Date:
20120925
Docket:
IMM-6831-11
Citation:
2012 FC 1129
Toronto, Ontario, September 25, 2012
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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NANCY HERRERA ARBELAEZ,
HERNANDO VILLEGAS SOLARTE AND ESTEFANIA VILLEGAS HERRERA
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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 ORDER AND
ORDER
[1]
Mrs.
Nancy Herrera Arbelaez (the “Principal Applicant”), her husband Hernando
Villegas Solarte and their daughter Estefania Villegas Herrera (collectively
the “Applicants”) seek judicial review of a decision made by the Immigration
and Refugee Board, Refugee Protection Division (the “Board”). In that decision,
dated September 12, 2011, the Board determined that the Applicants are not
Convention refugees pursuant to section 96 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”) and are not persons in need of
protection pursuant to subsection 97(1) of the Act.
[2]
The
Applicants are citizens of Colombia. They based their claim upon threats and
extortion from the Revolutionary Armed Forces of Colombia (the “FARC”). This
began in May 1992.
[3]
In
December 1991, the Principal Applicant had begun working with a political party
where she recruited people, organized meetings, collected food, and the like,
to assist poor people.
[4]
In
May or June 2000, the Principal Applicant began to receive threatening phone
calls, telling her not to get involved in matters that did not concern her. She
received calls at work and at home. In December 2000, the callers began to
mention her daughter. Later that month, the Principal Applicant took her
daughter to the United States of America to live with her husband who had left Colombia in 1999.
[5]
The
Principal Applicant returned to Colombia in January 2001. She received two
threatening calls and a threatening letter in March 2001; that letter was
signed by the FARC. She did not report these threats to the police because she
feared a police report would make her life more dangerous.
[6]
In
August 2001, the Applicant suffered the theft of her purse at work. She
reported this incident to the police. A few days later, she received a phone
call from the FARC that indicated they had stolen the purse which included all
her identification.
[7]
In
September 2001, the Principal Applicant was hospitalized after developing
medical problems from the stress and a nervous breakdown. After her recovery,
she left Colombia for the United States in November 2001, together with her
mother, and reunited with her husband and their daughter. They claimed
political asylum in the United States in November 2002 but this claim was
denied. Their final appeal process in the United States was dismissed in August
2010. In October 2010, the Applicants came to Canada and claimed refugee
protection.
[8]
In
its decision, the Board assessed the Applicants’ claim entirely on the
availability of state protection. It concluded that the Applicants had not
provided evidence that state protection in Colombia was inadequate. This
conclusion was based upon a review of current country conditions in Colombia, specifically advances in state protection and the decline of the FARC, in recent
years.
[9]
The
Board noted the particular circumstances of the Applicants, including their
ownership of real estate in Colombia and the Principal Applicant’s failure to
seek police protection during the period of the threatening phone calls and
letters. The Board found that the Applicants had not rebutted the presumption
of state protection with clear and convincing evidence, and further, that they
did not take any steps to avail themselves of protection before making a claim
for refugee protection.
[10]
The
dispositive issue in this application for judicial review is the availability
of state protection. This is a question of mixed fact and law and is reviewable
on the standard of reasonableness. In that regard, I refer to the decision in Hinzman
v. Canada (Minister of Citizenship and Immigration), (2007) 362 N.R. 1 at
para. 38.
[11]
In
challenging the Board’s finding on state protection, the Applicants argue that
the Board erred in its analysis of state protection and ignored or misconstrued
evidence, including the most recent Immigration and Refugee Board responses to
information requests about Colombia, a document dated April 5, 2011, the US
Department of State Report on Human Rights and the United Nations High
Commissioner for Refugees (“UNHCR”) report entitled “UNHCR Eligibility
Guidelines for Assessing the International Protection Needs of Asylum-Seekers
from Colombia”.
[12]
The
Minister of Citizenship and Immigration (the “Respondent”) replies that the
Applicants’ submissions amount to an invitation to this Court to re-weigh the
evidence that was before the Board. The Respondent submits that this is not the
function of the Court in an application for judicial review.
[13]
Upon
reviewing the evidence contained in the certified tribunal record and the
submissions of the parties, I am not persuaded that the Board erred in any way
in reaching its conclusion. The Board reviewed the evidence and assessed the
evidence, both the personal evidence of the Applicants and the documentary
evidence. Its conclusion is reasonable. The Board referred to conflicting
pieces of evidence; it considered and weighed them. That is the function of the
Board. It is not this Court’s role to engage in re-weighing the evidence.
[14]
In
its recent decision in Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708 at para. 15, the
Supreme Court of Canada observed that a reviewing Court should examine the
record to determine if there was a reasonable basis for the decision. If there
is, there is no basis for judicial intervention. In my opinion, that is the
case here. There is a reasonable foundation for the Board’s decision and the
Applicants have not shown any error upon which judicial intervention would be
justified.
[15]
The
Applicants also argue that the Board’s reasons are inadequate. This argument
cannot succeed in light of the decision in Newfoundland and Labrador Nurses
Union, supra.
[16]
In
that case, the Supreme Court clearly said that the “adequacy of reasons” is not
an independent ground of review, as long as the decision-maker has provided
reasons. When reasons are provided, review will proceed upon the basis of the
reasonableness analysis (Newfoundland and Labrador Nurses Union, supra,
at paras. 14, 22). As discussed in Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190 at para. 47, reasonableness is a deferential standard which is
concerned with the justification, transparency and intelligibility of the
decision-making process. A decision is reasonable if it falls within a range of
possible, acceptable outcomes that are defensible in respect of the facts and
the law. The Board’s decision meets this standard.
[17]
In
the result, this application for judicial review is dismissed, there is no
question for certification arising.
ORDER
This application for judicial review is dismissed,
no question for certification arising.
“E. Heneghan”
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