Docket: IMM-4047-11
Citation: 2012 FC 506
Ottawa, Ontario, May 2, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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LUZ STELLA CASTRO NINO
LUZ STEPHANIE TAMAYO CASTRO
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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
I. Overview
[1]
Ms. Luz
Stella Castro Nino and her daughter, Luz Stephanie Tamayo Castro, sought refuge
in Canada based on their fear of
political persecution in their native Colombia.
Ms. Castro Nino claimed that she was threatened by the Revolutionary Armed
Forces of Colombia [FARC] because her son and daughter-in-law were politically
active. In 2005, FARC threatened Ms. Castro Nino in an effort to locate her son
and daughter-in-law, who had left Colombia to seek asylum in the United States. Ms. Castro Nino moved and
changed her phone number to avoid further threats. In 2006, she fled to the United States with her daughter and lived
there illegally until arriving in Canada
in 2010.
[2]
A panel of
the Immigration and Refugee Board heard their claims and concluded that they
were neither refugees nor persons in need of protection because state
protection was available to them in Colombia.
Ms. Castro Nino argues that the Board’s conclusion was unreasonable in light of
the evidence before it about the situation in Colombia. She asks me to quash the Board’s
decision and order another panel of the Board to reconsider her claim.
[3]
I can find
no basis for overturning the Board’s decision. In my view, its analysis of the
evidence and its conclusion were not unreasonable, considering the evidence
relating to state protection before it. The evidence also showed that Ms.
Castro Nino had not taken steps to obtain state protection and had successfully
evaded FARC simply by moving and changing her phone number.
II. The Board’s Decision
[4]
The Board found there
was adequate state protection in Colombia. Still, it observed that Colombia continues to face challenges in dealing with FARC. FARC is
still active in some areas, but its activities tend to be on a small scale,
such as kidnapping and extortion, particularly of business people and public
figures.
[5]
The Board also noted
that the Colombian government is making significant progress in combating these
problems. The government has increased its military and police resources, and
has had some success in curbing FARC’s activities. There was conflicting
evidence on whether FARC is still capable of pursuing targets that relocate to
another area, or tracking them over an extended period of time.
[6]
The Board also
considered a report from the Canadian Council for Refugees (The Future of
Colombian Refugees in Canada: Are We Being Equitable?) [CCR Report] which concludes that state
protection in Colombia is inadequate. However, the Board
preferred the other evidence before it showing significant success in defeating
FARC and enhancing the security of Colombian citizens.
[7]
After considering
this evidence, the Board found that FARC would be unable or unwilling to pursue
the applicants on their return to Colombia. They had managed to elude FARC from
November 2005 to April 2006 simply by changing their phone number and living
for short periods with family. Further, Ms. Castro Nino did not have the
profile of someone in whom FARC would continue to be interested. Indeed, she
was not a direct target; FARC was interested in her only as a source of
information about the whereabouts of her son and daughter-in-law.
[8]
In addition, Ms.
Castro Nino had made no effort to seek state protection after receiving
telephone threats. She explained that she did not believe state protection
would be forthcoming because the threatening messages were “simply calls”, and
because the FARC had infiltrated the police. However, she had no personal knowledge
or evidence to support her belief.
[9]
Based on its finding
that there was adequate state protection in Colombia,
the Board concluded that the applicants were not Convention refugees or persons
in need of protection.
III. Was the Board’s Conclusion
on State Protection Unreasonable?
[10]
Ms. Castro
Nino argues that the Board made a number of errors.
[11]
First, the
Board stated that Ms. Castro Nino was not a direct target of FARC. However, she
testified that she was personally threatened and, therefore, was clearly a
direct target.
[12]
Second,
the Board found that FARC did not bother to find the applicants between
November 2005 and April 2006. However, during that period of time, Ms. Castro
Nino changed her phone number, took her daughter out of school, and moved. She
maintains that she successfully eluded her persecutors. There was no basis for
the Board’s finding that FARC was not interested in finding them.
[13]
Third, the
Board concluded that FARC primarily targets politicians and businessmen, not
ordinary citizens. However, the documentary evidence showed that FARC targets a
broad range of adversaries and maintains the capacity to strike individuals. The UNHCR Eligibility Guidelines for
Assessing the International Protection Needs of Asylum Seekers from Colombia
states that those at risk include “Women of a Certain Profile” and “Present and
Former Members and Supporters of one of the Parties to the Conflict”.
[14]
In my view, the Board
was clearly aware that FARC threatened Ms. Castro Nino and her daughter.
However, FARC was mainly interested in her son and daughter-in-law. Ms. Castro
Nino was threatened in an effort to ascertain their whereabouts. The Board
described the applicants as “indirect” targets which, in the factual context,
was not incorrect.
[15]
It is true that Ms
Castro Nino took steps to avoid being threatened. At the same time, however,
there was no evidence before the Board showing that FARC continued to pursue
the applicants or would be interested in them now. The Board did not conclude
that there was no basis for their fear of FARC, a finding that would be
considered “perverse” in the circumstances (Sabaratnam v Canada (Minister
of Employment and Immigration), [1992] FCJ No 901 (CA)).
[16]
Finally, the Board
did not conclude that FARC only pursues a narrow range of targets. It found
that there are many groups of interest to FARC. However, it did not appear that
the applicants fell within any those categories, including those identified in
the UNHCR Guidelines.
[17]
Further, the Board
considered evidence that both supported and contradicted its conclusion that Colombia had successfully curtailed FARC’s activities. However, it
preferred the evidence that the protection offered by Colombia was adequate. This was not an unreasonable assessment of
the evidence.
[18]
Finally, Ms. Castro
Nino did not actually make any effort to seek state protection. She testified
that the threats she received were “simply calls” and she believed that the
police had been infiltrated by FARC. However, there was no evidence to support
that belief.
[19]
Looking at the
evidence and the Board’s reasons as a whole, I cannot find that its conclusions
were unreasonable.
IV. Conclusion and Disposition
[20]
The Board’s
conclusion that state protection was available to the applicants fell within
the range of defensible outcomes based on the facts and the law and, therefore,
was reasonable. Consequently, I must dismiss this application for judicial
review. Neither party proposed a question of general importance for me to
certify, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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