Docket: IMM-4137-13
Citation:
2014 FC 946
Toronto, Ontario, October 6, 2014
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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MARIBEL GARCIA ROJAS
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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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JUDGMENT AND REASONS
I.
Overview
[1]
Ms. Rojas is a citizen of Colombia applying for
judicial review of a decision of the Refugee Protection Division [RPD, Board]
which determined she is not a Convention refugee or a person in need of
protection according to the criteria specified in sections 96 and 97 of the Immigration
and Refugee Protection Act (SC 2001, c 27) [IRPA]. The application was
commenced pursuant to section 72(1) of IRPA.
II.
Facts
[2]
Maribel Garcia Rojas [the Applicant], is a 44
year old Colombian woman who made a refugee claim upon arrival in Canada on January 14, 2012. She is the single mother of a 16 year old girl who resides in Colombia (the status of her daughter is not in issue in this application). She fears for
her life and safety at the hands of a leftist paramilitary force known as the
Fuerzas Armadas Revolucionarias de Colombia, or the Revolutionary Armed Forces
of Colombia - People's Army [FARC].
[3]
In 2007, the Applicant was employed in the
nursing profession in Bogota when she met a man named Henry. They struck up a
friendship. Approximately a year later, he informed her of his affiliation with
FARC and asked her if she would be interested in a position with them. She
declined. Henry persisted in his efforts to recruit her, so she asked her
employer to transfer her to the city of Ibague.
[4]
Roughly a year and a half went by without
incident in Ibague. On June 14, 2010, the Applicant was confronted by three
people after work. They handed her a cell phone, and Henry, on the line,
directed her to follow them. They blindfolded the Applicant and took her to a
luxurious house on the outskirts of the city where she tended to a man who had
been shot. The Applicant reported the incident to the police, who gave her
numbers to call in the event the guerrillas contacted her again.
[5]
The Applicant did not hear from Henry or his
associates for two years. On July 20, 2012, she was approached outside of her
work by a woman asking if she would take a look at her husband, who was waiting
in a taxi and could not walk. Instead, there were two men in the taxi who
wanted the Applicant to provide nursing services to FARC and told Ms. Rojas
that harm would come to her mother and child if she did not co-operate. The
Applicant reported the incident to the District Attorney’s office.
[6]
On September 4, 2012, the Applicant hopped in a
taxi to go home, but she believes she was drugged. The Applicant woke up in a
compound in the mountains, where she was tasked with tending to the father of a
man the guerrillas called Commander Fernando. She cared for the Commander’s
father for two nights before he passed away, at which point she was blindfolded
and dropped off at the side of a highway. She reported this incident to the
police, who brought her to an anti-kidnapping, anti-extortion division [the GAULA
- Grupos de Acción Unificada por la Libertad Personal] that gave her a
number to call if she saw the men again and suggested she would be valuable as
an informant.
[7]
Over the next few months, Ms. Rojas went to the
Office of the Ombudsman, which opened a file, but she was not contacted by the
authorities subsequently.
[8]
After Ms. Rojas learned from her cousin that two
men visited her to ask about the Applicant’s whereabouts, she applied for a
visitor’s visa to the United States. On January 14, 2012, she crossed the
border from Buffalo, New York, into Canada.
III.
Decision Under Review
[9]
Ms. Rojas’ hearing before the Refugee Protection
Division was held on May 9, 2013, in Toronto, Ontario. The decision was
released on May 21, 2013.
[10]
The RPD found that the Applicant was neither a
Convention refugee nor a person in need of protection based on a lack of clear
and convincing evidence of the State’s inability to protect her.
[11]
The RPD based their finding on state protection primarily
on the following documentation and analysis:
a.
The National Documentation Package notes that
the Constitutional Court of Colombia has recognized the country’s obligation to
adopt special protective measures to defend the security interests of those
whose level of risk is extraordinary. Furthermore, there are organizations
which can assist the applicant, including the Government of Colombia’s National
Protection Unit and protection programs offered by non-governmental
organizations [NGOs].
b.
Certificates of denunciation (reports to law
enforcement authorities) submitted by the Applicant indicate authorities have
been investigating the complaints. Less than perfect protection is not
equivalent to the state being unwilling or unable to offer reasonable
protection.
c.
The Applicant does not fall into one of the
groups considered in objective documentary evidence as being at risk in
Colombia, namely: members and supporters of one of the armed groups or parties
to the conflict; members of local or regional governments; judges and other
individuals associated with the justice system; civil society and human rights
activists; journalists and other members of the media; trade union leaders;
teachers; university professors and students, indigenous peoples and
Afro-Colombians; women and children with certain profiles and marginalized
social groups.
IV.
Issue
[12]
The sole issue to be decided is whether the RPD
err in finding that Colombia offered adequate state protection.
V.
Submissions of the Parties
[13]
The Applicant submits that while the RPD
acknowledged Colombia’s legal obligation to protect her, it did not take into
consideration whether that obligation had been given any effect. To the
contrary, the Applicant maintains that the RPD cited evidence of insufficient resources
devoted to protection. The Applicant also contends that the evidence
contradicted the findings and showed that FARC continues to be a potent force,
and Colombia cannot adequately protect her.
[14]
Second, the Applicant submits that the RPD
misconstrued the evidence pertaining to her experiences with law enforcement
authorities. The lack of follow-up from the authorities is indicative that
investigations were not occurring, and if they were, involved considerable risk
to the Applicant because she was asked to be an informant against FARC.
[15]
In addition, the Applicant argues that the RPD
also made an error in finding that her profile did not match that of a person
considered to be at risk. This runs counter to the Applicant’s credible
testimony that she had been abducted on three separate occasions. Moreover, certain
objective documentary evidence on the record clearly shows medical personnel as
among those targeted by FARC.
[16]
The Respondent, on the other hand, submits that
the test for state protection is adequacy measured by serious efforts to protect,
as opposed to “effectiveness”, per Canada (Minister
of Citizenship and Immigration) v Flores Carillo, 2008 FCA 94 at
para 30. There is a presumption of state protection, which, to be rebutted,
requires clear and convincing evidence of a state’s inability to protect. The
Respondent argues that the Applicant is seeking perfect protection. The RPD
reasonably weighed the evidence and found adequate, if imperfect, state
protection to exist, supported by documentary evidence citing potential avenues
of redress.
[17]
The Respondent further asserts that the RPD also
found evidence that the Applicant’s complaints were being investigated. However,
as there was no documentary evidence regarding the level of detail Ms. Rojas
provided to the police, any perceived lack of police action could have resulted
from a lack of information communicated. Furthermore, the Applicant did not
follow up on her complaint to the Ombudsman. The Respondent asserts that the
Applicant’s position amounts to a disagreement over the RPD’s weighing of
evidence.
[18]
Since the RPD’s finding on state protection is
determinative of the claim, the Respondent contends that there is no need to
address whether the RPD erred in its finding regarding the Applicant’s risk
profile.
VI.
Analysis
[19]
The standard of review with respect to the
single issue to be decided is that of reasonableness. As the Respondent points
out, this is a highly deferential standard: Ruszo v Canada (Minister of Citizenship and Immigration), 2013 FC 1004 at para 22.
[20]
Per the well-known case law in this area, this Court
cannot interfere in the decision below, unless its conclusions fall outside the
range of possible acceptable outcomes, and it is not defensible in respect of
the facts and law. The decision of the Board must be intelligible, transparent
and justifiable such that it does not fall outside of the said reasonable range
of outcomes: Dunsmuir v New Brunswick, 2008 SCC 9; Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12.
[21]
The protection that states offer to their
citizens must be inadequate if Canadian protection is to be granted under the
Act. As stated by the Federal Court of Appeal in paragraph 30 of Flores
Carrillo, “a claimant seeking to rebut the
presumption of state protection must adduce relevant, reliable and convincing
evidence which satisfies the trier of fact on a balance of probabilities that
the state protection is inadequate.”
[22]
Further to this general proposition, this Court
has held on numerous occasions that state protection does not need to be
perfect. Rather, it is sufficient for the protection to be adequate: Canada (Minister of Employment and Immigration) v Villafranca, (1992) 99 DLR (4th)
334; Ortiz v Canada (Minister of Citizenship and Immigration), 2006 FC
1365; Blanco v Canada (Minister of Citizenship and Immigration), 2005 FC
1487.
[23]
Indeed, it would be unrealistic in most
circumstances to expect states to provide witness protection programs or
state-funded bodyguards in the aftermath of most reported incidents, or for
that matter, to expect that authorities will fully pursue every matter reported
to them. Just as this level of protection would not be the expected of Canadian
law enforcement authorities for the average incident, we cannot expect foreign
states to be held to any higher standard.
[24]
Absent one crucial finding regarding the Applicant
and her particular experiences at the hands of FARC, there was documentation on
the record to allow the Board to come to a reasonable conclusion that Colombia has, particularly in recent years, provided adequate -- but not perfect -- state
protection. This evidence included institutions and offices such as the Inspector
General, the Constitutional Court, the National Protection Unit, the GAULA and Ministry
of the Attorney General’s Protection Program.
[25]
Indeed, the Board was well aware of imperfections,
and mentioned these in the decision, including a lack resources, and admission
by the President blemishes in security, including a growth in kidnappings.
[26]
The Board did not err due to its conclusion that
conditions have been improving in Colombia, and state protection may be
available to average Colombians. Rather, the RPD erred in failing to account
for key evidence that contradicted its finding that the Applicant did not have
the “profile” of an at-risk person.
[27]
Specifically, the Board found that the Applicant’s
job as a nurse (or nurse’s aide) was not in a profession identified as “at risk” in Colombia. In failing to acknowledge the
contradictory evidence, the Board failed to evaluate whether the Applicant’s
personal situation would create a risk to her \under s. 97 of the Act. Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL)
at paras 15-17.
[28]
The key evidence testifying to medical
professionals’ risk follows:
Yet even as the FARC has been weakened
politically and militarily, it is still able to operate throughout all of Colombia’s national territory. All indications are that it is regrouping and is still able
to commit terrorist attacks and target its enemies, including politicians,
grassroots activists, local businessmen, medical personnel, humanitarian
workers, ex-government officials and others… Another category and pattern of
threat involves those with special skills: Nurses or and doctors have
been kidnapped and forced to perform abortions, to treat wounded combatants and
to provide other medical services… When the nurse or doctor is approached again
and refuses, s/he may be again kidnapped and threatened. Resistance often
brings threats and reprisals. [emphasis added]
Cherniak Report, Exhibit F to the Rojas
Affidavit; Application Record p. 77
[29]
As a nursing professional, the Applicant clearly
fell into the risk profile. She sought police protection, and was still
kidnapped on more than one occasion. the Board was under an obligation to
consider evidence related to at-risk profiles at the hands of FARC, Justice
Gleason made the following finding, with respect to state protection of “at risk” profiles in Andrade v Canada (Minister of
Citizenship and Immigration), 2012 FC 1490:
[20] In the past year, this Court has overturned RPD
decisions on state protection in Colombia only where the RPD was shown to
have failed to properly assess the background or "profile" of the
claimant and the claimant fell into one of the groups that the documentary
evidence indicates may be at risk in Colombia… These cases turn on the
failure of the Board to consider the heart of the claims advanced by the
claimants and to assess their profiles against the documentary evidence, which
indicated that they might be at risk. Simply put, in these cases, the Board
failed to conduct the analysis it was required to undertake. [Emphasis
added]
[30]
Other Court decisions directly on point have also
faulted the Board for failing to address whether state protection is available
to those personally targeted by FARC. Those cases have included very similar fact
situations, i.e., where the threat has become personalized to someone in a risk
profile. See Hernandez Montoya v Canada (Citizenship and Immigration),
2014 FC 808; Gonzalez v Canada (Citizenship and Immigration), 2014 FC
750; Vargas Bustos v Canada (Citizenship and Immigration),
2014 FC 114.
[31]
When the Board found out that Ms. Rojas lacked the
profile of a person at risk, it ignored key contradictory evidence, resulting
in an unreasonable decision. The Applicant’s judicial review application is
allowed. The parties proposed no questions of general importance for
certification, and none will be certified.
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