Docket: IMM-3480-13
Citation:
2014 FC 466
Ottawa, Ontario, May 14,
2014
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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MARIA MERCEDES GAITAN COMENARES
CARLOS ALBERTO SABOGAL MORA
MARIA JOSE VARGAS GAITAN
JULIANA VARGAS GAITAN
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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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JUDGMENT AND REASONS
[1]
The claims for protection made by Maria Mercedes
Gaitan Colmenares, the principal claimant (her last name is incorrectly spelled
in the style of cause), her husband, Carlos Alberto Sabogal Mora, and their
daughters, Maria Jose Vargas Gaitan and Juliana Vargas Gaitan, were denied by
the Refugee Protection Division. The Board Member stated: “I find that the fear of being targeted by the FARC to
be purely speculative.”
[2]
I am unable to accept the Applicants submission
that “the Board erred in making unreasonable
plausibility findings without a basis in the evidence.”
[3]
This Court has frequently held that
implausibility determinations must be based on clear evidence and a
rationalization process supporting the Board’s inferences. It has also been
held that there are two distinct bases for a finding of implausibility: Zacarias
v Canada (Minister of Citizenship and Immigration), 2012 FC 1155, [2012]
FCJ No 1252, at para 11. The first is where the allegation is “outside the realm of what reasonably could be expected:” Valtchev v Canada (Minister of Citizenship and
Immigration), [2001] FCJ No 1131. The second is where the allegation does
not make sense in light of the evidence before the decision-maker. The
implausibility in this case, falls within this second category.
[4]
The Applicants’ claim for protection rested on an
allegation that Ms. Colmenares, and therefore her
family, were at risk from the FARC as a result of her father having been
kidnapped and identified as a military target by the FARC. The evidence was
that Ms. Colmenares’ father was kidnapped on September 28, 1993, when he
was a pilot for a private company that provided helicopter services to the petroleum
sector. He was released on November 13, 1993, after a ransom was paid. In
1996, his company was hired to provide services to the Columbian military and
the pilots were declared military targets of the FARC. He continued to work
between 1996 and 1999, when he retired, having suffered no reprisals from the
FARC.
[5]
In 2001, Ms. Colmenares says that she and her two daughters received a
threatening phone call demanding 100 million pesos. She received other calls
telling her they had not forgotten about her father. The family moved to
another area in 2002 to escape the threats.
[6]
In 2003, again to escape the threats, the family visited Ms. Colmenares’
sister in Aruba for two months. When they returned to Columbia, they stayed
with Ms. Colmenares’ parents. Around this time, Ms. Colmenares pulled her
daughters from school and requested a leave of absence from work. In 2003, her
parents received a threatening call stating that the FARC had been following
them and knew where to find them. Her parents left for the USA.
[7]
In 2004, unknown callers contacted the restaurant where Ms. Colmenares
worked. Around this time, she and her daughters left for Aruba again for
another three months. In 2006, her parents again went to the USA and stayed there for six months, but did not make an asylum claim.
[8]
In 2008, Ms. Colmenares was again contacted and told to pay a sum of 500
million pesos and additional calls were made to intimidate the family. Ms.
Colmenares changed her daughters’ school again and the family moved in with
their in-laws.
[9]
The Applicants attempted to get visas to the United States but were
refused. Unknown persons followed the Applicants when they made a refugee
claim at the Canadian Embassy in Bogota. No assessment of the claim was made
at the time because the program was no longer available.
[10]
In May 2009, the Applicants came to Canada. Since their arrival, they
have received calls demanding that payments be made. In 2009, after she left
for Canada, Ms. Colmenares’ father says that he was contacted by FARC and that
he began paying the extortion demands by way of non-perishable food items and
non-prescription mediations such as aspirin. She says that as a consequence
FARC has left her family alone; however, even if true, it does not explain why
FARC previously left them alone.
[11]
In my view, the finding of the Board that the claims are implausible is
reasonable based on the record before it. As the Board recognized, beyond
being threatened randomly throughout a 17 year period, neither the Applicants,
nor the father had been subject to any reprisal. This is shocking given the
following:
1.
The documentary evidence consistently emphasizes
how capable and willing FARC members are at committing acts of extortion and
punishing those who do not comply. Ms. Colmenares’ own
father acknowledges that “it is known that these
groups have no mercy for their victims.”
2.
Despite having kidnapped Ms. Colmenares’ father once already, FARC did not engage him other than by threats
at any time following his kidnapping in 1993.
3.
Despite having demanded 100 million pesos and
subsequently increasing that demand to 500 million pesos, FARC seems content to
accept non-perishable foods as payment from Ms. Colmenares’ father. This is unbelievable especially given Ms. Colmenares’
testimony at the hearing that one of the primary reasons FARC would still be
interested in her family are “financial” reasons.
4.
In her PIF, Ms. Colmenares admits that her brothers were not targeted, which completely
undermines her claim that her family is being targeted because of its
connection to her father.
5.
No one in her family has received threats since
2010.
[12]
In short, it is implausible that Ms. Colmenares is being targeted
because of her relation to her father when her brothers are not being targeted
and no one in her family has received any reprisal since her father’s
kidnapping in 1993, despite FARC having an international reputation of being a
ruthless organization that does not make idle threats.
[13]
While the Applicants are correct in submitting that there is no evidence
that the FARC would not accept non-perishable foods as payment, and that they
have accepted non-monetary payments such as ammunition in the past, there is
simply no logical connection between demanding 500 million pesos, and then
accepting non-perishable food items on an “anonymous”
basis amounting to 3.7 million pesos, every two or three months. However, this
was not a central determination in the overall credibility of the Applicants;
rather, this implausibility was used by the Board to reasonably discount the
letter from Ms. Colmenares’ father.
[14]
For these reasons, the Board’s decision cannot be set aside. Neither
party proposed a question for certification.
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