Docket: IMM-842-17
Citation:
2017 FC 988
Ottawa, Ontario, November 2, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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ADRIANA
PATRICIA QUEBRADA BATERO
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MICHAEL STEVE
QUEBRADA BATERO
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SARAY MELISSA
BELLO QUEBRADA
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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
[1]
Adriana Patricia Quebrada Batero, the Principal
Applicant who is now 40 years old, and her son and daughter who are,
respectively, 23 and 13 years old, arrived in Canada at the Fort Erie border
crossing on December 14, 2016. They claimed refugee protection the same day on
the basis that the Principal Applicant had been subjected to extortion demands
in Bogotá, Colombia, by a group identifying itself as the Black Eagles. Their
claim was rejected by the Refugee Protection Division [RPD] of the Immigration
and Refugee Board on February 10, 2017. They have now applied under subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c-27, for
judicial review of the RPD’s decision.
I.
The RPD’s Decision
[2]
The Applicants’ claim was heard by the RPD on
February 10, 2017, and denied in a decision rendered orally on the same day.
Although the RPD found the Applicants’ allegations to be credible, it found
that locations within Colombia other than Bogotá, such as Medellín or Cali,
would be a viable internal flight alternative [IFA] for them. Specifically, the
RPD found that the Applicants could safely relocate from Bogotá to Medellín or
Cali and it was reasonable for them to do so. The RPD based this finding on its
review of documentation pertaining to the Black Eagles, notably two Response to
Information Requests, an InSight Crime report, an Agencia Prensa Rural
document, and an article from the Southport organization. In the RPD’s view,
the Black Eagles were not a singular organization with a central command
structure but, instead, consisted of a number of independent localized groups
that adopted the generic name “Black Eagles” out
of convenience for the purpose of intimidation.
[3]
The RPD determined that, even if the Black
Eagles had a presence in Medellín or Cali, the “fragmented
nature of the Black Eagles and the localized nature of their activities”
made it “unlikely that they have the ability to track
the claimants throughout the country to places such as Medellín or Cali, given
their structure.” There was, in the RPD’s view, “insufficient
evidence… to demonstrate that the people targeting the claimants were not
simply a local group, or that the Black Eagles likely have the kind of network
and resources of, for example, paramilitary groups in Colombia, or the more
organized and structured criminal organizations, so as to locate the claimants
elsewhere.” The RPD further noted that, while there was some evidence
that Black Eagles targeted certain people for persecution, such as activists,
journalists, Afro-Colombians, indigenous peoples, landowners and farmers,
certain business operators and drivers, government officials, trade unionists,
and women and children with specific profiles, the Applicants did not fit any
of these profiles. In response to arguments that the Principal Applicant’s
adult son would be vulnerable to forced recruitment by gangs and paramilitaries
throughout Colombia, the RPD found there was “insufficient
evidence … educed to demonstrate that forced recruitment of adults in urban
areas is so systematic that its occurrence is likely to happen more often than
not in Medellín or Cali.”
[4]
The RPD acknowledged the Applicants’ testimony
about the difficulties they would face in relocating to another city; it found,
however, that such difficulties did not meet the threshold established in cases
such as Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1993] FCJ No 1172, [1994] 1 FC 589 (CA) [Thirunavukkarasu], and Ranganathan
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 2118, [2001]
2 FCR 164 (CA). The RPD noted that the Applicants’ preferences and convenience
were not generally relevant considerations, and the hardship associated with
dislocation and relocation is not sufficient to make an IFA unreasonable. The
RPD further acknowledged that while the level of crime in Medellín and Cali was
high, Bogotá also suffers from serious crime.
[5]
For the purposes of analysis of the second prong
of the IFA test, the RPD considered the Guidelines on Women Refugee
Claimants Fearing Gender-Related Persecution and whether the Principal
Applicant’s status as a single mother affected her ability to relocate. The RPD
found that being a single mother did not undermine the reasonableness of the
Principal Applicant relocating. The RPD continued by stating:
Medellín and Cali are very large cities with
developed infrastructure, essential services and amenities. The adult claimants
are both young at 39 and 22, and there is no evidence to indicate that they are
unhealthy or would be unable to sustain themselves. The principal claimant has
worked as an administrative assistant or business consultant for most of the
last decade. Throughout this time she also had a side business. Her son has
post-secondary education and last year worked in IT (information technology)
until he left the country. I find insufficient evidence to suggest that these
skills are not transferrable to Cali or Medellín.
[6]
The RPD completed its analysis of the
reasonableness of the proposed IFAs by noting that “there
are government programs available for people relocating to Medellín or Cali for
…assistance with housing, health services, and education.” The RPD
concluded by stating that the Applicants could “safely
relocate to other cities in Colombia and it is reasonable for them to do so.”
II.
Issues
[7]
The Applicant characterizes the issues as being
whether the RPD failed to consider contrary evidence about (1) the nature of
the Black Eagles and their ability to locate the Applicants and (2) the
viability of the IFAs. In my view, however, this application for judicial
review raises one primary issue: was the RPD’s determination that the
Applicants have a viable IFA in Medellín or in Cali reasonable?
III.
Analysis
A.
Standard of Review
[8]
The RPD’s determination on the availability of
an IFA is reviewable on the standard of reasonableness (see: Rodriguez Diaz
v Canada (Citizenship and Immigration), 2008 FC 1243 at para 24, [2009] 3
FCR 395). As the Court noted in Lebedeva v Canada (Citizenship and
Immigration), 2011 FC 1165 at para 32, [2011] FCJ No 1439, IFA
determinations “warrant deference because they involve
not only the evaluation of the applicant’s circumstances, as related by their
testimony, but also an expert understanding of the country conditions involved.”
[9]
Under the reasonableness standard, the Court is
tasked with reviewing a decision for “the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190. Those criteria are met if “the
reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes”: Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16,
[2011] 3 S.C.R. 708.
[10]
Additionally, “as long
as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome”; and it is
also not “the function of the reviewing court to
reweigh the evidence”: Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at paras 59 and 61, [2009] 1 S.C.R. 339. The RPD’s decision must
be considered as an organic whole and the Court should not embark upon “a line-by-line treasure hunt for error” (Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper
Ltd., 2013 SCC 34 at para 54, [2013] 2 S.C.R. 458).
B.
Was the RPD’s determination that the Applicants
have a viable IFA in Medellín or in Cali reasonable?
[11]
The Applicants claim the RPD failed to consider
evidence that contradicted its finding that the Black Eagles would be unable to
track the Applicants to the proposed IFAs. They contend that the Black Eagles
are a paramilitary network, with ties to the state and military, and are part
of a larger network of criminal organizations known as “Clan
Usaga” which has a hierarchical structure, national reach, and ability
to track individuals throughout Colombia. According to the Applicants, there is
no evidence that the Black Eagles in Bogotá are separate from the groups tied
to Clan Usaga. The Applicants further claim that the RPD failed to consider
evidence about the inadequacy of government programs for internally displaced
persons in finding that Cali and Medellín were
viable IFAs.
[12]
The Respondent argues that the Applicants’
submissions “obscure” the RPD’s actual finding,
which was that the Black Eagles in Bogotá did not have the ability to
track them to the proposed IFAs. The Respondent notes that the RPD found that
the Bogotá Black Eagles were not likely to be connected with Black Eagles
groups in other areas. The Respondent disputes the Applicants’ claim that the
RPD relied exclusively on a single document, noting that the RPD referenced a
wide range of country condition documents in its reasons. The Respondent
acknowledges that while the documentary evidence indicates that Colombia’s
programs designed to assist internally displaced persons are generally seen as
inadequate, the existence of government programs did not form the entire basis
for the RPD’s findings about the viability of the IFAs. According to the
Respondent, the RPD’s determination as to the viability of the proposed IFAs
was also based on the ability of the Applicants to find work in large Colombian
cities like Cali or Medellín.
[13]
I agree with the Respondent’s submission at the
hearing of this matter that the Applicants are asking the Court to
microscopically reweigh the evidence. The RPD does not need to mention every
piece of evidence in its reasons and, moreover, it is assumed that the RPD
weighed and considered all of the evidence before it, unless the contrary is
shown (see: Akram v Canada (Minister of Citizenship and Immigration),
2004 FC 629 at para 15, 130 ACWS (3d) 1004; D’Souza v Canada (Minister of
Employment and Immigration), [1983] 1 FC 343 at para 8, 16 ACWS (2d) 324
(CA); and Florea v. Canada (Minister of Employment and Immigration),
[1993] FCJ No 598 at para 1, [1993] ACF No 598 (CA)).
[14]
The RPD does, however, need to properly identify
and reasonably apply the two-pronged test for an IFA emanating from the Federal
Court of Appeal’s decision in Rasaratnam v Canada (Minister of Employment
and Immigration), [1992] 1 FC 706 (CA), 140 NR 138. When determining the
viability of a proposed IFA, the RPD must first be satisfied on a balance of
probabilities that a refugee claimant faces no serious possibility of being
persecuted in the proposed IFA and, second, it must be objectively reasonable
for the claimant to seek refuge in the proposed IFA. It is the refugee claimant
who bears the burden to show that an IFA is not viable (see Thirunavukkarasu
at paras 5-6).
[15]
In this case, the documentary evidence before
the RPD was such that it was reasonable for the RPD to find it unlikely that
the Black Eagles in Bogotá have the ability to track the Applicants throughout
the country to places such as Medellín or Cali.
It was not reasonable, however, for the RPD to find that Cali or Medellín
offered a viable IFA for the Applicants because the RPD did not consider the
Applicants’ potential for harm as internally displaced persons in Colombia.
Although the RPD did note the existence of government programs available for
people relocating to Medellín or Cali to assist with housing, health services,
and education, it either ignored or unreasonably failed to consider or assess
the Applicants’ potential harm in the proposed IFAs as internally displaced
persons. The objective documentary evidence before the RPD in this case showed that
it would not be objectively reasonable for the Applicants to seek refuge in the
proposed IFAs. This evidence shows that:
…victims of both intra-urban displacement
and those from other parts of the country, live in territories controlled by
armed groups. Even though sometimes these groups are not the same as those that
caused the victims’ initial displacement, eventually these groups become a
serious threat to the displaced. Although these armed groups have no power at
the national level, these are large criminal gangs, which are very powerful….
…displaced persons experienced significant
delays in receiving responses to their displacement claims, initially as a
result of delays in the establishment of validation criteria for claims and
then as a result of a large backlog of claims built up over several months at
the beginning of the year. International organizations and NGOs remained
concerned about underregistration of IDPs and the slow institutional response
to displacement. CODHES [Consultancy for Human Rights and Displacement] cited
the government’s denial of many registrations, lack of access to the
registration system in some areas, and fear of retaliation from illegal armed
groups as obstacles to full registration….
…there are approximately 10,000 victims of
inter-city displacement in Medellín … individuals registered as [translation] “displaced”
receive approximately US$150 per month for six months, which is “not enough” to
sustain themselves (ibid.). The Director indicated that, for example in Medellín,
the employment situation is very bad and displaced individuals arriving in
Medellín find jobs selling [translation] “things on the street” (ibid.). El
Universal notes that there is a lack of job opportunities in Cartagena…
[i]n most of the cases, displaced persons or
individuals relocating to Cali, Cartagena or Medellín or another city move-in
with friends or families. If they don’t have any relatives or friends in Cali,
Cartagena or Medellín, they usually move to poor areas of a city where they
have to deal with ‘informal housing market,’ meaning that there are no formal
rental agreements that prevent tenants from being thrown out of the house at
any time. Moreover, hygiene and safety are usually bad in the poor areas.
Similarly, the Director stated that in
Medellín, displaced persons move to the outskirts of a city (Corporación Región
25 Nov. 2013). According to the Director, municipal housing programs in
Medellín do not have a specific number of houses allotted for displaced persons
(ibid.).
[16]
In my view, it was incumbent upon the RPD to
assess the viability of the Applicants resettling to Cali or Medellín as
internally displaced persons. The evidence about internally displaced persons
in Colombia was directly relevant to whether it was objectively reasonable for
the Applicants to seek refuge in Cali or Medellín. While it was open to the RPD
to reject or assign this evidence little or no weight, it failed to explain why
or how the Applicants would not face similar difficulties as internally
displaced persons in Cali or Medellín. The Applicants’ testimony before the RPD
indicated that they had no family or other resources to rely upon in Cali or
Medellín. It was unreasonable for the RPD to focus on whether the Principal
Applicant’s skills and those of her adult son were transferable to the proposed
IFAs.
[17]
In closing, I note that this case is similar to Arias
Ultima v Canada (Citizenship and Immigration), 2013 FC 81, 224 ACWS (3d)
754 [Arias Ultima], where the Court found the determination of an IFA in
Bogotá to be unreasonable because the RPD had ignored documentary evidence
which demonstrated that internally displaced persons in Colombia lead a very
fragile and vulnerable existence. The Court found in Arias Ultima (at
para 35) that the RPD:
…erred by ignoring this evidence in its
analysis of whether the applicants have a viable IFA. This evidence was
directly relevant to the question of whether it was objectively reasonable to
expect the applicants to seek safety in the part of the country considered to
be an IFA and pointed to a different conclusion on the second prong of the test
for an IFA than the conclusion made by the Board. Accordingly, the Board erred
by not mentioning or analyzing this evidence…
IV.
Conclusion
[18]
The Applicants’ application for judicial review
is allowed. Although the RPD reasonably found that it was unlikely that the
Black Eagles in Bogotá had the ability to track the Applicants throughout the
country to places such as Medellín or Cali, it
unreasonably assessed the evidence as to whether it was objectively reasonable
for the Applicants to seek refuge in Cali or Medellín.
[19]
Neither party raised a serious question of
general importance; so, no such question is certified.
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