Docket: IMM-2626-11
Citation: 2011 FC 1461
Ottawa, Ontario, December 12,
2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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GERMAN GUILLERMO MOLANO FONNOLL
(a.k.a. GERMAN GUILLERM MOLANO FONNOLL)
SANDRA RODRIGUEZ MIRANDA
JUAN CAMILO MOLANO RAMIREZ
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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
I. Introduction
[1]
This
is an application for judicial review of a decision of the Immigration and Refugee
Board (the Board), rendered on March 7, 2011, where it determined that German
Guillermo Molano Fonnol and his wife, Sandra Rodriguez Miranda, are excluded
from Convention refugee status under section 1E of the United Nations
Convention relating to the Status of Refugees (the Convention). It
also concluded that Mr. Fonnol, Ms Miranda and Mr. Fonnol’s son, Juan Camilo
Molano Ramirez (all together the applicants), are neither convention refugees
nor persons in need of protection as contemplated by sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001 c 27 [IRPA].
[2]
For
the reasons that follow, this application for judicial review is dismissed in
part.
II. Facts
[3]
Mr.
Fonnoll is a citizen of Colombia who claims refugee
protection because he is persecuted by the Revolutionary Armed Forces of
Colombia [FARC]. He is accompanied by his wife and his son from a previous
marriage.
[4]
Mr.
Fonnoll alleges that he is persecuted by the FARC due to his perceived
political opinion and membership in the Liberal party. He submits that he worked
for that party during past political campaigns.
[5]
In
1992, Mr. Fonnoll and his wife founded a pre-school center called “Jardin
Infantil Divino Nino”. The center was located in the rural area of Cota, a
suburb of Bogota.
[6]
In
1998, Mr. Fonnoll and his wife were able to award five scholarships to the
indigenous community of Cota. In return, they were to receive fiscal
incentives. The scholarships included full tuition and other expenses paid.
[7]
On
March 8, 1999, Ms. Miranda received a threatening call because indigenous
children were enrolled at the center.
[8]
The
following weeks, systematic calls were received demanding the withdrawal of the
indigenous children from the center.
[9]
On
April 16, 1999, Mr. Fonnoll accompanied Mr. Gomez, the bus driver who was
driving the children to their homes. On the road from Suba to Cota, an orange Jeep
stopped right in front of the bus, forcing Mr. Gomez to stop abruptly. Two men
came out of the Jeep identifying themselves as FARC members. One of them
pointed a gun at Mr. Gomez’s head and the other one violently hit Mr. Fonnoll
on the back of his head with a shotgun. They threatened Mr. Fonnoll and warned
him to expel the indigenous children from his school. After threatening him,
the FARC members violently kicked the two men, breaking Mr. Fonnoll’s jaw and
nose.
[10]
On
the same day, Mr. Fonnoll reported the incident to the police. However, they
told him to come back if this kind of situation occurred again. FARC members
were also requesting money from Mr. Fonnoll on a monthly basis.
[11]
Another
incident occurred at the center when parents were in attendance. The parents’
vehicles were allegedly damaged by members of FARC. These incidents were
reported to the police who then decided to investigate.
[12]
In
early July of 1999, Mr. Fonnoll and his wife decided to expel the indigenous
children from their pre-school center, thinking their problem would be
resolved. This decision was taken while they were away on vacation.
[13]
Returning
home, they received another call. The caller informed Mr. Fonnoll that he had now
become a military target due to his involvement with the Liberal party and his failure
to pay the war taxes. This event forced Mr. Fonnoll and Ms. Miranda to abandon
their center, leaving the two instructors in charge. They also rented their
apartment and left for Cucuta, where they stayed with Ms. Miranda’s
father.
[14]
On
October 24, 1999, Mr. Fonnoll left for the United States of
America
[USA] as he had
obtained a visitor’s visa. Ms. Miranda joined him on December 7, 1999. They
extended their visitor’s visas once and after learning about the immigration
process, applied for asylum on December 13, 2000. Their claim was rejected on
February 20, 2003, because their application was filed late. However, they were
granted a withholding of removal. Mr. Fonnoll and Ms. Miranda were also given
work permits and a social security number.
[15]
As
time passed, applicants never received any further correspondence from the
American authorities, notifying them of a removal date. Fearing that they could
be deported at any time, and seeing Colombians in a similar position being
deported, they enquired about the possibility of seeking refuge in Canada.
[16]
In
November 2008, they left the USA and arrived in Canada. Mr. Fonnoll’s
son came and joined them in August 2009 from Colombia.
III. Legislation
[17]
The
applicable legislation is appended to this decision.
IV. Issues and
standard of review
A. Issues
1. Did
the Board err in determining that Mr. Fonnoll and Ms. Miranda were excluded
under Article 1E of the Convention?
2. Did
the Board err in determining that the applicants were neither Convention
refugees nor persons in need of protection?
B. Standard
of review
[18]
In
Zeng v Canada (Minister of Citizenship and Immigration),
[2010] FCJ No 632, 2010 FCA 118 [Zeng], the Court of Appeal writes, at
paragraph 11 of its decision “the parties agree, and I concur, that the test for exclusion
under Article 1E of the Convention is a question of law of general application
to the refugee determination process and is reviewable on a standard of
correctness. Whether the facts give rise to exclusion is a question of mixed
fact and law yielding substantial deference to the RPD” and calling for the
standard of reasonableness.
[19]
The
standard of review applicable to the Board’s determination of the applicants’
objective and subjective fear is the standard of reasonableness (see Moreno v Canada (Minister of
Citizenship and Immigration), 2011 FC 841 at para 7).
[20]
The
standard of review on the Applicant’s status under Article 1E of the Convention
is correctness.
V. Parties’
submissions
A. Applicants’
submissions
[21]
The
Board found that Mr. Fonnoll and his wife were excluded from Convention refugee
status under Article 1E of the Convention. Mr. Fonnoll and his wife argue that
the central issue in considering exclusion under Article 1E of the Convention
is whether an individual possesses the same rights and obligations than that of
nationals of the country that has granted them asylum; in this instance, the United
States of America.
[22]
They
submit that the Board failed to properly analyze their claim as they never
possessed the rights and obligations of American nationals. They could not
leave and re-enter the USA. Mr. Fonnoll and his wife submit that the right
to return to the country of residence is crucial in the application of Article
1E of the Convention as in Shamlou v Canada (Minister
of Citizenship and Immigration), 103 FTR 241 [Shamlou]; Mahdi
v Canada (Minister of Citizenship and Immigration), [1995] FCJ No
1623, 32 Imm LR (2d) 1; Olschewski v Canada (Minister of Employment and
Immigration), [1993] FCJ No 1065).
[23]
Mr.
Fonnoll submits that he and his wife could not work freely without any restrictions.
He had to re-apply for his work permit on a regular basis. American authorities
could have decided not to review his permit at any time. In addition, his
social insurance security was only valid if accompanied by proper
identification from immigration. Mr. Fonnoll argues that this requirement
demonstrates that he had restricted rights when compared to those of an
American citizen.
[24]
Mr.
Fonnoll did not have a study permit and did not have access to social services
in the USA. He instead
had a pending removal date. He states that several of his friends with the same
status were arrested and deported without any notice or right of appeal.
[25]
Mr.
Fonnoll further submits that the Board was under the obligation to review all
relevant factors when analyzing his status. Mr. Fonnoll argues that he and his
wife should not be excluded under 1E of the Convention more so when the
criteria set by the Federal Court of Appeal in Zeng is applied in this
instance.
[26]
Mr.
Fonnoll also submits that the Board erred in law when it applied Wangden
v Canada (Minister of
Citizenship and Immigration), 2009 FCA 344 [Wangden].
[27]
It
is submitted by Mr. Fonnoll that the Board committed another error when it
concluded that he had no subjective fear. The Board, having accepted that Mr.
Fonnoll was targeted by the FARC in Colombia, should therefore not
have rejected his claim on the basis of subjective fear.
[28]
In
Shanmugarajah v Canada (Minister of Employment and
Immigration), [1992] FCJ No 583 [Shanmugarajah], the Federal Court
of Appeal states, at paragraph 3 of its decision that “… it is almost always
foolhardy for a Board in a refugee case, where there is no general issue as to
credibility, to make the assertion that the claimants had no subjective element
in their fear…”
[29]
Mr.
Fonnoll argues that his decision to leave the USA and come to Canada was
consistent with his fear of persecution in his home country. He could not stand
the uncertainty under which he was living in the USA and he was
terrified because he saw how people were being deported from the USA.
[30]
The
Board concluded that the Mr. Fonnoll would no longer be targeted by the FARC
due to the passage of time and that he did not fit the profile of those listed
in the United Nations High Commissioner for Refugees Guidelines (Guidelines).
[31]
The
Board’s interpretation of the facts is misleading, as the FARC targeted Mr.
Fonnoll and his wife because they created scholarships for indigenous children.
The fact that the center was situated in Bogota is
immaterial. The FARC targeted the applicant for his social and political
opinion.
[32]
Mr.
Fonnoll argues that the Board based its decision on immaterial considerations.
The fact that his son was not targeted in Colombia is not
determinative. Mr. Fonnoll testified that his son was living with his
biological mother and never was a part of the problem concerning the FARC. He
contends that it was never relevant to the claim.
[33]
Mr.
Fonnoll also provided objective evidence that FARC members continue persecuting
their enemies, even years after they have fled Colombia. Many Colombians
who have fled and gone back after years were persecuted upon their return.
Moreover, Mr. Fonnoll submits that the National Documentation Package [NDP]
concurs with this contention.
[34]
Mr.
Fonnoll argues that he presented reliable evidence that people who were once
targeted by the FARC continue to face a serious risk in Colombia even several
years after the initial threats. The Board ignored all the evidence that
supported his claim. The failure to address the evidence that directly
contradicted the Board’s conclusion is a reviewable error (Cepeda-Guitierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No
1425, 157 FTR 35; Villicana v Canada (Minister of Citizenship and
Immigration), 2009 FC 1205).
B. Respondent’s
submission
[35]
The
respondent concedes that the Board made an error in excluding Mr. Fonnoll under
Article 1E of the Convention. Nonetheless, this finding is not
determinative of the Applicant’s claim as the Board found that they were neither
Convention refugees nor persons in need of protection, due to a lack of both
objective and subjective fear. The respondent submits that the Board’s decision
is reasonable and that is does not require the Court’s intervention (see Ezokola
v Canada (Minister of Citizenship and Immigration), 2011 FCA 224 at
para 79; Bouasla v Canada (Minister of
Citizenship and Immigration), 2008 FC 930).
[36]
Both
Mr. Fonnoll and his wife decided to leave the USA to come to Canada despite
their withholding status and the fact that no removal order had been issued against
them. The protection offered by a withholding status was discussed in Wangden
cited above. The Board considered the Wangden case and concluded that
Mr. Fonnoll’s decision to come to Canada demonstrated a lack of
subjective fear. The Respondent argues that this determination is reasonable
and consistent with the jurisprudence of the Federal Court of Appeal.
[37]
The
applicants argue that since the Board found them credible, it could not
conclude that they did not have a subjective fear. However, the respondent
argues that even if the Board can find a narrative of events credible, it can
also determine that Mr. Fonnoll and his wife lacked subjective fear.
[38]
The
applicants submit that the Board erred in finding that Mr. Fonnoll and Ms.
Miranda did not have the profile of people who have a risk of objective fear of
persecution in Colombia. They did not however demonstrate that they are
part of one of the groups at risk described in the Guidelines according to respondent.
[39]
The
respondent submits that the Board examined the nature of the applicants’
profiles in Colombia, including
Mr. Fonnoll’s membership in a political party, his ownership of a flower
business and his partnership with Ms. Miranda in a pre-school center. The Board
also made a distinction between teachers in rural areas and Mr. Fonnoll and Ms.
Miranda’s pre-school center which was situated in the suburbs of Bogota. Contrary to
what is argued by the applicants, the Board’s analysis regarding the location
of the center was relevant in order to determine if both Mr. Fonnoll and his
wife were at risk.
[40]
In
addition, the issue of whether the FARC has the capacity to pursue its victims,
after several years spent outside Colombia, is distinct from the issue of
whether it is more likely than not that the FARC would target the applicants.
There is no indication that the Board ignored evidence regarding the risk for
certain individuals in Colombia. Rather, the Board’s
findings do not contradict that evidence and, as such, it did not require a
specific reference in the Board’s decision.
[41]
Finally,
contrary to what is argued by the applicants, the respondent submits that since
Mr. Fonnoll’s son was not targeted by the FARC, it shows a lack of objective
fear. The Board concluded that Mr. Fonnoll’s son had not demonstrated any
subjective or objective fear. The applicants did not dispute this finding.
Consequently, the Board’s decision is reasonable.
VI. Analysis
1. Did
the Board err in determining that Mr. Fonnoll and Ms. Miranda were excluded
under Article 1E of the Convention?
[42]
The
Federal Court of Appeal formulated a test in instances where reference to the
applicability of Article 1E of the Convention is raised. The Court writes, at
paragraph 28 of Zeng cited above, that
[28] Considering
all relevant factors to the date of the hearing, does the claimant have status,
substantially similar to that of its nationals, in the third country? If the
answer is yes, the claimant is excluded. If the answer is no, the next question
is whether the claimant previously had such status and lost it, or had access
to such status and failed to acquire it. If the answer is no, the claimant is
not excluded under Article 1E. If the answer is yes, the RPD must consider and
balance various factors. These include, but are not limited to, the reason for
the loss of status (voluntary or involuntary), whether the claimant could
return to the third country, the risk the claimant would face in the home
country, Canada's international obligations, and any other relevant facts.
[43]
According
to Zeng, the Board must first determine whether an Applicant has a
status substantially similar to that of nationals of the third country”. The
Board found that Mr. Fonnoll and his wife are excluded on the basis that they
obtained a withholding of removal status, which guarantees the fundamental core
rights, such as non-discrimination, freedom of religion, access to courts and
education.
[44]
Mr.
Fonnoll and his wife argue that, in applying the framework established by Zeng,
one must come to the conclusion that they are not excluded under Article 1E of
the Convention. On the date of the hearing before the Board, Mr. Fonnoll
and Ms. Miranda did not have a status in the USA similar to
that of its nationals. Their withholding of removal status ceased upon their
departure from the USA and therefore, the answer to the first question
of the test set-out in Zeng is negative. Furthermore, they never
possessed a status in the USA similar to that of its nationals. The
answer to the second question in Zeng is also in the negative. Hence,
Mr. Fonnoll and Ms. Miranda argue that they are not excluded under Article 1E
of the Convention.
[45]
As
for the respondent, he concedes that the Board erred in its application of Article
1E. However, it is alleged that this error is not determinative of the Board’s
decision since it found the applicants were neither Convention refugees nor
persons in need of protection.
[46]
The
Board cited the Wangden case in support of its decision. Justice Mosley
concluded that “Though
a person granted withholding has a more limited range of rights than a person
granted asylum under U.S. law, he or she still
enjoys several important entitlements. The differences do not undermine my
conclusion that withholding of
removal is equivalent to recognition as a Convention refugee” (see Wangden
v Canada (Minister of
Citizenship and Immigration), 2008 FC 1230 at para 75). He also concluded that
“holders of withholding of removal status in the United States are Convention
refugees within the meaning of paragraph 101(1)(d) of the IRPA” (see Wangden
at para 77). Based on the objectives of the IRPA and the wording of
section 101(1)(d), Justice Mosley determined that parliament “did not
want to assist persons who simply prefer asylum in one country over another. The
Convention and the Immigration Act should be interpreted with the correct
purpose in mind” (Mohamed v Canada (Minister of Citizenship
and Immigration), 127 FTR 241, [1997] FCJ No 400 at para 9) which is, to
protect individuals at risk (see Wangden at para 72). All of Justice
Mosley’s conclusions were accepted and confirmed by the Federal Court of
Appeal.
[47]
However,
the ineligibility decision in the present case is based on section 98 of the IRPA
rather than paragraph 101(1)(d) of the IRPA. Paragraph 101(1)(d)
of the IRPA is not applicable and a withholding of removal based on
section 98 of the IRPA is not a recognition of a Convention Refugee
Status. Justice Harrington held in Valaei-Bakhshayesh v Canada
(Minister of Citizenship and Immigration), 2011 FC 1130 at para 19, that
“Article 1E thereof provides that the Convention does not apply to a person
recognized in the country in which he has taken residence as having the rights
and obligations which are attached to the possession of the nationality of that
country”. This is not the case here.
[48]
The
Court agrees with the applicants that the Board erred in determining that they had
the same status in the United States as that of its
nationals. In Shamlou, Justice Teitelbaum accepted the criteria outlined
by Mr. Lorne Waldman in Immigration Law and Practice, Vol. 1, which
underlines that “if
the applicant has some sort of temporary status which must be renewed and which
could be cancelled, or if the applicant does not have the right to return to
the country of residence, clearly the applicant should not be excluded under
Art. 1E” (See Shamlou at para 35; Lorne Waldman, Immigration Law and
Practice, Vol. 1, Markham, Ontario: Butterworths, 1992, [sec.] 8.218 at
8.204-8.205). The Board’s finding that Mr. Fonnoll and Ms. Miranda were
excluded under Article 1E of the Convention is unreasonable.
2. Did
the Board err in determining that the applicants were neither Convention
refugees nor persons in need of protection?
[49]
Mr.
Fonnoll contends that the Board recognized that he was targeted by the FARC. Consequently,
the Board’s conclusion that Mr. Fonnoll and his wife did not have a subjective
fear is unreasonable. The Board did not find that Mr. Fonnoll and his wife were
targeted by FARC members but instead concluded that Mr. Fonnoll was a credible
witness as his narrative was consistent with the narrative of his US claim.
[50]
On
the issue of credibility, Mr. Fonnoll relies on the Federal Court of Appeal’s
decision in Shanmugarajah where the Court writes that “… it is almost always
foolhardy for a Board in a refugee case, where there is no general issue as to
credibility, to make the assertion that the claimants had no subjective element
in their fear…” In the present case, the Board noted that Mr. Fonnoll and Ms.
Miranda received a withholding of deportation ruling in the USA which had
enabled them to work. They obtained work permits and exploited their own flower
business. Mr. Fonnoll also had a driver’s licence. There was no deportation
order issued against them. Mr. Fonnoll and his wife decided to abandon their withholding
of deportation in the USA to come to Canada. As a result, they took
a chance that is indicative of a lack of subjective fear since they could be
deported in their country of origin at anytime.
[51]
Mr.
Fonnoll argues that his precarious situation in the USA was
consistent with his fear of persecution in Colombia. The Court
finds the Board’s conclusion to be reasonable since no order of deportation was
ordered against Mr. Fonnoll or Ms. Miranda. Their fear of being deported from
the USA is purely speculative
and is not supported by any objective evidence.
[52]
The
Board also found that they were not included in any of the groups at risk
within the Guidelines. This conclusion is reasonable as it demonstrates that
there is no objective evidence to support their claim.
[53]
Mr.
Fonnoll contends, however, that the Board’s finding on this issue is immaterial
since the FARC were targeting him on the basis of his social and political
opinions. The Board did not explicitly discuss the issue of Mr. Fonnoll’s
political and social opinions in its decision. Firstly, the Board was under no
obligation to discuss the issue of the indigenous children since this problem
was supposedly resolved. As for his political opinions, there was no evidence
before the Board to show that he was persecuted because of such opinions and
affiliation with the Liberal Party.
[54]
The
Board additionally determined that Mr. Fonnoll’s son did not have any
subjective or objective fear of persecution since there was no evidence to
support his allegations.
[55]
The
Court finds the Board’s decision to be reasonable as the applicants lacked in
subjective and objective fear of persecution. There was no objective evidence
before the Board to support their allegations. Since they lacked subjective
fear, the Board did not have to discuss whether the FARC could, even after several
years, find the applicants in Colombia. The applicants failed
to demonstrate the likelihood that the FARC would target them in their country
of origin.
[56]
“Tribunals have a margin
of appreciation within the range of acceptable and rational solutions… In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (see Dunsmuir v New-Brunswick,
2008 SCC 9 at para 47 [Dunsmuir]). The Board’s decision, although not
perfect, is within the range of possible and acceptable outcomes as per Dunsmuir.
Decisions being reviewed on the reasonableness standard must be accorded deference.
VII. Conclusion
[57]
This
application for judicial review is dismissed in part since the Board’s finding
on article 1E of the Convention is unreasonable. However, the Board’s
conclusion on sections 96 and 97 of the IRPA is reasonable as the applicants
failed to adduce any objective evidence to support their fear of persecution in
Colombia.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
this
application for judicial review is dismissed in part, the Court is setting
aside the portion of the Board’s decision finding that the principal applicant
to be excluded under Article 1E of the Convention, that matter is referred back
to the Board, the remainder of the decision is upheld; and
2.
there
is no question of general importance to certify.
"André
F.J. Scott"
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