Docket: IMM-3074-11
Citation: 2012 FC 513
Ottawa, Ontario, May 2, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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Ever Hernand HERNANDEZ BOLANOS
Diano Rocio CORTES ALARCON
Estaban Felipe HERNANDEZ CORTES
Oscar Mauricio HERNANDEZ CORTES
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 9 August 2011 (Decision), which refused the Applicants’ applications to
be deemed Convention refugees or persons in need of protection under sections
96 and 97 of the Act.
BACKGROUND
[2]
The
Applicants are all citizens of Colombia. The Secondary
Applicants are the Principal Applicant’s wife (Diano), and their two sons. All
fear the FARC guerrillas in Colombia and currently live in
Toronto; they have been in Canada since their arrival on 14 June 2010.
[3]
The
Principal Applicant says that a FARC member telephoned him in December 2009 and
told him to expect further communication. FARC fulfilled its promise in
February 2010, when it sent him a letter and demanded he pay 20 million pesos –
approximately $10,000 – as a “tax.” The letter reminded the Principal Applicant
that FARC had killed his brother-in-law for not giving in to its demands and
instructed him to keep quiet if he wanted to keep his family safe. The
Applicants provided the RPD with a copy of this letter (FARC Letter) which
appears at page 466 of the Certified Tribunal Record (CTR).
[4]
After
he received the FARC Letter, the Principal Applicant was afraid for himself and
his family. He looked for ways to raise enough money to pay FARC off. He hoped
that if he paid the demand, FARC would leave him alone. He says that a FARC
member called him at work on 21 March 2010 and told him that if he did not
pay FARC would abduct his children from school.
[5]
To
meet FARC’s demand, the Principal Applicant borrowed 10 million pesos from his
mother-in-law. On 26 March 2010, he drove to Alban, Colombia to give FARC
the money. Two gunmen on motorcycles met him on the road to Alban and escorted
him to an abandoned house. The gunmen signalled to the Principal Applicant to
get out of his car, which he did. Two other men came out of the house and took the
money from him.
[6]
When
the men at the house discovered that the Principal Applicant had only brought
half of the demand, they threw him to the ground, bound his hands and feet, and
blindfolded him. They threatened to kill him, so he begged for his life, saying
that he would pay them in full if they gave him more time. The men spared his
life, but left him at the house tied and lying on the floor. The Principal
Applicant eventually freed himself and went home.
[7]
After
these events, the Principal Applicant and Diano discussed fleeing Colombia, but they
did not have enough money to cover airfare for the whole family. The Principal
Applicant quit his job and started driving his sons to and from school to
protect them from FARC. The Applicants also began to sell off their possessions
to raise money so they could leave Colombia.
[8]
The
Principal Applicant and Diano also decided to report FARC’s demand to the
Colombian authorities. The Principal Applicant went to the Attorney General’s
office in Madrid, the town
where he lived, on 5 April 2010. Officials at the Madrid office sent him
to an office in Facatativá, a city approximately twenty kilometres away.
Officials at the Facatativá office contacted the office in Bogota where
officials said they would send agents to investigate.
[9]
On
14 April 2010, FARC again contacted the Principal Applicant to tell him he
would have to pay 40 million pesos because he had not met the first demand in
full. They gave him until 26 June 2010 to pay, failing which they said they
would kidnap Diano or one of his children.
[10]
Two
GAULA agents came to the Applicant’s home on 7 May 2010. GAULA units are
composed of members of the Colombian Armed Forces and are responsible for
investigating and preventing kidnappings and extortion in Colombia. These
agents suggested a plan to the Applicant: he was to make the payment to FARC as
planned, but they would give him a bullet-proof vest to wear, follow him in
their car when he went to make the payment, and arrest the FARC members during
the handover. The Principal Applicant did not agree to the agents’ plan, so
they simply took his report. They said they would only give him a copy of the
report once they had made an arrest. The Principal Applicant later went to the
Attorney General’s Office in Bogota, but that office only gave him a notice of
his complaint, not the report itself. The notice the Attorney General’s office
gave him appears at page 474 of the CTR and indicates that the case was active
and under investigation when it was issued.
[11]
After
these events, the Principal Applicant felt unprotected. He reported his experience
with the GAULA agents to the Ombudsman’s Office in Bogota – a division
of the Public Ministry (Ombudsman) – on 1 June 2010. The Principal Applicant
gave the RPD a copy of the letter he provided to the Ombudsman, which appears
at page 472 of the CTR. This letter bears a stamp from the administrative
sub-directorate of the Ombudsman’s Office, which indicates it was received on
1 June 2010.
[12]
After
complaining to the Ombudsman, the Principal Applicant moved with his family to Granada, a city
approximately 230 kilometres from Madrid. The Applicants then
decided that the safest course of action was for them to leave Colombia. They all
had visas to come to Canada, so they came here. Diano flew to Toronto on 13 June
2010, and the Principal Applicant and their two sons followed on 14 June 2010.
The Applicants claimed protection in Canada on 29 June 2010.
[13]
The
RPD joined the Applicants’ claims under subsection 49(1) of the Refugee
Protection Division Rules SOR 2002-228 and heard the claims together on 8
July 2011. All the Applicants relied on the Principal Applicant’s narrative, so
their claims stood or fell with his. The RPD also appointed the Principal
Applicant as his sons’ representative. The RPD considered the Applicants’
claims after the hearing, made its Decision on 9 August 2011, and notified them
of the Decision on 31 August 2011.
DECISION
UNDER REVIEW
[14]
The
RPD found that the Principal Applicant had not established a serious
possibility of persecution, a risk of torture, a risk to his life, or a risk of
cruel and unusual treatment or punishment in Colombia. It
therefore denied the claim for protection. It also denied the claim because the
Applicants had not rebutted the presumption of state protection.
[15]
The
RPD first reviewed the Principal Applicant’s allegations of extortion by FARC,
his story of payment and detention, his interaction with the Colombian
authorities, and his flight to Canada.
Guerrilla and
Paramilitary Action in Colombia
[16]
The
RPD found that Colombia has experienced forty years of conflict between
government forces and guerrillas, including FARC, and paramilitary
organizations. This conflict has caused many civilian casualties and has
internally displaced many Colombian citizens. All actors in the conflict are
implicated in human rights violations, including killings, disappearances,
forced displacement, violence against women, and intimidation. The RPD also
noted that several groups in Colombia are at increased risk
of harm.
Credibility
and Subjective Fear
[17]
When
it analysed the Principal Applicant’s credibility, the RPD said it was guided
by Maldonado v Canada (Minister of Employment
and Immigration), [1980] 2 FC 302 (FCA), which establishes that
refugee a claimants’ testimony is presumed true. It also pointed to Orelien
v Canada (Minister of
Employment and Immigration), [1991] FCJ No 1158 (FCA), which teaches that
the RPD cannot hold that “evidence is credible or trustworthy unless satisfied
that it is probably so, not possibly so.” The RPD also said that it had
assessed all the oral and documentary evidence, though it would only refer to
those pieces of evidence it thought were relevant.
[18]
The
RPD found that it did not believe the Applicants were being threatened by
anyone in Colombia and found
that the Principal Applicant had fabricated his entire story of threats,
extortion, and assault to bolster his fraudulent claim for protection.
[19]
The
RPD noted that the Principal Applicant had testified he knew about FARC and its
operations; he said he had been personally affected by FARC’s actions through the
murder of his brother-in-law. The RPD asked the Principal Applicant why he did
not leave Colombia immediately
after he was threatened since, given his knowledge of FARC, he knew it is a
dangerous organization. He answered that he thought they would leave him alone
after he paid them. The RPD rejected this explanation, saying that the
Principal Applicant knew that FARC was dangerous because its members killed his
brother-in-law. The RPD found his belief that FARC would leave him alone after
he paid half the money was unreasonable, given what had happened to his sister
and nephew.
[20]
When
the RPD asked why he did not leave Colombia immediately after FARC
members tied him up and beat him, he said that leaving one’s home and family is
not an easy decision to make. The RPD said that, although leaving one’s home is
difficult, it is easier than staying to be beaten, kidnapped, or killed. This
explanation undermined the Principal Applicant’s credibility. The RPD found
that, if the Principal Applicant was actually in fear, he would have left Colombia immediately
after the threats.
[21]
The
RPD found that the Principal Applicant could have fled immediately after FARC
demanded money from him. It found that he was able to come up with 20 million
pesos and all of his family members had visas to come to Canada. The RPD
also found that, even if it accepted his explanations, his belief that FARC
would leave him alone if he paid them made no sense and was unreasonable;
evidence he had provided to the RPD showed that FARC often demanded more money
after extortion demands were met. He also could not expect FARC to leave him
alone at the same time as he promised to pay the second half of the 20 million
pesos demanded of him.
[22]
The
RPD noted that the Principal Applicant had not filed a report with the
authorities until 5 April 2010, after FARC called him and wrote him a
letter, beat and tied him up, and after he had given FARC money. He explained
the delay in contacting the authorities by saying that, after the first threat,
he had made a rushed decision, though he was not sure if the rushed decision
was to pay off FARC or go to the authorities. He also said that he did not go
to the police initially because the caller and letter both said he would be
harmed if he did; he went to the police on 5 April 2010 because he thought they
would be able to protect him.
[23]
The
RPD found that the Principal Applicant’s testimony on this point was confusing.
It said that, because the threats were repeated, there was no evidence that the
risk to him was reduced. Further, the RPD wondered why he did not approach the
authorities when he was at risk based on previous threats, but then approached
the police when the threats were repeated. It also noted that the Principal Applicant
had produced a document which showed his relatives had not received protection
from the authorities, even though they made reports.
[24]
Although
he tried to explain his story, the RPD found that the Principal Applicant gave
confusing testimony. Even if he had gone to the authorities as he said he had,
the sole reason he went was to get proof that he sought protection which was
not forthcoming. The RPD noted he had only two contacts with the authorities,
on 5 April and 7 May 2010. It also noted the GAULA agents said they would not
give him a report until they made an arrest, after he refused to follow their
plan. The RPD inferred from the agent’s response that the police did not
believe he was being extorted by FARC and that they wanted to make sure he was
a bona fide complainant before giving him a copy. The RPD found that all
the Principal Applicant wanted was documentation to show he had gone to the
authorities and made a report.
[25]
The
RPD found that the Principal Applicant had only approached the authorities in Colombia to create
evidence which would bolster his fraudulent refugee claim. It noted that he
testified he went to the Attorney General’s office in Bogota to obtain
proof that he had filed a report, not to complain about police conduct. He also
testified that he wanted this proof to show the Ombudsman and that he went to
the Ombudsman for help because he was not getting it from the police.
[26]
The
RPD also found that the Principal Applicant had not given any of the non-police
entities he had approached for help sufficient time to investigate his complaints.
In his testimony he said that he had contacted Social Action, the
representative of the Municipality of Grenada, the Ombudsman, and the
prosecutor’s office. The RPD noted that he went to the police on 7 May 2010,
then approached non-police entities for help before he left Colombia on 14 June
2010. Although the Principal Applicant testified that the Ombudsman usually provided
a written response to complaints and he had not received one, the RPD found his
belief that his complaint was not being investigated was speculative. His
report to the Ombudsman received appropriate attention, but the Applicants left
Colombia before the
investigation was complete because he had fabricated his allegations to support
a refugee claim.
[27]
The
RPD also based its finding that the Principal Applicant had approached the
authorities with baseless allegations to bolster a refugee claim on his
testimony that he would be harmed if he waited for the investigation. At the
hearing, the RPD asked why he had complained if he had intended to leave, and
he said that he wanted to ask for protection to see if he would get it before
he left. The RPD said there was no persuasive evidence that he had seriously sought
state protection. He had testified that the police never communicated with him.
The RPD found that the Principal Applicant was not interested in getting help
in Colombia. He had no
basis for his fear of persecution because he was not being persecuted in Colombia.
[28]
The
RPD also found that the Principal Applicant was not credible because of
inconsistencies in his testimony. He testified that FARC became interested in
him when he started a transportation business. At the hearing, the following
exchange occurred:
RPD: When did you start
having the public transportation? I think you mentioned to (inaudible) letter
that you had two public taxi cars on the road?
PA: Yes, that’s correct.
I gave my lawyer certification for one of the vehicles that was started in
2009, and before I started with another company in 2009 but I was not able to get
the certification in time.
RPD: You owned a vehicle or
you owned companies?
PA: Of the vehicles, the
vehicles.
RPD: You owned vehicles?
PA: Two vehicles.
[…]
RPD: So in total how many
cars you owned?
PA: Two
RPD: Did you own any trucks
or vans?
PA: No
[...]
RPD: What car were you
driving?
PA: It’s a very small
car, a Renault Twingo, a very small Twingo.
RPD: Is this the car
mentioned in [exhibit] C-7?
PA: No, it’s different.
RPD: Is it the car that you
weren’t able to get the documentation for?
PA: No it’s different,
it’s the small car that I used in Madrid
to get to my workplace.
RPD: I asked you earlier
how many cars you have and you said two, but now you seem to have at least
three? Can you explain?
PA: Yes, that’s true, I
mentioned the two vehicles before that I had working in the eastern plains
region. This vehicle was my personal vehicle.
RPD: The reason you thought
that was, referring to this small vehicle you have in Madrid, when I asked you a minute ago how many
cars you had ---
Counsel: Sir, I have wrote [sic]
down your question, and your question was when did you start having public
transportation, a couple of taxi cars. You were asking about the cars used for
public transportation.
RPD: Okay, let my review my
notes, counsel. This is mine, “In total how many cars you own.” “Two”. “Do you
own any trucks or vans”, “No”
If I asked then I
don’t remember asking, but I didn’t ask about the taxis. I thought we did but
that was – but it was earlier on if I did. Unless I go through my notes I
wouldn’t be able to tell you, but I could tell you clearly that I asked for ---
[29]
The
RPD noted that, when he described taking the money to FARC in March 2010, the
Principal Applicant said he drove a third car which was his personal vehicle.
The RPD found his testimony was inconsistent on this issue and rejected his
explanation. It said that he thought its question was about a document he
submitted which referred to a vehicle that he owned. The RPD noted it had asked
him how many vehicles he owned, and he had said two. On the basis of this
inconsistency, the RPD found that the Principal Applicant did not pay FARC any
money and that he was not contacted by FARC.
[30]
The
RPD concluded that there was no basis for the Principal Applicant’s subjective
fear of persecution. It found that he had gone to several authorities in Colombia; his counsel
said at the hearing the RPD was holding this against him and this put him into
an impossible position. The RPD noted that refugee claimants are encouraged to
present documentary evidence to support their claims but, where claimants are
not credible, it must weigh the documentary evidence they submit. The RPD found
that the Principal Applicant approached the Colombian authorities in order to
leave a paper trail, not because he was persecuted by FARC.
[31]
The
RPD also looked at the documents the Principal Applicant had submitted from the
Attorney General’s office, the Ombudsman, and from FARC. It noted that the
probative value of documents may depend on the author, the author’s
qualifications, corroboration, and the motivation for the document’s
production. The RPD also noted that in Syed v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 597 (FC) Justice
Pierre Blais upheld the RPD when it gave little weight to a report from a
medical practitioner where the RPD did not find the claimant credible on the
basis of inconsistencies and implausiblities.
[32]
On
the basis of the problems with respect to the major issues, the RPD found the Principal
Applicant generally lacked credibility. It did not believe that anything he
said had actually occurred.
State
Protection
[33]
In
the alternative to its general negative credibility finding, the RPD examined
whether state protection was available to the Principal Applicant in Colombia.
[34]
The
RPD found that the Principal Applicant had approached authorities in Colombia for
protection, but after the 7 May 2010 incident – where he refused to participate
in the GAULA agents’ plan to confront FARC – he did not approach them again. He
also testified he went to the Ombudsman and provided a letter to that effect,
and that he went to three other agencies, but the RPD found he did not provide
any persuasive evidence that he had approached any other agencies for help. If
he had gone to anyone else for protection, this would have been after he went
to the Ombudsman on 1 June 2010. He then left Colombia on 14 June
2010, allowing only two weeks for the other agencies to investigate his
complaints.
[35]
The
RPD said Romero v Canada (Minister of Citizenship
and Immigration) 2008 FC 977 establishes that a claimant’s
decision to flee before the police have had an opportunity to investigate does
not amount to a lack of state protection. It found that there was no persuasive
evidence that the police were not investigating his complaint and his departure
from Colombia may have
interfered with their investigation.
[36]
The
RPD also referred to the presumption of state protection established by Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689. It found that, although the Principal
Applicant had set out an elaborate scheme of protective agencies he said he approached,
he had not given those agencies enough time to deal with his complaint. The Principal
Applicant had testified that the police did nothing after he complained to
them, but he also testified that they came to his home and suggested a course
of action, which he refused because it was too risky. He also did not give the
Ombudsman or other agencies he approached time to investigate his complaint. The
RPD found that there was no evidence the police were not investigating his
complaint. It further found that the establishment of the GAULA units showed
that the government was taking steps to protect target groups and that the
effectiveness of this protection had to be presumed. After the GAULA agents got
involved, FARC did not approach him again.
[37]
The
RPD said that effectiveness of state protection is relevant, but this Court has
held that adequacy, not effectiveness, is the appropriate test. It found that Colombia has accepted
its past problems and is making serious efforts to protect its citizens. The
Colombian government is making an effort to combat human rights abuses and has
established several institutions to combat extortion and kidnapping. On the
totality of the evidence, the RPD found that the Principal Applicant had not
rebutted the presumption of state protection with clear and convincing
evidence.
[38]
The
RPD concluded its analysis on state protection by reviewing the jurisprudence
on this issue. It noted that the burden on refugee claimants to rebut the
presumption increases with the level of democracy in the state against which
protection is claimed. Although the Applicants claimed protection against Colombia, the RPD wrote
that the documentary evidence before it established that Mexico (sic)
is a democracy with free and fair elections. The RPD found that, in countries
like Mexico (sic),
claimants must show more than that they approached the police for protection
but were denied.
[39]
The
RPD concluded that the Applicants are not Convention refugees or persons in
need of protection, so it denied their claim.
ISSUES
[40]
The
Applicants raise the following issues in this application:
a.
Whether
the RPD erred by not making a finding under section 97;
b.
Whether
the RPD’s credibility finding was reasonable;
c.
Whether
the RPD’s state protection finding was reasonable;
d.
Whether
the RPD’s finding that the Principal Applicant lacked subjective fear was
reasonable;
e.
Whether
the RPD applied the correct test for state protection.
STANDARD
OF REVIEW
[41]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the court
is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[42]
In
Elmi v Canada (Minister of Citizenship and Immigration) 2008 FC 773, at
paragraph 21, Justice Max Teitelbaum held that findings of credibility are
central to the RPD’s finding of fact and are therefore to be evaluated on a
standard of review of reasonableness. Finally, in Wu v Canada (Minister of
Citizenship and Immigration) 2009 FC 929, Justice Michael Kelen held at
paragraph 17 that the standard of review on a credibility determination is
reasonableness. The standard of review on the second issue is reasonableness.
[43]
In
Carillo v Canada
(Minister of Citizenship and Immigration) 2008 FCA 94, the
Federal Court of Appeal held at paragraph 36 that the standard of review on a state protection finding is reasonableness. This
approach was followed by Justice Leonard Mandamin in Lozada
v Canada (Minister of
Citizenship and Immigration) 2008 FC 397, at paragraph 17. Further, in Chaves v Canada
(Minister of Citizenship and Immigration) 2005 FC 193, Justice
Danièle Tremblay-Lamer held at paragraph 11 that the standard of review on a state protection finding is reasonableness simpliciter.
The standard of review on the third issue is reasonableness.
[44]
In
Cornejo v Canada (Minister of Citizenship and Immigration) 2010 FC 261,
Justice Kelen held at paragraph 17 that the standard of review on the
assessment of subjective fear of persecution was reasonableness. Justice John
O’Keefe made a similar finding at paragraph 20 in Brown v Canada (Minister of
Citizenship and Immigration) 2011 FC 585. The standard of review on the
fourth issue is reasonableness.
[45]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[46]
In
Uwase v Canada (Minister of Citizenship and Immigration) 2007 FC 1332,
Justice Yves de Montigny held that, “the RPD has an obligation to address the
objective risks and dangers stipulated in paragraphs 97(1)(a) and (b) of the
IRPA where evidence has been led that could support such a finding of risk,
even if it has rejected a section 96 claim on credibility concerns” (see also Bouaouni
v Canada (Minister of Citizenship and Immigration) 2003 FC 1211 at
paragraph 41). On the first issue, the reviewing Court must come its own
conclusion on whether the RPD has complied with this obligation (see Dunsmuir,
above, at paragraph 50). The standard of review on the first issue is
correctness.
[47]
On the
fifth issue, in
Saeed v Canada (Minister of Citizenship and Immigration) 2006 FC
1016, Justice Yves de Montigny held at paragraph 35 that, when examining the
RPD’s application of the test for state protection, the appropriate standard of
review is correctness. Justice Paul Crampton made a similar finding in Cosgun
v Canada (Minister of
Citizenship and Immigration) 2010 FC 400 at paragraph 30. The standard
of review on the fifth issue is correctness
STATUTORY PROVISIONS
[48]
The
following provisions of the Act are applicable in this proceeding:
|
Convention refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political
opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
[…]
Person in Need of
Protection
97. (1) A
person in need of protection is a person in Canada whose
removal to their country or countries of nationality or, if they do not have
a country of nationality, their country of former habitual residence, would
subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is
unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk would
be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk is
not inherent or incidental to lawful sanctions, unless imposed in disregard
of accepted international standards, and
(iv) the risk is not
caused by the inability of that country to provide adequate health or medical
care
[…]
|
Définition de «
réfugié »
96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
[…]
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b) soit à
une menace à sa vie ou au risque de traitements ou peines cruels et inusités
dans le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou
le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
[…]
|
ARGUMENTS
The
Applicants
The
Credibility Finding Was Unreasonable
The Nephews’
Accounts
[49]
The
Applicants argue that the RPD’s general credibility finding was unreasonable
becaues it ignored evidence related to refugee claims the Principal Applicant’s
nephews made in Canada. The Principal Applicant fears FARC in part
because his brother-in-law – his nephews’ father – was killed by FARC for not
paying money when it was demanded. The RPD accepted the nephews as refugees
because of this event; their Personal Information Forms were before the RPD in
this case. Other members of the RPD found that the nephews’ accounts were
credible, and their accounts included aspects of the Principal Applicant’s
story. Further, there was other documentary evidence before the RPD in this
case which established the truthfulness of the nephews’ accounts. The RPD erred
by finding the Principal Applicant’s story wholly unbelievable when it did not
cite any grounds or evidence in the nephews’ claims that it did not believe.
The Money Request
[50]
The
Applicants also argue that the RPD’s treatment of the Principal Applicant’s
account of giving FARC only half of the demanded amount was unreasonable. The
RPD found an internal contradiction in this story: it said that it did not make
sense that he believed FARC would leave him alone after paying only half of the
demand. This finding ignores the Principal Applicant’s testimony that he
promised to pay them half of the money only after FARC members said they would
kill him. The RPD’s credibility finding was unreasonable because it ignored
evidence which was before it.
A Speculative Inference
[51]
The
RPD’s inference that the police did not give him a copy of his complaint
because they wanted to see if his complaint was bona fide was
speculative. Valtchev v Canada (Minister of
Citizenship and Immigration), [2001] FCJ No 1131 at paragraph 7
says that findings of plausibility should only be made in the clearest of cases
and cannot be speculative. The inference as to why the police did not give the
Principal Applicant a copy of his complaint fails both of these tests.
Microscopic
Evaluation
[52]
The
RPD engaged in a microscopic evaluation of the evidence when it relied on the
apparent inconsistency in the number of cars he owned to challenge the
Principal Applicant’s credibility. The number of cars he owned was not central
to his claim and this inconsistency could not show that he had not paid FARC
any money. By engaging in such a microscopic evaluation, the RPD committed the
error cautioned against in Mohacsi v Canada (Minister of
Citizenship and Immigration) 2003 FCT 429 at paragraph 20.
Inconsistent
Treatment of Evidence
[53]
In
addition, the RPD unreasonably used evidence from the Principal Applicant’s
sister to impeach his credibility, while at the same time it found that
evidence was not credible. The RPD pointed to his sister’s experience with FARC
– when it killed her husband – to show that FARC had not left her and her
family alone after they paid the demand. This was then used to establish that
the Principal Applicant’s belief that he would be left alone after he paid FARC
was unreasonable. The RPD also said the Principal Applicant knew of FARC’s
murderous history because FARC had murdered his brother-in-law. At the same
time, the RPD found that the Principal Applicant’s narrative, in which the
killing of his brother-in-law played a key part, was completely fabricated. The
way that the RPD treated this evidence renders its findings perverse and
capricious.
Failure to Make a Section 97 Finding
[54]
The
RPD did not make any finding in relation to the claim under section 97 of the
Act because it found that the Principal Applicant’s lack of subjective fear was
sufficient to dispose of both claims. Although subjective fear is an element of
all claims under section 96 of the Act, the Applicants say that it is not part
of a section 97 claim. The RPD did not make a nexus finding, which left open a
claim under section 97. The RPD then committed an error when it did not make any
finding under section 97.
Subjective
Fear
[55]
The
Applicants also argue that the RPD’s subjective fear finding, which it used to
foreclose the analysis under section 97, was unreasonable. When it found that
the Applicants’ failure to leave Colombia showed they did not
have a subjective fear, the RPD ignored case law which establishes that there
is no hard and fast rule on when claimants must leave in order to establish
subjective fear. Delay must be assessed on the facts of each case. The RPD did
not take into account the Principal Applicant’s testimony that FARC gave him
until 26 June 2010 to pay, or they would kidnap his wife or one of his sons.
The Applicants left Colombia two weeks before the deadline FARC had imposed
on them. The RPD also did not consider the Principal Applicant’s testimony that
he delayed leaving Colombia because it was not easy to do so.
The
State Protection Finding
Inappropriate
Burden
[56]
The
Applicants argue that the RPD imposed too high a burden on them to rebut the
presumption of state protection. In effect, they had to show that they had
exhausted all avenues available to them in order to rebut the presumption of
state protection. Hinzman v Canada (Minister of
Citizenship and Immigration) 2007 FCA 171 teaches that, in the United
States of America (USA), claimants must show that they have exhausted all
avenues for state protection. In countries like Colombia, where democratic
institutions are not as strong as they are in the USA, claimants
do not have to show that they have exhausted all avenues available to them. By
requiring the Applicants to meet the threshold required of claimants from the USA, rather than
the proper threshold for Colombia, the RPD placed a
burden on them which was too high.
[57]
Further,
the RPD referred to country condition evidence on Mexico, rather than on Colombia. The
evidence for Mexico could not
show the burden on the Applicants. This makes the RPD’s conclusion on state
protection unreasonable.
[58]
Also,
when it concluded that the Applicants had not rebutted the presumption of state
protection, the RPD failed to consider the evidence from the Principal
Applicant’s sister. FARC killed the brother-in-law, which showed that state
protection was unavailable to him and his family, including the Principal
Applicant’s sister. Evidence to this effect was before the RPD. The sister and
brother-in-law were similarly situated persons to the Applicants, so the RPD
should have considered the evidence which showed that state protection was not
available to them.
Improper Test
[59]
The
Applicants also challenge the RPD’s state protection finding on the basis that
the RPD applied an inappropriate test for state protection. In Bautista v Canada (Minister of
Citizenship and Immigration) 2010 FC 126, Justice Michel Beaudry
overturned a decision from the RPD which used the same language that the RPD
used in this case. Justice Beaudry held that it was an error for the RPD to
look at what structures Mexico was endeavouring to put in place, rather than
what was actually occurring on the ground. The RPD committed the same error in
this case.
The
Respondent
[60]
The
RPD’s conclusions that the Principal Applicant was not credible and that there
was state protection available to the Applicants in Colombia were
reasonable. These findings were grounded in the evidence before the RPD, so the
Court should not interfere with the Decision.
Findings
Based on Evidence
[61]
When
the RPD found that the Principal Applicant was not credible, it based this
finding on four main inconsistencies in his evidence:
a.
He
believed FARC would leave him alone after he paid half the money demanded,
although he knew how FARC operated;
b.
His
delay in leaving Colombia was inconsistent with subjective fear;
c.
His
explanation for why he did not immediately go to the authorities on being
threatened was confusing; and
d.
His
testimony on the number of cars he owned was inconsistent.
[62]
The
RPD is in a better position than the Court to assess credibility and is best
positioned to test the plausibility of a claimant’s testimony, so the Court
should not interfere with these findings. It is also acceptable for the RPD to
doubt a claimant’s credibility based on contradictions, inconsistencies, and
implausiblities.
Speculative Inference Does not Matter
[63]
Nothing
turns on the RPD’s inference as to the GAULA agents’ motivation for not giving
the Principal Applicant a copy of his complaint. The Decision should not be
overturned on this basis.
The Number of Cars Mattered
[64]
Although
the Applicants have characterized the RPD’s treatment of the Principal
Applicant’s testimony about how many cars he owned as microscopic, this
testimony was significant. The Principal Applicant testified that he drove in
his own car to take the money to FARC. If, as he testified, he only owned two
cars which were being used in Eastern Colombia, the Principal
Applicant could not have driven his own car to take the money to FARC. It was
reasonable for the RPD to conclude on this basis that the Principal Applicant
had not given FARC any money. The RPD reasonably relied on inconsistencies in
the testimony and was not overzealous in searching them out
The Sister’s
Evidence
[65]
The
RPD reasonable found that the Principal Applicant and his sister had taken the
same steps to report FARC to the police and complain to the Ombudsman. This
finding did not contradict the RPD’s finding that the Principal Applicant had
never been threatened by FARC.
Delay
[66]
When
it found that the Applicant’s delay in leaving Colombia showed he
did not have subjective fear, the RPD did not ignore the Principal Applicant’s
testimony that leaving his country was hard. Rather, the RPD reasonably
considered, weighed, and rejected this statement. As the Applicants say, delay
must be examined on the merits of each case. Though the Applicants disagree
with how the RPD weighed this evidence, it is not for the Court to re-weigh the
evidence on judicial review.
The RPD is not Bound by its own Decisions
[67]
The
RPD’s credibility determination was reasonable. Bakary v Canada (Minister of
Citizenship and Immigration) 2006 FC 1111, Cortes v Canada (Minister of
Citizenship and Immigration) 2008 FC 254, and Noha v Canada (Minister of
Citizenship and Immigration) 2009 FC 683 all establish that each claim
should be determined on its own facts and that the RPD is not bound to follow
its own previous findings of fact. The RPD was aware that it had previously
granted the nephews’ refugee claims, but it is possible that those decisions
were not correct, so they cannot be used to impugn the findings in this case.
The RPD
Considered Section 97
[68]
When
the RPD concluded that the Principal Applicant had no subjective fear, it
clearly said that it made this finding in relation to the Applicants section 96
claim. The RPD also clearly conducted an analysis of the section 97 claim when
it found that state protection was available.
The State
Protection Finding was Reasonable
[69]
The
Applicants did not provide any persuasive evidence to show that the authorities
were not investigating the Principal Applicant’s complaint. The Applicants also
left Colombia only two
weeks after the Principal Applicant complained about the police conduct to the
Ombudsman. As Castillo v Canada (Minister of
Citizenship and Immigration) 2011 FC 134 and Romero, above,
establish, a claimant’s decision to flee before the authorities have had enough
time to investigate does not show that state protection is not available. The
Applicants did not rebut the presumption of state protection.
[70]
The
RPD also considered documents from their relatives the Applicants submitted to
show a lack of state protection. The RPD reasonably gave little weight to this
evidence because the Principal Applicant testified that he went to the police
even though he knew from his relatives that their protection would be
ineffective.
The RPD
Applied the Proper Test
[71]
Hinzman, above,
shows that claimants have a heavy burden to show why they did not pursue all
avenues of state protection where they claim against a well functioning
democracy. The RPD found that Colombia was such a democracy
and is making serious efforts to address its past problems. Although Justice
Beaudry overturned a similar finding in Bautista, above, this does not
mean that the finding in this case was unreasonable. The RPD mentioned Mexico
rather than Colombia when it
calibrated the Applicants’ burden, but this does not render the Decision
unreasonable. The RPD did not ignore or misconstrue any evidence going to state
protection, so its finding on this aspect of the Applicant’s claim was
reasonable.
The
Applicants’ Reply
[72]
The
Respondent has said that the RPD’s conclusion that the Principal Applicant left
without giving the police time to investigate was reasonable; the Applicants
say that they left when they did because of the deadline FARC set for the
second payment. The law does not require that claimants put their lives at risk
to allow for only the possibility that state protection might be available, and
in this case there was evidence that the authorities had been unable to protect
their family in the past.
[73]
Further,
the Applicants say that the RPD’s speculative inference as to why the police
did not give the Principal Applicant a copy of his complaint was part of an
overall pattern of flawed credibility findings. This means that the credibility
finding as a whole cannot stand.
[74]
In
addition, the inconsistency in the number of cars the Principal Applicant owned
does not show that he did not give FARC money. The Principal Applicant actually
testified that he had two business vehicles in Eastern Colombia, but used
his personal vehicle to deliver the money to FARC.
[75]
The
Respondent is correct that each claim must be determined on its own merits and
the RPD is not bound by its previous findings of fact. However, that is not at
issue in this case. What the Applicants challenge is the RPD’s conclusion that
the Principal Applicant’s story was false, without considering the nephews’
documents. The RPD had accepted these documents on other occasions, so it was
incumbent on it to provide reasons why it rejected them in this case without
explanation.
[76]
The
Applicants also disagree with the Respondent’s interpretation of Hinzman,
above. They say that Hinzman teaches that only in countries like the USA which have a
full arsenal of checks and balances between the three branches of government
are claimants required to exhaust all avenues of protection. In a country with
fewer democratic institutions and safeguards, claimants do not have to show
that they pursued as many avenues of state protection. Further, when the RPD
considered the democratic situation in Mexico, it did not show that Colombia is similar
to the USA. As such,
the burden on claimants to rebut the presumption of state protection for
Colombia cannot be as heavy as it is for claimants from the USA.
ANALYSIS
[77]
The
Applicants have raised a number of grounds for reviewable error with respect to
the RPD’s findings on credibility and lack of subjective fear. However, those
findings are underpinned by an alternative finding of adequate state
protection. Unless the Applicants can establish reviewable error with respect
to the state protection finding their application for judicial review must
fail.
[78]
The
Applicants say that the RPD refers to country conditions in Mexico rather than Colombia. It is true
that this error occurs, but a reading of the Decision as a whole and the
documentation relied upon by the RPD makes it clear that this is an inadvertent
typographical error. I am satisfied that the state protection analysis was
carried out with Colombia in mind (see Portillo Sanchez v Canada (Minister of
Citizenship and Immigration) 2006 FC 648 at paragraph 12).
[79]
The
Applicants say that the RPD did not address the level of democracy that exists
in Colombia and based
its analysis on USA conditions in accordance with Hinzman,
above.
[80]
It
is clear from the Decision as a whole that the RPD was fully aware that the
level of democracy affects what a claimant is expected to do to refute the
presumption of adequate state protection (see paragraph 57). It is also clear
to me that, notwithstanding the typographical error with regard to “Mexico,”
the RPD addressed the level of democracy that exists in Colombia and did not
just assume it was equivalent to the USA. The Applicants
conceded in the hearing before me that free and fair elections exist in Colombia but they say
that the RPD overlooked problems with the judiciary.
[81]
The
RPD says that there “is a relatively independent and impartial judiciary” in Colombia. This makes
it clear that the RPD is aware that the judiciary in Colombia is not entirely
independent but is only “relatively” so, and that the RPD is fully aware it is
not looking at Columbia in the same way it would look at the USA.
[82]
The
US Department of State’s 2009 Human Rights Reports: Columbia (DOS Report)
that was before the RPD in this case provides the following information:
While the law provides for an independent
judiciary, much of the judicial system was overburdened, inefficient, and
hindered by subornation and intimidation of judges, prosecutors, and witnesses.
In these circumstances impunity remained a serious problem, although the
government took action to address these issues. The Superior Judicial Council
(CSJ) reported that the civilian judicial system suffered from a significant
backlog of cases, which led to large numbers of pretrial detainees.
Implementation of the new criminal accusatory system reduced the time for
resolving new criminal cases by over 75 percent, with conviction rates of
approximately 60 percent under the new system, compared with 3 percent
under the old, inquisitorial system. However, a large backlog of old-system
cases remained.
Judicial authorities were subjected to
threats and acts of violence. According to the protection program in the
Prosecutor General’s Office, during the year 470 judicial employees sought
varying forms of protection from the CSJ for reasons including threats.
Although the Prosecutor General’s Office ran a witness protection program for
witnesses in criminal cases, witnesses who did not enter the program remained
vulnerable to intimidation, and many refused to testify.
The UN special rapporteur on the independence
of judges and lawyers, Gabriella Carina Knaul de Albuquerque e Silva, reported
on high level of threats and attacks against judicial officials such as judges,
defense lawyers, prosecutors, and investigators as well as civilian
participants in the justice system such as witnesses and victims. The special
rapporteur acknowledged the government had programs in place to provide
protection but called for increased measures to ensure the protection of
justice officials. The special rapporteur noted that threats against judicial
personnel contributed to the high rate of impunity, along with insufficient
resources for the administration of justice and inadequate initial
investigations.
[83]
When
the Decision is read as a whole, it is clear that the RPD is fully aware of,
and has taken into account, the problems mentioned in this paragraph. For
example, in paragraph 50 of the Decision, the RPD says that
However, claims of impunity continued to
be widespread, due in some cases to obstruction of justice, a lack of resources
for investigations and protection of witnesses and investigators, and
inadequate coordination among government entities.
[84]
The
RPD also acknowledges the same problems in its conclusions:
However, weighted against this is
persuasive evidence that indicates that Colombia candidly acknowledges the past problems
and is making serious efforts to rectify the corruption and impunity that
exists. The panel accepts that Colombia is experiencing challenges in
addressing the criminality and corruption that exists within the security
forces in Colombia. It recognizes that there are
some inconsistencies among several sources within the documentary evidence;
however, the preponderance of the objective evidence regarding current country
conditions suggests that, although not perfect, there is an adequate state
protection in Colombia for victims of crime, that Columbia is making serious
efforts to address the problem of criminality, and that the police are both
willing and able to protect victims.
[85]
Although
neither party raised it at the hearing before me, the record shows that when
the RPD heard the Applicants’ case and made its Decision, an updated version of
the RPD’s National Documentation Package for Colombia was
available which includes the US Dos 2010 Human Rights Report. I have
carefully compared both reports and can find no material differences regarding
the situation in Colombia that was relied upon by the RPD. Hence, I do
not regard this as a material error.
[86]
All
in all, I do not think it can be said that the RPD did not acknowledge and take
into account the problems that exist in Colombia’s justice
system and the “challenges in addressing the criminality and corruption that
exists within the security forces” and the “obstruction of justice issues” when
assessing the adequacy of state protection in Colombia for persons
in the position of the Applicants. The Applicants disagree with the RPD’s
conclusions on this point but I cannot say those conclusions fall outside of
the Dunsmuir range.
[87]
There
was also no application of an improper test. The RPD not only looked at the
efforts that Colombian authorities are making to provide protection, it also
looked at “operational adequacy” (see Park v Canada (Minister of
Citizenship and Immigration) 2010 FC 1269 at paragraph 56). The RPD
acknowledges the “serious efforts” that Colombia is making to
“rectify the corruption and impunity,” but it also addresses the “adequacy” of
the protection available and finds there is a “functioning security force” in
place. For example, the RPD looks at the Principal Applicant’s own experience
with the GAULA unit that has been specifically founded to deal with extortion
and kidnapping:
The formation and action of GAULA in the
view of this panel is evidence that the government is taking steps to protect
the target group, and in the evidence to the contrary, it must be presumed that
these steps will be effective.
[88]
At
the hearing before me, I specifically asked counsel for the Applicants to show
me any evidence or arguments on the record before the RPD that suggested
operational inadequacy or a contrary conclusion to the one reached by the RPD.
Apart from the judicial independence factor which I have already addressed, he
said that he was unaware of any such evidence. This is hardly surprising, given
the Principal Applicant’s own testimony before the RPD as to why he went to the
police:
RPD: Bearing that in mind
why did you go to the police on April 5th, 2010 to make a report?
PA: That was a decision
my wife and I made after all the repeated events of threats that we had had. We
thought that by going to the national police, the authorities, that we would
get some kind of protection from them.
RPD: What made you think
you would get protection?
PA: They’re the
authorities in my country and I think they’re there to protect the civilian
population.
[89]
The
evidence is also that when he did seek protection, the GAULA unit responded.
The US DOS Report says that “GAULAs (Unified Action Groups for Personal
Liberty, military and police entities formed to combat kidnapping and
extortion) and other elements of the security forces freed 64 hostages during
the year.” Other evidence before the RPD described in some detail how GAULA
groups function. None of this suggests operational inadequacy or that the government
is not addressing the problem and implementing operational measures to deal
with it. Whatever may have happened to other family members on other occasions,
the RPD had to examine the Applicants’ own narrative of interaction with the
authorities and the evidence on state protection adduced in this case (see Bakary,
above, at paragraph 10, and Noha, above, at paragraphs 102 and 103). It
seems to me that the RPD did this.
[90]
Read
as a whole, I do not think that the RPD’s state protection analysis contains
the reviewable errors the Applicants allege, so it must stand. Even if the RPD
made errors in its conclusions on credibility and subjective fear, the
Applicants did not rebut the presumption of adequate state protection. It is
well established that a finding of adequate state protection is fatal to claims
under both sections 96 and 97 of the Act, so the Decision must stand (see Macias
v Canada (Minister of
Citizenship and Immigration) 2010 FC 598 at paragraph 14).
[91]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1. The
application is dismissed.
2. There is no
question for certification.
“James
Russell”
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