Date: 20110627
Docket: IMM-1736-10
Citation: 2011
FC 777
Ottawa, Ontario,
June 27, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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IRINA BUITRAGO SALAZAR &
SERGIO NOLBERTO RUIZ ESCOBAR
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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
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 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 March 23, 2010, wherein the applicants were determined
not to be Convention refugees or persons in need of protection under sections
96 and 97 of the Act.
[2]
The applicant, Irina Buitrago Salazar (the female applicant) requests
that the decision of the Board be set aside and the claim remitted for
redetermination by a different member of the Board. It is only the female
applicant’s decision that is being challenged in this judicial review.
Background
[3]
Irina
Buitrago Salazar was born on November 23, 1969 and is a citizen of Colombia.
[4]
The
female applicant married Mauricio Emerson Buitrago Aleman in the United States on February 12, 2002.
In July 2002, they traveled to the department of Caquetá, Colombia to visit relatives. On the way, their car
was intercepted by members of Fuerzas Armadas Revolucionarias de Colombia (FARC). The female
applicant was raped in front of her husband. The female applicant went to the
hospital and police after the incident. The marriage did not survive this
violence and the couple divorced one year later.
[5]
Sergio
Nolberto Ruiz Escobar (the male applicant) owned a business in Colombia. In 2000, he
was approached by two men claiming to be FARC militia who demanded money from
him. He refused to pay these men and told them his brother was in FARC and he
would have them beaten up if they returned. The male applicant was taken from
near his home in January 2001 and demanded money from these same men and
another FARC member. The male applicant explained that he was a FARC
sympathizer and he wanted to support the cause. He was told to pay three
million pesos by March 2001 and then 500,000 pesos every month from then on.
The male applicant did not go to the police but rather left Colombia for the United
States
on a tourist visa.
[6]
The
female and male applicants married in January 2007.
[7]
The
applicants arrived in Canada on October 21, 2007 and claimed refugee
protection.
Board’s Decision
[8]
The
Board found both of the applicants credible and trustworthy.
[9]
Concerning
the female applicant, the Board stated that being part of a particular social
group does not in itself establish a well founded fear of persecution. The
Board found that the attack on the female applicant was random not targeted.
There was insufficient evidence to suggest that the attackers knew the female
applicant or could discover her identity and no evidence that they continued to
pursue her, thus there was no serious possibility of persecution in Colombia today.
[10]
The
Board also found that a viable internal flight alternative (IFA) exists for the
female applicant. She was assaulted in the department of Caquetá, Colombia, where FARC
continues to have a stronghold. However, FARC no longer has a presence in
Cundinamarca or Boyaca where she could live safely. There is evidence that FARC
does not have the capacity to track the female applicant to this location
because of government successes against FARC in the past few years. FARC has
lost internal communication, the number of soldiers has decreased the
centralized command had deteriorated. There was no evidence that these
locations are unreasonable places to relocate.
[11]
Finally,
the Board determined that subsection 108(4) of the Act did not apply in this
case. It found that the “compelling reasons” exception only applies where the
Board has determined that a person would have been a Convention refugee or
person in need of protection, but that the conditions that led to such a finding
no longer exist. The Board stated that this was not the case because it was not
satisfied that the female applicant was a Convention refugee or person in need
of protection at time she left Colombia because an IFA would
have been available, the low level of threat she faced and because there were
no change in circumstances.
Issues
[12]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the Board err by
not applying the compelling reasons test of subsection 108(4) of the Act?
3. Did the Board apply
the correct test for a current IFA?
Female Applicant’s Written
Submissions
[13]
The
female applicant submits that the Board erred by incorrectly applying the
“compelling reasons” test of subsection 108(4) of the Act. The Board should
have determined whether the female applicant was a refugee at the time of the
persecution, whether there have been changes since that time and whether a
compelling reasons assessment was warranted.
[14]
The
Board’s conclusion about why the compelling reasons exception was not triggered
did not follow from its analysis. The Board stated that an IFA was available
for the female applicant at the time she left Colombia, the
applicant was a low-level threat and there had been no change in circumstances.
However, the Board never assessed whether an IFA existed at the time of
persecution. Rather, it assessed only that a valid IFA existed at the time of
the hearing. Neither did the Board assess the level of threat at the time of
persecution. The Board accepted that at the time of the attack by FARC, the
evidence was that FARC would have been able to seek out the female applicant
and find her. Finally, by the Board’s own analysis, there had been changes in
the circumstances since the time of persecution.
[15]
The Board was required to assess state
protection in 2002. The Board erred in finding that the female applicant did
not have a well founded fear of persecution without assessing whether the
Colombian state was able to protect her.
[16]
The female
applicant further submits that the Board erred in finding that a viable IFA
exists today for the female applicant. The Board was required to assess the
Immigration and Refugee Board’s Chairperson’s Guidelines on Women Refugee Claimants
Fearing Gender-Related Persecution (Gender
Guidelines) in conjunction with its findings of an IFA, failing to do so was an
error.
Respondent’s Written Submissions
[17]
The
respondent submits that in order to invoke section 108 of the Act, the Board
must first make an explicit finding that an applicant has suffered persecution
and would be found to be a refugee or person in need of protection except that
the reasons for the persecution have ceased. The Board made no such finding in
this case.
[18]
The
respondent submits that the Board found that there was no nexus to a Convention
ground for either applicant as both claims were based on criminality.
[19]
The
respondent submits that the burden is on the female applicant to show that
there is no IFA. The test for proving that the Board’s finding of an IFA is wrong,
is a strict one. In this case, the Board analyzed the extensive documentary
evidence on the situation between the government and the FARC. The Board also
reasonably concluded that there was no evidence that the IFA locations were
objectively unreasonable.
[20]
The
respondent submits that the psychological report made conclusions about
immigration issues and therefore was not relevant. Despite this, the report was
considered by the Board.
[21]
The
Board further considered the Gender Guidelines. The female applicant did not
claim that she was or would be ostracized for reporting her attack to the
police. There was also no evidence that she would move to an IFA without her
husband so the restrictions on movement by single women referred to in the
Gender Guidelines were not applicable.
[22]
Finally,
the respondent notes that oral decisions may form adequate reasons. The main
factors relevant to the decision were set our and discussed by the Board. It
clearly stated why the female applicant’s claim failed and what factors were
important to the decision. This decision was reasonable.
Analysis and Decision
[23]
Issue
1
What is the appropriate
standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[24]
In
this case, the issue concerning the application of subsection 108(4) is whether
the Board erred in finding that the applicants were not refugees or persons in
need of protection at the time of persecution. This is a question of mixed fact
and law, not a pure error of law, and is therefore reviewable on the standard
of reasonableness (see Adel v Canada (Minister
of Citizenship and Immigration), 2010 FC 344 at paragraph 22).
[25]
Whether or not the Board applied the correct test for assessing
the current IFA is reviewable on the standard of correctness (see Meneses
Gonzalez v Canada (Minister of Citizenship and Immigration), 2010 FC
691 at paragraph 7).
[26]
Issue 2
Did the Board err by not applying the compelling reasons test of
subsection 108(4) of the Act?
The Board found that the
compelling reasons exception of subsection 108(4) did not apply in this case
because it had not made a determination that the female applicant was a
Convention refugee or a person in need of protection at the time they left Columbia.
[27]
The
problem lies in the Board’s reasons for this finding. The Board stated that the
female applicant was not a refugee or person in need of protection at the time
she left Colombia because:
…an Internal Flight Alternative would
have been available and because of the low level of threat [she] faced, and
there has been no change in circumstances….
[28]
First,
the Board spent approximately two pages of its
decision reviewing the changes to the political and military strength of the
FARC and government in Colombia and the
loss of control and power by FARC over the past several years. This is in
direct contradiction to its statement that section 108 did not apply because
“there has been no change in circumstances.”
[29]
Second, the Board’s IFA analysis was intricately linked to its
discussion on the change of circumstances. Although asserting that it did, the
Board did not find a viable IFA existed at the time of persecution. Rather, it
stated precisely, that today “there is evidence that the FARC ‘no longer
operated in the departments of Cundinamarca or Boyaca’”. The Board’s IFA
analysis found that with the passage of time and the deterioration of FARC over
the past decade, the female applicant could now live safely in areas where FARC
is no longer a threat.
[30]
Finally, the Board did not assess the level of threat that the
female applicant posed at the time of her attack.
[31]
The jurisprudence on subsection 108(4) is clear that the Board
must first find a refugee claimant to be a Convention refugee or person in need
of protection at the time of persecution before the compelling reasons
exception applies. In Nadjat v Canada (Minister
of Citizenship and Immigration), 2006 FC 302, Mr. Justice
James Russell held at paragraph 50 that there must be “. . . a finding that the
claimant has at some point qualified as a refugee, but the reasons for the
claim have ceased to exist”.
[32]
As I held in John v Canada (Minister
of Public Safety and Emergency Preparedness), 2010 FC 1088 at paragraph
41:
This requires a clear statement conferring the prior existence of
refugee status on the claimant, together with an acknowledgement that the
person is no longer a refugee because circumstances have changed.
[33]
There was no such conference on the female applicant in this case.
However, given the errors in the Board’s analysis, I cannot know whether it
would have found the female applicant to be a refugee or person in need of
protection at the time of the persecution, absent these errors.
[34]
For this reason, the judicial review is allowed.
[35]
Because of my finding, I need not deal with the remaining issue.
[36]
Neither party wished to submit a proposed serious question of
general importance for my consideration for certification.
JUDGMENT
[37]
IT IS ORDERED
that the
application for judicial review is allowed and the matter is referred to a
different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 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.
108.(1) A claim for refugee protection
shall be rejected, and a person is not a Convention refugee or a person in
need of protection, in any of the following circumstances: . . .
(e) the
reasons for which the person sought refugee protection have ceased to exist.
. . .
(4) Paragraph
(1)(e) does not apply to a person who establishes that there are compelling
reasons arising out of previous persecution, torture, treatment or punishment
for refusing to avail themselves of the protection of the country which they
left, or outside of which they remained, due to such previous persecution,
torture, treatment or punishment.
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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.
108.(1)
Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou
de personne à protéger dans tel des cas suivants :
. .
.
e)
les raisons qui lui ont fait demander l’asile n’existent plus.
. .
.
(4)
L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons
impérieuses, tenant à des persécutions, à la torture ou à des traitements ou
peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a
quitté ou hors duquel il est demeuré.
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