Date: 20091015
Docket: IMM-1104-09
Citation: 2009 FC 1046
Ottawa, Ontario, October 15, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CRISTIAN CAMILO
MONTENEGRO BUITRAGO
Applicant
and
THE MINISTER
OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of a decision of the Refugee Protection Division of the Immigration and Refugee
Board (Board), dated February 13, 2009 (Decision) refusing the Applicant’s
application to be deemed a Convention refugee or person in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 28-year-old citizen of Columbia. He left Columbia for the United
States
in 2003, where he attended educational institutions until October, 2006. The
Applicant then entered Canada and claimed refugee status on October 30,
2006.
[3]
The
Applicant’s claim is based on his fear of persecution by the Autodefensas
Unidas de Colombia (AUC), a Colombian organized crime group for which the
Applicant once did some electrical repair work. The Applicant alleges that
after he received payment for his services, he went to the police to report the
AUC’s activities. He also claims that in 2006 his father received a threatening
call referring to the Applicant’s location. No further contact has been made.
[4]
The
Applicant’s claim was heard by the Board on January 13, 2009. The Board denied the
Applicant’s claim on February 13, 2009.
DECISION UNDER REVIEW
[5]
Based
on “the implausibility of essential segments of the claimant’s testimony,” the
Board was not satisfied that the Applicant’s story was believable. For
instance, the Board was concerned that the Applicant had not provided a copy of
the police report he had filed in Colombia. The Board was also not
persuaded that the Applicant and his father would have conducted themselves in
a way that would make them targets of organized crime.
[6]
The
Board considered the state protection offered by the Columbian government and
determined that Columbia is making “definite efforts” to improve state
protection. The Board noted that a duty exists for a refugee protection
claimant to show that he has made every reasonable effort to claim state protection.
Since he left Colombia immediately
after filing his report and did not give the police an opportunity to protect
him, the Applicant had failed to demonstrate that the police would not make
serious efforts to protect him
[7]
The
Board acknowledged a subjective fear on the part of the Applicant, but
determined that no objective fear had been proven. This lack of objective fear,
combined with the Board’s disbelief of essential aspects of the Applicant’s
testimony, provides the basis for the rejection of the Applicant’s claim.
ISSUES
[8]
The
Applicant submits the following issues on this application:
1) Did the Board
misinterpret the law relating to a fundamental issue, which error tainted and
prejudiced the entire rationale for the conclusion that the Convention criteria
did not apply?
2) Was the Board
correct in law, or did the Board ignore fundamental principles of justice, by
adopting the presumption that a state is deemed to provide adequate protection
for its citizens in all instances of criminal activity even though the criminal
activity may reasonably occur as a result of perceived malfeasance of its
employees?
[9]
The
Court notes that additional issues have been raised in the Applicant’s affidavit:
1)
Did
the Board err in
its finding of the Applicant’s credibility?
2)
Did
the Board err in its consideration and determination of state protection?
STATUTORY PROVISIONS
[10]
The
following provision of the Act is applicable in these proceedings:
|
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.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
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.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
STANDARD OF REVIEW
[11]
In Dunsmuir v.
New Brunswick, [2008] 1
S.C.R. 190, 2008 SCC 9, the Supreme Court of Canada recognized that,
although the reasonableness simpliciter and patent unreasonableness
standards are theoretically different, “the analytical problems that arise in
trying to apply the different standards undercut any conceptual usefulness
created by the inherently greater flexibility of having multiple standards of
review.” Consequently, the Supreme Court of Canada held that the two
reasonableness standards should be collapsed into a single form of
“reasonableness” review.
[12]
The Supreme Court of Canada in Dunsmuir
also held that the standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to the 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.
[13]
In this instance, the
Board’s interpretation of the Act will be reviewed on a correctness standard,
while the Board’s application of the law to the facts will be considered on a
standard of reasonableness (Dunsmuir at paragraph 164). Reasonableness will also be used to
consider whether the Board erred in making its finding
of credibility: Aguirre v. Canada
(Minister of Citizenship and Immigration), 2008 FC 571.
[14]
Moreover,
reasonableness is the appropriate standard when reviewing the Board’s
consideration of state protection, since state protection. See Sanchez v.
Canada (Minister of Citizenship and Immigration), 2008 FC 66.
[15]
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” (Dunsmuir at paragraph 47).
Put another way, the Court should only intervene 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.”
ARGUMENTS
The Applicant
[16]
The
Applicant submits that the Board erred by failing to observe that sworn
testimony is presumed to be truthful unless there is a clear contradiction and
a clear path of reasoned rejection. Both the Applicant’s written submissions
and his sworn statements ought to benefit from the presumption of truth. See Maldonado
v. Canada (Minister of
Citizenship and Immigration), [1980] 2 F.C. 302. Moreover, adverse findings
of credibility need to be made on the basis of reasonably drawn inferences,
rather than speculation. See, for example, Valtchev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776.
[17]
The
Applicant submits that the Board erred in ignoring facts and evidence that were
pertinent to his claim. He contends that his account of the facts, which was
not accepted by the Board, was corroborated by documentary evidence. Such
evidence included information produced by the Minister as well as information about
the drug trade in Columbia. Rather than accepting
the Applicant’s evidence, the Board erroneously rejected it. The Board’s
finding was based on speculation, not reasonably drawn inferences. Because of
this speculation, the Applicant was not given the fair hearing to which he is
entitled.
State Protection
[18]
The
Applicant contends that the Board’s focus on state protection was not suitable
in this case, since the Applicant was forced to flee Columbia based on a threat of
inaction and breach of trust by a state employee.
[19]
The Applicant
submits that the Board erred in placing the burden to disprove state protection
on him, since it was due to ill-treatment by a state employee that the
Applicant was forced to flee Columbia. Additionally, the Applicant contends that the Board erred
in focusing on the good intentions of Columbia to improve state protection. The Applicant had
already been a victim of the state.
The
Respondent
[20]
The
onus is on the Applicant to establish that he is a person in need of protection
pursuant to subsection 97(1). The Respondent submits that this onus includes the
need to demonstrate an objective basis for his prospective fear of persecution.
The Federal Court of Appeal in Sanchez v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 99, held that subsection 97(1) is an
objective test “to be administered in the context of present or prospective
risk for the claimant.”
[21]
In
addition, the Respondent submits the following citation from The Law of
Refugee Status by James Hathaway for the Court’s consideration of the
objective branch of this test:
[t]he
concept of well-founded fear is rather inherently objective, and was intended
to restrict the scope of protection to persons who can demonstrate a present or
prospective risk of persecution, irrespective of the extent or nature of
mistreatment, if any, that they have suffered in the past.
[22]
The Respondent
doubts the objective existence of the well-founded fear claimed by the
Applicant because the AUC had surrendered a plethora of weapons and dismantled
its military structures over three years prior to the Applicant’s hearing. Moreover,
the Applicant has not been contacted by any members of the AUC, and he is not
certain that the organization remains interested in carrying out retaliation
against him.
[23]
Under
these circumstances, the Board’s conclusion that there was no objective basis
for the Applicant’s fear of returning to Colombia is reasonable.
State Protection
[24]
The
onus is on the Applicant to “adduce relevant, reliable and convincing evidence
which satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate.” See Canada (Minister of Citizenship and Immigration)
v. Flores Carrillo,
2008 FCA 94 at paragraph 30. The Applicant’s evidence must convince the trier
of fact of the inadequacy of state protection for the evidence to have
sufficient probative value. In this instance, the Applicant failed to discharge
the onus upon him to prove that state protection was not available to him.
[25]
Based
on the circumstances of this case, there is no clear and convincing evidence
that Colombia is unable to offer
protection to the Applicant. Moreover, the AUC has surrendered many weapons and
has begun dismantling its military structures, thereby minimizing any threat
the Applicant may face.
ANALYSIS
[26]
The
basis for the Board’s rejection of the Applicant’s claim was that he “did show
subjective fear of persecution and of risk to his life” but “he did not show
the objective nature of his fear.”
[27]
The
reasons why the Applicant could not establish an objective basis for his claim
were that:
a.
The
Board found “essential segments of the claimant’s testimony” to be implausible;
b.
He
was unable “to show objectively that he would be subjected to a risk to his
life or to a risk of persecution”;
c.
By
leaving Columbia “the day after filing his report and by not giving the police
the opportunity to protect him, the claimant failed to show clearly and
convincingly that the police would not make a reasonably serious effect to
protect him.”
[28]
As
the Board pointed out in its Decision, the Applicant testified that he did not
know whether the AUC had any interest in him; he just did not “want to run the
risk.”
[29]
Given
the fact that the Applicant had no knowledge or evidence to suggest that the
AUC had a present interest in him, and he could not demonstrate that Colombia could not,
or would not, protect him, the Board’s conclusion that the Applicant had failed
to establish an objective basis for his claim is entirely reasonable. This
finding stands alone and is quite apart from the Board’s plausibility concerns.
In the end, the Board says that, even if his subjective fear is accepted, the
Applicant has presented no objective basis for that fear.
[30]
The
Applicant has represented himself in this judicial review application. His
written materials are vague on the issues he raises for review. However, at the
oral hearing, I was able to clarify with him that he believes the Board’s
plausibility findings were speculative and unreasonable and that he does not
believe the state of Columbia will protect him.
[31]
However,
even if the Court were to accept that the Board’s plausibility findings were
unreasonable (which I do not), the Applicant has not truly addressed the
Board’s findings on objective fear. There is no evidence that the AUC or anyone
else is interested in the Applicant. Rather, the evidence before the Board was
that the AUC had surrendered its weapons and dismantled most of its military
structures. There is also no evidence that rebuts the presumption of state
protection. The Applicant argues that the presumption of state protection is a
“preposterous principle,” but this is no more than an argument that the Court
should disregard the jurisprudence on this issue to suit the Applicant because
he finds the law inconvenient to his application.
[32]
The
Applicant was forthright at the hearing and appears to understand the
evidentiary deficiencies that confronted the Board. He felt that this was the
fault of the advisor he had used, but he did not raise any procedural fairness
issues in his written materials and there is no evidence before me on this
point. All in all, the Applicant has raised no ground for judicial review that
the Court can accept. The Decision is entirely reasonable given the evidence
before the Board.
[33]
The
Applicant suggested a question for certification:
Was the Board wrong to focus upon his
qualifications and abilities?
[34]
As
I pointed out to him at the hearing, this does not raise a question of general
importance. In addition, the issue of his qualification is not central to the
Decision which is based upon the lack of evidence of objective risk.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
Email this Content