Date:
20130801
Docket:
IMM-4498-12
Citation:
2013 FC 843
Ottawa, Ontario,
August 1, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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MARIA ANGELICA GIL AGUILAR
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Applicant
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated April 16, 2012, wherein the applicant was determined to be
neither a Convention refugee within the meaning of section 96 of the Act nor a
person in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicant requests that the Board’s
decision be set aside and the application be referred back to the Board for
redetermination by a different panel.
Background
[3]
The
applicant is a citizen of Colombia. In February 2006, the Revolutionary Armed
Forces of Colombia (FARC) attempted to recruit her in her neighbourhood in Bogota to commit various criminal acts. She refused and her parents sent her to live with
her aunt in the suburbs. After her aunt and uncle fled Colombia, she moved to live with a different aunt. After that aunt also left the country,
she returned to live with her parents in October 2007 and hoped her
neighbourhood would be safe.
[4]
In
December 2007, she was again approached by members of FARC. They assaulted the
applicant and threatened to kill the applicant and her family. They told her
the FARC never forgets and never forgives. The applicant immediately made plans
to leave the country for the United States on a student visa. She arrived in
the U.S. in February 2008, where her aunt and uncle consulted lawyers who told
them the applicant could not make a refugee claim there. She ultimately
followed their advice and left the U.S. to make a refugee claim in Canada. She claimed protection at the border on January 21, 2009.
[5]
She
has since learned that her father was attacked and beaten in Cali and the
attackers told him it was because the applicant did not join the FARC.
Board’s Decision
[6]
The
Board’s decision, dated April 16, 2012, begins by summarizing the allegations
described above. The Board accepted the applicant’s identity but rejected the
claim on four separate grounds: lack of nexus, generalized risk, state
protection and internal flight alternative (IFA).
[7]
The
Board found that the FARC has a political purpose, but this is secondary to its
criminal purpose. In this case, the FARC was attempting to recruit the
applicant for criminal purposes. The applicant’s rejection of those attempts were
based on her disagreement with the criminality of the FARC, not their political
ideology. The Board, relying on the National Documentation Package (NDP), found
that the FARC is primarily a criminal organization. The Board held that the
applicant was a victim of criminality and was not pursued for political views.
[8]
The
Board rejected counsel’s submission that the applicant was a member of a
particular social group: young Colombians seen to be prominent in their own
community coming from poor families. The Board found, based on country
conditions evidence, that the FARC widely recruit youth. The Board rejected the
applicant’s claim that she was well known in her community due to a lack of
probative corroborating evidence.
[9]
The
Board determined that the applicant’s profile fit into one of the large
subgroups that FARC generally recruit: children, adolescents and young people.
The evidence did not establish the FARC pursued the applicant for any reason
other than being a young female who could be enticed with the offer of money.
[10]
The
Board acknowledged the testimony that the applicant’s parents had been targeted
by the FARC and referred to country conditions evidence that it was common for
businesses to be extorted and for the FARC to engage in extortion demands from
family members out of vendetta for non-compliance.
[11]
Noting
that neither a fear of criminal acts nor a personal vendetta constitutes a nexus
to a Convention ground, the Board rejected the claim under section 96 of the
Act.
[12]
The
Board next considered generalized risk per subparagraph 97(1)(b)(ii) of the
Act. The Board noted that where the general public is subject to a risk of
crime, the fact that some individuals are more exposed to the risk does not
necessarily mean an applicant qualifies under section 97, even if she is a
direct victim of crime.
[13]
The
Board accepted that the applicant had been approached by the FARC and that
minors are still being actively recruited by the FARC in its current form of a
predominantly criminal organization. The applicant was a victim of attempted
recruitment, but this is a crime faced generally by many other young
Colombians.
[14]
The
Board determined the applicant’s fear is a generalized one. The risk of
recruitment by FARC is a widespread risk for young citizens of Colombia.
[15]
The
Board went on to consider the alternative grounds of state protection and IFA.
On the first ground, the Board found that Colombia is a multiparty democracy
where civilians have recourse to security forces to protect them. The Board
noted the 45 year armed conflict between the government and FARC and the
resultant human rights abuses by both sides. The Board noted progress in
combating guerrilla groups, as kidnappings and mass killings decreased. FARC
has suffered serious setbacks and has been pushed out of urban centers and many
regions where it was previously strong. The number of murders committed by
illegal groups had declined by 2.2 percent from 2008 to 2009. FARC’s presence
is felt primarily in southeast Colombia.
[16]
The
Board described institutions to protect victims of criminality of the FARC,
such as the Ministry of National Defence, the National Fund for the Defence of
Individual Freedom and others. The Board indicated it had considered a Canadian
Council for Refugees (CCR) report describing how demobilization of
paramilitaries has led to armed gangs in urban areas, as well as the murders of
internally displaced persons. The security situation in Bogota had improved but
the city still had a high level of homicides and criminal acts. There were also
accounts indicating the city had successfully been made safe to live in.
[17]
The
Board concluded that although there were inconsistencies in the country
conditions evidence, the state of Colombia provides adequate protection to
victims of crime. The Board also noted the applicant had never sought state
protection. The applicant failed to rebut the presumption of state protection.
[18]
The
Board then turned to the matter of IFA. The applicant had been asked whether
she could avoid the FARC by living in Cali or Cartagena. She said she would not
be safe in Cali because her father had been assaulted there and that it is not
difficult to find people in Colombia. The Board found that an IFA was available
in either city, since the FARC would not consider her a high value target. While
the applicant was under age when approached by the FARC, she was twenty at the
time of the Board’s decision. State protection would be available in Cali or Cartagena and it would not be unreasonable for the applicant to move there.
Issues
[19]
The
applicant submits the following points at issue:
1. Were the Board’s
findings regarding nexus and generalized risk unreasonable in that they were
made without regard to the evidence before it?
2. Was the Board’s
analysis and conclusion regarding state protection unreasonable?
3. Was the Board’s
analysis and conclusion regarding availability of IFA unreasonable?
[20]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in rejecting the applicant’s claim?
Applicant’s Written Submissions
[21]
The
applicant argues the first error committed by the Board was the finding that
there was no evidence regarding the applicant’s involvement in community
activism. However, the Board made no adverse credibility finding against the
applicant and it was therefore not open to the Board to require corroboration
of the applicant’s sworn testimony. Since the Board discounted the applicant’s
community work, it did not properly assess the reasons for her attempted
recruitment by the FARC.
[22]
The
applicant argues the Board failed to mention or analyze the United Nations High
Commissioner for Refugees (UNHCR) Guidelines which state that children subject
to recruitment by armed groups may constitute a particular social group. To
fail to consider this argument is a reviewable error.
[23]
The
applicant submits that the Board’s finding on generalized risk was based on the
NDP but did not offer a particular reference. This finding flies in the face of
much of the evidence in that package. The Board failed to make a proper
individualized inquiry into the applicant’s circumstances, given that she was
specifically targeted by the FARC.
[24]
The
applicant argues the Board’s state protection analysis contained the same error
of ignoring the particularly high risk of children subject to recruitment. The
members of a particular group may still have grounds for fearing persecution
even if the state is capable of protecting citizens generally. The Board
ignored the CCR report which found in substance that state protection in Colombia was inadequate for threatened persons. It was open to the Board to weigh the
evidence but not to misstate the report’s conclusion.
[25]
The
Board’s analysis of IFA suffered from similar defects and failed to acknowledge
that the applicant’s father had been attacked in Cali by FARC members,
constituting a failed attempt at an IFA. The Board relied on a 2009 report for
the conclusion that the FARC’s support had vanished in cities, while ignoring
the 2011 CCR report indicating guerrillas operated with great success in
cities.
Respondent’s Written Submissions
[26]
The
respondent argues the Board did not err in its determination on lack of nexus.
The FARC is a criminal organization and recruited the applicant for criminal
purposes. The FARC targets vulnerable people, but being a victim of crime does
not have a nexus with a Convention ground. The Board reasonably concluded the
applicant did not have a profile of particular interest to the FARC. The UNHCR
eligibility guidelines had no application as it is not evidence the recruitment
had any relationship to her being a child. The applicant is no longer a minor,
so the Board properly assessed her risk as that of an adult.
[27]
On
generalized risk, the Board reasonably concluded the risk faced by the
applicant was not greater than the risk faced by the population at large and
specifically other young people. The risk of FARC recruitment is a widespread
risk for young people of Colombia and risk of criminality is general and felt
by the population at large.
[28]
The
respondent argues the state protection was reasonable, as the Board
acknowledged the conflict and the presence of guerrilla groups but noted the
progress made by Colombia. The FARC is an organization under severe stress and Colombia’s national security is no longer threatened.
[29]
The
Board did not misstate the CCR report and the applicant’s argument merely
amounts to a complaint with the Board’s assessment of the evidence. The Board
accepted inconsistencies among country conditions sources but concluded there
was adequate state protection. It was open to the Board to prefer some evidence
to other evidence. The Board did not err in determining the applicant had
failed to seek state protection. The Board correctly noted the applicant was a
minor when she was approach by the FARC, but this is no longer the case.
[30]
The
Board considered that the applicant’s father was assaulted in Cali when
contemplating IFA. The Board found the applicant would not be a high value
target for the FARC.
Applicant’s Further Written
Submissions
[31]
The
applicant argues although victims of crime may be frequently unable to
demonstrate a link to a Convention ground, the Board still had an obligation to
consider the applicant’s profile and the Board erred in requiring corroborating
evidence. Although the applicant is no longer a child, the Board ought to have
considered her membership in a particular social group based on unalterable
historical status, as a former child recruiting target of the FARC.
[32]
The
applicant argues the respondent has misstated the law concerning personalized risk
as opposed to generalized risk. A person who is specifically and personally
targeted is entitled to protection under section 97.
Analysis and Decision
[33]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[34]
It
is established jurisprudence that credibility findings, described as the
“heartland of the Board’s jurisdiction”, are essentially pure findings of fact
that are reviewable on a reasonableness standard (see Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116 at paragraph 7,
[2003] FCJ No 162; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 46, [2009] 1 S.C.R. 339; Demirtas v Canada
(Minister of Citizenship and Immigration), 2011 FC 584 at paragraph 23,
[2011] FCJ No 786). Similarly, the weighing of evidence and the interpretation
and assessment of evidence are reviewable on a standard of reasonableness (see Oluwafemi
v Canada (Minister of Citizenship and Immigration), 2009 FC 1045 at
paragraph 38, [2009] FCJ No 1286).
[35]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; Khosa above, at paragraph 59). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraph 59).
[36]
Issue
2
Did the Board err in
rejecting the applicant’s claim?
As for the applicant’s
initial argument that children subject to unsuccessful recruitment constitute
such a group, the refugee definition is forward looking and therefore the
applicant cannot be protected based on membership in a group she is no longer a
part of.
[37]
I
also do not see the relevance of the Board’s negative consideration of the
evidence of the applicant’s community activities, given that the Board
ultimately believed the applicant’s allegation that the FARC had attempted to
recruit her.
[38]
On
the subject of generalized risk under section 97 of the Act, I adopt the
approach described by Madam Justice Mary Gleason in Portillo v Canada (Minister of Citizenship and Immigration), 2012 FC 678, [2012] FCJ No 670. After
a review of recent case law on the subject, she described the appropriate
method for generalized risk analysis at paragraphs 40 and 41:
40
In my view, the essential starting point for the
required analysis under section 97 of IRPA is to first appropriately determine
the nature of the risk faced by the claimant. This requires an assessment of
whether the claimant faces an ongoing or future risk (i.e. whether he or she
continues to face a “personalized risk”), what the risk is, whether such risk
is one of cruel and unusual treatment or punishment and the basis for the risk.
Frequently, in many of the recent decisions interpreting section 97 of IRPA, as
noted by Justice Zinn in Guerrero at paras 27-28, the “...
decision-makers fail to actually state the risk altogether” or “use imprecise
language” to describe the risk. Many of the cases where the Board’s decisions
have been overturned involve determinations by this Court that the Board’s
characterization of the nature of the risk faced by the claimant was
unreasonable and that the Board erred in conflating a highly individual reason
for heightened risk faced by a claimant with a general risk of criminality
faced by all or many others in the country.
41
The next required step in the analysis under section 97
of IRPA, after the risk has been appropriately characterized, is the comparison
of the correctly-described risk faced by the claimant to that faced by a
significant group in the country to determine whether the risks are of the same
nature and degree. If the risk is not the same, then the claimant will be
entitled to protection under section 97 of IRPA. Several of the recent
decisions of this Court (in the first of the above-described line of cases)
adopt this approach.
[39]
In
this case, the Board accurately described the risk alleged by the applicant, in
noting that she had testified that she feared she would be harmed by the FARC
for not having obeyed their demands to join their gang (at paragraph 23 of the
Board’s reasons). While the Board at times describes the risk more generically
as the risk of crime, the first step in Justice Gleason’s approach is
satisfied.
[40]
The
Board, however, did not properly compare this risk with that faced by the
population generally. It describes recruitment by the FARC, or attempted
recruitment, as a widespread crime in Colombia and a risk faced by many young
Colombians (at paragraph 26). Yet this is not the same risk, in “nature and
degree”, to use Justice Gleason’s words, as the risk as retribution for
spurning recruitment. The Board never considered whether the risk of
retribution was generalized in Colombia. This is an error.
[41]
Additionally,
while personal targeting is not necessarily determinative of personalized risk
(as I explained in De Munguia v Canada (Minister of Citizenship and
Immigration), 2012 FC 912 at paragraphs 25 to 39, [2012] FCJ No 986), the Board
made no mention in its generalized risk analysis that the applicant alleged her
father had been assaulted by the FARC as retribution for her rejection of recruitment.
This would put the Board’s decision into the category of cases described by
Justice Gleason at paragraph 39 of Portillo above, where personal
targeting was not considered in the risk analysis.
[42]
Although
the Board’s finding on section 97 was unreasonable, I must also consider the Board’s
analysis of state protection and IFA.
[43]
The
applicant argues that the Board misrepresented the content of the CCR report,
which found that state protection in Colombia was inadequate. While the applicant
may disagree with the Board’s conclusion, it noted many of the negative
findings of the CCR report, including the killing of internally displaced
persons in Bogota, the presence of “neo paramilitaries” in urban areas and the
ability of guerrilla groups to pursue victims in many regions of the country.
[44]
It
is not a reviewing court’s role to reweigh the evidence and the Board’s
analysis of the CCR report makes clear that it thoroughly considered this
evidence. There is therefore no basis on which to disturb the state protection
finding.
[45]
On
IFA, the applicant argues the Board failed to consider that her father was
assaulted in Cali after her parents attempted an IFA there. I agree. While the
Board mentioned this submission (at paragraph 52), there is no analysis of this
evidence, which is surely relevant to the availability of an IFA.
[46]
That
being said, a finding of state protection is determinative of a claim.
Therefore, the application for judicial review must be dismissed.
[47]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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