Docket: IMM-6335-13
Citation:
2015 FC 502
Ottawa, Ontario, April 20, 2015
PRESENT: The
Honourable Mr. Justice Boswell
|
BETWEEN:
|
|
JULIO ANGELO BARRAGAN GONZALEZ
|
|
LIZA CAROLL LARA NUNEZ
|
|
JULIANA BARRAGAN PENUELA
|
|
GABRIELA BARRAGAN LARA
|
|
ISABELA BARRAGAN LARA
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Nature of the Matter and Background
[1]
The Applicants are a married couple and their
three daughters, all of whom are citizens of Colombia. They left that country
on March 30, 2013, and traveled through the United States of America before
coming to Canada on April 5, 2013. Upon arrival, they all asked for Canada’s
protection pursuant to section 96 and subsection 97(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. Each of them
relied on the narrative of Mr. Barragan Gonzalez [Principal Applicant], who
alleged that he had been beaten up by the Fuerzas Armadas Revolucionarias de
Colombia [FARC] in late February, 2013, after he interfered with their drug-trafficking
activities in his neighbourhood. The Principal Applicant also alleged that the
FARC agents demanded that he pay 500,000 pesos within a week of his being
beaten and further amounts of 250,000 pesos each week thereafter, and they
threatened to kill him and his family if he refused or if he complained to the
police.
[2]
The Applicants’ claims for protection were
rejected by the Refugee Protection Division [RPD] of the Immigration and
Refugee Board on September 10, 2013. They now apply for judicial review
pursuant to subsection 72(1) of the IRPA, asking this Court to set aside
the RPD’s decision and return the matter to another member of the RPD for
re-determination.
II.
Decision under Review
[3]
The RPD decided that none of the Applicants were
entitled to protection under either section 96 or subsection 97(1) of the IRPA.
The RPD gave a number of reasons for doubting the Applicants’ credibility, but
ultimately decided to assess their claims assuming that they had told the
truth. It therefore noted that the determinative issues were nexus to a
Convention ground, generalized risk, the existence of state protection, and the
availability of an internal flight alternative [IFA].
[4]
The Principal Applicant had contended that the
attack was tied to his perceived political opinion, but the RPD rejected that
argument. While the FARC’s activities have some political underpinning, the RPD
determined that it acted mainly as a criminal organization and that the
Applicants were not political targets. Rather, the Principal Applicant had been
attacked because he and his friends had interfered with plans to sell drugs in
his neighbourhood, and those drug dealers were just extorting him to make up
for the lost income. That was a purely financial motive and the RPD found there
was insufficient evidence that the FARC or whoever was behind the attack was
interested in the Applicants beyond their perceived ability to pay the funds
demanded from them. Merely being a victim of crime is not enough to establish a
link to a Convention ground, so the RPD determined that the Applicants’ section
96 claims failed.
[5]
So too did their claim under paragraph 97(1)(b)
of the IRPA, since the RPD determined that the risk facing the
Applicants was one faced generally by many persons in Colombia. Extortion by
the FARC and other criminals is common in Colombia, and the RPD found that most
of the people targeted simply comply with the demands. The risk was therefore
excluded from the scope of paragraph 97(1)(b) by subparagraph 97(1)(b)(ii) of
the IRPA.
[6]
Although that was sufficient to dispose of the
claim, the RPD went on to consider whether state protection was adequate, and
it decided that the Applicants had not supplied clear and convincing evidence
to rebut the presumption that Colombia could protect its citizens. Rather, the
Principal Applicant never called the police nor asked anyone for protection,
not before initially approaching the drug dealers and not even after he had
been attacked and threatened. Having never given the police the chance to
protect him or his family, the RPD was unconvinced by the Principal Applicant’s
subjective belief that they would not be willing or able to help. The RPD also
noted that Colombia has been taking significant steps to reduce corruption
within its justice system and security forces.
[7]
The RPD further determined that the FARC had
been severely weakened by the Colombian government’s increasingly successful military
counter-measures, and its sphere of influence has been reduced. While the FARC
still resists and has not yet been defeated, the RPD was satisfied that the
state was making serious efforts to protect its citizens, and that was enough.
The RPD therefore rejected the Applicants’ assertion that state protection was
inadequate.
[8]
Even if that was not the case, the RPD went on
to determine that the Applicants (who had lived in Bogotá) could live
peacefully in Cali or Cartagena where there would be an IFA. In its view, the
Principal Applicant was a low-value target and there was little evidence that
the FARC or its criminal partners still pursued him or his family. Furthermore,
the RPD considered it reasonable for the Applicants to seek refuge in either of
these two cities, as they were accustomed to the language and culture and
familiar with adjusting to life in new places. As either city was a viable IFA,
the RPD would have dismissed the claim for this reason too, had it been
necessary.
III.
The Parties’ Submissions
A.
The Applicants’ Arguments
[9]
The Applicants say that the RPD made ambiguous
statements and embarked upon faulty reasoning concerning the credibility of the
Principal Applicant, and it never came to terms one way or the other with
respect to the drug dealers’ ties to the FARC. According to the Applicants,
this was an error because the RPD did not make its credibility findings in “clear and unmistakable terms” (Hilo v Canada
(Minister of Employment and Immigration) (1991), 130 NR 236 at paragraph 6,
15 Imm LR (2d) 199 (CA)).
[10]
As for a nexus to a Convention ground, the Applicants
state that the RPD ignored the Principal Applicant’s testimony that he believed
the FARC would follow up on their demands because he “was
not in agreement with their ideology.” According to the Applicants, the
RPD made its decision without regard to this evidence and erred in finding that
the threats were not politically motivated. This is confirmed, the Applicants
say, by a 2005 report from the United Nations High Commissioner for Refugees
[UNHCR] which said that “refusal or inability to pay
[extortion demands] is viewed as an act or indication of political opposition,
resulting in persecution and violence” (UNHCR, “International
Protection Considerations Regarding Colombian Asylum-Seekers and Refugees”
(March 2005) [UNHCR Report (2005)]).
[11]
In addition, the Applicants emphasize that the
Principal Applicant was not targeted at random by the FARC, but had attracted
the FARC’s attention by approaching the drug dealers. According to the
Applicants, not everyone is targeted like that by the FARC in Colombia. The
Applicants say that the Principal Applicant therefore has a personalized risk
and a specific fear, but the RPD failed to recognize this and wrongly
trivialized the follow-up threat the Principal Applicant received in a
condolence card from the FARC (citing Munoz v Canada (Minister of
Citizenship and Immigration), 2010 FC 238 at paragraph 32; and Michael v
Canada (Minister of Citizenship and Immigration), 2010 FC 159 at paragraphs
32-36).
[12]
As to the issue of state protection, the
Applicants distinguish the decision in Herrera Andrade v Canada (Minister of
Citizenship and Immigration), 2012 FC 1490 at paragraph 2 [Herrera
Andrade], upon which the Respondent relies, on the basis that the
applicants in that case were not credible. They instead rely upon Hernandez
Montoya v Canada (Citizenship and Immigration), 2014 FC 808 at paragraphs 43-44,
49-52 [Hernandez Montoya], which they submit is a better view of the
country conditions in Colombia. The Applicants argue that the RPD misstated the
test for state protection by saying that “it is
sufficient that the state is making a serious effort to protect its citizens”
and that it was wrong to look repeatedly at the “serious
efforts” by the state to combat the FARC. This error, the Applicants
say, is reviewable on a standard of correctness; but even if it is not
reviewable on this standard, the RPD’s decision that state protection was or
would be available for the Principal Applicant is not reasonable.
[13]
The Applicants rely on Ortiz Rincon v Canada
(Citizenship and Immigration), 2011 FC 1339 at paragraphs 15-17, and argue that
the RPD inexplicably never looked at the more recent country condition
documentation from 2012 and 2013 which shows increasing FARC activities. The
Applicants state that the RPD did not properly balance the evidence as to
country conditions but, rather, reviewed irrelevant evidence as to the
existence of state protection.
[14]
Furthermore, the Applicants submit, in view of Callejas
v Canada (Minister of Employment and Immigration) (1994), 73 FTR 311 at
paragraphs 11 and 16, 23 Imm LR (2d) 253 (TD), that it was not necessary for
the Principal Applicant to go to the police merely to prove the death threat.
According to the Applicants, the Principal Applicant’s fear is not that of some
general criminal attack. The Applicants argue that the RPD should have looked
at the matter from the Principal Applicant’s perspective (citing Sandoval
Salamanca v Canada (Citizenship and Immigration), 2012 FC 780 at paragraph
17).
[15]
Lastly, the Applicants state that the FARC is
both willing and able to carry out its threats anywhere in Colombia since it
needs to uphold its credibility. The Applicants point to a report produced by
the UNHCR Report (2005), which concludes that there is no IFA in Colombia for
anyone who is targeted. In view of that, the Applicants say it was unreasonable
for the RPD to find that there are two cities in Colombia where they would be
safe.
B.
The Respondent’s Arguments
[16]
The Respondent says that the RPD had some doubts
about the Principal Applicant’s credibility, but overall made no finding in
that regard and conducted its analysis assuming that the Principal Applicant
was credible.
[17]
The Respondent states that this case is therefore
all about state protection. Accordingly, if the RPD’s decision in this regard
is reasonable, all of the Applicants’ other arguments must fail. For this point,
the Respondent relies upon Herrera Andrade at paragraph 2.
[18]
While the RPD did say that “it is sufficient that the state is making a serious effort
to protect its citizens,” the Respondent argues that the Applicants have
taken that quotation out of context. The passage in which that statement
appeared was about the reduction of the FARC’s influence at the national level.
When the RPD assessed the Applicants’ fear of crime, the Respondent says that
it was clearly aware that protection needed to be operationally adequate and
specifically decided that “the police are both willing
and able to protect victims.” In any event, the Respondent says that one
misstatement is not fatal, especially where the Applicants made no effort to
ask the state for any help at all (citing Ruszo v Canada (Citizenship and
Immigration), 2013 FC 1004 at paragraphs 28 and 49, 440 FTR 106 [Ruszo]).
[19]
According to the Respondent, the Principal
Applicant cannot provide personalized evidence of any absence of state
protection, and so the RPD could only assess whether the Principal Applicant
objectively faces any personalized risk. Furthermore, since the Principal
Applicant failed to seek state protection, it was reasonable for the RPD to
look for compelling or persuasive evidence in the objective documentary
evidence of country conditions in Colombia (citing Ruszo at paragraphs
49-51). The Respondent further submits that the RPD made a thorough and
balanced review of the documentary country condition evidence, and thus
reasonably concluded that there would be state protection for the Principal
Applicant.
[20]
The Respondent states that the decision in Hernandez
Montoya needs to be contrasted with that in Herrera Andrade, the
latter of which should be determinative of the case at hand. The Respondent
points out that Hernandez Montoya is factually dissimilar and
distinguishable from this case since the applicant in that case had approached
the police several times.
[21]
The Respondent rejects the Applicants’ argument
that the RPD failed to consider up-to-date country condition evidence. It says
that the RPD had before it the most recent version of the national
documentation package and was not required to explicitly refer to every piece
of evidence contained therein (citing Construction Labour Relations v Driver
Iron Inc, 2012 SCC 65 at paragraph 3, [2012] 3 S.C.R. 405). Moreover,
according to the Respondent, the principle permitting an inference that
evidence was overlooked does not apply to country conditions documentation
(citing e.g. Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35 at paragraphs 15-17 (TD); Salazar v
Canada (Citizenship and Immigration), 2013 FC 466 at paragraphs 59-60 [Salazar]).
[22]
As to an IFA, the Respondent states that this
was a reasonable determination by the RPD. The Applicants had the burden to
show it would be unreasonable to move to Cali or Cartagena, and they relied on
nothing but two outdated documents. Given the Principal Applicant’s profile, the
Respondent says that it is doubtful that the FARC would seek out the Applicants
in Cali or Cartagena.
[23]
As to the issue of a nexus, the Respondent says
that the RPD reasonably concluded that there was no nexus to a Convention ground.
While the FARC might have political interests, the Respondent argues that it
was reasonable for the RPD to find that the FARC only targeted the Principal
Applicant because he attacked its drug dealers.
[24]
The Respondent submits that the RPD reasonably found
that the risk faced by the Applicants was generalized. Although there are some
cases supporting the Applicants’ position, there are also many where being
specifically targeted by a gang was reasonably held to be generalized even when
repeated and retaliatory (citing, amongst others, Baires Sanchez v Canada
(Citizenship and Immigration), 2011 FC 993 at paragraph 23; De Munguia v
Canada (Citizenship and Immigration), 2012 FC 912 at paragraphs 5 and 36).
On the facts of this case, the Respondent urges that the latter approach should
be preferred as extortion is extremely commonplace in Colombia, and it is only
the nature of the risk that matters, not its cause.
IV.
Issues and Analysis
A.
Issues
[25]
This application raises six issues:
1.
What is the standard of review?
2.
Did the RPD err in assessing the Applicants’
credibility?
3.
Did the RPD err by finding that the risk faced
by the Applicants was generalized?
4.
Was the RPD’s analysis of state protection
erroneous?
5.
Was the RPD’s analysis of internal flight
alternatives unreasonable?
6.
Did the RPD err by finding that there was no
nexus to a Convention ground?
B.
Standard of Review
[26]
The Applicants allege that the RPD misunderstood
the test for state protection. For the most part, this Court typically reviews
questions regarding the interpretation of sections 96 and 97(1) of the IRPA
on the correctness standard (Sakthivel v Canada (Citizenship and
Immigration), 2015 FC 292 at paragraphs 26-28; Ruszo at paragraphs
17-22; Portillo v Canada (Citizenship and Immigration), 2012 FC 678 at
paragraph 26, [2014] 1 FCR 295 [Portillo]). However, most of the
Applicants’ arguments attack not the RPD’s understanding of the tests for state
protection or an IFA but its application of those tests to the facts, for which
the appropriate standard of review is reasonableness (Ruszo at
paragraphs 21-22; Juhasz v Canada (Citizenship and Immigration), 2015 FC
300 at paragraph 25).
[27]
Similarly, the applicable standard of review for
issues of generalized risk is reasonableness since it involves questions of
mixed fact and law (see, e.g., Malvaez v Canada (Minister of Citizenship and
Immigration), 2012 FC 1476 at paragraph 10, 423 FTR 210). It is well
established that the reasonableness standard is concerned not only with the
existence of justification, transparency and intelligibility within the
decision-making process, but also with whether the result is defensible in
respect of the facts and the law. This Court can neither reweigh the evidence
that was before the RPD nor substitute its own view of a preferable outcome (Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraphs 47-48, [2008] 1 S.C.R. 190; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraphs 59 and 61,
[2009] 1 S.C.R. 339).
C.
Did the RPD err in assessing the Applicants’
credibility?
[28]
While the RPD undoubtedly had concerns about the
Principal Applicant’s credibility, it never dismissed his evidence entirely.
Rather, I agree with the Respondent that it instead chose to analyze the claim
as if the Principal Applicant was telling the truth. As such, any errors with
respect to the credibility finding would be immaterial and it is unnecessary to
consider the Applicants’ arguments on this issue (Portillo at paragraphs
28-29).
D.
Did the RPD err by finding that the risk faced
by the Applicants was generalized?
[29]
When assessing the Applicants’ claims under subsection
97(1) of the IRPA, the RPD accepted that the FARC had targeted the
Principal Applicant since he had interrupted the drug dealings in his
neighbourhood. Nevertheless, the RPD determined that this risk was a
generalized one, finding that “extortion for monies is
widespread and is faced by those is [sic] a similar or the same position
as the claimants,” and thus concluded as follows:
[26] Though the panel has identified
some credibility concerns, if the panel were to accept that the male claimant
was approached by individuals who were from or in partnership with FARC, the
individuals approached the male claimant for criminal extortion, to pay monies
in lieu of the drug dealing that was taking place. The female claimant and
minor claimants alleges fear due to what happened to the male claimant. The
panel finds the risk to the claimants to be a generalized risk and one which is
faced generally by many other Colombians. Crime unfortunately is prevalent in
Colombia. As the male claimant testified drug dealers and drug problems are
prevalent throughout Colombia, the panel has considered the jurisprudence
relating to generalized risk and in this connection, the panel has considered
the case of Prophète where it was determined that the risk of all forms
of criminality is general and while [sic] a specific number of
individuals may be targeted more frequently because of their wealth. …
[Footnotes omitted]
[30]
However, the RPD failed to follow the guidance
offered by Prophète v Canada (Citizenship and Immigration), 2009 FCA 31,
387 NR 149 [Prophète], since it did not conduct an individualized
inquiry into the Applicants’ “present or prospective
risk.” In Prophète, the Court of Appeal stated as follows:
[6] Unlike section 96 of the Act,
section 97 is meant to afford protection to an individual whose claim “is not
predicated on the individual demonstrating that he or she is [at risk] … for
any of the enumerated grounds of section 96” (Li v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 1, [2005] 3 F.C.R. 239 at paragraph
33).
[7] The examination of a claim under
subsection 97(1) of the Act necessitates an individualized inquiry, which is to
be conducted on the basis of the evidence adduced by a claimant “in the context
of a present or prospective risk” for him (Sanchez v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 99 at paragraph 15)
(emphasis in the original)….
[31]
The RPD here did not reasonably assess the
Principal Applicant’s individualized risk for the purposes of section 97. On
the one hand, it accepts that the Principal Applicant has a personal risk at
the hands of the FARC because he had interfered with the drug dealings in his
neighbourhood; but, on the other, after noting that “extortions
by FARC and other actors are widespread in Colombia,” it concludes that
this personalized risk is negated by being “one which
is faced generally by many other Colombians.”
[32]
The RPD’s decision cannot be justified because
it did not properly conduct the two step inquiry to assess the Applicants’
future risk. In this regard, it is instructive to note the Court’s decision in Ortega
Arenas v Canada (Citizenship and Immigration), 2013 FC 344, 430 FTR 162,
where Justice Gleason stated as follows:
[9] As I held in Portillo,
section 97 of the IRPA mandates the following inquiry. First, the RPD must
correctly characterize the nature of the risk faced by the claimant. This
requires the Board to consider whether there is an ongoing future risk, and if
so, whether the risk is one of cruel or unusual treatment or punishment. Most
importantly, the Board must determine what precisely the risk is. Once this is
done, the RPD must next compare the risk faced by the claimant to that faced by
a significant group in the country to determine whether the risks are of the
same nature and degree.
…
[14] The focus of the second step in
the inquiry is to compare the nature and degree of the risk faced by the
claimant to that faced by all or a significant part of the population in the
country to determine if they are the same. This is a forward-looking inquiry
and is concerned not so much with the cause of the risk but rather with the
likelihood of what will happen to the claimant in the future as compared to all
or a significant segment of the general population. It is in this sense that in
Portillo I held that one cannot term a “personalized” risk of death
“general” because the entire country is not personally targeted for death or
torture in any of these cases. There is in this regard a fundamental difference
between being targeted for death and the risk of perhaps being potentially so
targeted at some point in the future. Justice Shore provides a useful analogy
to explain this difference in Olvera [v Canada (Citizenship and
Immigration), 2012 FC 1048, 417 FTR 255], where he wrote at para 41, “The
risks of those standing in the same vicinity as the gunman cannot be considered
the same as the risks of those standing directly in front of him”.
[33]
In this case, the Principal Applicant was
not targeted at random by the FARC. On the contrary, he offended the FARC by
interfering with their business and he and his family were specifically threatened
with death. While extortions by the FARC may be widespread in Colombia, not
everyone who is extorted is unable to pay or is personally targeted and
threatened with death. The nature and degree of the risk faced by the
Applicants here is not the same as, and in fact cannot be compared to, all or a
significant number of other Colombians. The RPD here conflated the specific and
individual reason for the Applicants’ present and prospective risk with the
general risk of criminality faced by all or many others in Colombia. As noted
by Mr. Justice James Russell in Correa v Canada (Citizenship and
Immigration), 2014 FC 252 at paragraph 83, 23 Imm LR (4th) 193: “It is an error to conflate the reason for the risk with the
risk itself or to ignore differences in the individual circumstances of persons
who may be targeted for the same reasons.”
E.
Was the RPD’s analysis of state protection
erroneous?
[34]
In order for a claim for protection to succeed
under either section 96 or paragraph 97(1)(b)(i), a claimant must prove “that they sought, but were unable to obtain, protection from
their home state, or alternatively, that their home state, on an objective
basis, could not be expected to provide protection” (Hinzman v Canada
(Citizenship and Immigration), 2007 FCA 171 at paragraph 37, 282 DLR (4th)
413 [Hinzman]).
[35]
The Applicants criticize a passage at paragraph
39 of the RPD’s decision, wherein it stated that the “FARC
has not been defeated in Colombia; however, it is sufficient that the state is
making a serious effort to protect its citizens.” The Applicants state that
misstates the test for state protection. I disagree. On the contrary, that
language is borrowed from Canada (Minister of Employment and Immigration) v
Villafranca (1992), 99 DLR (4th) 334 at 337, 150 NR 232 (FCA). Although it
can be an error if the RPD fails to understand that the seriousness of the
state’s efforts must be evaluated at the operational level (Toriz Gilvaja v
Canada (Citizenship and Immigration), 2009 FC 598 at paragraph 39, 81 Imm
LR (3d) 165), the RPD cannot be faulted for couching its analysis in the words
used by the Federal Court of Appeal.
[36]
The Applicants also submit that the presumption
that democracies protect their citizens is itself problematic, relying on a
passage from James C Hathaway & Michelle Foster, The Law of Refugee
Status, 2d ed (Cambridge: Cambridge University Press, 2014) at 321-322.
However, that argument was not advanced with any particular force and this
would not be an appropriate case to consider an objection to such a central
pillar of the Supreme Court’s decision in Ward at 725-726.
[37]
Nevertheless, I agree with the Applicants that
the RPD erred in its analysis of state protection. The RPD’s central finding
with respect to state protection was that “the police
were not given the opportunity to provide protection, instead the male claimant
testified to an incident whereby there was a street fight and the police
arrived late. This is not indicative of the police unwillingness to offer
protection.” Although corruption and impunity are serious problems in
Colombia, the RPD said that “the preponderance of the
objective evidence regarding country conditions suggests that, although not
perfect, there is an adequate state protection in Colombia for victims of
crime, that Colombia is making serious efforts to address the problem of
criminality, and that the police are both willing and able to protect victims.”
[38]
The RPD then went on to assess some of that
documentary evidence, but the analysis is focused exclusively on abuses
committed by the security forces and the state’s military actions against the FARC.
That is relevant insofar as it shows that Colombia has control of its
territory, but it is not determinative as to the existence of adequate state
protection. As this Court observed in Vargas Bustos v Canada (Citizenship
and Immigration), 2014 FC 114 at paragraph 40, 24 Imm LR (4th) 81 [Vargas
Bustos], 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” (see also Hernandez Montoya
at paragraph 38).
[39]
The RPD’s finding that the police are able to protect
victims of the FARC’s extortion and death threats is entirely unexplained. The
RPD never refers to any evidence that could support that finding, despite
accepting that “the most serious human rights problems
[in Colombia] were impunity and an inefficient judiciary, corruption and
societal discrimination.” Of course, the RPD was not required to prove
that state protection was available; the Applicants had to prove the opposite (Mudrak
v Canada (Citizenship and Immigration), 2015 FC 188 at paragraphs 46-71 [Mudrak]).
However, when a claimant puts forth evidence that state protection is
inadequate, the RPD needs to either find fault with that evidence (e.g., that
it is not credible or does not prove what the claimants use it to prove) or
else find that it is outweighed by other evidence. If the RPD finds that it is
outweighed by other evidence but misconstrues the evidence it relies upon, that
can constitute a reviewable error (Hernandez Montoya at paragraphs
54-57).
[40]
In this case, the Applicants did supply evidence
that approaching the police would have been futile. Among that evidence was a
report from Dr. Marc Chernick, the most important details of which were
summarized well in Hernandez Montoya:
[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)
[41]
Although a failure to refer to this report is
not, in and of itself, fatal and the Court is typically reluctant to infer that
country condition documentation was overlooked (see e.g. Salazar at
paragraphs 59-60; Herrera Andrade at paragraph 21; Vargas Bustos
at paragraphs 19, 34-39; Canada (Citizenship and Immigration) v Kornienko,
2015 FC 85 at paragraphs 16-19), this case is similar to Hernandez Montoya,
in that “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” (Hernandez
Montoya at paragraph 51). As in that case, the Court here is left with no
way to understand why the RPD was not convinced by the Applicants’ evidence
that state protection was inadequate.
[42]
The RPD’s state protection finding cannot be
salvaged by the fact that the Applicants left without reporting the crime since
“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” (Hernandez Montoya at paragraph 52; Ward at 724; Hinzman
at paragraph 37). An applicant for 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
at paragraph 32 (emphasis added)).
[43]
In this case, the Principal Applicant said that
he did not approach the police because his assailants “warned
me that if I dared to file a denunciation, that even before I had filed it and
I had finished filing that denunciation, he would kill my daughters, my wife,
and lastly me.” The RPD also accepted that there was corruption within
the police force such that this threat could be plausible.
[44]
Yet, the RPD never asked itself whether that
danger would make it objectively reasonable for the Applicants not to approach
the state for protection. The RPD mentioned that allegations of corruption are investigated,
but the Principal Applicant would only discover that the police officer he
spoke to was corrupt if the FARC were to execute the threat and murder him or
his family members. As the Supreme Court said in Ward at page 724, “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.”
Consequently, the RPD needed to assess whether the Applicants would have been
seriously risking their lives by reporting the extortion before it held their
failure to approach the police against them (Mudrak at paragraph 77).
F.
Was the RPD’s analysis of internal flight
alternatives unreasonable?
[45]
The existence of an IFA is fatal to a claim for
refugee protection. In Shilongo v Canada (Citizenship and Immigration),
2015 FC 86 at paragraph 27, I summarized the test for an IFA in the following
words:
The test to determine whether an IFA is
available is set out in Rasaratnam v Canada (Minister of Employment and
Immigration), [1992] 1 FC 706 at 709-710, 140 NR 138 (CA) [Rasaratnam].
The decision-maker must be satisfied on a balance of probabilities that: (1)
there is no serious possibility that the claimant will be persecuted in the
proposed IFA; and (2) conditions in the proposed IFA are such that, in all the
circumstances, it would be reasonable for the claimant to seek refuge there.
[46]
A similar requirement arises under paragraph
97(1)(b) as well, since a risk faced by a claimant in his or her country of
origin can only attract protection if it “would be
faced by the person in every part of that country” (IRPA, s
97(1)(b)(ii)). While the Federal Court of Appeal was cautious not to import the
IFA test directly into subsection 97(1) in Sanchez v Canada (Citizenship and
Immigration), 2007 FCA 99 at paragraph 16, 360 NR 344, it emphasized that “claimants who are able to make reasonable choices and
thereby free themselves of a risk of harm must be expected to pursue those
options.” Given that a higher degree of risk is also required to attract
protection under paragraph 97(1)(b) (Li v Canada (Citizenship and
Immigration), 2005 FCA 1 at paragraphs 37-39, [2005] 3 FCR 239), an IFA
under section 96 would typically preclude protection under paragraph 97(1)(b)
where the claims under both sections allege the same source of risk (see e.g. Chowdhury
v Canada (Citizenship and Immigration), 2014 FC 1210 at paragraph 21).
[47]
In this case, it was reasonable for the RPD to
determine that the first requirement of the IFA test was met. The Applicants
say that the RPD ignored the UNHCR Report (2005), but the Applicants’ reliance
on that report is misguided. The situation has changed since 2005, and the
UNHCR itself released a new guideline in 2010 which paints a less dire picture
for people in the Applicants’ circumstances. While the 2010 guideline also
opines that “an internal flight or relocation
alternative (IFA/IRA) is generally not available in Colombia,” it also
recognizes that it can be “in certain circumstances”
(UNHCR, “UNHCR Eligibility Guidelines for Assessing the
International Protection Needs of Asylum-Seekers from Colombia” (27 May
2010) at 6 [UNHCR Report (2010)]).
[48]
More importantly, the RPD did not deny that the FARC
could have sufficient influence to target the Applicants in the proposed IFAs. Rather,
it said that “[t]he panel has considered the possible
reach and influence of the FARC or its criminal associates in the proposed IFA.
The documentary evidence is mixed, depending on who was consulted. Therefore,
the panel relies on the circumstances of this particular case …”
(emphasis added). The RPD then went on to find, not that the FARC was unable to
assassinate anyone in Cali or Cartagena, but that the Applicants do not have a
sufficient profile to attract such attention. This was an appropriate
consideration. The UNHCR also notes that the existence of an IFA depends in
part on “the profile of the asylum-seeker and the
existence of any reasonable grounds to believe that he or she will be traced
and targeted” (UNHCR Report (2010) at 26; see also RIR COL104332.E (9
April 2013)). The RPD’s further finding that the Applicants would not be a
high-profile target was reasonable too, since the Principal Applicant had only
ever been targeted because he interrupted the drug dealing in his neighbourhood.
[49]
Nevertheless, the RPD did not direct sufficient
attention to the second requirement for an IFA. As the Federal Court of Appeal
noted in Ranganathan v Canada (Minister of Citizenship and Immigration) (2000),
[2001] 2 FCR 164 at paragraph 15, 266 NR 380 (CA), the unreasonableness
threshold is high and “requires nothing less than the
existence of conditions which would jeopardize the life and safety of a
claimant in travelling or temporarily relocating to a safe area. In addition,
it requires actual and concrete evidence of such conditions.” At page 26
of the UNHCR Report (2010), the UNHCR says that this aspect of the test will
typically depend on four factors in Colombia:
(i) the ability of the State to effectively protect the displaced
population; (ii) the possibility to be hosted by relatives and friends; (iii)
the existence of concrete economic opportunities or of the possibility of local
settlement for the displaced population, including access to healthcare and availability of accommodation; and (iv) the general security
situation, including the assessment of the potential heightened risk of
exposure to criminality for the displaced individuals.
[Footnotes
omitted]
[50]
There is no indication that the RPD considered
any of these factors. The RPD did not mention the UNHCR’s observation that “big cities such as Barranquilla, Medellín, Cali and
Cartagena, have witnessed an increase [sic] inflow of displaced persons,
many of whom end up in overcrowded slum areas” (UNHCR Report (2010) at
2). Nor did the RPD notice the evidence that “[w]hile
the general human rights situation of forcibly displaced Colombians has
marginally improved in recent years, social inequalities, ethnic
discrimination, corruption, impunity and restricted access to courts continue
to deprive displaced persons of the exercise of their fundamental human
rights” (UNHCR Report (2010) at 6 (emphasis added)). To similar
effect, the United States’ Department of State reported the following:
Despite several government initiatives to
enhance IDP [internally displaced persons] access to services and awareness of
their rights, many IDPs continued to live in poverty with unhygienic
conditions and limited access to health care, education, or employment. In
2004 the Constitutional Court ordered the government to reformulate its IDP
programs and policies, including improving the registration system. Since then
the court issued more than 250 follow-up decisions, some addressing specific
issues such as gender, persons with disabilities, and ethnic minorities, and
others analyzing specific policy components such as land and housing.
(United States’ Department of State, “Country Reports on Human Rights Practices
for 2012: Colombia” (19 April 2013) at section 2
(emphasis added))
[51]
Even with those many decisions, the “Constitutional Court confirmed in 2011 the ‘persistence of
the unconstitutional state of affairs’ identified in 2004 regarding forced
displacement” (Report of the United Nations High Commissioner for Human
Rights on the situation of human rights in Colombia (31 January 2012) at paragraph
5). The RPD also did not refer to the evidence that “in
2009, the Colombian Constitutional Court observed that the State does not have
the ability to suitably protect civilians that seek refuge in parts of the
country not directly affected by the armed conflict” (UNHCR Report
(2010) at 26).
[52]
Instead, the RPD limited its analysis to the following
paragraph:
[45] With respect to the second prong
of the test, whether it would be unreasonable in all the circumstances, including
those particular to the claimants, for the claimants to seek refuge, the panel
finds that the IFA suggested meet this test. In the case of the claimants, the
panel notes that the claimants had moved to a friend [sic] home, then
onto Canada and begin [sic] to adjust to a life in a new country. The
male and female claimants were schooled in Colombia, speak the language and are
familiar with the culture. The minor claimants speak the language and are
familiar with the culture in Colombia. The male claimant testified to visiting
Cali on vacation. There is insufficient evidence before the panel to suggest
that the claimants could not adjust to life in Cali or Cartagena. Considering
all the evidence in this case, the panel finds that it would not be unreasonable
for the claimants to readjust to life in a different locale in their own home
country.
[53]
Visiting a place on vacation is not the same as
moving there to live, and the Applicants would not just be adjusting to
life in a different locale. The evidence indicated that they would be joining a
population of over 3 million displaced persons within Colombia, many of whom
live in overcrowded slums and whose fundamental human rights are routinely
violated despite the best efforts of the Colombian government and the Constitutional
Court. The RPD did not seem to be aware of the problems faced by internally
displaced persons at all, nor did it refer to any evidence that would paint a
different picture of the situation or reasonably permit it to dismiss the
evidence presented by the Applicants (Hernandez Montoya at paragraphs
35-36, 50-51).
[54]
While the threshold under the second branch of
the IFA test is high, it still needed to be assessed reasonably. The RPD did
not do so in this case and, instead, based its decision on unreasonable
findings of fact that it made without regard for the material before it (Federal
Courts Act, RSC 1985, c F-7, s 18.1(4)(d); Rahal v Canada (Citizenship
and Immigration), 2012 FC 319 at paragraphs 38-39). That was an error.
G.
Did the RPD err by finding that there was no
nexus to a Convention ground?
[55]
It is unnecessary to decide whether the RPD
erred by finding that the Applicants’ alleged risk had no nexus to a Convention
ground, since that issue cannot affect the result of this application. If the RPD
had reasonably determined that state protection was available to the Applicants
or that they had IFAs, then the application for judicial review would be
dismissed since the Applicants’ claim under section 96 would fail (Canada
(AG) v Ward, [1993] 2 S.C.R. 689 at 712, 104 DLR (4th) 1 [Ward]; Rasaratnam
v Canada (Minister of Employment and Immigration) (1991), [1992] 1 FCR 706
at 710, 140 NR 138 (CA) [Rasaratnam]). In the alternative, since those
findings were unreasonable, the RPD’s errors with respect to paragraph 97(1)(b)
would alone demand that the RPD’s decision be set aside. I therefore decline to
address the nexus issue.
V.
Conclusion
[56]
The RPD did not reasonably assess the Applicants’
personalized risk for purposes of section 97, and its findings of state protection
and IFAs were equally problematic and cannot rescue the decision. This being
so, the application for judicial review is hereby allowed and the matter is
returned to the RPD for re-determination by a different panel member. Neither
party suggested a question for certification; so, no such question is
certified.
Email this Content