Docket: IMM-575-13
Citation:
2014 FC 780
Ottawa, Ontario, August 7, 2014
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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Sandra Liliana Leon Jimenez, Jose
Alfonso Ortega Gonzalez, Tomas Ortega LEON
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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]
Sandra Liliana Leon Jimenez, the Principal
Applicant, her spouse Jose Alfonso Ortega Gonzalez, the Secondary Applicant,
and their minor son, Tomas Ortega Leon, are citizens of Colombia.
[2]
In December 2010 and March 2011, the Applicants
received pamphlets from the Revolutionary Armed Forces of Colombia (FARC) at
their restaurant demanding a monthly payment if the Applicants wished to
continue to operate their business. On March 27, 2011, four armed FARC members
entered the restaurant, physically assaulted the Secondary Applicant, held a
gun to his head and demanded the monthly payment. The men took money from the
cash register and from the Secondary Applicant’s pocket. Before leaving, they informed
the Applicants that they would return the following week to collect payment and
warned them not to contact the police.
[3]
The Applicants did not report the incident to
the police as they feared the FARC. On April 1, 2011, they received flowers
and a condolence card with the Applicants’ names which was signed by a member
of the FARC. On April 2, 2011, the Principal Applicant received a call at
their home in Bogota from the FARC advising them that the payment was due the
following day. They closed the restaurant which was subsequently vandalized and
threats painted on the walls. The Applicants fled Colombia on April 8, 2011
arriving in Canada on April 20, 2011.
[4]
The Refugee Protection Division of the Immigration
and Refugee Board of Canada (Board) found that the Applicants are not
Convention refugees pursuant to section 96, and are not persons in need of
protection pursuant to section 97 of the Immigration and Refugee Protection
Act, SC 2001, c 27.
Decision Under Review
[5]
The Board outlined the factual background,
stated that it made its decision based on an internal flight alternative (IFA) in
Cali, and set out the two pronged IFA test.
[6]
As to the first prong of the test, the Board
found that there was no serious possibility of the Applicants being persecuted
or subjected, on a balance of probabilities, to a danger of torture, to a risk
to life or of cruel and unusual treatment or punishment in Cali. This was
because there was no credible evidence that the FARC has been looking for the
Applicants since they left Colombia, that it has contacted or harmed any of
their family members in Colombia, or, that the FARC would pursue the Applicants
in Cali. Further, that there was persuasive documentary evidence, which the
Board reviewed, indicating that persons such as the Applicants would not be
targeted by the FARC today in Colombia.
[7]
The Board also found that the second prong of
the test, being whether it would be unduly harsh for the Applicants to seek
refuge in Cali, was not met. The Applicants had been able to move to Canada and adjust to a life in a new country with an unfamiliar culture and language. Therefore,
it would be much easier for them to readjust to life in a different part of
their home country. Further, given the Principal and Secondary Applicants’
university education and work history, it would not be unduly harsh for them to
reside in Cali.
[8]
The Board concluded, having considered the
conditions in Cali and all of the circumstances of these Applicants, that it
was not objectively unreasonable for them to seek refuge there.
Issues and Standard of Review
[9]
In my view, there is only one issue to be
considered and that is whether the Board erred in finding that there was a
viable IFA in Cali. This is reviewable on the standard of reasonableness (Kamburona
v Canada (Minister of Citizenship and Immigration), 2013 FC 1052 at para
18; Mendoza Velez v Canada (Minister of Citizenship and Immigration),
2013 FC 132 at para 24; Estrada Lugo v Canada (Minister of Citizenship and
Immigration), 2010 FC 170 at para 31; Ortiz Garzon v Canada (Minister of
Citizenship and Immigration), 2011 FC 299 at para 25).
[10]
Reasonableness is concerned with the existence
of justification, transparency and intelligibility within the decision making
process. It is also concerned with whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and the law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
paras 45, 47-48 [Dunsmuir]; Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paras 59,
62).
Analysis
Lack of Explicit
Credibility or Factual Findings
[11]
The Applicants submit that the Board was
required to make explicit findings of fact on past persecution and credibility
before determining whether there was a viable IFA. This was an error of law
and is fatal to a state protection analysis. Implicit in the definition of an
IFA is that such a determination requires an analysis of country conditions in
order for the Board to assess whether state protection exists in the proposed
locality as a viable IFA (Nino Yepes v Canada (Minister of Citizenship and
Immigration), 2011 FC 1357 [Nino Yepes]).
[12]
In my view, the Board did not make such an error.
It did not question the veracity of the claim of persecution and the risk the
Applicants faced during the time they resided in Colombia. It made no negative
credibility findings and, therefore, it must be assumed that it accepted that
the Applicants were credible and were targeted in the past. For that reason,
it confined its decision to the issue of whether the Applicants fit the profile
of being at a risk if they were returned to the alternate location of Cali, and, if it was a viable IFA. Unlike Velasquez v Canada (Minister of Citizenship
and Immigration), 2010 FC 1201 at paras 14-20, the Board in this case considered
the type of persecution faced by the Applicants, their evidence and testimony
as to their fear and their personal circumstances. Given this, an explicit
factual or credibility finding was not required.
[13]
While the Applicant relies on Nino Yepes,
above, in my view, the circumstances in that case are distinct. There, the decision
was found to be unreasonable because the Board failed to assess credibility and
personal risk which caused it to overlook material evidence contradicting its
conclusion on state protection. Put otherwise, it made a state protection
finding without a proper evidentiary framework and without regard to the
personal circumstances of the claimants. That is not the situation in this
case. Here, the Board implicitly accepted the Applicants’ evidence of past
persecution and risk and considered the specific risks that they feared. Therefore,
the issue was whether, upon considering all the evidence, the Applicants could
safely reside in Cali. In any event, a failure to make such a finding is not
necessarily fatal even in the state protection context (Sing v Canada (Minister of Citizenship and Immigration), 2011 FC 774 at para 22).
Country Conditions and Risk
[14]
The Applicants submit that the Board’s IFA
analysis was flawed for several reasons. It erred in finding that they did not
fit the risk profile of being targeted by the FARC because they do not fall
within a category of persons who have been identified by human rights groups as
historically targeted (Sellathurai v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 1273 (TD) [Sellathurai]). The Board
also erred when it concluded that the FARC, as the agent of persecution, would
not have any future interest in the Applicants. This was based on a
plausibility finding, but persecutors’ actions do not conform to the Board’s
concept of what is rational (Ye v Canada (Minister of Employment and
Immigration), [1992] FCJ No 584 (CA); Yoosuff v Canada (Minister of
Citizenship and Immigration), 2005 FC 1116; Selliah v Canada (Minister
of Citizenship and Immigration), 2006 FC 493).
[15]
The Applicants do not dispute the finding that
they do not fit the risk profile described in the country conditions, but
rather argue that the list is not closed and that there could be other reasons
why the FARC would target them (Sellathurai, above). As I understand
their argument, they submit that the Board erred in engaging in a plausibility
finding when attempting to predict who the FARC, as the agent of persecution,
will target. They were targeted in the past and the fact that other family
members have not been contacted or harmed and that the FARC has not been
searching for the Applicants since their departure from Colombia may not be relevant or predictive of their risk and are insufficient indicators of a lack
of risk.
[16]
The Applicants submit that in finding that Cali
was a viable IFA for the Applicants, the Board’s analysis of material change in
Colombia was conducted in a manner that is inconsistent with the jurisprudence
concerning a change of circumstances in country conditions (Elyasi v Canada
(Minister of Citizenship and Immigration), 2010 FC 419; Barua v Canada
(Minister of Citizenship and Immigration), 2012 FC 59; Zdjalar v Canada
(Minister of Citizenship and Immigration), 2001 FCT 82). Further, that it
was conducted without an evidentiary framework and should have been sensitive
to their personal circumstances.
[17]
In considering these submissions it should first
be noted that in finding that Cali was a viable IFA for the Applicants, the Board
summarized the Principal Applicant’s testimony at the hearing which was that
they would not be safe there because there are guerrillas everywhere that could
locate them in any city as demonstrated by the fact that they had contacted the
Applicants at their home, as well as their restaurant, in Bogota. When asked
why the FARC would be interested in them, the Principal Applicant testified
that it would be to set an example by killing someone who had not acceded to
their demands. She also confirmed that none of her or her husband’s immediate
family who remain in Colombia were contacted or harmed by the FARC since the
Applicants’ departure.
[18]
However, upon review of the country documents
concerning the current situation of the FARC in Colombia the Board found that
this indicated that the FARC had been especially weakened in urban areas such
as Cali. Further, referring to the National Documentation Package (NDP) for Colombia
(June 4, 2012, item 2.1), the Board noted that this contains profiles of
persons who the FARC currently and primarily target which includes local
elected officials and politicians, alleged paramilitary collaborators,
indigenous peoples and members of government security forces. The Board also
referred to the United Nations High Commission for Human Rights (UNHCHR) (Item
2.5: UNHCHR on the Situation of Human Rights in Columbia) which states
that vulnerable groups include community defenders and leaders, members of
Juntas de Acciόn Communal, Afro-Colombians and indigenous peoples,
municipal ombudspersons, trade union members, staff of the National Ombudsman’s
Early Warning System (EWS) and journalists, which corroborates other recent
documents in the NDP. It also referred to documentary evidence submitted by
counsel for the Applicants regarding the profiles of persons most at risk and found
that the Applicants do not fit any of those profiles.
[19]
Referring to the Canadian Council for Refugees Report,
The Future of Colombian Refugees in Canada: Are we being equitable? (CCR
Report), the Board also found that it indicates that urban security in Colombia has improved and that due to changed conditions the worst of the armed conflict
has been pushed outward. The Board summarized this by stating that according
to the most recent documentation before it, while considerably diminished, the
FARC continues to operate in Colombia, mainly in mountain, jungle, rural and
border areas. The FARC is recognized by Canada, and other nations, as a
terrorist organization with its focus on harming persons of specific profiles.
Its operations have been decimated in urban areas such as Cali and when it does
strike there it has primarily been carrying out terrorist attacks randomly aimed
rather than targeting specific targets.
[20]
The jurisprudence of this Court demonstrates
that the use of established risk profiles based on documentary evidence is an
accepted and important cornerstone of a state protection analysis and, in my
view, it is equally applicable in an IFA analysis in assessing whether an
individual can safely reside in the proposed IFA (Cortez Alvarez v Canada
(Minister of Citizenship and Immigration), 2006 FC 44 at para 5; Arias
Ultima v Canada (Minister of Citizenship and Immigration), 2013 FC 81 at
para 30). This is the analysis undertaken by the Board and the Applicants do
not dispute that they do not fit within the profiles of persons who would be at
a risk if they were returned to Cali. However, they argue that these risks
profiles are not closed and that the Board engaged in a plausibility finding
when attempting to predict who the FARC will target.
[21]
In that regard, I would note Cruz Vergara v Canada (Minister of Citizenship and Immigration), 2013 FC 138 [Cruz Vergara]. There,
the applicants similarly submitted that the Board’s IFA finding was based on
little other than its speculation about what the FARC was likely to do. The
Board had accepted everything in their Personal Information Forms except the
information that the FARC was still looking for the applicants after two years.
They submitted that there was no evidence confirming that the FARC was aware
that they had left the country, so the Board should not have made a
plausibility finding as to whether it would still be searching for them. The
applicants also submitted that according to the NDP, an IFA is generally not
available in Colombia by reason of the FARC’s country-wide reach.
[22]
Justice Mosley found that the Board was expected
to consider the availability of an IFA and that the applicants did not present
clear and convincing evidence that the FARC had a presence in Cartagena and
that they would be targeted in that city. Further, the claim that the FARC had
infiltrated government agencies everywhere was not consistent with the country
documentation because the May 27, 2010 report of the Office of the United
Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines for
Assessing the International Protection Needs of Asylum-Seekers from Colombia
(UNHCR Report), upon which that assertion was based, linked that conclusion to
persecution carried out by state agents or condoned by state agents, including
through corruption. Therefore, based on the record, Justice Mosley found that the
Board’s finding was reasonable.
[23]
The applicants in Cruz Vergara, above,
also argued that the Board’s determination on state protection was unreasonable
because it disregarded or rejected material evidence which they had submitted. In
that regard, Justice Mosley stated:
[35] Recent
cases from this Court support the reasonableness of decisions finding there to
be adequate state protection in Colombia for those who were in similar
circumstances to those of the applicant and who were threatened by the FARC. A
list of those cases is set out in Andrade v Canada (MCI), 2012 FC 1490
(CanLII), 2012 FC 1490 at para 18. As noted at paragraph 20 of that decision,
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 such
as “judges and other individuals associated with the justice system”.
[24]
Similarly, in Herrera Andrade v Canada
(Minister of Citizenship and Immigration), 2012 FC 1490 (Herrera Andrade),
Justice Gleason conducted a review of the jurisprudence on state protection in Colombia
and concluded that in the prior year, this Court had overturned Board decisions
on state protection in Colombia only where it was demonstrated that it had failed
to properly assess the background or “profile” of the claimant and that the
claimant fell into one of the groups that the documentary evidence indicates
may be at risk in Colombia. She noted that the objective documentary evidence,
and in particular the UNHCR Report indicates that members of such groups may
continue to be at risk from the FARC in Colombia. Cases where the Board’s
finding on state protection were not upheld turned on its failure 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.
[25]
On the basis of the foregoing, in my view, the
Board reasonably assessed the Applicants’ risk profile according to the
documentary evidence in finding that they had a viable IFA in Cali. The Board
was required to and did assess and make a determination as to whether the
Applicants’ claims placed them within the risk profiles identified in the
documentary evidence. It also considered the lack of evidence as to ongoing
targeting. The Board did not overlook evidence or make findings based on a
lack of credibility or plausibility. As to the Applicants’ submission that the
risk profile categories are not closed or circumscribed by the country
condition documents, they did not provide any authority to support that
position nor did they lead any evidence that people with similar profiles to
their own were pursued by the FARC upon return to Colombia. The essential
weakness in the present case is that the Applicants have not sufficiently
demonstrated that the FARC continues to seek them out or that it would if they
lived in Cali.
[26]
The Applicants also submit that the Board was
selective in its treatment of the documentary evidence in finding that the FARC
has a limited presence throughout Colombia. I note that in Herrera Andrade,
above, Justice Gleason stated:
[11] In my
view, the starting point for the inquiry in respect of an argument regarding
the impact of failure to mention key evidence is that the reviewing court must
presume that the tribunal considered the entire record (see Ayala Alvarez v
Canada (Minister of Citizenship and Immigration), 2012 FC 703 at para 10; Guevara
v Canada (Minister of Citizenship and Immigration), 2011 FC 242 at para 41;
Junusmin v Canada (Minister of Citizenship and Immigration), 2009 FC
673, 2009 CF 673 at para 38). Thus, those advancing arguments like that made by
the applicant in this case bear a high burden of persuasion. Secondly, it must
be recalled that the task of the reviewing court is the assessment of the
reasonableness of the tribunal’s findings of fact. This inquiry involves
consideration of both the outcome reached and the reasons offered by the
tribunal as the Supreme Court of Canada underlined in, inter alia, Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and Newfoundland Nurses
at para 14. Finally, and perhaps most importantly, the reviewing court must
afford significant defence to the tribunal’s factual findings, particularly
where, as here, the impugned determination falls within the core of the
tribunal’s expertise. Assessments of risk and of the availability of adequate
protection for refugee claimants in foreign states lies at the very core of the
competence of the RPD and are matters that Parliament has mandated to fall
within the RPD’s jurisdiction (see IRPA at para 95(1)(b); Pushpanathan v
Canada (Minister of Employment and Immigration), [1998] 1 S.C.R. 982, [1998]
SCJ No 46 at para 47; Saldana Fajardo v Canada (Minister of Citizenship and
Immigration), 2012 FC 830 at para 18; Kellesova v Canada (Minister of
Citizenship and Immigration), 2011 FC 769 at para 11).
[27]
It is true that the Board does not specifically
refer to the sections of the CCR Report referenced by the Applicants. This
includes reports that indicate that there is a FARC presence in all major
cities and that it has information networks which allow it to locate returning
asylum seekers, and, that an IFA is not a guarantee of safety. The Board also
does not analyze the report of Dr. Chernick, Country Conditions in Columbia
Relating to Asylum Claims in Canada or similar evidence submitted from
Amnesty International.
[28]
However, the Board found that the Applicants do
not have the profile of those who are at risk of continued targeting on return
and that there was no evidence that the FARC continues to seek them out.
Therefore, in my view, its failure to refer to these sections does not affect
the outcome of the its analysis. Further, the June 6, 2012 report of Amnesty
International states that the FARC, and others, “have the
capacity to pursue victims throughout many regions of the country and may do so
where the individual is of particular interest to warrant such effort. This is
also true for those who have fled the country and return after a period of time.”
Again, however, the Board found that there was no evidence that suggested that
the Applicants would warrant such an interest in this case.
[29]
It should also be noted that the Board referred to
a variety of reports contained in the documentary evidence and acknowledged
that the FARC has had a tremendous impact on the lives of many and that they
continue to be an issue in Colombia. It stated that, based on the
preponderance of recent objective evidence, Colombia is making serious efforts
to provide better protection for its citizens, to curb corruption and violence
and is dedicated to eradicating the FARC and other paramilitary and criminal
groups. Further, that state protection has had a tremendous success as a
result of these efforts especially in urban centres including Cali. The Board also
referred to two reports submitted by the Applicants, Guerrilla kills
Columbian who was Departed from Canada and Colombia mother makes
call to human sensitivity of Stephan Harper. It afforded them little
weight because the circumstances of the incidents described in the reports
could not be gleaned from the materials. The Board’s reference to these
articles indicates that it was alert to the countervailing views concerning the
risks faced by returning asylums seekers. However, the Board found that the “preponderance of recent objective evidence” suggested
adequate state protection was available in Colombia.
[30]
The Board did not find that the Applicants would
no longer be at risk if they return to Bogota as a result of changed country
conditions. Rather, it found that they could live safety in Cali given the
lack of evidence that they continued to be pursued and the current documentary
evidence as to the FARC’s operations based on risk profiles. In any event, for
the reasons set out above, it is my view that the Board considered and did not
ignore or misconstrue the factual evidence.
[31]
To conclude, the Board did not question the
Applicants’ claim and reasonably considered their personal circumstances and
evidence in conducting the IFA analysis. Therefore, in these circumstances, it
was not required to conduct a separate credibility and factual analysis. Nor
did the Board err in considering the Applicants’ profile in determining that
they were not likely to be targeted by the FARC in Cali. It assessed the documentary
evidence according to this profile and found that there was no evidence that
the Applicants continued to be targeted. The
threshold for finding that relocation to an IFA is unreasonable is a high one. An
applicant must provide actual and concrete evidence of conditions which would
jeopardize his life and safety in traveling there (Huerta Morales v Canada (Minister of Citizenship and Immigration), 2009 FC 216 at para 6). The Board’s conclusion
that the country conditions did not indicate that the Applicants would face a
serious possibility of persecution or risk should they return to Cali falls
within a range of acceptable, possible outcomes (Dunsmuir, above).
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