Date: 20070327
Docket: IMM-3031-06
Citation: 2007 FC 321
BETWEEN:
GERMAN ADOLFO CADAVID ALVAREZ
MARGARITA RUBIANO RUEDA
JOSUE CADAVID RUBIANO
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing on the 22nd of March, 2007 of an
application for judicial review of a decision of the Refugee Protection
Division (the “RPD”) of the Immigration and Refugee Board wherein the RPD
determined the Applicants not to be Convention refugees or persons otherwise in
need of like protection. The decision of the RPD is dated the 3rd
of May, 2006.
BACKGROUND
[2]
German
Adolfo Cadavid Alvarez (the “principal Applicant”) is a citizen of Colombia and
of Spain. He has
extensive education and is qualified as an architect in Colombia. As such,
he was deeply involved in a number of high profile design and construction
projects in Colombia.
[3]
Margarita
Rubiano-Rueda (“Ms. Rubiano-Rueda”), a citizen of Colombia only, is the
spouse of the principal Applicant. Josue Cadavid Rubiano (“Josue”) is the son
of the principal Applicant and Ms. Rubiano-Rueda and is eleven (11) years of
age at the date of these reasons.
[4]
The
principal Applicant was born in Bogota, Colombia and has
spent most of his life there. He acquired Spanish citizenship through his
mother, a citizen of Spain, who was born in that country.
[5]
Ostensibly
by reason of the principal Applicant’s involvement in high profile design and
construction projects in Colombia, the principal Applicant was, on three (3)
separate occasions in the summer of 2000, contacted by telephone by persons
purporting to be members of, or associates of, the Armed Revolutionary Forces
of Colombia (“FARC”), a notoriously violent revolutionary force in Colombia. According
to his testimony, he was “invited” to meet with members of FARC. On each
occasion, he was threatened, and on each occasion his wife and son were also
threatened. The principal Applicant confided with his wife in respect of each
of these telephone contacts. The principal Applicant did not attend any of the
anticipated meetings.
[6]
The
Applicants attempted to “hide out” in Cali, Colombia but feared
their efforts in that regard were unsuccessful.
[7]
The
principal Applicant became involved in a design and construction project in St.
Kitts. The Applicants travelled to St. Kitts where the principal Applicant
continued his involvement with the design and construction project. The
family’s removal to St. Kitts served as a convenient means of escaping the pressure
and threats from FARC.
[8]
When
the design and construction project in St. Kitts wound up, the Applicants,
having determined that asylum was not available to them in St. Kitts, determined
not to return to Colombia, and not to take advantage of the principal
Applicant’s Spanish citizenship, but rather to come to Canada and seek
asylum here. They arrived in Canada on or about the 12th of April,
2002 and claimed Convention refugee status, or like protection, here.
THE DECISION UNDER
REVIEW
[9]
While
the RPD, in its reasons, under the heading “DETERMINATION” wrote:
The panel determines as
the claimants has not provided credible or trustworthy evidence they are not
“Convention refugees” nor are they “persons in need of protection” for a risk
to life or a risk of cruel and unusual treatment or punishment or danger of
torture. [errors in the original]
[10]
The
foregoing being said, the RPD went on under the heading “ANALYSIS” to find the
principal Applicant not to be entitled to protection in Canada because of his Spanish
citizenship and his admission that he had no fear of persecution in, and thus
no fear of removal to, Spain.
[11]
The
RPD went on to find that Josue similarly had no claim in Canada to
protection:
…as a child of one
parent who is a citizen of Spain (regardless of the child’s country of birth)
[and that citizenship in Spain could therefore be obtained by him]
without difficulty.
Surprisingly, at least to the Court, having
so concluded with respect to Josue, the RPD made no similar finding with
respect to Ms. Rubiano-Rueda and treated Colombia as the only
country of reference in relation to her claim.
[12]
The
RPD then went on to examine Colombia, as a country of
reference, for both Josue and Ms. Rubiano-Rueda. Under the sub-heading “Is it
reasonable or plausible for these two claimants [that is to say Josue and Ms. Rubiano-Rueda]
to resettle back in Colombia without running the ire of the FARC?”, the RPD
answered its own rhetorical question with the following words:
The panel believes that as
they were never targets this would be possible.
[emphasis
added]
[13]
The
RPD went on to conclude with respect to Josue and Ms. Rubiano-Rueda, with
respect, apparently ignoring its earlier conclusions in respect of the principal
Applicant and Josue that they had no claim by reason of, in one case, Spanish
citizenship, and in the other case, ability to obtain Spanish citizenship as a
“mere formality”, in the following terms:
Overall, and, especially
given the passage of time, the panel determines that the claimant’s [sic] behaviour
throughout is not consistent with people fleeing either persecution or a risk
to life or of cruel and unusual treatment or punishment or a danger of torture.
ANALYSIS
[14]
While
it was conceded before the Court that the principal Applicant’s claim to protection
could not succeed by reason of his Spanish citizenship and his acknowledged
lack of fear of settling in Spain, the RPD’s conclusion with respect to Josue
and Ms. Rubiano-Rueda is substantially more problematic, particularly in light
of its examination of Ms. Rubiano-Rueda’s claim solely against Colombia and
Josue’s claim against Colombia notwithstanding its conclusion, not adequately
supported in the opinion of the Court, that he had a safe haven “…by way of a
mere formality,…” in Spain.
[15]
While
counsel for the Applicant urged many reviewable errors on the part of the RPD,
the Court is satisfied that one alone is determinative. The RPD’s
determination that Josue and Ms. Rubiano-Rueda were “never targets” of the
FARC’s threats, against the standard of review of patent unreasonableness,
constitutes an erroneous finding of fact made by the RPD without regard to the
totality of the evidence before it.
[16]
In
the principal Applicant’s narrative forming part of his Personal Information
Form, the principal Applicant records that, in respect of the first telephone
call he received from FARC, he was advised that “…they (FARC) knew who I was
and who my wife and children were.” He went on to record that, in that
telephone conversation, he was advised that “…they (FARC)”…needed information
and that if [he] did not collaborate the life of my wife Margarita and my son
were [sic] in danger.”
Later in his narrative, in respect of a later telephone conversation, the
principal Applicant recorded that he was advised that he could not “play” with
FARC and that if he did not comply with their wishes, he “…should forget [his]
wife and …son.”
The principal Applicant confirmed the foregoing in his testimony before the
RPD.
[17]
The
principal Applicant’s attesting to threats against Josue and Ms. Rubiano-Rueda
was confirmed by Ms. Rubiano-Rueda in her testimony.
[18]
I
am satisfied that all of the foregoing was confirmed as consistent with the
tactics of FARC in the documentary evidence that was before the RPD.
[19]
The
RPD places some emphasis on the time that had elapsed between the threats and
the Applicants leaving Colombia and the time of its
reasons for rejecting the Applicants’ claims. The nature of the information
that FARC would appear to have been seeking from the principal Applicant would
further appear not to be time-sensitive. The fact that the principal
Applicant’s claim was rejected because he had recourse to residence in Spain was not
significant. If Josue and Ms. Rubiano-Rueda, or either of them, were required
to return to Colombia, they could still be utilized by FARC to put pressure on
the principal Applicant to himself return to Colombia to provide information
that FARC allegedly was seeking and to face the punishment that might follow
once he had provided information, by reason of his failure to provide the
information earlier.
CONCLUSON
[20]
It
was not in dispute before the Court that the RPD’s conclusion in respect of the
principal Applicant was open to it. In the result, this application for
judicial review will be dismissed as against the principal Applicant. That
being said, based upon the brief foregoing analysis, the Court concludes that
the RPD’s conclusion in respect of Josue and Ms. Rubiano-Rueda is not
sustainable. In respect of those two applicants, the decision under review
will be set aside and referred back to the Immigration and Refugee Board for
rehearing and re-determination by a differently constituted panel.
CERTIFICATION OF
QUESTION
[21]
At
the close of the hearing before the Court, counsel were advised of the Court’s
conclusions. When consulted, neither counsel recommended certification of a
question. The Court itself concludes that no serious question of general
importance here arises. In the result, no question will be certified.
“Frederick E. Gibson”
Ottawa, Ontario
March
27, 2007
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