Date: 20080819
Docket: IMM-151-08
Citation: 2008 FC 954
Ottawa,
Ontario, August 19, 2008
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
AMANDA ROCIO BARRERA TORRES
JOSE MAURICIO MUNOZ MARTA
ESTEBAN MUNOS BARRERA
MARIA FERNANDA MUNOZ BARRERA
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), following a decision
by the Refugee Protection Division of the Immigration and Refugee Board (the
panel), dated December 11, 2007. The panel determined that the applicants were
not Convention refugees or persons in need of protection within the meaning of
sections 96 and 97 of the Act.
ISSUES
[2]
The
applicants raised two issues in this matter:
(a) Did the panel err in
determining that the applicants lacked subjective fear?
(b) Did the panel err in finding
that the applicants had an internal flight alternative (IFA) in Cartagena or San Pedro, in Colombia?
[3]
For the
reasons that follow, the application for judicial review will be allowed.
FACTUAL BACKGROUND
[4]
The
applicants are all citizens of Colombia. The applicants’ claim is
based on the story of the principal female applicant. The female applicant worked
as a credit manager at a commercial financing company named Finsocial, in the
city of Bogota. She was responsible for the
promotion, approval and financing of credit and loans to assist small farmers.
[5]
The
problems began on July
16, 1999, when
she was detained by members of the Revolutionary Armed Forces of Colombia (FARC).
These members ordered the applicant to stop all credit promotion on behalf of Finsocial
and they sexually assaulted her before releasing her.
[6]
The female
applicant explained the situation to her employer, without revealing the sexual
assaults, and her employer allowed her to cease her credit and loan promotion functions.
[7]
On July
22, 1999, her husband was arrested during an ambush while he was driving his
car. Unidentified men told him that his wife had to resign from her position
with Finsocial. The female applicant resigned that very day. The male applicant
contacted the police on July
23, 1999, and
accused the FARC members of being responsible for the incident. The police contacted
the male applicant on July 26, 1999, to ask him why he was accusing the FARC
members. The applicant told them about the events of July 16, 1999.
[8]
After the
report to the police, the applicants received a call from a member of the FARC who
told them that they would be considered military targets. The applicants hid at
the home of a friend and from there they decided to leave Columbia. The female applicant left
her country on August 16, 1999, the male applicant with his child on September 13, 1999.
[9]
The
applicants went to the United States, they filed a refugee claim in
April 2001 which was dismissed by an immigration officer in July 2004
because the claim had not been filed within the time limit of one year from the
date of their arrival, as provided under American law. This decision was
confirmed by an immigration judge in the United States on December 12, 2005.
IMPUGNED DECISION
[10]
The panel dismissed
the application on two grounds. First, it determined that the failure to claim
refugee status is inconsistent with a subjective fear of persecution. The panel
gave the following reasons in support of its decision:
(a) It considered the fact that
the applicant had left Colombia a month after having been
detained by the FARC members, despite the fact that she had a valid passport
and visa to travel to the United
States. The
panel also considered that the applicant left Colombia more than seven weeks after being
arrested by the FARC members. The panel noted that the applicant also had a
passport and visa valid until May 2004. The panel therefore determined
that the applicants could have left Colombia
immediately after the incidents.
(b) The panel considered that the
applicants had not claimed refugee status in the United States within the one-year time limit because
of their own negligence. In light of the gravity of the allegations of persecution,
the panel determined that the applicants’ failure to claim refugee status as
soon as they arrived in the United
States indicated
that there was a lack of subjective fear.
(c) The panel noted that the
applicants had not left the United
States after
their claim was refused. They only arrived in Canada on February 18, 2006.
[11]
Second,
the panel determined that the applicants had an internal flight alternative (IFA)
for the following reasons:
(a) It considered the documentary
evidence regarding guerrilla and paramilitary groups in Columbia. The panel pointed out that
extortion, kidnappings and assassinations were a serious problem.
(b) It determined that the IFA was
the determinative issue of the claim. In its opinion, the balance of probabilities
was such that the FARC members would have no interest in pursuing the
applicants in cities like Cartagena or San Pedro. Further, the
members would not have any information about the applicants’ residence or
employment.
(c) He stated that the documentary
evidence indicated that individuals corresponding to certain profiles are likely
to be persecuted, but that these profiles do not correspond with those of the applicants.
The panel also considered that the incidents on which the claim was based
occurred over eight years ago.
(d) Finally, the panel considered
the age, health, level of university education, work experience and language
ability of the applicants and determined that it would not be unreasonable for
them to avail themselves of the IFA.
ANALYSIS
Standard of review
[12]
The
appropriate standard of review in this case is the standard of reasonableness (Dunsmuir
v. New
Brunswick,
2008 SCC 9, at paragraphs 55, 57, 62 and 64). According to the Supreme
Court, the factors to consider are: the existence of justification,
transparency and intelligibility within the decision-making process. The
outcomes must be defensible in respect of the facts and law (Dunsmuir, at paragraph 47).
Did the panel err in determining that the
applicants did not have subjective fear?
[13]
The stenographer’s
notes (page 16, tribunal record) establish without the shadow of a doubt that
the decision-maker informed the applicants at the hearing that the time limit
for leaving the country was not a genuine issue. The Court considers that criticizing
the male applicant for taking too long to leave the country is an error in the
written decision.
[14]
As for the
time limit for claiming protection in the United States, the applicants provided an explanation
for having failed to meet the deadline prescribed by regulation in American law.
In fact, the panel did not take into account the explanation offered, i.e.
waiting for the implementation of the program (Temporary Protected Status) that
the American government was supposed to decree to protect Colombian nationals
seeking protection in the United
States.
[15]
It must be
stated that the decision-maker did not challenge the applicants’ credibility
anywhere in the decision.
Did
the panel err in determining that the applicants have an IFA in Cartagena or San Pedro, in Columbia?
[16]
The
applicants allege that it is unreasonable to find that the FARC members would
not be interested in pursuing the applicants to the cities of Cartagena or San Pedro. They allege
that the documentary evidence indicates the contrary. They also submit that
this evidence directly contradicts the statements of the panel to the effect
that the passage of time is a factor that would change the vengeful tendency of
the FARC. They argue that it was the panel’s responsibility to explain why it
preferred other evidence when the documentary evidence favourable to the applicants
was more abundant. The applicants argue that the panel unreasonably divided the
evidence. In their opinion, it refused to consider that the applicants have an
objective fear solely on the basis of a document summarily listing certain
individuals targeted by the FARC.
[17]
The applicants
primarily rely on the following passages of the document “Responses to Information
Requests (RIR)” COL41770.E, from the research centre of the Immigration and
Refugee Board (page 99, applicant’s record):
Furthermore, according to a number of
sources, the FARC, ELN and AUC have a significant presence in Colombia's urban centres, including
Bogotá (ibid.; Georgetown University 30 June 2003; AI USA 9 July 2003). For example, in the view
of the Georgetown
University adjunct professor,
Each [of these groups] has instituted a strategy of creating
urban militias connected to their regular armed fighters. Indeed the FARC may
have as many as 12,000 urban militias, highly concentrated in Bogotá and
Medellín but also in many of the medium sized urban centers such as Bucaramanga and Villavicencio.
…
… According to the Georgetown University adjunct professor,
both the guerrillas and paramilitary groups
often employ highly
sophisticated data bases and computer networks. An individual who is threatened
in one area of the country will not be notably safer by relocating to another.
Depending on the nature and reasons for the threat, the victims can be pursued
relentlessly. There are countless stories of men and women receiving threats in
Bogotá or Medellín after relocating from another area and attempting to live
anonymously in the big city. Many have been killed after seeking refuge in
another part of the country. There are also cases of people leaving the country
for a period of months or years, and then being killed after returning.
Memories are long and data is systematically recorded and analysed (30 June 2003).
[18]
The
respondent submits that it was reasonable for the panel to determine that there
was an IFA and that it was justified in refusing protection to the applicants. Specifically,
the respondent states that the panel is presumed to have considered all of the
evidence.
[19]
In my
opinion, the panel did not consider the fact that the applicants had filed
complaints against the members of the FARC. Yet the documentary evidence indicates
that individuals who find themselves in like situations are exposed, sought
after and persecuted by the FARC. It was therefore unreasonable to exclude the applicants
as persons targeted by members of the FARC.
[20]
No
question was proposed and this matter does not contain any.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be allowed. The matter is referred for
redetermination by a differently constituted panel. No question is certified.
“Michel
Beaudry”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
Email this Content