Date: 20110822
Docket: IMM-1247-11
Citation: 2011 FC 1013
Ottawa, Ontario, August 22, 2011
PRESENT: The Honourable
Mr. Justice Crampton
BETWEEN:
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WILFREDO ANGULO BELALCAZAR
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Applicant
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and
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THE MINISTER OF PUBLIC
SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Wilfredo Angulo Belalcazar, joined the Autodefensas Unidas de
Columbia (AUC), a terrorist organization, after he was told that he “owed
them,” presumably for losing one kilogram of their cocaine when he was arrested
and eventually imprisoned for importing that cocaine into the United
States.
[2]
In
July 2009, he fled to Canada and was almost immediately apprehended. Shortly
afterwards, the Minister reported him for inadmissibility under the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). This led to an
admissibility hearing before the Immigration Division of the Immigration and
Refugee Board.
[3]
Ultimately,
the Board found that the Applicant had not established the defence of duress to
the degree required by law, but rather was a voluntary member of the AUC.
Accordingly, it issued a Deportation Order pursuant to paragraph 229(1)(a) of
the Immigration and Refugee Protection Regulations, SOR/2002-227.
[4]
The
Applicant submitted that the Board erred by:
i.
failing
to address a number of elements of the legal test of duress;
ii. failing to
address certain evidence that did not support its conclusion; and
iii. failing to
provide adequate reasons to support a plausibility finding that it made.
[5]
For
the reasons that follow, this application will be dismissed.
I. Background
[6]
The
Applicant is a citizen of Colombia. In 2001, he was convicted in the United States of possession with
intent to distribute 500 grams or more of cocaine and was imprisoned for
approximately two years. On his release in April 2003, he was deported to Mexico and soon made his way
back to his hometown of Buenaventura,
Colombia.
[7]
Shortly
after his return, he joined the Autodefensa Bloque Calima del Pacifico, a
regional chapter of the AUC, after being told that he had to join their
organization. The AUC is a listed terrorist organization under section 83.05 of
the Criminal Code, RSC 1985, c C-46.
[8]
The
people from whom the Applicant received orders in the AUC contacted him almost
every day to give him instructions or to arrange meetings which were held
several times each week. At the first meeting, he was told that his job would
be to threaten, kidnap and murder FARC members and sympathizers. He then put
threatening notes under people’s doors on numerous occasions, indirectly
participated in two kidnappings, and was involved in approximately 10
confrontations at people’s homes, where he “had to shoot people along with
other group members who were there.” However, he stated that he always shot to
miss and didn’t think he hurt anyone.
[9]
In
December 2003, the Applicant stopped participating in the AUC’s activities. Fearing
for his safety, he fled the area with the help of two friends. He went into
hiding with his aunt, but was caught when he returned to his home to visit his sick
mother. Members of the AUC then tied him up and tortured him for 10 days before
he was able to escape by prying loose a rotting board in the wall and jumping
into the water below.
[10]
The
Applicant then fled again, this time to the United States. In 2009,
when American officials were cracking down on illegal aliens, he decided to
come to Canada to stay with
a friend, who had told him that he could claim refugee protection here.
[11]
Shortly
after being arrested at a bus station in Calgary, two days after his arrival in
Canada, he claimed refugee protection and disclosed that he had lived and
worked illegally in the United States, had been convicted and imprisoned for
possessing the cocaine described above, and had been involved with a group in
Colombia whose name he did not remember.
[12]
On
May 25, 2010, the Applicant voluntarily disclosed his involvement with the AUC.
II. The Decision
under Review
[13]
The
Board rejected the Applicant’s defence of duress on the basis that he had not
acted in a manner that is consistent with the fear of imminent physical peril.
In addition, the Board found that his story about how he escaped from the AUC
after he was found and allegedly tortured by them was “simply not plausible”.
III. Standard
of Review
[14]
The
issue that the Applicant has raised with respect to whether the Board erred by
failing to address a number of the elements of the legal test of duress is
reviewable on a standard of correctness (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339,
at para 44).
[15]
The
issue that the Applicant has raised with respect to the Board’s failure to
address certain evidence that did not support its conclusion is reviewable on a
standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, at paras 51-55; Thiyagarajah v Canada (Minister of
Citizenship and Immigration), 2011 FC 339, at para 16).
In short, the Board’s treatment of the evidence will stand so long as it falls
“within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law” and is sufficiently justified, transparent and
intelligible (Dunsmuir, at para 47).
[16]
In
reviewing the issue that the Applicant has raised with respect to the adequacy
of the Board’s reasons in relation to an adverse plausibility finding that it
made, I must determine whether those reasons: (i) focused on the factors that
must be considered in the decision-making process;
(ii) enable the Applicant to exercise his
right to judicial review; and (iii) enable me to conduct a meaningful review of
the Board’s decision (Canada (Minister of
Citizenship and Immigration) v Ragupathy, 2006 FCA 151, 53 Imm
LR (3d) 186, at para 14). Stated differently, I must determine whether the
reasons adequately explain “what” was decided and “why” the decision was made (Law
Society of Upper Canada v Neinstein, 2010 ONCA 193, 99 OR (3d) 1, at para
61; Clifford v Ontario Municipal Employees
Retirement System, 2009 ONCA 670, 98 OR (3d) 210, at para 40).
IV. Analysis
A. Did the Board err by
failing to address one or more elements of the legal test for duress?
[17]
The
Applicant submits that, after correctly stating the legal test of duress, the
Board erred by failing to address a number of the elements of that test, as set
forth in the applicable jurisprudence and in article 31 of the Rome Statute
of the International Criminal Court, December 18, 1998, Can TS 2002 No 13,
2187 UNTS 90 (entered into force July 1, 2002) [the Rome Statute].
[18]
I
disagree.
[19]
With
respect to the elements of the legal test of duress, I agree with the
Respondent that the three main elements of the test are conjunctive (see Oberlander
v Canada (Attorney General), 2009 FCA 330, 83 Imm LR (3d) 1, at paras
25-36; Ramirez v Canada (Minister of Employment and Immigration), [1992]
2 FC 306, 89 DLR (4th) 173, at para 40; Poshteh v Canada (Minister of
Citizenship and Immigration), 2005 FCA 85, 252 DLR (4th) 316, at para 52;
see also Article 31(1)(d) of the Rome Statute, in particular the word
“and” between the first and second elements of the test). In brief, each of
those elements must be met to satisfy the defence of duress. Stated
differently, the failure to satisfy any one of those elements will be fatal,
and upon finding that any element has not been satisfied, the Board will not be
obliged to proceed to address the remaining elements.
[20]
The
Respondent submitted that, even if it is assumed that the Board accepted that
threats of death or serious bodily harm to the Applicant or to members of his
family were made by the AUC, it was not unreasonable for the Board to conclude
that the Applicant had not established the required element of “imminence” of
such death or serious bodily harm.
[21]
I
agree. The determination made by the Board with respect to the element of
duress was based upon the following findings:
i.
The
Applicant testified that he had been a member of the AUC for approximately 5
months, during which time he participated in approximately 10 shootouts;
ii. When he made
his decision to leave the AUC, the Applicant “simply stopped taking their calls
and moved to his Aunt’s house;”
iii. The Applicant
continued to visit his mother at the residence where AUC members had previously
met him, and where he testified they eventually found him again after he left
their organization; and
iv. By returning
to a location where AUC members would know he could be found, the Applicant had
not acted in a manner that is consistent with the fear of imminent physical
peril.
[22]
I
am satisfied that the language used by the Board in stating these findings was
an acceptable way of paraphrasing and applying the proper legal test with
respect to the element of “imminence” in the test of duress.
[23]
In
my view, those findings were sufficiently justified, transparent and
intelligible to support the Board’s conclusion with respect to the imminence
element of the test of duress. Given those findings, that conclusion fell well
within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[24]
Having
reasonably concluded that the Applicant had not satisfied the “imminence”
element of the test for the defence of duress, the Board was not required to
proceed to consider the other two conjunctive elements of that test, including
the proportionality element. Moreover, the Board was not required to consider
whether the alleged threats had in fact been made by the AUC, or other persons,
or was constituted by other circumstances beyond the Applicant’s control.
[25]
On
the facts of this particular case, the Board also did not err by failing to
address the possibility that the Applicant joined the AUC to, at least in part,
protect other members of his family. The uncontested evidence was that the AUC knew
where his mother lived, yet never harmed her – or any other members of his
family – in any way, even though his mother and aunt continued to live in their
respective homes throughout the relevant period. The fact that, after he was
captured by the AUC, his mother was threatened with harm if she contacted the
police is irrelevant to whether a reasonable person living in Colombia, at the
time the Applicant joined the AUC, would have believed that his family members
would be seriously harmed if he did not join that organization.
B. Did
the Board err by failing to address certain evidence?
[26]
The
Applicant submitted that the Board erred by failing to consider, in concluding
that he had not established the defence of duress, evidence he had adduced with
respect to: (i) the torture that he allegedly suffered at the hands of the AUC;
(ii) the country documentation that reported upon the strength and unity of the
AUC within Columbia, its ties to the Colombian government, its forced
recruitment of young people, and the terror it instilled in Colombia at the
relevant time; (iii) the Applicant’s fear that the AUC would kill or seriously
harm members of his family if he did not join them; and (iv) the alleged murder
of two of his friends at the hands of the AUC.
[27]
In
my view, once the Board found that the Applicant had not acted in a manner
consistent with a fear of imminent physical peril, it was not necessary for the
Board to consider this evidence. In short, the finding that the Applicant had
not acted in a manner consistent with a fear of imminent physical peril was a
sufficient basis upon which to reasonably conclude that he had not established,
from an objective perspective, that he held such a fear when he joined and
remained with the AUC.
[28]
I
acknowledge that the language used by the Board in the first sentence in
paragraph 19 of its decision clearly reflected a conclusion regarding the
Applicant’s subjective state of mind. However, contrary to the Applicant’s
submissions, I am satisfied that the language used by the Board in the
remaining sentences of paragraph 19 (which is set forth at paragraph 21 above),
reflect that it had concluded that a reasonable person living in Colombia at
that time would not have “apprehend[ed] that he was in such imminent physical
peril as to deprive him of the freedom to choose the right and refrain from the
wrong” with respect to his decision to join the AUC (Ramirez, above). In
making this finding, the Board was effectively rejecting the Applicant’s claim
that such a reasonable person would have joined and remained with the AUC, as
he did, out of the fear of death or imminent physical peril.
[29]
In
stating that the Applicant had participated in about 10 shootouts, had been a
member of the AUC for approximately 5 months, had simply stopped communicating
with the AUC and moved to his aunt’s house when he made his decision to leave
the AUC, and had returned to a location where the AUC knew they could find him,
the Board was effectively stating, in a transparent and intelligible manner,
that the Applicant had not been under a risk of imminent physical peril or
death during his time with the AUC. At no time did the Applicant testify or
adduce any evidence to suggest that he was “under constant watch” during that
time and could not have effected “a carefully planned desertion” from the AUC (see
Valle Lopes v Canada (Minister of
Citizenship and Immigration), 2010 FC 403, at para 108).
C. Did the Board err by
failing to provide
more detailed reasons with respect to a plausibility finding that it made?
[30]
The
plausibility finding made by the Board with respect to the Applicant’s story
regarding how he escaped from the AUC after they tortured him, was made after
the Board articulated its conclusion on the determinative element of the
imminence of the Applicant’s fear of death or imminent physical peril.
Accordingly, that finding was obiter dictum. While the Board may
have erred by failing to provide more detailed reasons with respect to this
finding, that error was not material to the outcome of the Applicant’s
admissibility hearing.
D. Did the Board err by
failing to conduct a more detailed assessment of whether the Applicant was a “member”
of the AUC?
[31]
The
Applicant did not contest the Board’s statement, at paragraph 2 of its
decision, that the AUC is a listed entity designated by Order-in-Council PC
2003-456, dated April 2, 2003 under section 83.05 of the Criminal Code. Moreover,
the Applicant stated in the addendum to his Personal Information Form that he
“joined” the AUC and subsequently “left” that organization. In my view, it was
not unreasonable for the Board to proceed with its analysis on the basis of the
view that the Applicant was a member of a terrorist organization, as
contemplated by paragraph 34(1)(f) of the IRPA, without conducting a more
comprehensive assessment of whether in fact the Applicant was a “member” of such
an organization. The Applicant’s failure to address this point in its written
submissions precluded him from raising the issue for the first time at the oral
hearing before me.
V. Conclusion
[32]
The
application for judicial review is therefore dismissed.
[33]
At
the end of the oral hearing, the Applicant’s counsel proposed the following
question for certification: “Is it reasonable for the Board to make a finding
that the defence of duress has not been established, based solely on a finding
that the Applicant faced no threat of imminent death or physical peril?” In my
view, this is not a serious question, as the answer to the question is obvious
from a plain reading of the jurisprudence and the Rome Statute. Accordingly,
no question will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed.
“Paul S. Crampton”
_________________________________
Judge
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