Date: 20110317
Docket: IMM-4738-10
Citation: 2011
FC 325
Toronto, Ontario, March 17, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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JENNY PATRICIA MARTINEZ MUNOZ
ROBINSON BARBOSA CEBALLOS
LIZBETH VANESSA TOVAR MARTINEZ JOCELIN BARBOSA MARTINEZ
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Applicants
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
The
present Application concerns a Colombian family’s claim for refugee protection
from the FARC in Colombia. The essence of the claim is
that, in April 2004, the Applicant father operated a wholesale avocado business
in Cali and, on its demand, began to pay extortion money to FARC. By December
2004, because he was unable to make the payments, he was severely beaten and
the lives of his family were threatened. As a result, the family fled and
ultimately claimed refugee protection in Canada on March 25, 2008.
[2]
The
Refugee Protection Division (RPD) denied the claim. It is important to note that
no negative credibility finding was made with respect to the truth of the
evidence offered in support of the claim. In denying the claim the RPD made the
following findings:
I am satisfied that the claimants failed
to establish that for them state protection would be inadequate in Cali where
they have lived in the past, or in the alternative that Bogota does not meet
both requirements of a viable internal Flight Alternative (IFA). Hence, I
reject the claims.
Analysis:
In Cali, the claimants made no attempt to seek
the assistance of the authorities when extortion was demanded. Even after being
beaten, the claimant did not make a report to the authorities in late 2004.
The claimant testified that he did not
make a report on the instruction of the FARC. He believed that if he went to
the authorities, it would make the situation worse since the FARC would find
out he had made a report.
I am not aware of reliable reports of
businessmen who refused to pay extortion being harmed in Cali in late 2004 or past 2004.
The Immigration and Refugee Board (the “Board”)
has been unable to find evidence that persons have been harmed in large urban
cities during this period.
Academics have reported their opinion
that FARC has such a capacity but even if that is the case, there is no
reliable evidence that FARC has used this capacity to harm persons such as the
claimant or their family in urban areas such as Cali when demands were not met if the victims
used the assistance of the authorities.
I note the facts of this case suggest the
claimant’s father has had his truck stolen by guerrillas in 2005. As of the
date of the hearing, this is the only incident reported by a member of the
claimant’s family. The father still lives in Cali today.
The theft of the truck was reported,
however there was no mention that the father believed it was related to his son’s
problems.
There is no evidence the guerrillas
retaliated as a result of the police report concerning the stolen truck.
Since the claimant’s father made a report
and is still able to reside in Cali, I am satisfied that the
claimant’s fear of retaliation if he had taken similar action is not justified.
As a result, I am satisfied the claimants
failed to establish that for them state protection would have been inadequate
if they had requested it in 2004 before leaving Colombia.
In the alternative is Bogota a viable IFA due to the
existence of adequate state protection today? I am satisfied this is the case.
(Decision, paras. 13 to 24)
[3]
Thus, the
Applicant father’s reason for not seeking state protection is the fear that
somehow the information would get from the police to FARC. The test with
respect the acceptance of this reason in the context of a claim for protection
is stated in Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at paragraph
57:
Reading
all these authorities together, a claimant coming from a democratic country
will have a heavy burden when attempting to show that he should not have been
required to exhaust all of the recourses available to him domestically before
claiming refugee status. In view of the fact that the United States is a
democracy that has adopted a comprehensive scheme to ensure those who object to
military service are dealt with fairly, I conclude that the appellants have
adduced insufficient support to satisfy this high threshold. Therefore, I find
that it was objectively unreasonable for the appellants to have failed
to take significant steps to attempt to obtain protection in the United States
before claiming refugee status in Canada.
[Emphasis
added]
[4]
I find
that the RPD failed to make the determination to which the Applicant was
entitled. Rather than appropriately determine whether the claimant’s fear of
reporting was “objectively unreasonable”, the RPD offered an opinion on the
different question: whether businessmen who refused to pay were harmed by FARC
in Cali, or other large urban cities,
in 2004. The fact that the Applicant’s father had no difficulty reporting the
theft of the truck to the police is completely irrelevant: he was not reporting
life-threatening extortion under fear of retaliation. It is clear from the
reasons that the RPD was prepared to reject the claim for protection on the
failure to report. I find that to have done so would be to decide the claim in
reviewable error because the nature and quality of the Applicant’s reason for
not reporting was not evaluated according to law as expressed in Hinzman,
and, therefore, is not defensible (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, para. 47). Indeed, apparently to guard against such a
possible outcome upon judicial review, the RPD went on to make an Internal
Flight Alternative finding “in the alternative”.
[5]
During the
course of the hearing of the present Application, I identified the error to
Counsel for the Applicant and Respondent, but nevertheless, requested argument
on the alternative finding. Having thought the matter through, I have concluded
that it was inappropriate to do so. In my opinion, if a central determination
is reached in an RPD decision which has the potential of ending a claimant’s hope
for obtaining protection, and that determination is found to be erroneous, regardless
of the argued merit of any alternative finding, I believe that it is only fair
to set such a decision aside. I find that this is the just result in the
present case.
ORDER
Accordingly, the decision
under review is set aside and the matter is referred back for redetermination
by a differently constituted panel.
There is no question to
certify.
“Douglas
R. Campbell”
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