Docket: IMM-7643-13
Citation:
2015 FC 1023
Ottawa, Ontario, August 28, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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ISABEL CRISTINA
VELOSA RUANO
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JULIAN ANDRES
ARZAYUS ESCOBAR and
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SAMUEL ARZAYUS
VELOSA
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants’ claim for refugee protection was
denied by the Refugee Protection Division of the Immigration and Refugee Board
of Canada [the Board]. They now apply for judicial review of that decision
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act].
[2]
The applicants seek an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The principal applicant, Isabel Cristina Velosa
Ruano and her spouse, Julian Andres Arzayus Escobar and their minor child,
Samuel Arzayus Velosa, are citizens of Colombia. They operated a farm belonging
to the principal applicant’s grandmother in the mountains of the municipality
of Pradera.
[4]
In early 2010, Luis Alberto Bermudez Potes
(Bermudez), the farm’s former foreman, illegally took over the farm. Allegedly
having ties with the Revoluntionary Armed Forces of Colombia [FARC], he
threatened the applicants’ family with extortion.
[5]
In December 2010, the principal applicant’s
mother and aunt filed a complaint with the local Fiscalia and requested
protection because Bermudez threatened to send the FARC to kill them.
[6]
The same day, the Attorney General of Colombia
issued a “Request for Measure of Protection” to
the police. However, no protection was ultimately provided by the police.
[7]
Bermudez left after the principal applicant’s
grandmother paid him 2,500,000 Colombian pesos, but continued calling the
applicants’ family in 2011 and 2012 with extortion demands.
[8]
In 2013, members of the FARC went to the farm
and left the message that the principal applicant must pay a vacuna of 2
million pesos per month to help their cause. The applicants feared for their
lives and made arrangements to leave Colombia.
[9]
On May 10, 2013, the applicants left Colombia to
go to the United States. They stayed in the United States until August 14, 2013
and then came to Canada. They made a claim for refugee protection at the Canadian
border. On September 8, 2013, their daughter was born in Canada.
II.
Decision Under Review
[10]
In a negative decision dated November 7, 2013,
the Board found that the principal applicant is not a Convention refugee or a
person in need of protection pursuant to section 96 and subsection 97(1) of the
Act. It found the same for the male applicant and the minor applicant.
[11]
The Board determined that the issue in this case
is state protection. It found that the principal applicant has not provided
clear and convincing evidence of the state’s inability to protect. It stated, “[i]n a functioning democracy, a claimant will have a heavy
burden when attempting to show that they should not have been required to
exhaust all of the recourses available to them domestically before claiming
refugee status.” It noted that the applicants must show that they have
taken all reasonable steps in the circumstances to seek protection.
[12]
The Board observed that the principal applicant had
assumed that the threat that was made by members of the FARC in 2013 originated
from Bermudez. The principal applicant stated that she did not report this
threat to the authorities because she had already reported threats made by
Bermudez and had a protective order against him. She also stated that reporting
the FARC to the authorities was something that had to be handled carefully
because the FARC had a presence in many areas of the country and might
retaliate against the principal applicant if it learned that she had made a
report. The Board determined it was unreasonable for the principal applicant not
to seek protection from the authorities who were in a position to provide it.
[13]
The Board found, on a balance of probabilities, that
the principal applicant has not provided the requisite clear and convincing
evidence that state protection is inadequate in Colombia. It then noted, based
on documentary evidence, that Colombia is a democratic country with the willingness
and the apparatus necessary to provide protection to its citizens. It acknowledged
that FARC attacks increased by 44% between 2010 and 2011, but noted that the
Colombian government has made efforts to reduce the hold of the FARC and has
had some success. It cited excerpts from documentary evidence to demonstrate
the effect of these efforts. For example, the third in command of the Jefferson
Cartagena company of the FARC’s Column 18 was arrested and courts have
convicted some FARC members of kidnappings, according to the U.S. Department of
State reports.
[14]
The Board noted that contrary to the principal
applicant’s assertions that the FARC has infiltrated the Colombian government,
all cases of human rights violations received by the government were referred
for prosecution. The government obtained convictions in 192 cases since 2000.
For reference, it referred to the U.S. Department of State report “Colombia:
Country Report on Human Rights Practices for 2012”.
[15]
The Board concluded that the principal applicant
has failed to rebut the presumption of state protection with clear and convincing
evidence.
III.
Issues
[16]
The applicants raise the following issues for my
consideration:
1.
Did the Board formulate and apply the correct
test for state protection?
2.
Did the Board ignore evidence?
[17]
The respondent raises one issue: was the Board
reasonable in determining that the applicants had not rebutted the presumption
that Colombia provided adequate state protection to its similarly situated nationals
at an operational level?
[18]
I would rephrase the issues as follows:
1.
What is the standard of review?
2.
Did the Board misunderstand the test for state
protection?
3.
Was the Board’s decision reasonable?
IV.
Applicants’ Written Submissions
[19]
The applicants submit that the Board committed
two errors in its analysis of state protection. First, they argue that, for a
refugee protection claim to fail on grounds of state protection, more is
required than mere reasonable efforts on the part of a state to protect a
refugee claimant. Second, they claim that there was a considerable body of
country documentation before the Board that corroborated the applicants’
assertion that the Colombian government had been infiltrated by the FARC and
the Board ignored it and failed to discuss it (Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1425 at paragraph
17, 157 FTR 35 [Cepeda-Gutierrez]; and Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171 at paragraph 60, [2007] FCJ No
584 [Hinzman]).
V.
Respondent’s Written Submissions
[20]
The respondent submits that the standard of
review for factual issues is the standard of reasonableness (Dunsmuir v New
Brunswick, 2008 SCC 9 at paragraphs 47, 51 and 57, [2008] 1 S.C.R. 190 [Dunsmuir]).
The standard of review for determinations of fact and mixed fact and law, such
as the determination on state protection, is also reasonableness (Hinzman
at paragraph 38; and Hippolyte v Canada (Minister of Citizenship and
Immigration), 2011 FC 82 at paragraph 23, [2011] FCJ No 93).
[21]
First, the respondent submits that the
appropriate test for state protection is stated in the case Carrillo v
Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at paragraph
30, [2008] FCJ No 399 [Carrillo]: “a claimant
seeking to rebut the presumption of state protection must adduce relevant,
reliable and convincing evidence which satisfies the trier of fact on a balance
of probabilities that the state protection is inadequate.” It argues
that the more democratic the state is, the more a refugee claimant has to show
what was done to exhaust all available options for seeking state protection.
[22]
Second, the respondent submits that the Board
applied the proper legal test for state protection. It argues that the test for
state protection is adequacy, not effectiveness. The Board may consider the
efforts made by a country, but ought not regard the effectiveness of the
protection. The respondent cites Florez v Canada (Minister of Citizenship
and Immigration), 2008 FC 723 at paragraphs 9 to 11, [2008] FCJ No 969 for
support. It argues that the Board applied the correct test because the Board
stated, “[i]n view of the evidence before me, I find
that the principal claimant has not provided the requisite clear and convincing
evidence that, on a balance of probabilities, state protection in Colombia is
inadequate.”
[23]
Third, the respondent submits that the presumption
of state protection was not rebutted. It noted that the applicants’ approach in
dealing with the 2010 extortion was to report it to the authorities and obtain
a protective order. This differed from their approach in dealing with the 2013
extortion. There, they fled the country without reporting the threats to the
authorities. The applicants thereby did not give the authorities an opportunity
to provide adequate protection. They failed to meet the burden of adducing
relevant, reliable and convincing evidence to rebut the presumption.
[24]
The respondent highlights a few of the Board’s
findings, such as Colombia’s recent free and fair 2010 election, its
independent judiciary, its measures in human rights prosecution and its
military campaign against the FARC. The respondent argues that the totality of
evidence shows that the Board objectively and reasonably determined that Colombia
was a state where protection might be reasonably forthcoming.
[25]
Fourth, the respondent submits that the Board
considered all the relevant evidence. Here, the Board considered the country
conditions evidence and acknowledged the increased FARC attacks, the existence
of some corrupt officials and extortion from the FARC. It examined both
positive and negative country conditions evidence and was reasonably aware of
the adequacy of Colombia’s protection of its citizens. The respondent submits that
the finding was reasonable and falls within the range of possible, acceptable
outcomes defensible by the facts in this matter and the applicable law (Riczu
v Canada (Minister of Citizenship and Immigration), 2013 FC 888, at
paragraphs 23 to 24, [2013] FCJ No 923).
VI.
Applicants’ Reply and Further Memorandum
[26]
The applicants submit that the issue of whether
the Board misunderstood or misapplied the test for state protection is an issue
of law and hence is subject to a correctness standard of review (Dawidowicz
v Canada (Minister of Citizenship and Immigration), 2014 FC 115 at
paragraph 23, [2014] FCJ No 105 [Dawidowicz]; and Ruszo v Canada
(Minister of Citizenship and Immigration), 2013 FC 1004 at paragraph 22,
[2013] FCJ No 1099 [Ruszo]).
[27]
The applicants submit that for the purpose of
the state protection analysis, adequacy means the adequacy of protection at an
operational level concerning the quality of protection. Also, they submit that the
likely reason for the Board not referring to certain submitted evidence is that
the Board misunderstood the test to only involve the consideration of state
efforts. They reference Giraldo v Canada (Minister of Citizenship and
Immigration), 2014 FC 169 at paragraphs 17 to 19, [2014] FCJ No 204, where
Madam Justice Sandra Simpson found that the Board erred in not referring to the
evidence of a 97.5% impunity rate. The applicants argue that this is the same
evidence ignored by the Board in the case at bar.
[28]
The applicants emphasize that, although
protection was requested in 2010, none was provided by the police and the principal
applicant’s grandmother had to resort to self-help measures.
[29]
In further support of the applicants’ submission
that the Board ignored evidence, they cite Gonzalez v Canada (Minister of
Citizenship and Immigration), 2014 FC 750 at paragraphs 54 to 59, [2014]
FCJ No 816 for the proposition that it is unreasonable for the Board to not
specifically address contradictory evidence on state protection.
VII.
Respondent’s Further Memorandum
[30]
The respondent disagrees with the applicants on
the applicable standard of review for the test for state protection. It submits
that, although the formulation of the test is a question of law, the issue of
state protection is not outside the comprehension and specialized area of
expertise of the Board. Therefore, the standard of review for this issue should
be reasonableness (Dunsmuir at paragraph 55).
[31]
The respondent reiterates that the Board
formulated the state protection test reasonably, and found reasonably that the
applicants did not provide sufficient evidence to rebut the presumption of
state protection.
[32]
As for seeking police protection, the respondent
cites Ruszo at paragraphs 40 and 51, highlighting that “[f]or greater certainty, a subjective perception that one
would simply be wasting one’s time by seeking police protection or by
addressing local police failures by pursuing the matter with other sources of
police protection, would not constitute compelling or persuasive evidence,
unless the applicant had unsuccessfully sought police protection on multiple
occasions”.
[33]
In response to the applicants’ argument that
contrary evidence was ignored, the respondent submits that the Board was not
required to consider and comment upon every issue raised by the parties in its
reasons, provided that its decision viewed as a whole was reasonable.
VIII.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[34]
Where the jurisprudence has satisfactorily
resolved the standard of review, the analysis need not be repeated (Dunsmuir
at paragraph 62).
[35]
Insofar as the test for state protection is
concerned, I agree with the applicants that the standard of correctness should
be applied. In Ruszo at paragraphs 20 to 22, Chief Justice Paul Crampton
found the standard of correctness should be used in examining whether or not
the Board misunderstood the test for state protection. I further confirmed this
in Dawidowicz at paragraph 23.
[36]
Insofar as the state protection analysis is
concerned, I agree with the parties that the standard of reasonableness should
be applied. The Federal Court of Appeal has determined in Carrillo at
paragraph 36 that the standard of review is reasonableness for the analysis of
state protection.
[37]
The standard of reasonableness means that I
should not intervene if the Board’s decision is transparent, justifiable,
intelligible and within the range of acceptable outcomes (Dunsmuir at
paragraph 47). Here, I will set aside the Board’s decision only if I cannot
understand why it reached its conclusions or how the facts and applicable law
support the outcome (Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 SCR
708). As the Supreme Court held in Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paragraph 59 and 61, [2009] 1 S.C.R. 339, a court
reviewing for reasonableness cannot substitute its own view of a preferable
outcome, nor can it reweigh the evidence.
B.
Issue 2 - Did the Board misunderstand the test
for state protection?
[38]
It is not in dispute that a country is presumed
to be able to protect its citizens. A claimant must rebut that presumption of
state protection in order to succeed with his or her refugee claim.
[39]
It is also accepted that even though a state’s
state protection of its citizens need not be perfect, it must be adequate in
practice; that is, it must be adequate at the operational level. It is not
enough to say that the state has made efforts to provide state protection.
These efforts must be adequate in practice.
[40]
In the present case, the Board did state at paragraph
13 of its decision that the applicants did not provide:
… clear and
convincing evidence that, on a balance of probabilities, state protection in
Colombia is inadequate.
[41]
However, at paragraph 15, the Board states:
… the Colombian government has made efforts
to reduce the hold of the FARC in hot spots in Colombia.
At paragraph 16:
The government of Colombia is making
concerted efforts to address the ongoing challenges resulting from criminal
actions of groups such as the FARC …
And at paragraph 21:
I am not persuaded that should the principal
claimant approach the state with the details of the attack and threats of any
future attacks or threats, the state would not make reasonable efforts to
assist her or her family.
[42]
From a reading of the whole decision, I am not
convinced that the Board applied the correct test, in light of its repeated
references to “efforts”.
[43]
I am of the opinion that this makes the Board’s
decision unreasonable and the decision must be set aside and the matter
referred to a different panel of the Board for redetermination.
[44]
Because of my finding on this issue, I need not
deal with the remaining issue.
[45]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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