Date: 20110301
Docket: IMM-913-10
Citation: 2011
FC 242
Ottawa, Ontario,
March 1, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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LUIS FERNANDO MURILLO
GUEVARA MARIA DE JESUS SÁNCHEZ RODRIGUEZ CONSUELO ALAGUNA SANCHEZ
MARIA FERNANDA MURILLO DE
ORO LAURA CATALINA ALAGUNA SÁNCHEZ GLORIA ESPERANZA ALAGUNA SANCHEZ
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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
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated December 24, 2009, wherein the applicants were determined
not to be Convention refugees or persons in need of protection under sections
96 and 97 of the Act. This conclusion was based on the Board's finding that
state protection was available to the applicants.
The applicants request that the
decision of the Board be set aside and the claim remitted for redetermination
by a differently constituted panel of the Board.
Background
[2]
Consuelo
Alaguna Sanchez is the principal applicant (the principal applicant) in this
application. The other applicants are related to her in varying degrees:
- Luis
Fernando Murillo Guevara – spouse
- Maria de
Jesus Sánchez Rodriguez – mother
- Gloria
Esperanza Alaguna Sanzhez – sister
- Laura Catalina
Alaguna Sánchez – daughter
(step-daughter of Luis Guevara)
- Maria Fernanda
Murillo De Oro – step-daughter (daughter of Luis Guevara)
[3]
In
1992, the principal applicant and her family members started receiving letters
threatening to kill or kidnap her young niece. Principally, these letters were
from the Revolutionary
Armed Forces of Colombia (FARC), but at times they were from the National Liberation Army
(ELN). The
letters always asked for money. The principal applicant and her family
contacted the Bogotá police but after a short investigation, they were told
that the police could do nothing to help.
[4]
In
1992, the applicant’s brother-in-law was severely beaten and stabbed. He told
the police this was a robbery out of fear of reprisals. The principal applicant’s
family received a call allegedly from FARC taking responsibility for the attack
and requesting 5 million pesos to prevent another attack from occurring. Calls
of this nature continued regularly until the principal applicant took out a
loan and left 4 million pesos in a location described by the caller.
[5]
The principal
applicant and her family members moved to another part of Bogotá and found new
employment.
[6]
In
1998, the principal applicant, her family and her partner Luis Guevara, began
receiving threatening calls from FARC once again. These calls demanded 30
million pesos. Both the principal applicant and her partner began receiving
calls at work. They changed their telephone numbers but still received calls. Their
cars were vandalized. The applicants contacted the police but were told that
the police did not have the resources to protect every citizen.
[7]
The principal
applicant, her husband Luis Guevara and his daughter left Colombia for the United States in November 1999.
[8]
The principal
applicant returned to Colombia in December 1999 to obtain documents and money
to file for refugee status in the United States and to obtain visas for her daughter,
mother and siblings. The principal applicant remained in Colombia and began working as an
accountant.
[9]
In
May 2000, the principal applicant received another call at her home from FARC
requesting 30 million pesos. She was also contacted at work. The principal applicant
paid part of this money but the threats continued.
[10]
In
July 2000, the principal applicant’s brother-in-law was killed. The principal applicant
received a letter from FARC claiming responsibility for his death. However, the
killer was arrested and sentenced for the crime.
[11]
The principal
applicant left Colombia again, with her
daughter and sister, and returned to the United States. The principal applicant could not acquire
an American visa for her mother and arranged to bring her to the United States illegally.
[12]
In
the United
States,
the applicants had paid a paralegal to begin an application for refugee status.
This person disappeared with the applicants’ documents and money in 2003. The
applicants later contacted a lawyer but were informed that they could no longer
make asylum claims because the one year time limitation had expired. The lawyer
recommended that the applicants wait for immigration reform in the United States to legalize their
status.
[13]
The
applicants came to Canada and claimed refugee
status in March 2008.
Board’s Decision
[14]
The
Board rejected the refugee claims of the applicants finding that they had
failed to rebut the presumption of state protection in Colombia.
[15]
The
Board found that the last time the applicants sought help from the police was
in 1998.
[16]
The
Board found that Colombia is a constitutional democracy which is making
serious efforts to provide adequate protection to its citizens.
[17]
The
Board focused on two recent reports from 2008 and 2009 of the International
Crisis Group. The Board reviewed these articles over four pages of its
decision. It found generally that the internal command structure and communication
of FARC has been disrupted and that FARC is most active now in the jungle and
mountain areas. The Board found that the Colombian government’s efforts to
provide protection for its citizens who fear FARC have been most successful in
urban areas like Bogotá.
[18]
The
Board then spent eight pages providing an overview of the documentary evidence
submitted by the applicants. The Board found that based on the applicants’
submissions, FARC is attempting to operate in Bogotá, but that these attempts
were confined to three fronts: terrorist attacks on security forces and
politicians, extortion of merchants and corporations and recruiting at the
university level and poorer areas in southern parts of the city. The Board also
found that none of these actions occurred with impunity. FARC terrorists have
been captured and arrested and the army has been deployed in areas were FARC
targets politicians. The Board found that there is no evidence that victims of
FARC attacks were persons who had been tracked to Bogotá.
[19]
The
Board found that the interest FARC may have had in the applicants in the past
no longer exists and that the applicants have not provided reliable evidence to
establish that for them state protection would be inadequate should they return
to Colombia today.
Issues
[20]
The
applicants submitted the following issues for consideration:
1. Did the Board member
err in law in determining that the applicants are not Convention refugees and
not persons in need of protection?
2. Did the Board act
without jurisdiction, act beyond its jurisdiction or refuse to exercise its
jurisdiction?
3. Did the Board fail
to observe a principal of natural justice, procedural fairness or other
procedure that they were required by law to observe?
4. Did the Board err in
law in making its decision or order whether or not the error appears on the
face of the record?
5. Did the Board base its
decision or order on an erroneous finding of fact that it made in a perverse or
capricious manner without regard to the material before it?
6. Did the Board act in
any way that was contrary to law?
[21]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board
misstate the facts of the case?
3. Did the Board err by
finding that state protection was available in Colombia?
Applicants’ Written Submissions
[22]
The
applicants submit that the Board erred in its state protection analysis. The
Board was required to assess the quality of the state’s efforts to provide
protection. Laws alone are not adequate protection if the Colombian
government’s efforts do not provide a level of security that actually protects
the applicants.
[23]
The
applicants submit that the Board ignored documentary evidence which
contradicted its conclusions and relied on the documentary evidence selectively
to justify its finding. The Board ignored evidence of killing and
hostage-taking by FARC. It also ignored evidence of claims of impunity.
[24]
The
Board ignored information about intimidation faced by members of the judiciary
and the inefficiency of the judiciary. The Board also ignored documentary
evidence that the Colombian government cannot provide protection and evidence
that FARC is capable of adapting.
[25]
The
applicants further submit that the Board erred in giving little probative
weight to a report by Dr. Chernick. Dr. Chernick has extensive credentials and
has done much research on Colombia and this report was noted in the Board’s persuasive
decision in 2004 which is still in effect.
[26]
The
applicants submit that the Board did not consider the particular circumstances
of these applicants. In addition, the Board gave no evidence for the statement
that FARC is no longer interested in the applicants.
[27]
The
applicants submit that the Board misstated the fact that the last time the
applicants contacted the authorities was in 1998.
Respondent’s Written Submissions
[28]
The
respondent submits that the applicants did not discharge the onus of providing
clear and convincing proof of the state’s inability or unwillingness to protect
them. The onus was on the applicants to rebut the presumption that the state is
not capable of protecting its citizens. The applicants last sought help from
the authorities over ten years ago. They have not shown that at that time they
persevered in seeking help, that they approached other Colombian authorities or
that there were no other avenues of state protection available to them. In
addition, during the hearing, the Board questioned the applicants on whether
they had close family still living in Bogotá. They responded that they did. It
was open to the Board to find that they had not rebutted the presumption of
state protection.
[29]
The
Board did not err in finding that adequate state protection exists. The Board
acknowledged that FARC is still present in Colombia, even in Bogotá, but the
Board found that Colombia is making serious efforts to contain crime by FARC in
order to protect its citizens and that these efforts are the most successful in
Bogotá. The jurisprudence is clear that the state does not have to provide
perfect or effective protection as the test for state protection is now
adequateness.
[30]
The
respondent submits that the Board did not ignore the documentary evidence. The
Board is presumed to have considered and weighed the evidence. It does not have
to refer to all of the documentary evidence in its decision unless its findings
contradict the documentary evidence taken as a whole. The Board in this case
thoroughly reviewed and summarized the applicants’ documentary evidence.
[31]
The
respondent submits that the Board took into account the applicants’ profile in
its analysis. The Board was aware that the applicants claimed they were a
target of persecution from FARC because of previous extortion. The Board
questioned the principal applicant during the hearing about when she last went
to the police and she responded that it was in 1998. The Board did not misstate
the facts.
[32]
The
respondent submits that it was open to the Board to afford the report from Dr.
Chernick little probative weight. The Board considered the report and found
that the professor did not support his conclusion with evidence. It was
reasonable for the Board to afford it little weight.
Analysis and Decision
[33]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paragraph 57).
[34]
It
is established that assessments of the adequacy of state protection
raise questions of mixed fact and law and are reviewable against a standard of
reasonableness (see Hinzman, Re, 2007 FCA 171 at paragraph 38).
[35]
In
reviewing the Board's decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47. As the
Supreme Court held in Khosa, “. . . it is not up to a reviewing court to
substitute its own view of a preferable outcome”, nor is it “ . . . the
function of the reviewing court to reweigh the evidence” (see Khosa v. Canada (Minister of
Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339
at paragraphs 59 and 61).
[36]
Issue
2
Did the Board
misstate the facts of the case?
The
respondent has shown that the Board did not misstate the fact that the last
time the applicants sought aid from the police was in 1998. The principal applicant
stated several times in her testimony in front of the Board that she did not go
to the authorities after 1998.
[37] Issue 3
Did the Board err by finding
that state protection was available for the applicants in Colombia?
The Board found
that there would be adequate state protection available to the applicants in
Bogotá. Refugee protection is a surrogate protection which is comes into effect
only when protection is unavailable anywhere in the applicant’s home state (Ward
v. Canada (Minister of Employment and Immigration), [1993] 2 S.C.R.
689, [1993] S.C.J. No. 74 (QL) at paragraph 18).
[38]
Subject
to a complete breakdown of the state apparatus, states are presumed to be able
to protect their citizens (see Ward above, at paragraph 50). An
applicant bears the onus to rebut this presumption on a balance of
probabilities with “clear and convincing evidence confirming a state’s
inability to protect” (Ward above, at paragraph 50).
[39]
The
applicants must show that the state is not providing adequate protection. The
protection provided by the state does not have to be effective at all times in
order to be adequate (Gomez
Espinoza v. Canada (Minister of
Citizenship and Immigration), 2009 FC 806 at paragraph 30). Likewise, as the
nature of refugee protection is forward-looking, evidence that the state did
not provide adequate protection to its nationals in the past will not always be
sufficient to overcome the burden on the applicants.
[40]
The
applicants submit that the Board did not take into account their specific
circumstances in analyzing state protection. A complete lack of analysis of an
applicant’s personal circumstances may render a decision unreasonable (see Avila
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 359, 295 F.T.R. 35 at paragraph
32). However, the Board in this case noted that the agents of persecution of
these applicants were FARC which had targeted them for extortion and that they
had refused to pay money to FARC. The Board’s review of the documentary
evidence focused on the deterioration of FARC’s command and communication
structure and the Colombian government’s efforts to protect citizens who fear
FARC. The Board sufficiently considered the specific realities of these
applicants.
[41]
The
applicants further submit that the Board ignored or selectively relied on the
documentary evidence. Board members are presumed to have considered all of the
evidence before them (see Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No.
1425 (F.C.T.D.) (QL)). The Board need not summarize all of the evidence in its
decision so long as it takes into account evidence which may contradict its
conclusion and its decision is within the range of reasonable outcomes (see Florea
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.).
[42]
The
Board recognized that there is conflicting evidence about the strength of FARC
in Colombia. It found
that FARC is still a problem in Colombia and does have a
presence in Bogotá. It noted FARC has used landmines and explosives, that it is
managing to infiltrate armed forces, that it is reinforcing its urban militia,
that it continues to use extortion and that it still engages in political
killings and intimidation of judges. However, after reviewing the documentary
evidence, the Board concluded that Colombia is making serious
efforts to provide adequate protection to citizens who fear FARC and these
efforts are most successful in Bogotá. The Board found that FARC’s presence in
Bogotá is limited to three main activities: terrorist attacks on security
forces and politicians, extortion of merchants and corporations and recruiting
at the university level and poorer areas in southern parts of the city. The
Board also found that none of these actions of FARC occurred with impunity.
[43]
Moreover,
the evidence pointed to by the applicants as ignored by the Board, highlights
that the Colombian government is not able to provide sufficient protection
throughout the entire state. However, as noted above, the onus was on the
applicants to show that the Colombian state cannot provide adequate protection
anywhere in the country. I do not find that the Board ignored probative
evidence.
[44]
Similarly,
it was open to the Board to give the report from Dr. Chernick limited probative
weight. Board members have considerable discretion in deciding how much weight
should be afforded to the evidence (see Velychko v. Canada (Minister of
Citizenship and Immigration), 2010 FC 264 at paragraph 26). The Board
gave little weight to the report by Dr. Chernick because it found that the
professor did not provide evidence to support his opinion and did not indicate
whether the people mentioned in his report who were targeted by FARC had
attempted to seek state protection. This was a transparent and justified
decision and was open to the Board to conclude in this manner. It is not the
role of this Court to reweigh the evidence.
[45]
The
Board reviewed the documentary evidence, including that of the applicants,
acknowledged the applicants’ submissions and arguments, but found that based on
the totality of the evidence, the applicants had not met the onus of providing
that state protection would not be adequate for them, particularly in Bogotá. The
Board’s conclusion was transparent and intelligible and within the range of
possible outcomes.
[46]
Finally,
while the Board provided no evidence for the statement that FARC had no
interest in the applicants, the applicants testified that their close relatives
still living in Bogotá have not been harassed by the FARC. In light of this, I
do not consider the statement by the Board to be an error which undermines it’s
otherwise reasonable decision.
[47]
In
summary, I am unable to conclude that the Board’s decision was unreasonable.
Its finding regarding the adequacy of state protection was well within the
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[48]
As a
result, the application for judicial review must be dismissed.
[49]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[50]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
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
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
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.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
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.
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