Docket: IMM-6546-13
Citation:
2015 FC 132
Ottawa, Ontario, February
3, 2015
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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MARIA BRIGITTE DIAZ CASTRO
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JULIETTE JOHANA ESPITIA DIAZ
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BRIGGETTE LORENA BALLESTEROS DIAZ
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MARIANA ESPITIA DIAZ
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JUAN ALEJANDRO MONTOYA ESPITIA
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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.
Introduction
[1]
This is the judicial review of the Refugee
Protection Division’s [RPD] decision dismissing the Applicants’ refugee
protection claim on grounds of credibility and state protection. The Applicants
are the principal Applicant, Maria Brigitte Diaz Castro, her daughter, her
niece and her niece’s children.
II.
Background
[2]
The principal Applicant’s claim was based on her
fear of the Revolutionary Armed Forces of Columbia [FARC]. She claimed that
when she returned to manage the family farm in 2010 (which had been abandoned
in 2005), she was threatened by the FARC, who demanded 30 million
Colombian dollars. When the money was not paid, the FARC returned to threaten
her and her nephew, who lived and worked on the farm.
[3]
The principal Applicant fled to Baranquilla. The
nephew fled to Bogota but returned to the farm once or twice a week. After a
further threat from FARC, the nephew left the farm.
[4]
The principal Applicant went to the prosecutor
in Baranquilla who told her to go to the Immediate Reaction Unit [URI]. The URI
told her to go to the GAULA. The GAULA officer advised her to file the
complaint with the local authorities who had jurisdiction over the matter. The Applicants
took no further action other than to flee to the United States and come to Canada.
[5]
The Applicants filed their refugee protection
claim in Canada. The RPD denied the claim and the matter was appealed to the
Refugee Appeal Division [RAD] as well as being subject to this judicial review.
The
RAD denied jurisdiction over the appeal by reason of the Canada-USA Safe Third
Country Agreement. The judicial review of the RAD decision was denied.
[6]
In the present matter, the RPD found:
a)
that because there were inconsistencies in the
Applicants’ POE documents, the fear of the FARC was not credible; and
b)
that the Applicants had not rebutted the
presumption of state protection because the principal Applicant waited eight
months to go to authorities; the nephew did not seek state protection; the
principal Applicant had not been denied state protection but had merely been
told to file with the appropriate authorities; and neither the daughter nor the
niece sought state protection despite relying on incidents of threats and
physical assaults.
[7]
In the principal Applicant’s case, she relied in
part on the RPD decision to grant a sister’s refugee claim – the sister had
been at the family farm in 2005. In oral argument in this Court, counsel raised
the prospect that another sister had been granted refugee protection. However,
counsel put nothing before the Court to support this argument. In the
circumstances it was improper to raise the matter and the Court cannot consider
that matter further.
III.
Analysis
[8]
It is common ground that the standard of review
for both issues is reasonableness. Importantly the determinative issue is state
protection.
A.
Credibility
[9]
The RPD’s conclusion on this issue was
unreasonable. The RPD criticized the principal Applicant because on her
Declaration (IMM 5669), she had not been clear as to whether she was working at
the farm or in a restaurant in 2012.
[10]
However, in Section 12 of the same document, the
principal Applicant gave greater detail which addressed the issue of her
occupation and location at the relevant time. The RPD made no reference to this
evidence. That evidence was highly relevant as it represented a complete and
contemporaneous rebuttal to the RPD’s finding. Therefore, the credibility
finding cannot stand.
[11]
However, the error in the credibility finding
has no impact on the state protection analysis. This is not a case where a
credibility conclusion taints or influences the issue of state protection.
B.
State Protection
[12]
I cannot find anything unreasonable in the RPD’s
state protection analysis. The RPD considered that the presumption in favour of
state protection is more difficult to rebut where the country is, as is Colombia, a democracy. The principal Applicant’s delay in seeking state protection was
inconsistent with a real fear of harm and her subjective reluctance to engage
state organizations was insufficient to counter the presumption. She was not
denied state protection; she chose not to engage the relevant state protection
authorities – or at least it was reasonable to reach that conclusion.
[13]
The first sister’s situation and her evidence at
the RPD hearing was general and of little assistance. Her circumstances were
different; her timeframe was six years earlier. Further, the principal
Applicant had not put the matter into her narrative and in response to the
Member raising the matter of others having been threatened, chose not to rely
on her sister’s situation in her own case.
[14]
Given those conditions, the RPD cannot be
criticized for not analyzing the first sister’s situation or for not relying
upon it.
[15]
As mentioned earlier, the Applicants’ counsel
improperly tried to raise the matter of a second sister’s refugee status. The
excuse for improperly raising the matter was that counsel had been instructed
to do so.
[16]
Whatever the instructions may have been, counsel
is responsible for the conduct of the case and such instructions should be
refused. To knowingly proceed in a manner acknowledged to be inappropriate is
not permitted and is inconsistent with counsel’s obligations as an officer of
the Court.
If
the evidence of the second sister’s situation was so important, there are
procedures which ought to have been followed to put the matter properly before
the Court.
IV.
Conclusion
[17]
This judicial review will be denied. There is no
question for certification.
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