Date:
20120524
Docket:
IMM-6049-11
Citation:
2012 FC 632
Toronto, Ontario, May 24, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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HOOVER SIERRA RIANO
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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
MOSLEY J.
[1]
The
applicant is 47 years old and a citizen of Colombia. He asks Canada for protection from the FARC guerillas in Colombia, where his wife and daughter continue to
live.
[2]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act SC
2001, c 27 for
judicial review of a decision, dated 8 August 2011, in which the Refugee
Protection Division of the Immigration and Refugee Board denied the applicant’s
claim for refugee protection.
[3]
For
the reasons that follow, the application is dismissed.
BACKGROUND:
[4]
When
he lived in Cali, Colombia, the applicant was a member of a non-governmental
organization affiliated with the Social Indigenous Alliance Party. He helped
with projects directed at improving the lives of the poor. In 2002 he was
approached by FARC members and accused of working with the Colombian
government. He went to Bogotá but returned to Cali within two weeks. A leader
of the organization he worked for was kidnapped and later killed by the FARC.
In 2003, while assisting with the campaign of a candidate for a municipal
office he received threatening telephone calls.
[5]
The
applicant went to the United States of America in 2006. After staying in the USA for five months on a tourist visa, he returned to Colombia. A person claiming to be a FARC
member telephoned the applicant in March 2007. The caller informed him FARC
considered him a military objective because of his political activities. The
applicant continued to receive threatening telephone calls until 2010.
[6]
In
February 2010, he received a further telephone threat during which he argued
with the caller over the allegation he had worked for the government. The applicant
did not contact the police or any other authority for protection. He and his
wife decided they should leave Colombia. They agreed he would leave first and
establish himself elsewhere; then his wife and daughter would follow.
[7]
The
applicant travelled to the USA in May 2010. He did not claim asylum there. He
left the USA for Canada early in July 2010 and claimed refugee protection on 12
July 2010. The Board heard his claim on 29 July 2011.
DECISION UNDER
REVIEW:
[8]
The
Board found that the applicant’s actions were inconsistent with a subjective
fear of persecution in Colombia. However, taking his claim at its highest, it
found that he had a viable Internal Flight Alternative (IFA) in Bogotá.
[9]
The
Board noted that the applicant returned to Colombia following his visit to the USA in 2006. It rejected his two explanations for this return: that his wife was
experiencing a high-risk pregnancy and he did not want to overstay his visa in
the USA. Had he truly feared persecution or harm in Colombia, the Board
considered, he would not have returned there and would have attempted to remain
in the USA. The Board found that it was unreasonable for him not to
investigate any avenues of protection in the USA on the occasions he was there
in 2006 and 2010.
[10]
The
Board instructed itself on the test set out in Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA). The Board found
that the applicant would face no more than a mere possibility of targeting by the
FARC in Bogotá. The Board referred to the applicant’s extended family as
similarly situated persons in Colombia and found there was no evidence that any
of them had experienced threats or harm from the FARC in the applicant’s
absence. It also found there was no persuasive documentary evidence before it
which would show that the FARC is currently interested in people like the applicant.
[11]
With
respect to the first branch of the test for an IFA, the Board found that the applicant
could live in Bogotá without fear of persecution, a risk to his life, or a risk
of cruel and unusual treatment or punishment. Concerning the second branch,
the Board noted that the applicant had been able to successfully adapt to life
in Canada. It found that he would have an easier time relocating to Bogotá
because he had knowledge of the local language and culture. This meant, the
Board concluded, that it was not objectively unreasonable to expect him to
relocate to Bogotá where his wife and child were living. Since both branches of
the test were met in its view, the Board refused the applicant’s claim for
protection.
ISSUES:
[12]
The
sole issue on this application is whether the Board’s finding that the
applicant had an internal flight alternative in Bogotá was reasonable.
ANALYSIS:
Standard of review;
[13]
The
parties and the Court agree that the standard of review applicable to an IFA
determination is reasonableness (see Gonzalez Martinez v Canada (Minister of
Citizenship and Immigration), 2012 FC 5 at para 8; Barbosa Ponce v
Canada (Minister of Citizenship and Immigration), 2011 FC 1360 at para 13;
and Trevino Zavala v Canada (Minister of Citizenship and Immigration),
2009 FC 370 at para 5.
Was
the Board’s determination of an IFA reasonable?
[14]
The
Board drew an adverse inference from the applicant's failure to claim asylum in
the USA and his reavailment to Colombia. It found that this cast doubt on his
credibility and subjective fear of persecution. However, the Board assumed
that the events in his story occurred as he had described.
[15]
The
applicant submits that the Board's analysis of whether he had an IFA was
unreasonable because it selectively relied on portions of a report prepared by
the Canadian Council of Refugees which he had submitted. This report indicated
that in recent years a substantial proportion of the internally displaced
persons killed in Colombia had died in Bogotá. There was an exceptionally high
level of impunity for such crimes in Bogotá. The report suggests that persons
returning from abroad would be treated as internally displaced persons. The
applicant contends that the Board interpreted the report's contents to fit its
conclusion.
[16]
The
Board referred to reports from the International Crisis Group for 2008 and 2009
which indicated that the FARC had been weakened in the nine years since the
applicant had been first threatened and that its support in urban areas had
greatly diminished. While a report from the US Department of State advised
that persons with specific profiles were at risk of harm from FARC, the Board
found that the applicant did not fit any of those profiles.
[17]
The
applicant submits that these reports were contradicted by a 2010 report from
the UNHCR which states that civil society and human rights activists were at
risk from the FARC and that he came within those categories of risk. The Board
did not acknowledge a conclusion in the UNHCR report that an IFA was generally
not available.
[18]
I
agree with the respondent that the Board's decision based on its assessment of
the documentary evidence in this matter was within the range of acceptable
outcomes defensible on the facts and the law. The reasons provided for its
decision are transparent, intelligible and justified. The Board is entitled to
choose the evidence it prefers and is not required to mention every piece of
evidence which is before it. That is not to say that the Board ignored any
evidence or misrepresented the evidence submitted by the applicant. Its
conclusion was based on the preponderance of the evidence which was before it.
[19]
The
Board did not rely on the Canadian Council of Refugees report only to support
its findings. It referred to views expressed in that report which contradicted
its findings. But it was open to the Board to prefer other evidence such as a
statement by a Political Counsellor at the Canadian Embassy in Bogotá quoted in
the report to the effect that urban security had improved dramatically in the
past eight years. Nor does it follow that the Board failed to properly
consider the UNHCR report because it did not find that the applicant fit one of
the risk profiles the report describes. As stated in the report, an IFA “… may
be available in certain circumstances and in accordance with the framework of
the relevance and reasonableness test…”
[20]
As
in Ramos v Canada (Minister of Citizenship and
Immigration),
2011 FC 15, it was not an error for the Board to conclude that the applicant
had an IFA in the face of evidence which provided differing opinions on Bogotá’s
safety. See also Guevara v Canada (Minister of Citizenship and Immigration),
2011 FC 242; Rodriguez Moreno v Canada (Minister of Citizenship and
Immigration), 2010 FC 1273; and Ruiz Hurtado v Canada (Minister of Citizenship and Immigration), 2008 FC 634.
[21]
The
Board properly articulated and applied the test for an IFA. It was open to the
Board to analyze the information before it and to draw a conclusion as to the
availability of an IFA to the applicant, which it did. This is not a case
where the Board ignored clearly relevant evidence pertaining to the risk
alleged. It was entitled to put differing weight on the evidence. It is not
for this Court to substitute its own opinion of how the determination should
have been made: Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 61.
[22]
The
decision was reasonable and the application for judicial review must be
dismissed. No question for certification was proposed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed. No question is certified.
“Richard
G. Mosley”
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