Docket: IMM-7414-13
Citation:
2015 FC 332
Ottawa, Ontario, March 16, 2015
PRESENT: The
Honourable Mr. Justice S. Noël
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BETWEEN:
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ROSALBA LOMELIN CALIMAN
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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.
Introduction
[1]
This is an application by Rosalba Lomelin
Caliman [the Applicant] for leave to commence an application for judicial
review pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] of a decision of the Refugee
Protection Division [RPD] dated October 29, 2013. The RPD held that the Applicant
was neither a Convention Refugee nor a person in need of protection within the
meaning of sections 96 and 97 of IRPA.
II.
Facts
[2]
The Applicant is a 65 years old Colombian
citizen.
[3]
She claimed that her family had relationships
with a municipal councillor, who is allegedly targeted by the Revolutionary
Armed Forces of Colombia [FARC]. The Applicant alleged that in 2005, the FARC killed
four councillors and a secretary and injured many others. One of the councillors
killed was her son-in-law’s brother. Her son-in-law’s sister, a journalist, was
also injured. The Applicant’s daughter and her family made successful refugee
claims in Canada in 2005.
[4]
The Applicant also claimed that, in December
2005, she was approached numerous times and received threatening calls from the
FARC. She alleged to have moved 14 times afterwards.
[5]
In August or September 2006, the Applicant was
denied a visitor’s visa to Canada.
[6]
In August 2007, the Applicant’s tenant claimed
that strangers were filming the Applicant’s house. She also claimed to have
been approached by strangers inquiring about her son. She reported these
incidents to the police.
[7]
She then applied for refugee protection at the
Canadian Embassy in Colombia in September 2007, but claimed she did not receive
any response.
[8]
The Applicant also stated to have received
various threats in February 2009, July 2010, October 2011 and October 2012. She
did not, however, report these threats neither to the police nor to the
Canadian embassy.
[9]
The Applicant traveled to Panama in October 2009 and to Venezuela in January 2012.
[10]
The Applicant’s refugee claim was refused by the
Canadian embassy in Colombia on March 25, 2013. She received a United States of America [USA] visitor’s visa on May 16, 2013. She flew to the USA on July 1, 2013. She left for Canada three weeks later. She made a refugee claim in Canada on July 25, 2013. Her claim was refused on October 29, 2013. This is the decision
under review.
III.
Impugned Decision
[11]
The Minister intervened before the RPD pursuant
to subsection 170(e) of IRPA and section 29 of the Refugee Protection
Division Rules, SOR/2012-256 [the Rules].
[12]
The RPD accepted an application received on
October 2, 2013, from counsel of the Applicant, to accept post hearing
documents pursuant to rule 43(3) of the Rules.
[13]
The RPD first stated that it had credibility
concerns regarding the Applicant’s travel history. The Applicant’s passport
shows that the Applicant travelled to Panama in 2009 and Venezuela in 2012, but her answers when questioned about those travels were evasive. When questioned
about why she had not made a refugee claim in Panama or Venezuela, she explained that she had family in Colombia and that she would not stay in Panama or Venezuela. The RPD found that the Applicant’s re-availment to Colombia, after claiming
that several encounters with the FARC made her feel unsafe anywhere in Colombia, undermined her credibility. The RPD thus found that the Applicant lacked a
subjective fear of persecution.
[14]
With regards to the issue of State Protection,
the RPD concluded, after considering the totality of the evidence and counsel’s
submissions, that the Applicant had failed to rebut the presumption of adequate
state protection. The RPD also found that the Applicant had not established
that protection in Colombia would not be forthcoming or that it would be
objectively unreasonable to seek that protection from the FARC if she were to
return to Colombia.
[15]
The RPD therefore did not accept that the
Applicant is a refugee pursuant to sections 96 and 97 of IRPA.
IV.
Parties’ Submissions
[16]
The Applicant first submits that the RPD did not
make clear in its reasons which portions of the Applicant’s evidence it
rejected as not being credible. The Applicant also submits that the RPD ignored
documentary evidence that corroborated her oral testimony about her problems in
Colombia with regards to the FARC and the failure of the Colombian
authorities to provide her adequate state protection.
[17]
The Respondent retorts by arguing that the RPD
can consider the Applicant’s failure to claim asylum in other countries before
coming to Canada and that it was entitled to consider reavailments to her
country of persecution. The RPD’s conclusion that the Applicant’s actions were
not consistent with her stated fear is reasonable.
[18]
The Applicant finally submits that the RPD did
not use the proper test in its evaluation of state protection. The Applicant
argues that the RPD used a “serious efforts” test while it was to assess the
“operation adequacy” of state protection available to the Applicant. The RPD
also ignored corroborating evidence on the conflict with the FARC in Colombia. The Respondent submits that the decision does show that the RPD dealt with operational
adequacy of the country when dealing with the FARC and that the RPD did not
have to refer to all documents submitted.
V.
Issues
[19]
I have reviewed the parties’ submissions and
respective records and I formulate the issues as follows:
- Is the RPD’s assessment of the Applicant’s credibility and lack
of subjective fear reasonable?
- Did the RPD err
in its analysis of state protection?
VI.
Standard of Review
[20]
Whether the RPD’s credibility assessment of the
Applicant is reasonable is mainly a factual determination (Salazar v Canada (Minister of Citizenship and Immigration), 2013 FC 466 at para 36; Molano v Canada (Minister of Citizenship and Immigration), 2011 FC 1253 at para 26; Ruiz v Canada (Minister of Citizenship and Immigration), 2012 FC 258 at para 20). Intertwined
with this issue in this matter is the RPD’s assessment of the Applicant’s lack
of subjective fear, which is a determination of mixed facts and law. The
standard of reasonableness is again applicable (Ortiz Garzon v Canada (Minister of Citizenship and Immigration), 2011 FC 299 at para 24 [Ortiz]).
This standard also applies to the issue of state protection, which also raises
questions of mixed facts and law (Ruszo v Canada (Minister of Citizenship
and Immigration), 2013 FC 1004 at para 22). Thus, on all issues, this Court
shall only intervene if it concludes that the decision is unreasonable and falls
outside the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at para 47).
VII.
Analysis
A.
Is the RPD’s assessment of the Applicant’s
credibility and lack of subjective fear reasonable?
[21]
Credibility determinations by the RPD are
afforded deference (Rahal v Canada (Minister of Citizenship and Immigration),
2012 FC 319 at paras 27 and 31 [Rahal]). Indeed, credibility determinations
are at the heart of the RPD’s jurisdiction (Lubana v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at para 7). This Court will only
intervene if the RPD “based its decision or order on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it” (Khakh v Canada (Minister
of Citizenship and Immigration), [1996] FCJ No 980, 116 FTR 310 at para 6; Rahal,
above at para 35). In the case at bar, the RPD’s assessment of the
Applicant’s credibility and her lack of subjective fear are essentially based
on her travel history outside of Colombia, specifically in Panama and Venezuela. I find the RPD’s negative credibility determination reasonable. Indeed, the
Applicant first denied to have travelled to any countries outside Colombia and
then admitted to have travelled to Panama in 2009 and to Venezuela in 2012, with
a group of teachers for the purpose of “just visiting” (Certified Tribunal Record
[CTR] page 797 at line 20; Applicant’s Record [AR] pages 9-10 at para 19). It
seems that the Applicant was trying to provide vague explanations to the RPD’s
questions. It was thus reasonable for the RPD to draw a negative credibility
inference from the Applicant’s explications and information before it.
[22]
Moreover, while the Applicant claimed to have
feared the FARC since 2005, she did not make a refugee protection while in Panama in 2009 or Venezuela in 2012, simply because that was not the purpose of her travels and
because she did not have family in those countries. She also did not claim
refugee protection when she arrived in the United States in 2013. This Court
has recognized that an applicant’s failure to claim refugee protection in a
country where the applicant travels can indicate a lack of subjective fear (Ortiz,
above at para 28; Baykus v Canada (Minister of Citizenship and Immigration),
2010 FC 851 at para 19; Alvarez Cortes v Canada (Minister of Citizenship and
Immigration), 2010 FC 770 at para 20). Therefore, based on the information
before the RPD and on the explanations provided by the Applicant at the
hearing, it was reasonable for the RPD to conclude that the Applicant lacked a subjective
fear of persecution if she were to return to Colombia. Indeed, her actions,
namely her travels, are inconsistent with her stated fear of persecution.
[23]
Lastly, the Applicant argues that the RPD erred
in ignoring documentary evidence corroborating the Applicant’s situation. This
Court has held, however, that the RPD does not need to refer to every piece of
evidence before it. Only when the non-mentioned evidence is critical and
contradicts the RPD’s conclusion can a reviewing Court may conclude that
its omission means that it did not consider the material before it (my
emphasis) (Rahal, above at para 39; Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1425, 157 FTR 35
at para 16). Moreover, the RPD is presumed to have considered the entire record
before it (Herrera Andrade v Canada (Minister of Citizenship and
Immigration), 2012 FC 1490 at paras 10-11). In the case at bar, a reading
of the RPD decision demonstrates that the RPD considered the documentation
before it in rendering its decision. Indeed, this can be seen at paragraph 19
of the decision, with regards to the references to the Applicant’s passport, at
paragraph 26, where the RPD comments on the Post Hearing documents submitted by
the Applicant, at paragraph 27, where the RPD refers to the articles submitted
by the Applicant and even more so when the RPD discusses the question of state
protection at paragraphs 36 to 54. It is therefore reasonable to conclude that
the RPD considered the record presented before it in rendering its decision.
Having carefully reviewed the evidence, the facts related to the Applicant, her
attempts to come to Canada, her trips outside Colombia and the fact that her
daughter with her family lives in Canada since 2005, there is an implicit
objective that is continually being sought by the Applicant, which is the
strong desire to come to Canada. For that purpose, the Applicant wrongly relied
on the non-existing factual fear. The credibility findings have made that evident.
B.
Did the RPD err in its analysis of state
protection?
[24]
The issue of state protection is not determinative
of this judicial review as the RPD’s credibility assessment of the Applicant
along with its conclusion that the Applicant lacked subjective fear if returned
to Colombia is reasonable. That being said, I will make the following comments.
[25]
Although the RPD makes references to the
“serious efforts” undertaken by the State in its analysis of State protection, the
RPD also makes references to the Applicant’s efforts while in Colombia in its evaluation of state protection. Indeed, the RPD stated the following:
[C]olombia’s efforts to eliminate FARC are
indicated within the documentary evidence. The assertion of the claimant that
the police do not offer state protection is unsubstantiated. The claimant did
not test the state’s ability to offer protection by seeking redress when her
complaints were not actioned (AR page 13 at para 38).
[26]
The RPD further evaluated the Applicant’s
allegations that she had submitted four denunciations to the police, dating
back to 2006. When questioned as to what her expectations were with regards to
state protection, the Applicant replied that she expected the police would
investigate. She then explained that she never followed-up on the status of the
investigations (AR page 13 at paras 39-40). It is in that context and with the
information provided by the Applicant that the RPD assessed the question of
state protection. Because the Applicant did not demonstrate how state
protection was not available to her (AR page 14 at para 42), the RPD could only
assess the documentation provided on what steps the government of Colombia is taking with regards to the FARC. This RPD’s conclusion on State protection is
thus reasonable.
[27]
Having said that, the vocabulary used by the RPD
(the use of “serious efforts” four times) to assess the country’s capability to
protect their citizens has to be taken in light of all the reasons given to
analyse the state protection given. When read as a whole, the reasons show that
the RPD was in reality assessing Colombia’s operational adequacy in dealing
with the FARC and in protecting its own citizens. The RPD does an analysis of
the measures taken by the country, comments objectively on them and concludes
that the Applicant has not established that if returned to Colombia, protection
would not be reasonably forthcoming or that it is unreasonable for her to seek
that protection if she was to encounter problems with the FARC.
[28]
As for the argument that the RPD did not refer
to Brittain and Chernick respective report and the 2011 report of the Canadian
Council for refugees, as noted by the Respondent, jurisprudence of this Court
has determined that it was not an error not to specifically refer to the
reports (Leon Jimenez v Canada (Minister of Citizenship and
Immigration), 2014 FC 780 at paras 27-28; Gonzalez Gutierrez v Canada
(Minister of Citizenship and Immigration), 2013 FC 1021 at paras 1-2, 10; Salazar
v Canada (Minister of Citizenship and Immigration), 2013 FC 466 at paras
56, 59-60; Herrera Andrade v Canada (Minister of Citizenship and
Immigration), 2012 FC 1490 at paras 18-19, 21). I come to the same
conclusion. Therefore, the RPD’s decision is thus reasonable.
VIII.
Conclusion
[29]
The RPD’s negative credibility assessment of the
Applicant and its conclusion that the Applicant lacked a subjective fear of
persecution are reasonable. The RPD’s evaluation of state protection is also
reasonable based on the information provided to the RPD by the Applicant. The
intervention of this Court is thus not warranted.
[30]
The parties were invited to submit questions for
certification, but none were proposed.
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