Docket: IMM-2036-11
Citation: 2011 FC 1339
Calgary,
Alberta, November 21, 2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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WILLIAM FERNANDO ORTIZ RINCON
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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]
While the Refugee Protection Division of the
Immigration and Refugee Board accepted that William Fernando Ortiz
Rincon had been targeted by the Revolutionary Armed Forces of
Colombia [FARC], it did not accept that FARC had located Mr. Ortiz after he
moved to Bogotá. The Board was further satisfied that adequate state protection
would be available to Mr. Ortiz in Colombia. As a result, his refugee claim was dismissed.
[2]
For the reasons that follow, I have concluded
that the Board’s decision was unreasonable. As a consequence, the application
for judicial review will be allowed.
The
Finding that FARC did not follow Mr. Ortiz to Bogotá
[3]
Mr. Ortiz was managing his wealthy family’s
cattle ranch in Caqueza when FARC began demanding that he provide it with protection
money. After the second demand, Mr. Ortiz fled to Bogotá, where he began
working in one of his family’s supermarkets.
[4]
The Board seemingly accepted that FARC had targeted
Mr. Ortiz for extortion while he was in Caqueza, but did not accept that it had located him
in Bogotá or that it continued its efforts to extort him in that city. There
are two problems with this finding.
[5]
Mr. Ortiz testified that when he was contacted
by FARC after he relocated to Bogotá, he was so frightened that he had to seek
medical assistance. This testimony was corroborated by a medical report that
confirmed that Mr. Ortiz had suffered a panic attack and had required medication.
While the physician’s report could not identify the agents of
persecution, it did provide contemporaneous corroboration that Mr. Ortiz was terrified during the
time in question. The medical evidence is not addressed in the
decision, and it was sufficiently material that I am prepared to infer that it
was overlooked by the Board: see Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), (1998), 157 F.T.R. 35,
[1998] F.C.J. No. 1425 at paras.14-17.
[6]
The Board also based its finding that Mr. Ortiz
was not targeted by FARC while he was living in Bogotá in part on its belief
that other members of Mr. Ortiz’ family had not been targeted. In coming to
this conclusion, the Board observed that an article dealing with the kidnapping
of Mr. Ortiz’ uncle did not specifically state that the kidnapping had been
carried out by FARC, as Mr. Ortiz had claimed. However, Mr. Ortiz put evidence
before the Board indicating that newspapers in Colombia regularly self-censor, and do not attribute crimes to FARC because
of threats of violence. It was open to the Board to decide how much weight to
attribute to this evidence, but it was not open to the Board to simply ignore
it.
[7]
In light of these errors, I am satisfied that
the Board’s negative credibility finding regarding FARC’s pursuit of Mr. Ortiz
to Bogotá was unreasonable.
The State
Protection Analysis
[8]
The Board was also satisfied that adequate state
protection was available to Mr. Ortiz in Colombia. It based this finding in part on the reasonableness of the police
response when Mr. Ortiz sought assistance after being threatened in Bogotá.
[9]
I would start by observing that it is difficult
to reconcile the Board’s finding that the police in Bogotá took “reasonable
steps” in response to the threats received by Mr. Ortiz with its finding that
Mr. Ortiz was not threatened while he was living in that city.
[10]
More problematic, however, is the Board’s
finding that the police in Bogotá had actively assisted Mr. Ortiz when he
sought their protection. According to the Board, after Mr. Ortiz sought
protection, the police responded by installing a surveillance camera outside
the supermarket where he worked. The Board further found that the police hooked
up a recorder to the store’s phone to record future threats, and that they provided
Mr. Ortiz with a recording device to carry on him.
[11]
The respondent acknowledges that these findings
are contrary to the evidence before the Board. Mr. Ortiz testified that the
only things that the police did for him were to give him a telephone number to
call in the event that he was contacted again by FARC, and to make suggestions
as to how he might protect himself. There was no evidence before the Board to
support the finding that the police provided the security camera or the
recording devices. Indeed, these safety measures were taken by Mr. Ortiz
himself.
[12]
It is difficult to assess the extent to which
the Board’s assessment of the country condition information was coloured by its
misunderstanding of Mr. Ortiz’ own experience in trying to access protection.
Certainly, there was documentary evidence before the Board that supported Mr.
Ortiz’ story, particularly as it related to the limited ability of the police
to protect Colombian citizens from FARC. In the circumstances, I am satisfied
that the Board’s factual error was material to its state protection analysis.
[13]
There was also evidence before the Board that
corroborated Mr. Ortiz’s claim that FARC remains active and continues to commit
human rights abuses, despite the loss of its leaders. This evidence, which ran
contrary to the Board’s finding that FARC had been largely marginalized, was
not dealt with by the Board.
[14]
The Board’s review of the country condition
information also appears to have been selective. It found that Colombia is a country in which human rights
violators “are held accountable for their actions through the rule of law”.
However, there was significant evidence before the Board, including reports by Professors
Brittain and Chernick, which discussed the persistence of impunity in Colombia,
as well as the subornation and intimidation of judges, prosecutors and
witnesses; corruption; and the infiltration of Colombia’s state institutions by armed groups.
[15]
The professors’ evidence supported Mr. Ortiz’s
claim that adequate state protection was not available to him in Colombia. Indeed, Drs. Brittain and
Chernick each described FARC’s increased presence in urban areas, its ongoing
use of extortion as a means of fundraising, its tendency to single out business
and farm owners as targets, and its ability to track individuals within the
country. Dr. Brittain’s report also highlights the unreliability of Colombian
government data, potentially calling into question some of the information
relied upon by the Board.
[16]
The Board did not explain why it discounted this
evidence. The only acknowledgement of the conflicting evidence regarding
current conditions in Colombia was the statement that “there are too many
interest groups painting somewhat conflicting pictures of the FARC, its
strength and capabilities”, and its acknowledgment that “[a]rticles and reports
submitted by counsel and/or the clamant indicate continuing FARC activity”.
[17]
In my view, these generic statements are not
sufficient to meet the level of justification, transparency and intelligibility
mandated by Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, [2008] 1 S.C.R. 190 at paras. 47,
58 and 163.
[18]
While there is a presumption that a
decision-maker has considered all of the evidence, that presumption is rebutted
where, as here, “the evidence omitted from any discussion in the reasons
appears squarely to contradict the agency's finding of fact”: Cepeda-Gutierrez,
above at para. 17.
[19]
The reports of Drs. Brittain and Chernick discuss
the availability of state protection for business owners targeted for extortion
in urban areas. They provided relevant evidence that corroborated Mr. Ortiz’s
allegations and which squarely contradicted the Board’s findings. In these
circumstances, I am satisfied that the failure of the Board to come to grips
with this evidence rendered its state protection analysis unreasonable.
[20]
Before concluding, I would note that Justice
Barnes recently came to a similar conclusion with respect to the failure of the
Board to properly deal with the Brittain and Chernick reports in a similar
case: see Ortiz de Martheyn v. Canada (Minister of Citizenship and
Immigration) (3 October 2011), Ottawa IMM-1861-11 (FC).
Conclusion
[21]
For these reasons, the application for judicial review is allowed.
Certification
[22]
Neither party has suggested a question for certification, and none
arises here.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed; and
2. No
serious question of general importance is certified.
“Anne
Mactavish”
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