Docket:
IMM-421-13
Citation: 2014 FC 169
Ottawa, Ontario, February 21, 2014
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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ALEXANDRA NARVAEZ GIRALDO, JUAN DAVID PATAQUIVA NARVAEZ, EMMANUEL
LOPEZ NARVAEZ
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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 ORDER AND ORDER
[1]
The principal applicant (the Applicant) and her
two children, seek judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated December 13,
2012 (the Decision) in which their claims were refused on the basis that they
had failed to rebut the presumption that state protection in Colombia is
adequate.
[2]
The Applicant lived in Cali, Colombia with her two sons. She worked as a dispatcher for a bus company and her half-sister Gloria
worked as a director of the same company. It operated buses on rural routes. In
mid-August 2008 the Applicant and Gloria were visiting a branch of the company
in the town of Dagua when three armed FARC guerrillas came into the office and
asked for Gloria. One of the men said that he was a FARC commander and told
Gloria that she had to pay the FARC a monthly “fee” of 2 million pesos to
continue operating the bus routes. The FARC warned Gloria not to report to
authorities and threatened to kill her if she reported.
[3]
Gloria reported the incident to the police at a station
in Cali. However, they declined to deal with the matter since it occurred in
Dagua. Gloria did not report to the Dagua police.
[4]
In mid-September 2008, the FARC telephoned
Gloria to demand the first monthly payment of 2 million pesos. The FARC called
repeatedly but Gloria did not pay.
[5]
On October 31, 2008, Gloria was shot in Cali. She was hospitalized, and died. Her husband told the Applicant that the authorities
“were on top of the investigation”.
[6]
In December 2008, Gloria’s husband told the
Applicant that FARC had called him and demanded that he now pay the fee Gloria
was to have paid. He told the Applicant that he was leaving Colombia. This was the last time the Applicant heard from her brother-in-law.
[7]
On February 4, 2009 the Applicant had her first
solo contact with the FARC. She received a telephone call from a FARC commander
who demanded information about her brother-in-law’s whereabouts. He threatened
the Applicant with death if she did not co-operate.
[8]
The second contact with the FARC occurred on
February 13, 2009. The Applicant was about to take a taxi home from work when a
man called her name. He asked her whether she had any information about her
brother-in-law. When she told him that she did not know where he was, she was advised
that she now owed the FARC 10 million pesos. The Applicant asked for time to
obtain the funds. The man warned her not to go to the authorities or she would
be killed.
[9]
The following day, the Applicant and her two
sons and went into hiding. However, in March 2009, the FARC called the
Applicant’s cell phone and threatened to find her and kill her for not
co-operating. She changed her cell phone so that she could not be traced and
had no further contact with the FARC. The Applicants remained in hiding for a
further 16 months before they left Colombia.
Issues
[10]
There were two issues:
i.
Credibility
ii.
State Protection
Credibility
[11]
The Respondent agreed with the Applicant that
the Board’s adverse credibility finding was unreasonable. Accordingly, it will not
be further discussed except to note that it caused the Board to conclude that
the FARC had not murdered Gloria. I agree with the parties that this conclusion
was unreasonable.
State
Protection
[12]
The Applicant did not seek police protection
even though she was threatened by the FARC twice by phone and once in person.
Her evidence was that she had a subjective fear that, although they would
accept her complaint and perhaps investigate the threats and extortion, the
police would not be able to offer her adequate protection (the First
Explanation). She also had a subjective fear of being killed by FARC if she
went to the police as a result of the threat made during her second contact
with the FARC (the Second Explanation).
[13]
The Board reviewed the documentary evidence and
concluded that the First Explanation was not objectively reasonable. The
documents showed that the police do arrest and prosecutors do prosecute members
of the FARC when there is sufficient evidence. The Applicants are critical of
the Board’s conclusion and say that crucial contradictory evidence was ignored.
This will be discussed below.
[14]
The Board appears to have given no serious consideration
to the Second Explanation because it did not accept that the FARC murdered
Gloria. However, the Respondent says that this is not a material error because,
even if the FARC killed Gloria, the Second Explanation only justified the Applicant’s
initial failure to seek state protection. It no longer excused the failure to
report once the Applicant was safely in hiding.
[15]
The Applicant spent 16 months in safety and the
Respondent says that, in this period, she should have contacted the police. The
Board reached the same conclusion and said at paragraph 24 of the Decision “I
cannot find that it would have been unreasonable for the PC to go to the police
on at least one occasion to report these matters”.
[16]
Against this background, the narrow issue is
whether the Board acted reasonably when it rejected the First Explanation on
the basis that the documentary evidence does not support the Applicant’s
subjective fear that adequate police protection would not reasonably have been
forthcoming.
[17]
Specifically, was it reasonable to reject the
First Explanation without referring to a document prepared in November 2010 by
the Canadian Council for Refugees entitled The Future of Colombian Refugees
in Canada: Are we being equitable?. It was submitted by the Applicants and
was dealt with in their written submissions. It shows that in Bogota only 2.5%
of those who commit crimes are found, charged and convicted and concludes at
page 21 that police investigation into crimes is “virtually non-existent”. The
Applicants say there is no reason to suppose that the situation in Cali is different.
[18]
The Respondent says that the Board’s statement
at paragraph 27 of the Decision is sufficient to deal with this document. It
reads:
… the preponderance
of the objective evidence regarding current country conditions suggests that,
although not perfect, there is adequate state protection in Colombia for victims of crime.
[19]
In my view, it was unreasonable to reject the
First Explanation without referring to an apparently credible and timely
document. This is particularly so when much of the documentary evidence to
which the Board made reference dealt with protection programs for high profile
personalities and witnesses in court cases and had no relevance to the
Applicants’ circumstances as ordinary civilians.
Certification
[20]
No question was posed for certification for
appeal.
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