Docket: IMM-4068-11
Citation: 2011 FC 1504
Toronto, Ontario, December 20,
2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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KATTERINE NAYIBE MARTINEZ GONZALEZ
GERMAN DARIO ACOSTA FERNANDEZ DAVID
ACOSTA MARTINEZ
PAULA ANDREA ACOSTA MARTINEZ
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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]
German
Dario Acosta Fernandez and his family seek judicial review of a decision of the
Refugee Protection Division of the Immigration and Refugee Board which
determined that the family were not Convention Refugees or persons in need of
protection. The determinative issue for the Board was the availability of state
protection in Colombia for victims
of extortion at the hands of the Revolutionary Armed Forces of Colombia [FARC].
[2]
For
the reasons that follow, I have concluded that the Board’s decision was
reasonable. As a consequence, the application for judicial review will be
dismissed.
Background
[3]
Mr.
Acosta’s experience with the FARC began in 1993 when he was targeted for
extortion while operating his own trucking company. As a result of these
threats, Mr. Acosta abandoned his trucking business in order to pursue other
work.
[4]
In
2003, when the situation in Colombia had become more stable,
Mr. Acosta decided to re-establish his trucking business, this time in the city
of Santamarta. On December
2, 2009, while driving through the town of Buenaventura, four FARC
members approached Mr. Acosta’s truck and threatened Mr. Acosta and his
associate at gunpoint. The bandits stole 200,000 pesos from Mr. Acosta, and
demanded that he pay an additional 1.5 million pesos per month in return for
permission to conduct business in the area.
[5]
Upon
his return to Bogotá, Mr. Acosta reported the incident to the Office of the
Attorney General [OAG]. The OAG referred him to the Unified Action Group for
Personal Freedom [GAULA]. GAULA evidently did not have monetary jurisdiction
over extortion of lesser amounts such as that involved in Mr. Acosta’s case.
Consequently, it referred him back to the OAG which then advised Mr. Acosta to
report the incident to the police in Buenaventura. Mr. Acosta did not
take this advice.
[6]
On
January 22, 2010, two FARC members approached Mr. Acosta, this time in his
garage in Santamarta. They threatened him and demanded that he pay them 20
million pesos.
[7]
Mr.
Acosta made no attempt to report this second extortion attempt to the police.
After consulting with his wife and brother-in-law, he decided to flee Colombia
with his family and come to Canada.
Analysis
[8]
While
the applicants raise a number of arguments, ultimately the issue to be
determined is the reasonableness of the Board’s finding that they had failed to
rebut the presumption that the state of Colombia would be
able to protect them.
[9]
The
applicants submit that Colombia is not a developed
democracy like the United States. As a consequence, the statement at paragraph 46 of Hinzman v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th) 413 [Hinzman]
that an applicant must exhaust all of the possible avenues of protection
available to him before seeking refugee protection should not apply in this
case.
[10]
Clearly,
not all democracies are created equal, and the maturity of the democratic
system in a given country will inevitably lie somewhere along a spectrum: Capitaine
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 98, 166 A.C.W.S. (3d) 150.
[11]
However,
it has long been a principle of Canadian refugee law that the burden of proof
on a claimant to rebut the presumption of state protection is “directly
proportional to the level of democracy in the state in question: the more
democratic the state’s institutions, the more the claimant must have done to
exhaust all the courses of action open to him or her”: Canada (Minister of
Citizenship and Immigration v. Kadenko (1996), 143 D.L.R. (4th) 532, [1996]
F.C.J. No. 1376 (Q.L.) (F.C.A.) at para. 5.
[12]
The
Federal Court of Appeal’s decision in Hinzman does not change this. Indeed,
it reiterates that a claimant coming from a democratic country “will have a
heavy burden when attempting to show that he should not have been required to
exhaust all of the recourses available to him domestically before claiming
refugee status”: at para, 57. To rebut the presumption that the state is
capable of protecting its citizens, a claimant must provide “clear and
convincing confirmation of a state's inability to protect”: Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74
(Q.L.) at para. 50 [Ward].
[13]
Moreover,
a refugee
claimant’s failure to approach his own state for protection may defeat his
claim where “it
is objectively unreasonable for the claimant not to have sought the protection
of his home authorities”: Ward, above at para. 49.
[14]
In
this case, the Board clearly understood that the burden on a refugee claimant
was tied to the level of democracy in the country in question. The Board
discussed the extent of the democracy in Colombia at some
length, and further examined the nature and reach of its law enforcement
institutions. No error on the part of the Board has been shown in this regard.
[15]
The
applicants further submit that the law does not require a refugee claimant to
put his or her life in danger in order to access state protection, and that it
was unreasonable to expect Mr. Acosta to have to risk his life by returning to Buenaventura to file a
police report with respect to the first attempted extortion. The Board erred,
the applicants say, by failing to consider whether requiring the victim of an
attempted extortion to return to the scene of the crime was reasonable in the
circumstances.
[16]
A claimant will generally
be required to seek protection in the appropriate jurisdiction: Sanchez v.
Canada (Minister of Citizenship and Immigration), 2011 FC 491, [2011]
F.C.J. No. 610 (Q.L.); Martinez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1050, 141
A.C.W.S. (3d) 116.
[17]
It
is clear that the Board was aware that the onus was on Mr. Acosta to take “all reasonable
measures” to access state protection: Reasons at para. 23, [emphasis added].
The Board was not satisfied that he had done so. Moreover, it is evident from
the transcript that the primary explanation offered by Mr. Acosta for his
failure to seek protection in Buenaventura was that he had become frustrated
with the run-around that he had received from Colombian authorities. In the
circumstances, the Board’s conclusion that Mr. Acosta had not made reasonable
efforts to seek state protection in Buenaventura was itself reasonable.
[18]
I
am also not persuaded that the Board erred in relying on Mr. Acosta’s failure
to seek state protection with respect to the second extortion attempt. As the
Board noted, Mr. Acosta did not go to the local police in Santamarta. He also
failed to inquire as to whether he could report the matter to the GAULA, given
that the monetary demands in the second incident were significantly larger than
in the first.
[19]
The
Board considered, and reasonably rejected, Mr. Acosta’s explanation for his
failure to seek state protection in relation to the second extortion attempt.
In so doing, it examined the evidence as to the availability of state
protection in Colombia, and whether
Mr. Acosta could reasonably have expected such protection to have been
forthcoming. The Board acknowledged that the evidence in this regard was mixed,
and had clearly considered the contrary evidence relied upon by the applicants.
[20]
Finally,
while I accept that the two references to Mexico in one
paragraph of the Board’s decision are unfortunate, I am nevertheless satisfied
that this is nothing more than a typographical error. After reviewing the
reasons as a whole, including the lengthy discussions on country conditions,
there can be no question that the Board understood that the country in issue in
this claim was Colombia.
Conclusion
[21]
For
these reasons, the application for judicial review is dismissed.
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 dismissed; and
2. No
serious question of general importance is certified.
“Anne
Mactavish”
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