were
provided for the refusal but I do not agree with the Applicant’s suggestion
that factors relevant to an adjournment must be considered in these cases. The
nature of representations to the Board was at issue as opposed to an
adjournment request. Either way, there are several factors that would justify
precluding further written representations following a recess and with oral
submissions being provided in a previously delayed hearing.
[19]
I
also note that the Board made efforts to accommodate counsel and allow her to
consult relevant documents. There is no doubt that her oral submissions were
formally considered by the Board. The Applicants have not demonstrated that
they were prejudiced in some way by their counsel’s inability to provide
written representations, such as critical documents that should have been
referred to orally but were subsequently ignored by the Board and would have
significantly bolstered their claim. Lacking specificity in this regard, I do
not see how the Applicants were denied a fair hearing.
B. State
Protection
[20]
The
Applicants also take issue with the Board’s conclusion that if they were able
to contact police and receive a response in their initial difficulties with the
AUC and the condominium complex, they would be able to do so to address
subsequent threats. According to the Applicants, the Board failed to
appreciate the differences between these two situations.
[21]
While
the Applicants may disagree with the Board’s reasoning, it is within the range
of possible, acceptable outcomes. Since the Applicant was willing to contact
police to address business problems and the police responded appropriately, it
is logical to conclude that a similar action and response would be reasonably
forthcoming in more serious situations as the Respondent maintains.
[22]
Contrary
to further submissions from the Applicants, I also consider the Board’s
assessment of the documentary evidence related to state protection reasonable. It
is presumed to consider all of the evidence unless the contrary is shown and is
not required to specifically mention every piece of documentary material (Florea
v Canada (Minister of Employment and Immigration), [1993] FCJ no 598
(CA); Hassan v Canada (Minister of Employment and Immigration) (1992),
147 NR 317, [1992] FCJ no 946 (CA).
[23]
The
Board recognized inconsistencies among several sources of documentary evidence
before concluding that, although not perfect, there was adequate state
protection for victims of crime in Colombia. At paragraph 22 of
its reasons, the Board also referred to the passages in documents from
submissions by Applicants’ counsel as to some level of collusion and tolerance
between police and guerrilla groups in Colombia.
[24]
It
nonetheless found that they had failed to rebut the presumption of state
protection based on the documentary evidence and in light of the Applicants’
previous interaction with police but subsequent failure to seek assistance for
AUC’s threats. The Board is entitled to weigh the evidence before it in this
manner and consider the Applicants’ past dealings with police.
[25]
There
is no basis for the Court to intervene in the Board’s determination that the
Applicants failed to rebut the presumption of state protection with clear and
convincing evidence by emphasizing their particular experience (see Carillo
v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] FCJ
no 399 at para 38). This finding would also be definitive for their claim.
C. Internal
Flight Alternative (IFA)
[26]
While
the decision can be upheld on the reasonableness of the state protection
finding alone, I will address some of the arguments raised by the Applicants in
relation to an IFA.
[27]
The
Applicants further contest the Board’s findings that they would have a viable
IFA in Bogota. By
suggesting that since they complied with the AUC’s demands and would not be at
risk, the Board misunderstood the situation. They were targeted for involving
the police, not solely the desire for the security contract. The Principal
Applicant was also extorted, told to resign and leave Columbia. According
to the Applicants, they would not be complying with all of these demands and
defying the organization by remaining in Bogota.
[28]
Since
the Applicants followed the primary demands of the AUC and the security
contract was one aspect of this dispute, the Board’s IFA finding is reasonable.
Earlier in the decision, the Principal Applicant was legitimately “asked why
he believed AUC would continue to pursue him should he return to Columbia, given that
the incidents occurred more than two years ago, and he had resigned from the
condominium complex, and thus was no longer an obstacle for the AUC in
obtaining the coveted security contract.”
[29]
In
its IFA analysis, the Board expressly considered the arguments offered by the Principal
Applicant at the hearing that the AUC would locate him anywhere and that the
organization works in conjunction with police throughout Columbia. It also
referred to his position that he had been “declared their enemy” and believed
they would continue to search for him in his city. Balancing these claims
against his compliance with the demands, the Board found “there is less than a
mere possibility that the AUC would have a continued interest in the claimant
if he were to return to Bogota.”
[30]
The
Board found the Applicants simply had not provided sufficient evidence to
demonstrate that, on a balance of probabilities, there is no serious
possibility of being persecuted in Bogota and it would not be unreasonable, in
all the circumstances of the case, for them to seek refugee there (Rasaratnam
v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 at para 10;
Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1994] 1 FC 589, [1993] FCJ no 1172 at para 15).
VI. Conclusion
[31]
The
Applicants were not denied a fair hearing in this instance by the Board’s
discretionary refusal to provide an opportunity for written representations
following the hearing. The Board reasonably concluded that state protection
would be adequate and a viable IFA existed in Bogota.
[32]
Accordingly,
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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