Docket:
IMM-9365-12
Citation: 2013 FC 957
Ottawa, Ontario, September
17, 2013
PRESENT: The Honourable Madam Justice Kane
|
|
|
BETWEEN:
|
|
LISSED OMAIRA MURILLO TABORDA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant, Ms Taborda, seeks judicial review
pursuant to section 72 of the Immigration and Refugee Protection Act, SC
2001, c 27 [the Act], of a decision of the Refugee Protection Division
of the Immigration and Refugee Board [the Board], dated August 8, 2012, which
dismissed her claim for protection under sections 96 and 97(1) of the Act.
[2]
The applicant, a citizen of Colombia, came to Canada on September 24, 2010 and made an application for refugee protection on
December 15, 2010, alleging persecution by the Revolutionary Armed Forces of
Colombia – People’s Army (Fuerzas Armadas Revolucionarias de Colombia, or
FARC).
[3]
The applicant claimed that she was approached by
FARC while she was a part time university student. On the first occasion, on
February 5, 2010, seven members of FARC approached a group of students, checked
all their identification against a list and then left. On the second occasion,
on February 27, 2010, one of the same men stopped the applicant on the street
and told her that FARC needed “smart and pretty women” to help them in their
fight and that anyone who refuses to join FARC would seriously pay for their
refusal.
[4]
On March 7, 2010, the applicant was kidnapped by
members of FARC on her way home. One of her kidnappers was the man who had
tried to recruit her. She was beaten, driven to an empty house and raped. The
men told her to go home and be ready for when FARC returned to pick her up.
[5]
The applicant attended at the hospital and
reported the kidnapping and rape to the National Police station in her home
town, Jerico. The police commander told her that the police would not be able
to protect her from FARC and that she should move away or go into hiding for
her protection and make her own security arrangements.
[6]
The applicant then fled with her son to Bogota where they lived in hiding for six months while arrangements were made for her to
flee Colombia. The applicant noted that she feared for her life and that of her
son due to her own experiences with FARC and because her son’s father, Carlos,
had been killed by FARC in 1997 for refusing its recruitment attempt.
[7]
The applicant stated that FARC continues to look
for her. An affidavit from the applicant’s sister indicates that FARC members
came to her business looking for the applicant and when she told them the
applicant had left the country, FARC threatened that they would find the
applicant and make her pay for making fun of them. FARC then demanded that the
applicant’s sister pay 500,000 pesos every month as a “quota for the desertion
of my sister and for the security of my family”.
The decision under review
[8]
The Board provided a lengthy decision which
reflects its broad review of country condition documents regarding state
protection in Columbia indicating the progress and the challenges in dealing
with the risk and violence caused by FARC. The Board concluded that the
preponderance of the evidence suggests that, although not perfect, there is
adequate state protection in Colombia. The Board found that the strength of
FARC is withering in part because of counter-guerrilla operations by Colombian
police and military forces and better management of intelligence resources.
This has resulted in a declining trend in murders, kidnappings and extortions
by FARC. The Board also found that Colombia has effectively prosecuted
corruption in the police ranks. While the Board acknowledged that the armed
conflict in Colombia continues to cause significant civilian casualties,
especially in rural areas where FARC actively recruits, it found that the
applicant was not at risk because she was not a typical target, as FARC
typically targets political, business, and other figures with a certain
profile.
[9]
The Board also found that the applicant had not
availed herself of state protection in Bogota. She had only made one report to
the Police in Jerico.
[10]
In the alternative, the Board found that the
applicant had a viable Internal Flight Alternative [IFA] in Bogota because she
did not fit a specific profile and would not be targeted, FARC had a diminished
capacity to track people down, and she had lived without incident in Bogota for six months.
[11]
While the Board referred to letters from the
applicant’s father and sister, it found them to be self-serving and gave them
little weight. The Board noted that the applicant’s sister was extorted by FARC
because she had a profitable business, not because of the applicant’s refusal
to join FARC.
The Issues
[12]
The applicant submits that the Board’s decision
that state protection is adequate and that the applicant did not rebut the
presumption of state protection is not supported by the evidence: the Board
ignored the more recent country condition documents; the Board failed to
consider that the applicant fit a risk profile and continued to be targeted by
FARC; and, the Board erred in its assessment of the IFA in Bogota.
[13]
The respondent submits that the Board’s findings
were reasonable: the Board considered all the country condition documents and,
although the Board referred to the older documents, the more recent documents
were presumed to have been considered; the applicant did not make sufficient
efforts to seek state protection in Jerico or Bogota; and, the weight to be
given to the evidence is up to the Board.
[14]
The respondent also submitted that although the
Board did not make any credibility findings, there were parts of the
applicant’s story that the Board could reasonably question. The respondent
noted that the applicant had not put Carlos’ name on her son’s birth
certificate, suggesting that perhaps this was a reason for the Board to not
have considered Carlos as a similarly situated person. The respondent also
noted that the applicant and her sister claimed to have reported the
applicant’s rape to a police commander at the National Police Station in
Jerico, who told the applicant that the police could not protect her. The
respondent suggested that it was unlikely that a high level police commander
would be on duty in Jerico at the time of the night when the applicant made her
report. These submissions are, in my view, speculative and not relevant for
this application for judicial review. The Board did not make any credibility
findings, and as such, the Board is taken to have accepted the applicant’s
evidence.
The standard of review
[15]
The parties agree that the standard of review
applicable to the Board’s decision is that of reasonableness. The role of the Court is to determine whether the Board’s
decision “falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190). There may be several reasonable outcomes and
“as long as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome” (Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 59, [2009] 1 S.C.R. 339).
Was the
Board’s assessment of the adequacy of state protection reasonable and did the
applicant rebut the presumption?
[16]
The key issue is whether the Board erred in
determining that the applicant had not rebutted the presumption of state
protection. This requires consideration of whether the Board’s assessment of
the adequacy of state protection was reasonable and whether the applicant’s
efforts to seek state protection were sufficient and, if not, whether the
applicant provided clear and convincing evidence that state protection would
not have been reasonably forthcoming having regard to
her particular circumstances. With respect to the Board’s IFA findings,
many of the same issues arise given the Board’s assessment that FARC had a
diminished capacity to find the applicant and that the applicant was not a
person of interest to FARC.
[17]
The Board considered the relevant and applicable
principles governing state protection. Refugee protection is considered to be
surrogate or substitute protection in the event of a failure of national protection.
Persecuted individuals are required to first approach their home state for
protection before the responsibility of other states becomes engaged (Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689 at para 18, 103 DLR
(4th) 1 [Ward]). The presumption that a state is capable of protecting
its citizens is only rebutted by clear and convincing evidence that state
protection is inadequate or non-existent and the applicant bears the onus of
providing such evidence (Carrillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94 at paras 18-19, [2008] FCJ No 399; Ward
at paras 50-52).
[18]
State protection need not be perfect but must be
adequate. To be adequate, state protection must be effective to a certain
degree and the state must be both willing and able to protect (J B v Canada (Minister of Citizenship and Immigration), 2011 FC 210 at para 47, [2011] FCJ No
358). Adequate state protection also requires that it be adequate at the
operational level (Henguva v Canada (Minister of Citizenship and Immigration), 2013 FC 483
at para 18, [2013] FCJ No 510); E Y M V v Canada (Minister of Citizenship and Immigration), 2011 FC 1364 at para 16, [2011] FCJ
No 1663).
[19]
The onus on an applicant to
seek state protection is commensurate with the state’s ability and willingness
to provide protection (Sow v Canada (Minister of Citizenship
and Immigration), 2011 FC 646 at para 10, [2011] FCJ No 824; Kadenko v
Canada (Minister of Citizenship and Immigration), [1996] FCJ No 1376 at
para 5, 143 DLR (4th) 532).
[20]
The Board provided a thorough review of the
measures being taken and the progress in Colombia to combat FARC. However, as
noted by the applicant, the Board relied on country condition documents that
were dated. Although the Board referred to the 2011 National Documentation
Package, the documents most referred to by the Board were dated 2009 and
earlier.
[21]
The applicant pointed to recent country
condition reports, particularly the April 2011 Response to Information Request
[RIR], May 2010 UNHCR Report, and other articles published in 2011 which
indicated that FARC has penetrated all aspects of Colombian government and
could use its influence to obtain information that would enable it to track
people down across Colombia. More generally, the RIR indicated that FARC remained
a significant risk that the police could not protect citizens against.
[22]
Although the Board need not refer to every piece
of evidence, where more important evidence is not specifically mentioned and
analyzed in the Board’s reasons, the Court may be more willing to infer that
the Board made an erroneous finding of fact "without regard to the
evidence" (Cepeda-Gutierrez v Canada (Minister of Citizenship &
Immigration), [1998] FCJ No 1425 at para 17, 157 FTR 35).
[23]
Although otherwise a comprehensive decision
which considered all the relevant legal principles, I agree with the applicant
that the Board ignored the more recent and relevant evidence concerning the
risk posed by FARC and that, despite progress, FARC is still active and capable
of harming civilian targets.
[24]
As noted by Justice Rennie at para 27 of Andrade
v Canada (Minister of Citizenship and Immigration), 2013 FC 436, [2013] FCJ
No 461, with respect to a very similar passage in the decision of the Board
with respect to FARC:
[27]
The Board also noted that some FARC members
have been demobilized and that some hostages have been freed. The Board
quoted a statistic from 2009 that murders committed by illegal groups had
decreased by 2.2% and that the number of kidnappings for extortion has also
been reduced by 23%. Not only is this information somewhat dated, it
shows that murder, kidnapping and extortion remain serious problems.
[25]
The Board also failed to consider whether the
applicant fit a specific profile of interest to FARC. The Board referred to the
UNHCR Eligibility Guidelines in noting that FARC targets groups of people with
a certain profile, including “women with certain profiles”. The UNHCR
Eligibility Guidelines provide: “[v]iolence against women is reportedly used
systematically by illegal armed groups for controlling territories and
communities in different areas of the country… [a]dditionally, women may be
subjected to forced recruitment for the purpose of sexual servitude”. The
applicant’s evidence, which was accepted by the Board, was that FARC pursued
her because she was “smart and pretty”. The applicant’s encounters with FARC,
including the physical and sexual abuse after she refused its recruitment
efforts, place the applicant into the category of “women with certain profiles”
as described by the UNHCR Eligibility Guidelines. The Board should, therefore,
have considered whether the applicant would be a person of interest given this
profile.
[26]
With respect to the letters from the applicant’s
father and sister which the Board found to be self-serving, I find this
characterisation to be problematic. The documents were sworn affidavits.
Moreover, the people who could most likely attest to the fact that FARC
continued to look for the applicant would be her family members.
[27]
As noted by Justice O’Keefe in (S M D v Canada (Minister of Citizenship
and Immigration), 2010 FC 319 at para 37, [2010] FCJ No 369) “it
would seem to me that any letter written to support the applicant’s claim would
be, by the Board’s reasoning, self-serving. This cannot be the case. An applicant has to be able to establish
their case.”
[28]
In Ugalde v Canada (Minister of Public Safety
and Emergency Preparedness), 2011 FC 458, [2011] FCJ 647, Justice de
Montigny considered a similar issue and the relevant jurisprudence and noted at
para 26:
[26] However,
jurisprudence has established that, depending on the circumstances, evidence
should not be disregarded simply because it emanates from individuals connected
to the persons concerned: R v Laboucan, 2010 SCC 12, at para 11. As
counsel for the Respondent rightly notes, Laboucan concerned a criminal
matter; however, immigration jurisprudence from this Court has established the
same principle. Indeed, several immigration cases hold that giving evidence
little weight because it comes from a friend or relative is an error.
[27] For
example, in Kaburia v Canada (Minister of Citizenship and Immigration),
2002 FCT 516, Justice Dawson held at paragraph 25 that, “solicitation does not
per se invalidate the contents of the letter, nor does the fact that the letter
was written by a relative.” Likewise, Justice Phelan noted the following
in Shafi v Canada (Minister of Citizenship and Immigration), 2005 FC
714, at para 27:
The Officer gives little weight to other witnesses' affidavit evidence
because it comes from a close family friend and a cousin. The Officer fails to
explain from whom such evidence should come other than friends and family.
Similarly,
Justice Mactavish stated the following in Ahmed v Canada (Minister of Citizenship
and Immigration), 2004 FC 226, at para 31:
With respect to [sic] letter from the President of the
organization, I do not understand the Board's criticism of the letter as being
"self-serving", as it is likely that any evidence submitted by an applicant
will be beneficial to his or her case, and could thus be characterized as
'self-serving'.
[28] In
light of this jurisprudence, and under the circumstances, I do not believe it
was reasonable for the Officer to award this evidence low probative value
simply because it came from the Applicants’ family members. Presumably, the
Officer would have preferred letters written by individuals who had no ties to
the Applicants and who were not invested in the Applicants’ well-being.
However, it is not reasonable to expect that anyone unconnected to the
Applicants would have been able to furnish this kind of evidence regarding what
had happened to the Applicants in Mexico. The Applicants’ family members were
the individuals who observed their alleged persecution, so these family members
are the people best-positioned to give evidence relating to those events. In
addition, since the family members were themselves targeted after the
Applicants’ departure, it is appropriate that they offer first-hand
descriptions of the events that they experienced. Therefore, it was
unreasonable of the Officer to distrust this evidence simply because it came
from individuals connected to the Applicants.
[29]
The role of the Court is not to re-weigh the
evidence but, because the Board attributed little weight to the affidavits due
to their self serving nature and for no other stated reason, the Board must
reconsider this evidence.
[30]
Moreover, even if the Board was justified in giving the affidavits low weight, it
did give them some weight and, in doing so, misunderstood the information
provided by the applicant’s sister. The applicant’s sister clearly attested
that FARC members came to her business looking for the applicant and
when she told them her sister had left the country, FARC threatened that sooner
or later they would find the applicant and make her pay for making fun of them.
FARC then demanded that the applicant’s sister pay 500,000 pesos every month as
a “quota for the desertion of my sister and for the security of my family”. The
Board’s finding that FARC’s extortion of the applicant’s sister was not related
to the applicant’s refusal to join FARC is not supported by the evidence.
Was the Board’s IFA finding reasonable?
[31]
The Board
found that it would not be objectively unreasonable or
unduly harsh for the applicant to reside in Bogota and to seek the protection
of the state there, should she require it. This finding is not supported by the
evidence.
[32]
The test for an IFA is well established. There
is a high onus on the applicant to demonstrate that a proposed IFA is
unreasonable (Ranganathan v Canada (Minister of Citizenship and Immigration),
[2001] 2 FC 164, [2000] FCJ No 2118 (FCA)). The two-pronged test for an
IFA was established in Thirunavukkarasu v Canada (Minister of Employment
and Immigration), [1994] 1 FC 589, [1993] FCJ No 1172 (FCA). The test is:
(1) the Board must be satisfied, on a balance of probabilities, that there is
no serious possibility of the claimant being persecuted in the proposed IFA;
and, (2) conditions in the proposed IFA must be such that it would not be
unreasonable, upon consideration of all the circumstances, including
consideration of a claimant’s personal circumstances, for the claimant to seek
refuge there.
[33]
As noted
above, the Board did not consider the more recent country condition documents
about the strength of FARC, which indicate that,
despite setbacks, FARC still had the ability to pursue targets anywhere within Colombia. In addition, the Board did not
consider whether the applicant would fit a profile of interest to FARC as a
woman who had been sexually targeted. As noted above “women with certain
profiles” as described by the UNHCR Eligibility Guidelines are at risk and the
applicant could fit in that profile. The
Board erred in concluding that she did not fit any profile of interest.
[34]
In
addition, the Board misunderstood the evidence of the applicant’s sister, which
indicated that FARC continued to threaten and look for the applicant.
[35]
The Board’s finding that the applicant had
safely lived in Bogota for six months without being discovered ignored or
misconstrued the applicant’s evidence that she lived in hiding in Bogota and
that she could be located if she used any identity documents, including for the
purposes of finding employment.
[36]
Given that both parts of the IFA test must be
satisfied, it is not necessary to consider whether the Board’s assessment of
the second branch of the test was reasonable. I note, however, that the Board
stated that apart from her general fear of FARC, the applicant stated no other
impediments to living in Bogota. This is not an accurate summary of the
applicant’s evidence regarding Bogota nor does the Board acknowledge the
psychological report provided which describes the risk the applicant would face
to her mental health if she were to return.
Conclusion
[37]
In conclusion, the Board’s findings that there
is adequate state protection for the applicant in Colombia and that she failed
to provide clear and convincing evidence that state protection would not be
reasonably forthcoming given her experiences and circumstances is not supported
by the evidence. Rather, the evidence portrays a high risk of violence and
persecution by FARC of people with particular profiles, which the applicant may
fit. Similarly, the Board’s findings with respect to the IFA in Bogota are not supported by the evidence regarding FARC’s reach, the applicant’s profile
and the threats made to her via her family.
Email this Content