Date:
20070308
Docket: A-310-06
Citation: 2007 FCA 99
CORAM: RICHARD
C.J.
SHARLOW
J.A.
MALONE
J.A.
BETWEEN:
LUIS MIGUEL TRUJILLO SANCHEZ
DEYSSE JHANET VELANDIA BARON
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
RICHARD C.J.
[1]
This is an
appeal from the decision of Justice Barnes of the Federal Court (2006 FC 604)
dismissing the appellants’ application for judicial review of a decision of the
Immigration and Refugee Board, Refugee Protection Division, (“Board”) whereby
their claims for refugee protection under sections 96 and 97(1) of the Immigration
and Refugee Protection Act S.C. 2001, c. 27 (the “Act”) were denied.
[2]
I have not
been persuaded that there is any basis for interfering with the applications
judge’s decision. My reasons for so concluding are the following.
Facts
[3]
The
appellants, a husband and wife, are Colombian nationals. The appellant, Mr.
Sanchez, was employed on a full-time basis by the Colombian Ministry of
Agriculture as an engineer, with a specialty in environmental clean-up. In
addition, Mr. Sanchez and his brother ran a side-line business that reported
violations of signage by-laws to the Bogot city authorities. Upon successful
prosecution of the offender, he and his brother received a percentage of the
fine that was levied against the guilty person or business.
[4]
Mr.
Sanchez was threatened by the Fuerzas Armadas Revolucionarias de Colombia
(“FARC”) due to his part-time business. He first received a threatening letter
in June 2002 in which FARC demanded that he and his brother desist from reporting
violators of municipal sign by-laws. The letter intimated that their part-time
business was adversely affecting the ability of businesses in the city to pay
extortion money to FARC. The letter ended by warning Mr. Sanchez that he was
being watched.
[5]
Mr.
Sanchez did not comply with FARC’s demands and continued to operate his
business. Two years later, in 2004, Mr. Sanchez was abducted by FARC on two
occasions. Mr. Sanchez testified that FARC threatened him at gun point and
told him to cease reporting violators of the city’s sign by-laws to the
authorities. It was after the second abduction that the appellants came to Canada to claim refugee protection.
Decision of the Immigration and Refugee
Board
[6]
The Board
found that the appellants were neither Convention refugees nor persons in need
of protection. Although the Board found the testimony of Mr. Sanchez credible,
it did not consider the facts to give rise to a successful claim. The Board
found no indication that the lives or the well-being of the appellants would
have been at risk had Mr. Sanchez simply chosen to comply with the warning and
cease his side business. The Board was of the view that, given FARC’s
threatening conduct, it was not unreasonable to expect Mr. Sanchez to cease his
side business and that his inability to continue this endeavour was not a
denial of his core human rights or of his general ability to earn a living.
Decision of Federal Court on judicial
review
[7]
The
applications judge found the Board’s decision to be reasonable and legally
correct. He dismissed the application for judicial review and certified this
question:
Before seeking protection from another
state, is a person obliged to make lifestyle or other employment changes which
would offer protection from persecution or which could protect the life and
safety of a claimant and, if so, what is the test for making such a
determination?
Standard of review
[8]
This Court
is required to determine the correct standard of review and determine whether
the applications judge correctly applied that standard of review: see Prairie
Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA
31, at paragraph 14, citing Zenner v. Prince Edward Island College of
Optometrists, 2005 SCC 77 at paragraphs 29-45 per Major J. and Alberta
(Minister of Municipal Affairs) v. Telus Communications Inc. (2002), 218
D.L.R. (4th) 61 at paragraphs 25-26 per Berger J.A.
[9]
The
determination of the correct legal test under sections 96 and 97(1) of the Act
involves a question of law reviewable on the standard of correctness, and the
question as to whether the facts found by the Board satisfy the legal test is a
question of mixed fact and law within the expertise of the Board and is
reviewable on the standard of reasonableness. There was no challenge to any of
the Board’s findings of fact.
[10]
Fundamentally,
the applications judge was required to determine, based on the facts as found
by the Board, whether the appellants would be at risk of harm upon a return to
Colombia to an extent that they could be found to be Convention refugees or
persons in need of protection. The applications judge considered these to be questions
of mixed fact and law subject to review on the standard of reasonableness. In
so doing, he referred to the decision of Gibson J. in Jayesekara v. Canada (Minister of Citizenship and
Immigration),
(2001) 211 F.T.R. 100 (T.D.), 2001 FCT 1014. The applications judge then went
on to state the following at paragraph 11:
At the end of the day, the application of
the appropriate standard of review is of no significance to my analysis
because, whatever the standard may be, I believe that the Board’s decision was
both reasonable and legally correct.
Analysis
[11]
The
applications judge found no evidentiary foundation to support the appellants’
claims for convention refugees under section 96 of the Act. The record
disclosed that FARC was engaged in a form of criminal extortion which, insofar
as the appellants were concerned, had no obvious political aspect to it. The
applications judge also rejected the appellants’ argument that FARC’s actions
were connected to Mr. Sanchez’s political family history, noting that there was
no material evidence to indicate that FARC’s intentions went beyond Mr.
Sanchez’s part-time employment.
[12]
The
appellants submit that the applications judge erred in his assessment of Mr.
Sanchez’s activities and FARC’s perception of these activities. They argue
that the test is not whether Mr. Sanchez is engaged in political
activities but, rather, whether FARC perceived Mr. Sanchez to be part of a
particular social group or a businessman or holds a certain political opinion.
In support of this submission, the appellants rely on Mr. Sanchez’s testimony regarding
incidences involving his family at the hands of FARC, including his evidence that
his father had been the Governor of the Department of Caqueta and that the
family home had been attacked by FARC. The appellants also rely on a
denunciation to the Judicial Police, a letter from FARC, a denunciation to the
Fiscalia, a denunciation to the “Anti-Kidnapping and Extortion Bureau” and the
RPD Index for Colombia.
[13]
In
reaching his conclusion, the applications judge carefully assessed all of the
evidence alluded to by the appellants and properly considered the perspective
of FARC and concluded that the evidence was simply not sufficient to support a
claim for convention refugee status on the ground of membership in a particular
social group or political opinion. Mr. Sanchez did not himself have the
stature to attract political attention and none of the evidence specified by
the appellants suggests that Mr. Sanchez was being targeted for political
reasons. Neither the July 2002 nor the February 2004 denunciations suggest
that Mr. Sanchez or his brother believed their family’s political history had
any bearing on the threats from FARC. To the contrary, the evidence indicates that
FARC had a limited interest in Mr. Sanchez, which was for him and his brother
to abandon their business.
[14]
In
dismissing the application for judicial review, the applications judge also
concluded that the appellants are not persons in need of protection under subsection
97(1) of the Act. The main issue on this appeal is whether the applications
judge applied the correct legal test in assessing whether the appellants would
be at a risk of harm if removed to Colombia.
As this Court noted in Li v. Canada (Minister of Citizenship and
Immigration), [2005] 3 F.C.R. 239 (C.A.), 2005 FCA 1, subsection 97(1) does not
incorporate a subjective component. As per Rothstein J.A., at paragraph 33:
It is true that a refugee hearing a panel
may be asked to consider both whether an individual is a Convention refugee and
whether that individual is in need of protection. Some of the evidence may
apply to both determinations. However, there are differences between section
96 and paragraph 97(1)(a). For example, a claim for protection under paragraph
97(1)(a) is not predicted on the individual demonstrating that he or she is in
danger of torture for any of the enumerated grounds of section 96. Further,
there are both subjective and objective components necessary to satisfy the
requirements of section 96: see Chan v. Canada (Minister of Employment and
Immigration), [1995] 3 S.C.R. 593 at paragraph 120 per Major J., while a claim
under paragraph 97(1)(a) has no subjective component. Because of such
differences, it cannot be said that the provisions are so closely related that
it would irrational if the test under paragraph 97(1)(a) was not identical to the
test under section 96.
[15]
As such, a
determination of whether a claimant is in need of protection requires an
objective assessment of risk, rather than a subjective evaluation of the
claimant’s concerns. Evidence of past persecution may be a relevant factor
in assessing whether or not a claimant would be a risk of harm if returned to
his or her country, but it is not determinative of the matter. Subsection
97(1) is an objective test to be administered in the context of a present
or prospective risk for the claimant.
[16]
In assessing
the existence of a prospective risk, the applications judge analogized the
appellants’ situation to one where there is an internal flight alternative
(IFA) and held that “Canada cannot and should not be a
substitute refuge for those who have the option of choosing a safe haven in
their home countries” (paragraph 18). Without importing the IFA test into
subsection 97(1), I believe the underlying purpose of the IFA test is helpful
in assessing a risk of harm. As noted by this Court in Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), at paragraph
12, “if there is a safe haven for claimants in their own country, where they
would be free of persecution, they are expected to avail themselves of it
unless they can show that it is objectively unreasonable for them to do so.”
Similarly, claimants
who are able to make reasonable choices and thereby free themselves of a risk
of harm must be expected to pursue those options.
[17]
In this
case, the evidence indicates that Mr. Sanchez was being targeted by FARC
because they wanted him to cease reporting violators of the city’s by-laws to
the authorities. Both the Board and the applications judge found that Mr.
Sanchez had an alternative that would eliminate future risk of harm to the
appellants, that is, he could choose to cease operating his side business. This
alternative is objectively reasonable because Mr. Sanchez has the ability to
earn a living as an engineer. He had been employed as an environment engineer
and could be employed in that capacity again upon a return to Colombia. In these circumstances, Mr.
Sanchez must be expected to abandon his side business as demanded by FARC in
order to eliminate the risks he faces.
[18]
The
appellants submit that the applications judge erred in finding that denial of
an employment interest of this sort does not engage a principal of fundamental
human rights or dignity. They argue that these were engaged when FARC
effectively prevented Mr. Sanchez from pursuing a “freely chosen” profession.
However, Mr. Sanchez’s freedom to practice and profess his religion, give
expression to an immutable personal characteristic, express his political
views, etc., was not affected by abandoning his side business. Moreover, Mr.
Sanchez was not deprived of his general ability to earn a living. He continued
to be employed as an engineer by the Ministry of Agriculture throughout the
relevant period.
[19]
As noted
by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages
738-739:
[…] Canada's obligation to offer a haven to those
fleeing their homelands is not unlimited. Foreign governments should
be accorded leeway in their definition of what constitutes anti-social
behaviour of their nationals. Canada should not overstep its role in the
international sphere by having its responsibility engaged whenever any group is
targeted. Surely there are some groups, the affiliation in which
is not so important to the individual that it would be more appropriate to have
the person dissociate him- or herself from it before Canada's responsibility should be
engaged. Perhaps
the most simplified way to draw the distinction is by opposing what one is
against what one does, at a particular time. For example, one could
consider the facts in Matter of Acosta, in which the claimant was targeted because
he was a member of a taxi driver cooperative. Assuming no issues
of political opinion or the right to earn some basic living are involved, the
claimant was targeted for what he was doing and not for what he was in an
immutable or fundamental way [emphasis added].
In this case, Mr. Sanchez was being targeted by FARC for
what he was doing, i.e. reporting violators of the city’s by-laws to the
authorities, “not for what he was in an immutable or fundamental way.” Denial
of his side business interest would therefore not affect a fundamental
principal of human rights.
[20]
For these
reasons, I am satisfied that in this case the applications judge was correct in
his determination and his application of the appropriate standard of review. I
am unable to discern any error in his decision that warrants the intervention
of this Court. I would dismiss the appeal. I would answer the certified
question as follows:
It is not possible in the context of this
case to attempt to develop an exhaustive list of the factors that should be
taken into account in assessing whether a person is in need of protection.
However, persons claiming to be in need of protection solely because of the
nature of the occupation or business in which they are engaged in their own
country generally will not be found to be in need of protection unless they can
establish that there is no alternative occupation or business reasonably open
to them in their own country that would eliminate the risk of harm.
"J. Richard"
“I
agree.
K. Sharlow J.A.”
“I
agree.
B. Malone J.A.”
Email this Content