Date: 20110609
Docket: IMM-6066-10
Citation: 2011 FC 657
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 9, 2011
PRESENT: The Honourable Mr. Justice Simon
Noël
BETWEEN:
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JAVIER FERNANDO MONZON ORTEGA
DIANA MARCELA BARRIGA PEREZ
DANIEL FERNANDO MONZON BARRIGA
DIANA ALEJANDRA MONZON BARRIGA
ADRES MONZON BARRIGA
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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
JUDGMENT AND JUDGMENT
[1]
The Court is asked to determine the validity of
a decision of the Immigration and Refugee Board of Canada’s Refugee Protection
Division (RPD). In that decision, dated September 8, 2010, the RPD denied the
principal applicant and her family the status of refugees and persons in need
of protection within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27.
[2]
The principal applicant and her husband are from
Colombia. While her husband was working in the United States, the principal
applicant allegedly received two telephone calls from a unit of the
Revolutionary Armed Forces of Colombia (FARC), a paramilitary group previously
very active in Colombia. Afterwards, the principal applicant was allegedly
visited and threatened by three men. The principal applicant was operating a
database company, which allegedly had in its possession information on company
directors. The FARC allegedly wanted to have access to these data and had
threatened the principal applicant and her family to obtain them.
[3]
The RPD found that despite the threats, the FARC’s
influence at the time of the hearing had substantially decreased and that state
protection was available should the family seek it, which they had not done
before their departure. This finding relied on the immigration law principle
that foreign nationals must first exhaust their internal recourses before
seeking protection from another state. Moreover, the RPD found that none of the
Convention grounds or section 96 of the IRPA applied in this case.
[4]
In support of their application for judicial
review, the applicants submit that the RPD should have relied on a persuasive
decision of the RPD, which was applicable when the events in question occurred,
but which has since been discarded as being persuasive. According to the
applicants, that decision accurately reflected the state of Columbia’s fight
against the FARC. In addition, the applicants argued that the RPD ignored the
documentation establishing that the FARC did indeed have considerable influence
and that it was reasonable not to approach the authorities for protection.
According to the applicants, the RPD’s findings were therefore not supported by
the documentary evidence and were therefore invalid.
Issue and
standard of review
[5]
The issue concerns the RPD’s evaluation of the
documentary evidence and its assessment of state protection in Columbia. It is
a question of mixed fact and law which is reviewable on a standard of reasonableness
(Dunsmuir v New-Brunswick, 2008 SCC 9; Hinzman v Canada (Citizenship
and Immigration), 2007 FCA 171; Guevara c Canada (Citizenship and
Immigration), 2011 FC 242). The Court’s intervention is thus more limited: it
has to determine whether the decision falls within a range of outcomes which
are defensible in respect of the facts and law, whether it is intelligible, and
whether it is based on an adequate foundation, without, however, being perfect.
Analysis
[6]
The RPD’s decision is reasonable regarding the
availability of state protection in the state of Columbia.
[7]
First, the RPD was not bound by the persuasive
decision, even though it was in effect at the time of the alleged events.
Indeed, it is trite law that the nature of a risk assessment is prospective,
not retrospective (Pour-Shariati v Canada (Minister of Employment and
Immigration), [1995] 1 FC 767; Katwaru v Canada (Citizenship and
Immigration), 2010 FC 196; Llorens Farfan v Canada (Citizenship and
Immigration), 2011 FC 123). The RPD therefore did not err in analyzing the current
status of state protection in Columbia, rather than relying on the decision previously
deemed to be persuasive and on the status of the FARC at the time of the events.
In any event, decision makers are not obliged to rely on a persuasive decision
when that decision is in effect. Judge Gibson properly clarified this at
paragraph 22 of Caro Rios v Canada (Minister of Citizenship and
Immigration), 2006 FC 1437:
It is to state
the obvious that “Policy Note[s]” are not law. They are not binding on members
of the RPD. As indicated in the foregoing quotations Members are encouraged to
rely upon “Persuasive Decisions” in the interests of consistency and
collegiality, nothing more. If there is a sanction to flow from failure to
acknowledge them, it is to be internal to the RPD; it is not for this Court to
sanction such failure.
[8]
A fortiori, this
is true for a decision whose persuasive status had been revoked at the time the
RPD assessed the file.
[9]
What remains is the assessment of the
documentary evidence on the availability of sufficient, albeit imperfect, state
protection in Columbia against FARC threats. The applicants have the burden of
establishing the inadequacy or absence of state protection (Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689). The past not being an indication of
the future, it is not necessary for the state to have always been effective in
protecting its citizens for the protection to be deemed adequate (Gomez
Espinoza v Canada (Citizenship and Immigration), 2009 FC 806). Moreover, it
remains trite law that the RPD is presumed to have reviewed the totality of the
evidence and is qualified to select among the evidence those elements that
support an otherwise reasonable position (Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration)), (1998) 157 FTR 35 (FC); Ozdemir
v Canada (Minister of Citizenship and Immigration), 2001 FCA 331).
[10]
In that regard, the RPD did not fail to
recognize that the evidence was contradictory; however, the RPD determined and
found that the following factual findings were required:
i.
The measures implemented resulted in a
considerable reduction in the actions of illegal groups between 2002 and 2008,
without, however, eradicating these groups.
ii.
People are increasingly reporting crimes, and
crime is dropping.
iii.
The FARC is experiencing serious communications
and supply problems, and its sphere of influence has been substantially reduced.
iv.
Even though protection is not perfect, the state
of Columbia has taken significant steps to ensure public safety.
[11]
These findings were properly based on the
documentary evidence and are reasonable according to the applicable standard of
review. Aside from that, without this being determinative, this decision is
consistent with a recent decision of this Court on the availability of state
protection in Columbia against FARC threats, namely Guevera, above.
[12]
The RPD’s decision is therefore reasonable, and
the application for judicial review is dismissed. No question for certification
was proposed.
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