Docket:
IMM-296-13
Citation: 2014 FC 114
Ottawa, Ontario, January 31, 2014
PRESENT: The Honourable Mr. Justice O'Keefe
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BETWEEN:
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ANGEL ANDRES VARGAS BUSTOS
ANDREA EUGENIA SABOGAL RIVEROS EDILMA BUSTOS DE VARGAS
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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’ claims for refugee protection
were denied by the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the Board). They now apply for judicial review of that
decision pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act).
[2]
The applicants seek an order setting aside the
negative decision and returning the matter to a different panel of the Board
for redetermination.
Background
[3]
Angel Andres Vargas Bustos (the principal
applicant) and Andrea Eugenia Sabogal Riveros (the first co-applicant) are a
married couple from Colombia. Edilma Bustos de Vargas (the second co-applicant)
is the principal applicant’s mother and she lived with them there.
[4]
In Colombia, the first co-applicant worked for a
bank and she was in charge of an account held by Pabon Castro Co. The bank
closed this account once it found out that the company was involved in a money
laundering scheme. However, the legal representative of Pabon Castro Co. had
been detained, so nobody claimed the balance of 34 million pesos and the bank
held onto it.
[5]
On December 26, 2008, the first co-applicant
received a call from a potential client calling himself Jorge Tovar, who
arranged a meeting. However, as the first co-applicant was leaving for the
meeting, the man confronted her and told her that he would now be in charge of
the Pabon account. She said no. Over the next couple of months, she, her
husband and her mother-in-law, began receiving threats from this person and he
soon revealed himself to be Commander Ruben from the Urban Blocque of the Fuerzas
Armadas Revolucionarias de Colombia [FARC]. The worst encounter happened on
February 13, 2009. As she was arriving home from work, two men pinned her
against a fence, threatened her with a weapon and demanded information about
the Pabon account. They insisted that the account held 300 million pesos that
belonged to FARC and they threatened to kill her if she did not give them the
money by February 22, 2009.
[6]
At no point had she or her husband approached
the police or the bank, but now they contacted one of her husband’s friends, an
army officer. He recommended that they move and they followed his advice. The
first co-applicant resigned from her job in mid-February 2009 and she and her
husband eventually ended up in Canada by March 13, 2009. There they joined the
second co-applicant, who had been in Canada visiting her daughter since January
23, 2009. All three asked for refugee protection and their claims were joined
and considered together.
[7]
Their claims were denied on August 19, 2011, on
the basis that there was no nexus to a Convention ground and they had an internal
flight alternative. On judicial review, however, Mr. Justice James Russell
decided that the decision about an internal flight alternative was unreasonable
and he set it aside (see Sabogal Riveros v Canada (Minister of Citizenship
and Immigration), 2012 FC 547, [2012] FCJ No 565 (QL)). The matter was
returned to the Refugee Protection Division for another hearing.
Decision
[8]
In a decision dated December 5, 2012, a
different panel of the Board again denied their claims for refugee protection.
[9]
The Board accepted the applicants’ evidence
about what happened to them in Colombia, but found that their claims failed
because they did not prove that state protection was inadequate. The applicants
did not take any of the many good opportunities they had to seek protection.
The Board also rejected the first co-applicant’s explanation that the police
only protect politicians and dismissed any fear of reprisal from FARC for
telling the police. The Board found that the first co-applicant gave no sound
rationale for her failure to report and it was inconsistent with any genuine
attempt to access state protection.
[10]
Further, the Board was not convinced that
attempting to access state protection would have been futile. The Board
rejected some evidence submitted by the applicants, saying it preferred its own
documentary evidence since it came from a wide range of reliable government and
non-governmental organizations. The Board found that although there are human
rights abuses in Colombia and the state is having trouble addressing the
criminality and corruption within its security forces, Colombia was making serious efforts to combat that. The Board acknowledged that serious
efforts are not enough, but found that those efforts had translated into
adequate state protection state protection for victims of crime at the
operational level.
[11]
The Board ostensibly went on to show that by
reviewing the country conditions documents. It noted that Colombia was decreasing corruption in its security forces. It also discussed at length the
success Colombia has had combating FARC and other armed groups, asserting
control over more territory and decreasing their enemies’ operational efficacy.
It concluded that Colombia’s national security is no longer threatened by
illegal armed groups or criminal elements.
[12]
After doing this, the Board found that the first
co-applicant had not established that protection would not be reasonably
forthcoming if she returned to Colombia today, nor that it would be objectively
unreasonable for her to seek that protection. He therefore dismissed her claim,
along with those of the other applicants since their claims relied entirely on
the same events.
Issues
[13]
The applicants submit six issues for my
consideration:
1. Did the Board err in law in determining that
the applicants are not Convention refugees and not persons in need of protection?
2. Did the Board act without jurisdiction, act
beyond their jurisdiction or refuse to exercise their jurisdiction?
3. Did the Board fail to observe a principle of
natural justice, procedural fairness or other procedure that they were required
by law to observe?
4. Did the Board err in law in making their
decision or order whether or not the error appears on the face of the record?
5. Did the Board base their decision or order on
an erroneous finding of fact that they made in a perverse or capricious manner
or without regard to the material before them?
6. Did the Board act in any way that was
contrary to law?
[14]
The respondent says only that the applicants
failed to demonstrate that the Board committed any reviewable error.
[15]
Upon reviewing the arguments, I would reframe
the issues as follows:
1. What is the standard of review?
2. Did the Board misunderstand the test for
state protection?
3. Was the decision unreasonable?
Applicants’
Written Submissions
[16]
The applicants first state that the Board
mischaracterized the evidence regarding the applicants’ conversation with their
friend in the army. They point to testimony showing that he had told them the
harassment would not stop, that there was no safe place to hide and that they would
not receive protection because the first co-applicant was neither a politician
nor someone with a high profile. The applicants submit that their friend’s
advice should be trusted, since as an army lieutenant, he has first-hand
knowledge about fighting guerillas.
[17]
Citing Majoros v Canada (Minister of Citizenship
and Immigration), 2013 FC 421, [2013] FCJ No 447 (QL) [Majoros], the
applicants also argue that the Board erred by placing a legal burden on the
applicants to seek state protection and that documentary evidence is more
relevant. Here, FARC is well-organized and even if the state arrested a couple
people, it would not be able to relieve the applicants from persecution.
[18]
Further, the applicants say the Board was wrong
to dismiss the country evidence they had presented. Its preference for its own documentary
evidence was based on reasoning that the applicants’ documentary evidence was less
objective, which the applicants say was the same type of reasoning that Madam
Justice Judith Snider condemned as most disturbing in Coitinho v Canada
(Minister of Citizenship and Immigration), 2004 FC 1037 at paragraph 7,
[2004] FCJ No 1269 (QL) [Coitinho]. Further, the applicants say it was
unreasonable since its submissions also included documents drawn from a wide
range of non-government and government organizations. Ultimately, the
applicants say that the Board erred by failing to consider all the evidence
before it (see Villa v Canada (Minister of Citizenship and Immigration),
2008 FC 1229, 75 Imm LR (3d) 215).
[19]
In particular, the applicants point to a report
by Dr. Chernick, an expert on Colombia who has been cited by the Board in the
past. They note that in Villicana v Canada (Minister of Citizenship and
Immgration), 2009 FC 1205 at paragraphs 72 to 79, 357 FTR 139, Justice
Russell said it was unreasonable to dismiss without mentioning a report on Mexico by a professor with similarly impressive credentials. The applicants suggest the
same result should be obtained here. As well, the Board did not consider a
similarly supportive report by the Canadian Council for Refugees and the
applicants say it was obligated to explain why this contradictory evidence was
rejected (see Cetinkaya v Canada (Minister of Citizenship and Immigration),
2012 FC 8 at paragraph 66, 403 FTR 46; and others).
[20]
As well, the applicants say that the Board erred
in applying the test for state protection and that it considered only the
efforts the state was making and not its efficacy. The applicants say the Board
did not consider the question really in issue, which was whether Colombia can
protect a person who has been targeted by FARC (see Avila Rodriguez v Canada
(Minister of Citizenship and Immigration), 2012 FC 1291 at paragraphs 41 to
47, 14 Imm LR (4th) 89 [Avila Rodriguez]; and Martinez Gonzalez v
Canada (Minister of Citizenship and Immigration), 2013 FC 898 at paragraphs
15 and 16, [2013] FCJ No 970 (QL) [Martinez Gonzalez]). Further, the
applicants say that the Board’s analysis is questionable even based on its own
documents, pointing to item 7.3 of the National Documentation Package: Response
to Information Request, COL104011.E (30 March 2012).
[21]
The applicants conclude by reiterating that the Board’s
failure to consider contradictory evidence made its decision unreasonable.
Respondent’s
Submissions
[22]
The respondent says that the standard of review
is reasonableness and argues that the applicants failed to provide documentary
evidence on country conditions to rebut the presumption of adequate state
protection. The respondent then summarized the law on state protection and
noted that the applicants are required to submit reliable and probative
evidence that proves, on a balance of probabilities, that state protection is
lacking or inadequate (see Canada (Minister of Citizenship and Immigration)
v Flores Carillo, 2008 FCA 94 at paragraphs 17 to 20, 24 and 30, [2008] 4
FCR 636).
[23]
Here, the respondent notes that the Colombian
authorities have already taken action against Margarita Pabon, one of the
people involved with the money laundering operations and reached reasonable
conclusions regarding the state’s successes in battling FARC and corruption
within its security forces. The respondent also says that recent cases from
this Court have affirmed the reasonableness of finding that Colombia can
adequately protect persons in situations similar to the applicants (see Mendoza-Rodriguez
v Canada (Minister of Citizenship and Immigration), 2012 FC 1367 at
paragraphs 82 to 89, [2012] FCJ No 1471 (QL) [Mendoza-Rodriguez]; Herrera
Arbelaez v Canada (Minister of Citizenship and Immigration), 2012 FC 1129,
[2012] FCJ No 1278 (QL); and others). Further, the respondent contends that it
is not enough to point to mixed documentary evidence when the applicants have failed
to seek protection from their home state (see Borges v Canada (Minister of
Citizenship and Immigration), 2005 FC 491 at paragraph 10, [2005] FCJ No
621 (QL); Orduno v Canada (Minister of Citizenship and Immigration),
2011 FC 1224 at paragraph 14, [2011] FCJ No 1495 (QL);
and others).
[24]
In a similar vein, the respondent argues that
the Board’s emphasis on the applicants’ failure to seek protection was proper
and his rejection of her excuses is well-supported by this Court’s
jurisprudence (see Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at
724 [Ward]; and Bolanos v Canada (Minister of Citizenship and
Immigration), 2011 FC 388 at paragraph 60, [2011] FCJ No 497 (QL); and
others). The respondent also says that asking for advice from a friend in the military
does not count as an attempt to seek state protection.
[25]
Finally, the respondent says that the Court must
presume that boards have considered all evidence and they are not obliged to
refer to contrary evidence within the documentary sources (see Florea v
Canada (Minister of Citizenship and Immigration), [1993] FCJ No 598 (QL)
(CA) [Florea]; Quinatzin v Canada (Minister of Citizenship and
Immigration), 2008 FC 937 at paragraph 29, [2008] FCJ No 1168 (QL) [Quinatzin];
Salazar v Canada (Minister of Citizenship and Immigration), 2013 FC 466
at paragraphs 58 to 61, [2013] FCJ No 527 (QL) [Salazar]). Indeed, a
similar argument was made about Dr. Chernick’s report in Andrade v Canada (Minister of Citizenship and Immigration), 2012 FC 1490 at paragraphs 14 to 19,
[2012] FCJ No 1594 (QL), and there too the Board’s decision was reasonable
despite not referring to it by name. Altogether, the respondent says the
applicants are really asking the Court to re-weigh the evidence, which this
Court cannot do (see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraphs 14 to 18, [2011]
3 SCR 708).
Analysis and
Decision
[26]
Issue 1
What is the 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 at paragraph 57, [2008] 1 SCR
190 [Dunsmuir]).
[27]
Chief Justice Paul Crampton explained the
standard of review for decisions on state protection in Ruszo v Canada (Minister of Citizenship and Immigration), 2013 FC 1004 at paragraph 22, [2013]
FCJ No 1099 (QL):
The standard of review applicable to the RPD’s assessment of the
issue of state protection depends on whether the conclusion reached by Board
turned on its understanding of the proper test for state protection or on its
application of that test to the facts of this case. For essentially the same
reasons discussed at paragraphs 20 and 21 above, the former would be reviewable
on a standard of correctness (see also Koky v
Canada (Minister of Citizenship and Immigration), 2011 FC 1407, at para 19 [Koky]), whereas
the latter would be reviewable on a standard of reasonableness. In short,
the jurisprudence has established a clear test for state protection (see, e.g.,
Burai v Canada (Minister of Citizenship and Immigration), 2013 FC 565,
at para 28 [Burai]; Lakatos v Canada (Minister of Citizenship and
Immigration), 2012 FC 1070, at paras 13-14; Kaleja v Canada (Minister of
Citizenship and Immigration), 2011 FC 668, at para 25; and Cosgun v
Canada (Minister of Citizenship and Immigration), 2010 FC 400, at paras
42-52). Therefore, it is not open to the RPD to apply a different test, and the
issue of whether the RPD applied the proper test would be reviewable on a
standard of correctness. However, the issue of whether the RPD erred in
applying the settled law to the facts in this case would be a question of mixed
fact and law that is reviewable on a standard of reasonableness (Dunsmuir,
above, at paras 51-53; Hinzman v Canada (Minister of Citizenship and
Immigration), 2007 FCA 171, at para 38 [Hinzman]).
[28]
Here, the applicants argue that the Board
misunderstood two aspects of the test, so for those matters, the standard is
correctness.
[29]
The other issues argued by the applicants all
regard the Board’s appreciation of the facts or how the law was applied to the
facts and for those issues the standard is reasonableness. This means that I
should not intervene if the Board’s decision is transparent, justifiable,
intelligible and within the range of acceptable outcomes (see Dunsmuir
at paragraph 47; and Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12 at paragraph 59, [2009] 1 S.C.R. 339 [Khosa]). As
the Supreme Court held in Khosa at paragraphs 59 and 61, a court
reviewing for reasonableness cannot substitute its own view of a preferable
outcome, nor can it reweigh the evidence.
[30]
Issue 2
Did
the Board misunderstand the test for state protection?
The
applicants say that the Board misunderstood the test for state protection in
two ways: (1) it placed a legal burden on the applicants to seek state
protection, contrary to Majoros; and (2) it considered only the efforts
the state was making and not whether state protection was operationally
adequate. Neither complaint has merit.
[31]
With respect to the first, the Board did
emphasize that, for democratic countries, claimants will usually need to show
that they sought state protection. That is no error and is consistent with the
jurisprudence of this Court (see Camacho v Canada (Minister of Citizenship
and Immigration), 2007 FC 830 at paragraph 10, [2007] FCJ No 1100 (QL)).
Even in Majoros, the case preferred by the applicants, Mr. Justice
Russel Zinn recognized that it is often a practical requirement since clear and
convincing evidence is required to rebut the presumption of state protection
(at paragraph 10).
[32]
It would only be an error if the Board
did not understand that a claim can also succeed if the claimants can show that
it would likely have been futile to approach the state for protection (see Ward
at 724). In that regard, the Board correctly said at paragraph 23 of its
decision that claimants must “… satisfy the Board that he or
she sought, but was unable to obtain, protection from their home state, or alternatively,
that their home state, on an objective basis, could not be expected to provide
protection” (emphasis added). That is paraphrased from the Court of
Appeal’s decision in Hinzman v Canada (Minister of Citizenship and
Immigration), 2007 FCA 171 at paragraph 37, 282 DLR (4th)
413, and it plainly shows that the Board knew what the test was. Further, that
understanding is reflected in the Board’s decision as it did not simply stop
upon finding that the applicants never sought protection, but went on to
consider country conditions.
[33]
As for the applicants’
second argument, the Board plainly stated at paragraph 30 of its decision that
“… it is not enough to say that steps are being taken that some day may result
in adequate state protection. […] Any efforts must have “actually translated
into adequate state protection” at the operational level.” The Board knew what
the test was. Also, although I will question the focus of the Board’s
application of this test, its decision does show that Colombia has had operational success in combating FARC and reducing corruption within its
security forces. It did not focus only on efforts and I believe it understood
the test.
[34]
Issue 3
Was
the decision unreasonable?
To begin,
I agree with the respondent that the Board did not err by rejecting the
applicants’ documentary evidence. It explicitly said that it preferred the
evidence in the National Documentation package because the sources were more
reliable. In other words, it weighed the applicants’ documentary evidence and
found it wanting. This is not a situation like in Coitinho. There, the
Board erred by rejecting a claimant’s personal evidence without making any
credibility finding. Here, the conflict is only between documentary evidence
and boards must choose between contrary reports. It is not my role to criticize
that choice now.
[35]
Also, boards are presumed to have considered all
the evidence (Florea at paragraph 1). Sometimes, when a probative piece
of evidence that is contrary to a board’s conclusions is not mentioned, the
Court will draw an inference that the board overlooked it (see Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL)
at paragraphs 15 to 17, 157 FTR 35).
[36]
The respondent points out that this Court has
sometimes been more reluctant to draw such an inference when it comes to
country documentation evidence (see Shen v Canada (Minister of Citizenship
and Immigration), 2007 FC 1001 at paragraph 6, [2007] FCJ No 1301 (QL); Quinatzin
at paragraph 29; and Salazar at paragraph 59). There are good reasons
for this. Country documentation usually consists of hundreds of pages of
secondary sources reporting information derived from many more primary sources
and other secondary sources. They report many different perspectives and there
will inevitably be conflicting information on many important issues. Because of
that, it will almost always be possible to mine from the materials a few quotations
that support a position and then argue that the Board ignored that evidence
because it did not specifically mention those documents by name.
[37]
However, judicial review should not be a
“line-by-line treasure hunt for error” (Communications, Energy and
Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013
SCC 34 at paragraph 54). Expecting a board to meticulously spell out how much
weight it assigns to the evidence of each source and source-within-a-source for
every issue on which conflicting data exists is neither practical nor
efficient. At most, it would promote a “magic word” approach to reasons where boards
would have an incentive to generically list documents in an attempt to prove
that they read them, but which adds nothing of any value to the decision.
[38]
Moreover, because of the volume of documentary
evidence, it is much harder to reliably infer that a particular piece of
evidence was ignored merely because it was not specifically mentioned.
[39]
Therefore, if the board explains what
documentary evidence it relies on and that evidence is reliable and reasonably
supports its conclusions, then finding a few contrary quotations that it did
not specifically explain away will not make the decision unreasonable. If, on
the other hand, the contrary evidence is overwhelming and the board does not
explain what documentary evidence supports its conclusions, then it may be
easier to conclude that the decision was unreasonable.
[40]
Nevertheless, the Board did err in this case.
Although the Board understood the test, I ultimately agree with the applicants
that the Board erred by failing to address the main question: is state
protection available for people who have been specifically targeted by FARC?
Rather, the Board’s review of the country conditions document was focused on
corruption within the security forces and military victories against FARC and
other guerillas. The applicants are not fleeing from front-line combat; they
are fleeing from crime. FARC’s reduced military capacity does not mean that the
state can protect people who have been specifically targeted by FARC for
harassment or extortion. The Board member was required to consider that issue
and the reasons do not show that he did. I find that the decision is therefore
unreasonable (see Martinez Gonzalez at paragraph 16; and Avila
Rodriguez at paragraph 46).
[41]
Finally, the respondent also observed that this
Court has many times upheld decisions that found state protection in Colombia adequate for people in the applicants’ situation. A few of the cases it cites for
that are distinguishable. In Mendoza-Rodriguez for instance, the Board
had found that the applicants had lied about being pursued by a member of a
paramilitary organization (at paragraph 84), so there was nobody from whom they
needed protection. Anyway, this Court only reviews factual findings about state
protection for reasonableness, and each case is decided on its own merits (see Konya v Canada (Minister of Citizenship and Immigration), 2013 FC 975,
[2013] FCJ No 1041 (QL)). The possibility that a board could reasonably find
that state protection in these situations is adequate does not excuse the Board’s
failure to actually consider whether it was in this case.
[42]
I would therefore allow the application for
judicial review, set aside the Board’s decision, and remit the matter to a different
panel of the Board for redetermination.
[43]
Neither party
wished to submit a proposed serious question of general importance for my
consideration for certification.
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