Docket: IMM-2781-13
Citation:
2014 FC 808
Ottawa, Ontario, August 20, 2014
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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OLGA LUCIA HERNANDEZ MONTOYA
GABRIELA LOPERA HERNANDEZ
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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
I.
Overview
[1]
The applicants are citizens of Colombia. Lucia Hernandez Montoya is the mother of the other applicant, Gabriela Lopera
Hernandez. They both left Colombia in early December 2012, and arrived in Canada on December18, 2012. Upon arrival, they immediately applied for refugee protection
under s. 96 and 97(1) of the Immigration and Refugee protection Act (the
Act) owing to their fear of the Revolutionary Armed Force of Columbia
(the FARC) of which they had become a target due to their membership in a
particular social group.
[2]
Their claim was denied by the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the RPD). The RPD did
not question the applicants’ story, but found that they had not established
that state protection would be inadequate if they had to return to Colombia.
[3]
The applicants challenge this finding as being
unreasonable given the significant amount of evidence on record showing that
state protection is still wholly inadequate for people targeted by the FARC.
[4]
For the reasons that follow, I am of the view
that this finding was indeed unreasonable and that, as a result, the present
judicial review application should be allowed.
II.
Background
A.
The Applicants’ Alleged Fear
[5]
Mrs. Montoya alleges, in support of her refugee
claim and that of her daughter, that her family has been the target of the FARC
for a long time. In particular, she alleges that the FARC killed three of her
uncles and has threatened her parents in 2000, eventually forcing her parents,
brother and sister to flee the country.
[6]
However, she did not flee the country with them,
but rather stayed in Colombia with her husband, who had opened an electronic
store. In late 2003, it was their turn to be targeted by the FARC which began
extorting her husband by demanding monthly payments in the amount of two million
pesos. Her husband paid for several years, but in January 2007 he allegedly
reported the situation to the police and tried to rally other business leaders
to his cause. He was murdered a few months later. The police, however, failed
to identify any suspects.
[7]
Following the tragic death of her husband, Mrs. Montoya
says the police advised her to leave her current residence. She complied and
moved to another part of the city of Bogota, where she was residing. She then
opened a clothing store but in June 2012, the FARC left a letter at her place
of business demanding two million pesos per month in addition to threatening
her. She says that she reported these threats and extortion attempt to the
Office of the Attorney General and then moved for her own safety and that of
her daughter, to Ibagué, a city located four hours away from Bogota.
[8]
Once in Ibagué, she was contacted by the Office
of the Attorney General and asked to identify some members of the FARC.
However, the FARC found her despite her relocation and intimidated her into
refusing. She alleges that on December 10, 2012, while she was in Medellin where she had relatives, a member of the FARC attempted to abduct her but she
escaped. She left Colombia two days later.
B.
The RPD’s Decision
[9]
On March 7, 2013, the RPD dismissed the
applicants’ refugee claim. It concluded that state protection, although not
perfect, is now adequate in Colombia after years of struggle with powerful
guerrilla and paramilitary groups. Although it recognized that Colombia was still facing problems with internal conflict, drug, violence, corruption and
an inefficient judiciary, it found that the overall incidence of crime related
to the FARC, while not completely eradicated, had gone down in recent years due
to governmental demobilization programs and policies.
[10]
In particular, the RPD found that Mrs. Montoya
had not given the Colombian authorities the opportunity to respond to her
complaints and had not, as a result, exhausted, as she
was bound to do, all of the recourses available to her domestically before
claiming refugee status.
[11]
In this regard, the RPD noted that the police
and the Office of the Attorney General had taken action by recording Mrs. Montoya’s
complaints and investigating the crimes reported to them. He also pointed out that
Mrs. Montoya left the country before receiving the results of these
investigations and did not maintain contact with the Colombian authorities.
[12]
The RPD ruled, as a result, that the applicants
had not proven a lack of state protection and that this was enough to defeat
their claims under both s. 96 and paragraph 97(1)(b) of the Act.
C.
The Applicants’ Challenge to the RPD’s Decision
[13]
The applicants criticize the RPD’s decision for
finding that there was adequate state protection in the face of a significant
amount of evidence to the contrary. Although the RPD is presumed to have
considered all the evidence, the applicants submit that this presumption can be
rebutted when the decision-maker fails to discuss evidence that squarely
contradicts its findings.
[14]
In this regard, they contend that they expressly
directed the RPD’s attention to a great deal of evidence proving that state
protection was inadequate. They say the RPD ignored that evidence and, in so
doing, committed a reviewable error. They further claim that it was also a
reviewable error on the part of the RPD, in its analysis of the adequacy of
state protection, to rely on the fact Colombia had introduced some policies to
help victims of crime without assessing whether those policies were in any way
effective. They say that this contradicts the approach set out by many
decisions of this Court, which requires adequate protection in practice, not just
in theory.
[15]
Because of these errors, the applicants complain
that the RPD went on to assess the applicants’ attempts to access state
protection whereas they had no burden to ask Colombia for protection as there
was evidence that such protection would not be forthcoming.
III.
Issue and Standard of Review
[16]
The main issue in his case is whether the RPD,
by finding that the applicants’ refugee claim could not be accepted because
state protection is available in Colombia for persons similarly situated,
committed a reviewable error.
[17]
The Respondent Minister (the Minister) submits
that the standard of review applicable to this issue is the standard of
reasonableness.
[18]
I agree with the Minister. What the applicants
are really challenging here is the RPD’s treatment of the evidence and its
conclusion that state protection was adequate. Those are questions of fact and of
mixed fact and law that are reviewable on the basis of the reasonableness
standard (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at
para 53 [Dunsmuir]; Ruszo v Canada (Citizenship and Immigration)
[Ruszo], 2013 FC 1004, at paras 20-22; Gulyas v Canada
(Citizenship and Immigration), 2013 FC 254, 429 FTR 22, at para 37).
[19]
In this regard, it is well established that to
be reasonable a decision must be transparent, justifiable, intelligible, and
defensible in respect of the facts and the law (Dunsmuir, above, at para
47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339, at para 59 [Khosa]). This means that the reasons for
decision must “allow the reviewing court to understand
why the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes” (Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, at para 16).
[20]
However, before getting any further into the
analysis of this question, a preliminary issue needs to be addressed, that of
the late filing of the present judicial review application.
IV.
The Applicants’ Request for an Extension of Time
[21]
The applicants filed their Application for Leave
and for Judicial Review on April 12, 2013, which is eight days passed the 15-day
time limit prescribed by s. 72(2)(b) and 169(f) of the Act. As a result,
they sought an extension of time to file their Application. Leave was eventually
granted but the issue of the extension of time was not addressed by the Leave
judge.
[22]
According to s. 6(2) of the Federal Courts
Immigration and Refugee Protection Rules, SOR/93-22, as amended, a request
for an extension of time is normally considered at the same time as the
application for leave. When it is not, the jurisdiction over the request for an
extension of time falls to the application judge (Deng Estate v Canada (Public Safety and Emergency Preparedness), 2009 FCA 59, at para 17).
[23]
The test applicable to requests for an extension
of time was set out by the Federal Court of Appeal in Canada (Attorney
General) v Hennelly, 244 NR 399, [1999] FCJ No 846 (QL), at para 3. This
test usually requires an applicant to demonstrate: (1) a continuing intention
to pursue his or her application; (2) that the application has some merit; (3)
that no prejudice to the respondent arises from the delay; and (4) that a
reasonable explanation for the delay exists.
[24]
In the present instance, the reason for the
delay was that the applicants’ counsel initially appealed the matter to the
Refugee Appeal Division. However, paragraph 110(2)(d) of the Act
precludes such an appeal when applicants entered Canada from a country which
has been specially designated and with which Canada has an agreement sharing
responsibility for refugee protection. In this case, the applicants entered Canada through the United States of America, which is such a country according to s. 159.3 of the Immigration
and Refugee Protection Regulations, SOR/2002-227.
[25]
The applicants’ counsel soon realized his
mistake and filed the present application eight days later. The Minister does
not take issue with the late filing of the present proceedings.
[26]
I am satisfied that the applicants meet the test
for an extension of time. First, even though the original appeal was filed with
the wrong institution, it was filed in time, which shows a continuing intention
to challenge the RPD’s decision. Second, leave would not have been granted if
the application had no merit. Third, the delay was short and no prejudice to
the respondent arises as evidenced by the fact the Minister is not challenging
the request for an extension of time. Fourth, the Refugee Appeal Division is
new and the applicants’ counsel’s mistake was understandable. This, therefore,
reasonably explains the delay.
V.
Analysis
A.
The Position of the Parties
[27]
As I have indicated previously, the applicants’
challenge of the RPD’s decision is two-fold.
[28]
First, they claim that the RPD ignored copious
relevant evidence that contradicted its finding that adequate state protection is
available in Colombia and that, in any event, it applied the wrong test in
arriving at that conclusion.
[29]
As for their second point, the applicants assert
that the RPD erred by expressing dissatisfaction with their attempts to seek
out state protection because it is only in situations where state protection
might reasonably have been forthcoming that the failure of refugee claimants to
approach the state for protection will defeat their refugee claim.
[30]
The Minister responds to the first point by
arguing that the RPD was not required to refer to every piece of evidence in
its decision and was entitled to prefer certain country conditions documents over
others and to conclude that the preponderance of that objective evidence
regarding country conditions suggested that there is now adequate state
protection in Colombia for victims of crime, and especially, victims of crime
by the FARC. In particular, the Minister points to the evidence on the FARC’s
demobilization, loss of influence and crime reduction as a clear indication of
the success of the state’s efforts in its ability to offer protection to FARC’s
crime victims.
[31]
In response to the applicants’ second point, the
Minister stresses that refugee protection is meant to be a form a surrogate
protection and can only be invoked, as a result, in situations where a refugee
claimant has unsuccessfully sought the protection of his or her home state. This
is not the case here, pleads the Minister, as the evidence shows that the
police did took reports and initiated investigations when approached by the
applicants.
B.
The RPD’s Treatment of the Evidence is Fatally
Flawed
(1)
The Applicable Legal Principles
[32]
The Minister is correct in saying that the RPD
is presumed to have considered all the evidence and that it did not have to
refer in its decision to all the documentary evidence before it (Florea v
Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (QL), at
para 1).
[33]
However, it is also correct to say, as do the
applicants, that where evidence on record is important and directly contradicts
an essential element of a finding, a failure on the part of the decision-maker
to address that evidence or to explain why it was disregarded may lead to an
inference that the decision has been made “without regard
for the material before it” and is, therefore, reviewable on that basis,
as provided for by ss 18.1(4)(d) of the Federal Courts Act, RSC 1985, c
F-7 (Hinzman v Canada (Citizenship and Immigration), 2010 FCA 177,
[2012] 1 FCR 257, at para 38, citing Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration), 157 FTR 35, [1998] FCJ No 1425 (QL) [Cepeda-Gutierrez],
at para 17; (Toriz Gilvaja v Canada (Citizenship and Immigration), 2009
FC 598).
[34]
The fact a decision-maker refers in some detail
to evidence supporting its finding but is silent on evidence pointing to the
opposite conclusion may also lead to the same inference (Cepeda-Gutierrez,
above, at para 17).
[35]
I recognise that the inference that a decision
has been made without regard for the material before the
decision-maker may be harder to draw when the purportedly overlooked
evidence consists of country conditions documents. As this Court pointed out in
the recent case of Vargas Bustos v Canada (Citizenship and
Immigration), 2014 FC 114 [Bustos], sheer volume and diversity of
country conditions documents will often make it administratively impractical to
require a decision-maker to spell out exactly how much weight it assigns to
every document (Bustos, at paras 35-39).
[36]
However, as this Court also pointed out in Bustos,
above, if the overlooked contrary evidence is overwhelming and the
decision-maker does not explain what documentary evidence supports its
conclusions, then it may be easier to conclude that the decision was
unreasonable (Bustos, at para 39).
[37]
This, in my view, is what happened here.
(2)
The Documentary Evidence Relied on by the RPD Does
Not Support its Finding that State Protection is Available
[38]
The RPD reasonably found that the FARC had suffered
some major military reductions since 2005, but the report upon which it relied
to support that finding also concluded that the FARC was “weakened
but not defeated” (Certified Tribunal Record, vol 1, at p 118). As this
Court observed in Bustos, above, the “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.” (Bustos,
above, at para 40).
[39]
Here, the RPD, to support its conclusion that “there exists adequate albeit not perfect state protection for
victims of crime” in Colombia, relied on a long excerpt from the
executive summary of the United States Department of State report on Colombia
in its Country Reports on Human Rights Practices for 2011 (24 May 2012) [the
USDOS Report].
[40]
The problem with this evidence is that apart
from identifying that Colombia’s president was elected democratically in June
2010, it is difficult to see how it is relevant to whether the state can
protect the applicants.
[41]
If anything, this excerpt from the USDOS Report
tends to support the applicants’ claim as it reveals that :
i.
The internal armed conflict continued between
the government and terrorist organizations, particularly the FARC and the
National Liberation Army (ELN);
ii.
Impunity and an inefficient justice system
subject to intimidation limited the state’s ability to prosecute effectively
those accused of human rights abuses and to process former paramilitaries;
iii.
Illegal armed groups, including the FARC, ELN,
and organized crime groups that included some former paramilitary members,
committed numerous abuses, including the following: political killings;
killings of members of the public security forces and local officials;
widespread use of land mines; kidnappings and forced disappearances;
subornation and intimidation of judges, prosecutors, and witnesses;
infringement on citizens’ privacy rights; restrictions on freedom of movement;
widespread recruitment and use of child soldiers; attacks against human rights
activists; violence against women, including rape and forced abortions; and
harassment, intimidation, and killings of teachers and trade unionists;
iv.
Illegal armed groups continued to be responsible
for most instances of forced displacement in the country.
[42]
Apart from this excerpt of the USDOS Report, the
only other source the RPD is referring to in its decision is item 7.3 of the
National Documentation Package: Response to Information Request, COL104011.E
(30 March 2012). The RPD states that this document is evidence that authorities
in Colombia seek to improve the security situation within the country and
continue to implement programs aimed at protection improvements. Specifically,
the RPD refers, in this regard, at paragraph 20 of its decision, to two
programs: the National Protection Unit and the Protection Program for Victims
and Witnesses.
[43]
It is unclear why the RPD considered evidence
from that National Documentation Package to be relevant considering that the
RPD failed to assess whether the National Protection Unit and the Protection
Program for Victims and Witnesses had actually improved state protection and
were, therefore, more than mere attempts to do so. As this Court has said on
many occasions, while states’ efforts are indeed relevant to an assessment of
state protection, they are neither determinative nor sufficient. What matter is
whether these efforts “have “actually translated into
adequate state protection” at the “operational level” (Meza Varela v
Canada (Citizenship and Immigration), 2011 FC 1364, at para 16, citing Beharry
v Canada (Citizenship and Immigration), 2011 FC 111, 383 FTR 161, at para 9;
and Jaroslav v Canada (Citizenship and Immigration), 2011 FC 634, 390
FTR 248, at para 75).
[44]
Here, the same document that informed the RPD
about these two programs also spends a great deal of time describing their
ineffectiveness. This document quotes from many sources to that effect, and it
includes the following passage:
In its evaluation report, the Office of the
Inspector General writes that delays in processing protection applications are
frequent and take [translation] "more than two months" (ibid. Jan.
2011, Sec. 4.2). In addition, the Office has found that authorities at the
regional level do [translation] "little or nothing" with regard to
protection, and that governors and municipalities do not have "strategic
security plans for vulnerable populations" (ibid.). It concludes by
stating that the Directorate for Human Rights, which is in the Ministry of the
Interior and Justice and is responsible for protection programs in Colombia,
[translation] "does not truly assume its function of directing and
coordinating" such programs (ibid.). It also says that the National Police
are not assuming their full responsibility for conducting surveillance
"rounds".(Certified Tribunal Record, vol. 1, at p. 179)
[45]
The Response to Information Request goes on to
say that there are not enough resources to adequately fund programs like the National
Protection Unit and the Protection Program for Victims and Witnesses, and it
quotes the Minister of the Interior and Justice as saying that it “is impossible to provide every peasant with a
personalized security plan; in some cases it is done due to very serious
threats, but it is not possible to do it on a large scale.” (Certified Tribunal Record, vol 1, at p 179).
[46]
Consequently, neither of the documents upon
which the RPD relied upon for its finding of adequate state protection actually
supports that contention.
(3)
The RPD Ignored the Evidence that Contradicts
its Finding that State Protection is Available
[47]
In such context, the applicants referred to many
documents to prove that state protection was inadequate, none of which were
acknowledged by the RPD. Although I agree with the Minister that many of those
documents predate the successful offensive against the FARC, or are not
important enough to warrant an inference that they were overlooked, there are a
couple exceptions.
[48]
The report of Dr. Marc Chernick, a document
entitled “Country Conditions in Colombia Relating to Asylum Claims in Canada” (20 August 2009), is one of them. It reports that the FARC “continues
to finance activities through massive extortion practices (what it refers to as
“revolutionary taxes”) and continues to kidnap and assassinate unarmed,
civilian “enemies” to further its objectives despite its reduced military
capacity”. Dr. Chernick asserts in his report that the “FARC still has the capacity to kidnap, torture and kill
individuals that it classifies as enemies”. He further asserts that it
is clear “that the Colombian state is unable to protect
those who have been targeted” and that “[a]lmost
all human rights violations in Colombia occur with impunity”. (Certified
Tribunal Record, vol. 3, at p. 500-521)
[49]
On several occasions, this Court has found that a
failure to consider Dr. Chernick’s reports was unreasonable (Nino Yepes
v Canada (Citizenship and Immigration), 2011 FC 1357 at para 10; Ortiz
Rincon v Canada (Citizenship and Immigration), 2011 FC 1339 at paras
14-17).
[50]
Of course, the RPD did not have to accept that
report (Bustos, above, at para 34; Guevara v Canada (Citizenship and
Immigration), 2011 FC 242 at para 44), nor was it “required
to make an explicit finding on each constituent element, however subordinate,
leading to its final conclusion” (Newfoundland Nurses, above, at
para 16; Herrera Andrade v Canada (Citizenship and Immigration),
2012 FC 1490, at para 21).
[51]
However, in this case, the RPD not only failed
to explain why this evidence was rejected but it also misapprehended the
evidence upon which it relied for its finding of adequate state protection. The
end result is that I cannot understand how the RPD concluded that state
protection was adequate.
[52]
In my view, that mistake is fatal to the RPD’s entire
decision. As the applicants contend, a refugee claimant’s failure to approach
the state only becomes relevant if he or she cannot show that it would be
futile to do so. In Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689,
the Supreme Court of Canada stated that “it would seem to
defeat the purpose of international protection if a claimant would be required
to risk his or her life seeking ineffective protection of a state, merely to
demonstrate that ineffectiveness” (Ward, at p. 724).
[53]
Since I cannot understand the RPD’s reasons for
finding that state protection is adequate, I cannot understand either its dissatisfaction
with the applicants’ attempts to seek out state protection.
[54]
The role of this Court in reviewing decisions
denying a refugee claim is obviously not to reweigh the evidence that was
before the decision-maker and to prefer its own view of the facts to that of
the decision-maker (Dunsmuir, above, at para 47, Khosa, above, at
paras 61-66).
[55]
In a case like this one, the Court’s role is not
to decide whether or not state protection would be available to refugee
claimants should they be returned to their home country. Rather, it is to
ensure that whatever decision is reached by the RPD in that regard, the decision
is transparent, justifiable, intelligible, and defensible in respect of the
facts and the law and that its reasons “allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes”
(Dunsmuir, above, at para 47; Khosa, above, at para 59).
[56]
This means that the Court must ensure that the
impugned decision has been made with regard to the material before it. This, in
turn, means that where there is evidence on record that directly contradicts an
essential element of a finding, some form of explanation as to why this evidence
was disregarded has to be provided by the decision-maker.
[57]
The present case, in my opinion, is a clear
illustration of a case where such an explanation was warranted, especially in
light of the fact that the failure to provide that explanation occurred in a
context where the evidence relied upon by the decision-maker did not exactly
support its finding.
[58]
It is therefore clear to me that the applicants’
refugee claim was decided by the RPD without regard for
the material before it.
(4)
The Applicants’ Efforts to Access State Protection Were Adequate in the Circumstances
[59]
In addition, I have some reservations about the
RPD’s comments about the applicants’ attempts to access state protection.
[60]
The Minister rightly points out that refugee
protection is meant to be a form a surrogate protection, invoked only in
situations where an applicant has unsuccessfully sought the protection of his
home state. However, it is also true that someone claiming refugee protection
is only “required to demonstrate that he or she took all objectively
reasonable efforts, without success, to exhaust all courses of action
reasonably available to them, before seeking refugee protection abroad”
(Ruszo, above, at para 32) (my emphasis).
[61]
Here, Mrs. Montoya reported every crime. In
fact, the RPD only criticizes her for: (1) not following up with the police
after her husband’s murder, (2) leaving Bogota after the extortion attempt on
her clothing store, (3) not assisting the Office of the Attorney General when
they asked for her help identifying suspects, (4) not asking the authorities
for updates on the status of their investigations; and (5) fleeing the country
after her attempted kidnapping in December 2012.
[62]
However, after her husband’s murder, the police
said they would contact her if they had any information but they never did. It
is unclear why the RPD is holding Mrs. Montoya’s failure to follow-up with the
authorities against her, unless it meant to say that the police only do their
jobs when victims of crime pester them. As this Court observed in Ferko v Canada (Citizenship and Immigration), 2012 FC 1284, at para 60, “it
was unreasonable for the RPD to dwell on the lack of follow-up by the applicant
given that the applicant had consistently reported to the police”.
[63]
Moreover, the police specifically advised Mrs. Montoya
to move after her husband’s murder. It is not surprising that she would move
again once the threats restarted. Indeed, she testified that this was the
advice the police gave her when she was almost abducted too (Certified Tribunal
Record, vol 1 at pp 6-8). It is unclear why the RPD felt that her taking this
modest action to protect herself and her daughter would impinge in any way on
the state’s ability to protect her.
[64]
As for her failure to help the Office of the
Attorney General, Mrs. Montoya and her daughter were found by the FARC and
specifically threatened not to provide that help (Certified Tribunal Record,
vol 1 at pp 7-8). Given the state’s failure to protect her husband or her three
uncles, it is unsurprising that the FARC’s threat would work on her. After all,
her husband stood up to the FARC and was murdered for it. Given that, the RPD,
in my view, held Mrs. Montoya to an unrealistic standard of conduct. After all,
to paraphrase Ward, above, she was not required to risk her life seeking ineffective protection of the state,
merely to demonstrate its ineffectiveness.
[65]
As a result, the RPD’s findings in this regard
are flawed too. Those findings are hardly defensible in respect of the facts
and the law and they hardly fall within the range of acceptable outcomes. In
other words, they are unreasonable.
[66]
For all these reasons, the applicants’ judicial
review application shall be allowed and the RPD’s decision, set aside.
[67]
Neither party has proposed a question of general
importance. None will be certified.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The applicants’ judicial review application is granted.
2.
The decision of the Refugee Protection Division
of the Immigration and Refugee Board, dated March 19, 2013, is quashed.
3.
The matter is referred back to a different
member of the RPD for redetermination.
4.
No question is certified.
“René LeBlanc”
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