Docket: IMM-3935-13
Citation:
2015 FC 20
Ottawa, Ontario, January 8, 2015
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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SANDRA JOHANA CASTANEDA OSORIO
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JULIAN ANDRES VELEZ SALDARRIAGA
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AND SARA VELEZ CASTANEDA
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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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ORDER AND REASONS
UPON application for
judicial review pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act) of a decision made on May 16, 2013 by
the Refugee Protection Division of the Immigration and Refugee Board of Canada
(the RPD), wherein the RPD rejected the applicants’ claim for refugee
protection under sections 96 and 97 of the Act;
AND UPON considering the written
and oral submissions of the parties and reviewing the RPD’s Certified Record;
AND UPON considering that
the applicants are a family including the principal applicant Ms Castaneda
Osorio (Ms Osorio), her spouse Mr Velez Saldarriaga and their daughter Sara
Velez Castaneda and that all are citizens of Colombia;
AND UPON considering that
they left Columbia for Canada on January 23, 2013 and filed for refugee
protection on February 4, 2013 alleging fear of the Revolutionary Armed Force
of Columbia (the FARC) as a result of Ms Osorio having been targeted by the
FARC because of her work as a teacher in a pre-school program for children of
low income families, including children of former FARC members;
AND UPON considering that
on May 16, 2013, the RPD rejected the applicants’ refugee claim on the basis
that Ms Osorio had failed to rebut the presumption of state protection in Columbia;
AND UPON considering that
the issue raised by this judicial review application is whether the RPD, in
concluding as it did, committed a reviewable error as contemplated by section
18.1(4) of the Federal Courts Act, RSC, 1985, c F-7;
AND UPON determining that
the applicants’ judicial review application should be dismissed for the
following reasons:
[1]
Ms Osorio’s fear of the FARC rests on two incidents
which occurred in September 2011 and November 2012. In the first incident, she
claims to have been threatened by two men on the basis that she was helping
demobilized guerrillas through her teaching. After that incident, she moved to
another part of the city of Medillin, where she was residing, and stopped
teaching for a while. The second incident occurred after she had returned to
work at a different school facility. A shooting occurred while she was outside
the school and the perpetrators, believed to be members of the FARC, shouted that
they knew where she lived. Shortly thereafter, she left Colombia for Canada with her husband and daughter.
[2]
The evidence is that Ms Osorio did not attempt
to access state protection after either of the two incidents that lead to the
applicants refugee claim. She explained that she did not do so because the
Colombian authorities are usually not willing or able to protect victims of
FARC. When questioned on her fear of contacting the police in Colombia, Ms Osorio testified that her husband’s cousin had disappeared after contacting
the police regarding an incident involving the FARC.
[3]
The RPD noted that there was an obligation on
the part of Ms Osorio to approach the state for protection unless she could
show that it was unreasonable for her to do so. After reviewing the country
documentation on Colombia’s continuous efforts to protect its citizens from the
FARC, the RPD was not persuaded that, had Ms Osorio approached the state regarding
her two encounters with FARC members, the state would not have made reasonable
efforts to assist her. It concluded that Ms Osorio had not given the Colombian
authorities an opportunity to provide protection and that she had not provided
an objectively reasonable explanation for not doing so.
[4]
Issues relating to state protection are
reviewable on a standard of reasonableness as such issues are questions of
mixed fact and law which, given the RPD’s expertise on this subject matter,
attract deference (Dunsmuir v New Brunswick, 2008 SCC 9 at para 51,
[2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paras 44, 59, [2009] 1 S.C.R. 339; The Minister of
Citizenship and Immigration v Flores Carrillo, 2008 FCA 94, [2008] 4 FCR
636, at para 36; Romero Davila v Canada (Minister of Citizenship and
Immigration), 2012 FC 1116, at para 26; Gulyas v Canada (Minister
of Citizenship and Immigration), 2013 FC 254, 429 FTR 22, at para 38).
[5]
As the Supreme Court of Canada stated in Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689, refugee protection is meant to
be a form of surrogate protection, invoked only in situations where a refugee
claimant has unsuccessfully sought the protection of his home state (Ward,
at para 18). This means that, absent a complete breakdown of the state
apparatus, it is presumed that state protection is available for a refugee
claimant and to rebut this presumption, the claimant must provide clear and
convincing evidence of the state’s inability or unwillingness to provide
adequate – not perfect - protection (Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, at para 43 and 44; Carillo v
Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4
FCR 636 at para 19; Ruszo v Canada (Minister of Citizenship and
Immigration), 2013 FC 1004, at para 29; Salamon v Canada (Minister of Citizenship and
Immigration), 2013 FC 582, at para 5; Ward, above at para
52).
[6]
Here, the RPD rejected the applicants’ refugee
claim because they had not provided clear and convincing evidence of Colombia’s
inability or unwillingness to provide adequate protection.
[7]
What is required with respect to the “inability”
branch of the test is evidence that all objectively reasonable efforts were
unsuccessfully made by the claimants to exhaust all courses of action
reasonably available to them before seeking refugee protection. Absent a
compelling or persuasive explanation, the failure to make those efforts prior
to seeking refugee protection will typically provide the RPD with a reasonable
basis to conclude that the presumption of state protection has not been rebutted
(Ruszo, above at para 31-33). This is the case here as Ms Osorio made
no attempt whatsoever to seek state protection after
either of the incidents that lead to her refugee protection claim.
[8]
As for the “unwillingness” branch of the test, refugee
claimants must show that it was reasonable for them not to have sought the protection
of their home state. However, their reluctance in doing so needs to be
objective, established and proven. A subjective perception that one would
simply be wasting one’s time by seeking police protection or mere doubts as to the
effectiveness of state protection does not constitute compelling or
persuasive evidence in this regard, unless the refugee claimant has
unsuccessfully sought state protection on multiple occasions (Ruszo,
above, at para 33; Yang v Canada (Minister of Citizenship and Immigration),
2012 FC 930, 416 FTR 110 at paras 25 and 83; Rio Ramirez v Canada
(Citizenship and Immigration), 2008 FC 1214, at para 28).
[9]
Ms Osorio claims that her reluctance to seek
state protection was prompted by the fact her husband’s cousin mysteriously disappeared
after contacting the police regarding an incident involving the FARC. The RPD
found that this was not compelling evidence of the Colombian authorities’ inability
or unwillingness to provide protection to Ms Osorio. In particular, it found
that the evidence on record was not supportive of the fact that the
disappearance was linked to the act of seeking protection from the police and concluded,
as a result, that Ms Osorio had not established it was objectively unreasonable
for her to seek protection. In my view, this finding was reasonably open for
the RPD to make. It falls within the range of possible outcomes given the
record that was before the RPD and I see no reason to interfere with it (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[10]
The applicants contend that the RPD used the
wrong test to assess whether state protection was available to them by focusing
its analysis on the efforts made by Colombia to fight the FARC rather than the
operational adequacy of the protection.
[11]
In my view, there are three problems with that
argument. First, the RPD, in its review of the country documentation, describes
a series of operational initiatives that have produced tangible results
in addressing ongoing challenges resulting from criminal actions of guerrilla
and paramilitary groups such as the FARC. The RPD decision must be read as a whole,
requiring the reader to go beyond the semantics and focus on the substance of
it (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 14; Lainez v
Canada (Minister of Citizenship and Immigration), 2011 FC 707, at para 21; Ragupathy
v Canada (Minister of Citizenship and Immigration), 2006 FCA 151, [2007] 1
FCR 490 at para 15; Sinnasamy v Canada (Citizenship and Immigration),
2008 FC 67, at para 31). Here, I am satisfied that the RPD paid sufficient attention
to the operational adequacy of the measures taken by the Colombian government
in recent years to both cope with the social disturbances caused by the FARC and
to protect its citizens. I am equally satisfied that the use of
the word “efforts” does not impact
negatively on the RPD’s analysis of the country documentation.
[12]
Second, as the RPD reasonably concluded that Ms
Osorio had not taken all objectively reasonable steps to avail herself of state
protection, the error in the enunciation of the state protection test, assuming
there was one, would not be enough for this Court to overturn its decision. As
Chief Justice Paul S. Crampton expressed in Ruszo, above, at para 28:
Nevertheless, the RPD’s misunderstanding or
misapplication of the “adequate state protection” test is not necessarily fatal
in cases where, as here, the RPD also reasonably concluded on other grounds
that the Applicants had failed to rebut the presumption of adequate state
protection with “clear and convincing evidence of the state’s inability to
protect [them].” In this case, those grounds were the failure of the Applicants
to demonstrate that they had taken all objectively reasonable steps to avail
themselves of state protection, and to provide compelling or persuasive
evidence to explain their failure to do more than make a single attempt to seek
protection from the police. As discussed below, it is clear from various parts
of the decision that these were very important considerations for the RPD, and,
indeed, provided an alternate basis for the RPD’s decision. Having regard to
the RPD’s determinations on these points, its decision was not unreasonable.
[13]
Here, the RPD clearly expressed its concern with
the applicants not having discharged their burden of proof. Indeed, it is the
applicants’ failure to provide evidence of their reluctance to engage the state
that was fatal to their claim and not, as the applicants contend, the use of
the wrong legal test. The RPD’s approach to the state protection analysis is
fully consistent with the above principle that refugee protection is meant to
be a form of surrogate protection (Ward, above, at para 18).
[14]
Third, the concept of state protection does not
require a refugee claimant’s home state to provide perfect protection to its
nationals as this is an unattainable standard. State protection only needs to
be adequate (Hinzman v Canada (Minister of Citizenship and
Immigration), 2007 FCA 171 at paragraphs 41, 43-44; Carillo v Canada
(Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 FCR 636 at
paragraphs 18, 30). In this regard, the situation is far from
perfect in Colombia, a country which has been struggling over the last 40 years
with violence and social and political instability due to internal conflicts
with guerrilla and paramilitary groups. Nevertheless, the evidence that was
before the RPD in this case shows that both the army and the police have, in
recent years, managed to conduct successful operations against the FARC. Thus,
it was reasonably open to the RPD to find that Ms Osorio had not established it
was objectively unreasonable for her to seek Colombia’s protection.
[15]
This result is consistent with a number of
recent cases where RPD findings that adequate state protection for those
who were threatened by the FARC is available in Colombia were confirmed by this
Court as being reasonable (Jimenez v Canada (Minister of Citizenship
and Immigration), 2014 FC 780; Vargas v Canada (Minister of Citizenship
and Immigration), 2014 FC 484; Calderon v Canada (Minister of
Citizenship and Immigration), 2014 FC 557; Andrade v Canada (Minister of
Citizenship and Immigration), 2012 FC 1490; Mendoza-Rodriguez v Canada
(Minister of Citizenship and Immigration), 2012 FC 1367).
[16]
In Cruz Vergara v Canada (Minister of Citizenship an Immigration), 2013 FC 138, at para 35, Justice
Richard Mosley summarized this recent trend in the case law in the following
terms:
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 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”.
[17]
There is no evidence on record indicating that
Ms Osorio, a rather low profile teacher in Colombia, or her husband for that
matter, has the profile of someone falling into a group that may be at risk in
Columbia at the hands of the FARC if she were to return to that country.
[18]
For these reasons, I find that the RPD’s finding on state protection falls
within the range of possible, acceptable outcomes defensible in respect of the
facts and the law. Since this is fatal to the applicants’ case, the
application for judicial review is dismissed.
[19]
No question of general importance has been
proposed by the parties. None will be certified.
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