Docket: IMM-3334-15
Citation:
2016 FC 215
Ottawa, Ontario, February 17, 2016
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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SANDRA MILENA
BUILES
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MELISSA ASUAD
BUILES
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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 a decision of the
Refugee Protection Division [RPD] in which it determined that the Applicants
(Sandra – wife; and Melissa – daughter) were not refugees or persons in need of
protection. The RPD had found Juan (husband) to be a refugee.
For
the reasons herein, the Court has found the decision to be unreasonable and the
judicial review will be granted.
II.
Background
[2]
Juan Alejandro Asuad, Sandra Builes and Melissa
Builes are citizens of Colombia.
[3]
Mr. Asuad was a self-employed litigator
practising civil and criminal law. He was what Canadians might call a civil
rights lawyer – an area of involvement since his student days. He was also
involved in reclaiming family land stolen by fraudulent documents.
Additionally, he was seeking compensation for the deaths of his father and
brother – the father having been kidnapped and killed.
[4]
Mr. Asuad’s wife, Sandra, was a university
psychologist involved in child development centres in areas under the influence
of armed gangs.
Melissa
is their minor daughter – 12 years old at the relevant time.
[5]
On February 27, 2015, two men threatened Mr.
Asuad. They told him that they knew where he lived and that he had a daughter,
and warned him to stop being a snitch and a disturber. Mr. Asuad did not know
who these people were or on whose behalf the threats were made.
[6]
Immediately after the threats Mr. Asuad reported
the incident to the Office of the Prosecutor. The following week he reported
the incident to the Ombudsman, the Personeria, the Justice Hall and the
Administration Department for Attention and Reparation to Victims.
No
action was taken and the institutions informed Mr. Asuad that they did not have
the infrastructure to provide security.
[7]
Thereafter, Mr. Asuad and the Applicants made
their way to Canada and filed their refugee protection claims.
[8]
The RPD found Mr. Asuad to be a credible and
trustworthy witness. They accepted the facts in his Basis of Claim and his oral
testimony.
[9]
The RPD examined the nature of his practice in
furtherance of the administration of justice. They found that the country
documents establish that lawyers involved in similar work (human rights, state
corruption, drug trafficking and land disputes) had also received similar
threats.
[10]
The RPD also found that the documentary evidence
established that state protection was not likely to be effective for lawyers
involved in human rights advocacy, land restitution and certain criminal cases.
The RPD found a well-founded fear and granted Mr. Asuad refugee protection.
[11]
In respect of Sandra and Melissa, the RPD
concluded that, since the threat was against Mr. Asuad to force him to stop
work and since he was now in Canada - “the assailants
have no good reason to pursue the issue further.” On that basis, the RPD
held that Sandra and Melissa could be returned to Colombia without risk.
III.
Analysis
[12]
The sole issue is the reasonableness of the
RPD's conclusion that the Applicants would not be at risk if returned to
Colombia.
The
standard of review is reasonableness.
[13]
The RPD’s decision is wholly unreasonable, based
on rank speculation and inconsistent with the evidence.
[14]
The Applicants’ claim is largely derivative
because the risk is through their association with Mr. Asuad.
[15]
The RPD knew that the agents of persecution were
unknown, yet they speculated that since Mr. Asuad was in Canada, his family
would not be at risk. There is no evidence to suggest that these unknown
persons would be satisfied with Mr. Asuad’s Canadian refuge.
It
is equally plausible that since these agents were believed to merely wish Mr.
Asuad to stop his activities (an assumption made without evidence), threatening
his family would be the most certain way to keep him dormant even from afar.
[16]
As noted in Londono Soto v Canada
(Citizenship and Immigration), 2008 FC 354, 166 ACWS (3d) 343, determinations
on the plausibility of who will be attacked and when must be made with caution
because of the difficulty of predicting who will be targeted and for what level
of involvement.
[17]
The RPD speculated, without any basis, as to the
agents of persecution’s motives, means and future intentions. They assumed
that, if they were right about motive (to stop human rights work), they would
behave sensibly and rationally toward the Applicants. There is no evidence to
support any of this.
[18]
The evidence shows that family members of human
rights lawyers have been targets of persecution. The evidence shows that, at
least for these people, there is no effective state protection.
[19]
Before the RPD sends someone back to the area of
risk (the natural consequence of its negative decision), it must have a sound
basis for its forward looking analysis of risk to the returnee. They owe at
least that much to the wife and child of a husband/father who had legitimate
grounds for his fear where there is no effective state protection available to
them.
[20]
The decision makes a veiled reference to the
prospect of the Applicants being sponsored by Mr. Asuad. While that may be a
reasonable prospect (perhaps intended to soften the harshness of the decision),
it is an irrelevant consideration.
[21]
The RPD’s decision is unreasonable in all the
circumstances.
IV.
Conclusion
[22]
This judicial review will be granted, the
decision quashed and the matter referred back to a different member for a new
determination.
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