Date:
20130823
Docket: IMM-9710-12
Citation: 2013 FC 898
Ottawa, Ontario, August 23, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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JOHN JAIRO MARTINEZ GONZALEZ
PAOLA DEYANIRA MONTOYA MAHECHA
LAURA SOFIA PEREIRA MONTOYA
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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]
The applicants ask the Court to set aside a decision of
the Refugee Protection Division of the Immigration and Refugee Board of Canada,
denying protection to the applicants, citizens of Colombia, under sections 96
and 97(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27. For the reasons that follow, their application is allowed and the
Board’s decision is set aside.
Background
[2]
John Jairo Martinez Gonzalez is a publisher in Colombia. Paola Deyanira Montoya Mahecha
is his common-law spouse, and Laura Sofia Pereira Montoya is
her daughter.
[3]
On May 26, 2010, an unknown man asked Mr. Gonzalez to publish a book
about the history of the Revolutionary Armed Forces of Colombia (FARC), a
dangerous guerrilla organization in Colombia. Mr. Gonzalez refused when the
man was unwilling to comply with certain legal requirements.
[4]
The man returned to Mr. Gonzalez’ business on June 10, 2010 and again
demanded that his book be published. Mr. Gonzalez again refused and the man
then threatened Mr. Gonzalez and his family.
[5]
The applicants remained home and did not answer the phone for several
days as a result of this threat. They relocated to a friend’s house on June
18, 2010 and did not return to their home until ten days later.
[6]
On July 6, 2010, the applicants applied for Canadian visas in order to
leave Colombia. Subsequently, on July 16, 2010, Mr. Gonzalez reported the June
10, 2010 threat to the Coordinator of the Antiterrorism Unit of the Attorney
General’s Office in Colombia. The Coordinator told Mr. Gonzalez that he wanted
to involve him in their investigation and wanted Mr. Gonzalez to lure the
perpetrator into further activity to obtain more information about him. The
Coordinator also told Mr. Gonzalez that someone would contact him the following
Monday. No one followed up with Mr. Gonzalez.
[7]
On July 26, 2010, Mr. Gonzalez also reported the threat to the Director
of the GAULA unit of the National Army of Colombia which is dedicated to
combating kidnapping and extortion. The Director agreed to investigate and,
like the Coordinator, wanted to use Mr. Gonzalez as bait to lure the
perpetrator into further activity in order to identify him.
[8]
On August 3, 2010, a threatening letter from the FARC was left at Mr.
Gonzalez’ place of business. The applicants fled Colombia 20 days later on
August 23, 2010 and filed claims for protection on August 26, 2010.
[9]
The Board determined that the applicants were neither Convention
refugees nor persons in need of protection pursuant to sections 96 and 97(1) of
the Act. It was determined that the applicants had failed to rebut the
presumption of state protection. The Board found that Colombia has made significant
progress in combating terrorist activities by the FARC, that it has adequate
operations systems in place to investigate and deal with the FARC’s activities,
and that in this specific instance, even though the applicants initially
engaged the state’s protection mechanisms, the applicants did not give the
state enough time or information to provide protection.
Issue
[10]
The only issue is the reasonableness of the Board’s finding that the
applicants had failed to rebut the presumption of adequate state protection in Colombia for civilians targeted by the FARC.
Analysis
[11]
The strongest evidence that there is not adequate state
protection is a report prepared by Dr. Chernick:
The Colombian state is unable to
protect those who have been targeted, be they communities facing forced
internal displacement, or individuals threatened with kidnapping, extortion or
extra-judicial assassination. Almost all human rights violations in Colombia occur with impunity. [emphasis added]
[12]
The same report states that “in 2009 … the threat faced by those
who have been targeted by the FARC, the paramilitaries or by rogue state actors
has not lessened; in some cases, the dangers and risks have increased,” and
that “the successful military operations against the FARC that occurred in 2008
have weakened the FARC but this has not translated into a reduced risk to
individuals who have been directly targeted by the FARC.” [emphasis added]
Although the Board quoted a passage from this report, it makes no mention of
this specific passage. That is because the Board failed to examine state
protection from the viewpoint of the specific risk these applicants faced as
targeted persons.
[13]
Justice Shore recently dealt with an application very similar to
this one: Avila Rodriguez v Canada (Citizenship and Immigration), 2012 FC 1291 [Avila].
Although this decision was not referred to by either party, the Court
brought it to their attention and received written submissions on its
applicability, post-hearing.
[14]
In Avila, Justice Shore analyzed much of the same evidence
regarding Colombia that was before the panel in this case including the report
of Dr. Chernick. On the issue of state protection, at paragraph 41 of his
judgment, Justice Shore found that “the principal Applicant
submitted clear and convincing reports from reliable sources that appear to
demonstrate, on a balance of probabilities, that Colombia cannot
protect those who have been targeted by paramilitaries.” [emphasis added]
[15]
At paras 43-44, Justice Shore concludes that:
It was not reasonable
to find that Colombia's anti-criminality efforts outweigh evidence of human
rights violations by paramilitaries. The RPD claims it weighed country
conditions evidence in finding that adequate and effective state protection
exists:
[32] ...
The Board recognizes that there are some inconsistencies among several sources
within the documentary evidence; however, the preponderance of the objective
evidence regarding current country conditions suggests that, although not
perfect, there is an adequate state protection in Colombia for victims of
crime, that Colombia is making serious efforts to address the problem of
criminality, and that the police are both willing and able to protect victims.
The evidence also suggests that the state's efforts addressing the problem of
criminality have been effective.
The
preponderance of evidence in the record and the NDP suggests otherwise; that Colombia cannot effectively protect those who are targets of paramilitaries.
[emphasis added]
[16]
In the decision under review, the Board examined
state protection generally, but failed to do so with an eye to the specific
circumstances facing these applicants, namely that they were specifically
targeted by the FARC. In doing so, the Board committed a reviewable error: Flores
Alcazar v Canada (Minister of Citizenship and Immigration), 2011 FC 173.
For this reason, the decision must be set aside.
[17]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application is allowed, the decision of the Refugee Protection Division of the
Immigration and Refugee Board of Canada that the applicants are not persons in
need of protection under the Immigration and Refugee Protection Act is
set aside and is remitted to a differently constituted Board for determination,
and no question is certified.
"Russel W. Zinn"
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