Docket: IMM-6853-24
Citation: 2025 FC 427
Ottawa, Ontario, March 10, 2025
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN: |
GEINER ANDRES GUERRA VEGA |
MELANY SOFIA GUERRA MEJIA |
MARIA ELIDA MEJIA LINAN |
Applicants |
and |
MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The Applicants seek to quash a decision of the Refugee Protection Division [RPD] that determined that they were neither Convention refugees under section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] nor persons in need of protection under subsection 97(1) of the Act, because they had viable internal flight alternatives [IFA] in Bogotá and Medellín, Colombia.
[2] The Principal Applicant is a 32-year-old citizen of Colombia, born in the municipality of Tamalameque. He has three relatives in Canada: two half-brothers and one half-sister, all of whom have claimed or obtained refugee status.
[3] The Applicant’s father was a local politician who was murdered at his home in December 2008. Following his father’s death, the family discovered several previously unknown properties in his estate. Shortly after discovering these properties, the family was approached by a right-wing armed group known as Los Paramilitares, which was later renamed Águilas Negras in 2022, claiming ownership of the land. When the Principal Applicant’s brothers protested and filed complaints with police and the local Attorney General’s office, the group became violent. The family fled Tamalameque.
[4] Between 2009 and 2022, the Principal Applicant relocated multiple times due to threats. He lived in Magangue and Bucaramanga until 2011, when he attempted to return to Tamalameque, but was warned by an ex-brother-in-law, allegedly an informant for Los Paramilitares, to leave immediately. In 2014, after receiving warnings about armed group members searching for him, he relocated to Barranquilla to live with his aunt.
[5] In 2015, the Principal Applicant’s cousin, who had been investigating the murder of the Principal Applicant’s father, was killed. The Principal Applicant continued to face threats, including encounters in September 2016 with armed men identifying themselves as Los Paramilitares demanding information about his brother’s whereabouts.
[6] The Principal Applicant married the Associate Applicant on March 10, 2017, while working as an industrial assistant at a laminated glass company in Barranquilla. On July 14, 2022, while visiting Tamalameque, he was threatened by a man who stated that he caused his cousin’s death for looking into his father’s death. Subsequent threats followed in Barranquilla on August 13 and 17, 2022. Strangers arrived at the Applicants’ home, demanding to speak with the Principal Applicant and warning them that they were aware of the Principal Applicant’s siblings in Canada and the school attended by the Minor Applicant.
[7] The Applicants decided to leave the country, obtaining Colombian passports in July 2022. On August 31, 2022, the Principal Applicant quit his job and filed a complaint with the Attorney General’s Office in Barranquilla about the August 13th incident. The family departed Colombia via Bogotá Airport on September 16, 2022, traveling through Mexico and the United States before arriving in Canada on October 1, 2022, where they immediately made refugee claims.
[8] The RPD found the Applicants credible in their testimony regarding the threats and events in Colombia. However, it determined that there was no nexus between their allegations and Convention grounds under section 96 of the Act, as their fears were based on criminality. The RPD thus assessed their claims under section 97 of the Act.
[9] The RPD’s analysis centred primarily on the viability of IFAs in Bogotá and Medellín, employing the two-pronged test established in Rasaratnam v Canada (Minister of Employment and Immigration) (C.A.), [1992] 1 FC 706 (FCA) [Rasaratnam] and Thirunavukkarasu v. Canada (Minister of Employment and Immigration) (C.A.), [1994] 1 FC 589 (FCA) [Thirunavukkarasu]. This determination proved dispositive of the claims.
[10] On the first prong, the RPD concluded that the agent of harm, Águilas Negras, lacked both the means and motivation to locate the Applicants in the proposed IFA locations. The RPD’s analysis rested on several key findings:
1)The Águilas Negras was too decentralized to have the capacity to locate the Applicants, being described as “non-cohesive”
and lacking leadership or structure, noting the Principal Applicant’s own statement in the police report that he did not know if the person was with an illegal armed group;
2)Their activities were mostly localized, with no evidence of continued functioning as a cohesive criminal group;
3)The limited interactions with the group during the time since the father’s death indicated localized activities;
4)The incidents in 2014, 2016, and August 2022 were not established to be connected with the group in Tamalameque that had claimed the father’s properties; and
5)The Principal Applicant had taken no formal steps to relinquish claims to his father’s property through means outside of Tamalameque, indicating that he made no reasonable efforts to eliminate this source of risk.
[11] On the second prong regarding reasonableness of relocation, the RPD found the Applicants could reasonably resettle in either Bogotá or Medellín. This conclusion was based on several considerations:
1)The Principal Applicant’s education level and work experience as a logistics assistant for two years in a superstore chain and industrial assistant for seven years in a glass company;
2)The Associate Applicant’s completion of high school and ability to care for their child;
3)The anonymity provided by the large populations of Bogotá, a city of 11.5 million people, and Medellín, a city of 4 million people;
4)Insufficient evidence that the Principal Applicant’s father was well-known in these two cities; and
5)The Applicants’ ability to access housing and social services in these locations.
[12] The RPD also rejected the Principal Applicant’s argument that his brother’s prior experience in Bogotá demonstrated risk in that IFA location, explaining that insufficient information was provided about the circumstances that led to his brother’s departure from the city.
[13] The RPD ultimately concluded that both prongs of the IFA test had been satisfied on a balance of probabilities, rendering the Applicants neither Convention refugees under section 96 of the Act nor persons in need of protection under section 97(1) of the Act.
[14] The central issue for determination is whether the RPD’s analysis of the IFA was reasonable, particularly regarding its assessment of the agent of harm’s capacity to locate the Applicants in the proposed IFA locations and the reasonableness of relocation.
[15] The parties submit, and I concur, that the Decision is reviewable on the standard of reasonableness, as articulated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
[16] As noted, the test for establishing the viability of an IFA is two-pronged: Rasaratnam at 711; Thirunavukkarasu at 597. Both prongs must be satisfied to find that an applicant has an IFA.
[17] The first prong consists of establishing, on a balance of probabilities, that there is no serious possibility of the applicant being subject to persecution in the proposed IFA: Rasaratnam at 710. In the context of section 97 of the Act, it must be established that applicants would not be personally subjected to a section 97 danger or risk in the proposed IFA.
[18] The second prong requires that the conditions in the proposed IFA be such that it would not be unreasonable, upon consideration of all the circumstances, including the applicant’s personal circumstances, for the applicant to seek refuge there: Thirunavukkarasu at 597-98.
[19] The burden of proof rests with the applicant to demonstrate that either prong of the test is not met on a balance of probabilities: Thirunavukkarasu at 590; Yafu v Canada (Citizenship and Immigration), 2014 FC 293 at para 8; Ogunjinmi v Canada (Citizenship and Immigration), 2021 FC 109 at para 26.
[20] The Applicants challenge the reasonableness of the RPD’s IFA determination alleging flaws in its decisions on both prongs of the IFA test. Their submission advances interconnected arguments challenging the RPD’s analysis of safety in the two proposed IFA locations and the reasonableness of relocation to those urban centres.
[21] After reviewing the record and the parties’ submissions, I conclude that the RPD’s decision is reasonable.
[22] The Applicants contend that the RPD’s analysis of the capacity of the paramilitary group Águilas Negras contains a serious logical error that undermines the entire decision on the first prong of the test. They argue that while the RPD acknowledged that Águilas Negras operates as a cover name used by various criminal organizations, including paramilitary groups and drug trafficking organizations, it erroneously focused its capability analysis on the formal structure of Águilas Negras rather than assessing the capability of the various actual groups using this name. The Applicants point to objective evidence from the Immigration and Refugee Board demonstrating these groups’ infiltration of state institutions, including police and armed forces, which enables them to locate targets throughout Colombia. This institutional penetration, they argue, renders the RPD’s emphasis on the organizational structure of the group misplaced and its conclusion about localized ability to pursue unreasonable.
[23] The Applicants further maintain that the RPD’s finding that the 2014, 2016, and August 2022 incidents were not connected to the Tamalameque group lacks any discernible chain of analysis. They emphasize the clear pattern of escalating threats spanning multiple cities, the consistent targeting of family members, and most significantly, the temporal connection between the July 2022 threat explicitly linking the cousin’s murder to the father’s death investigation and the August 2022 threats demonstrating knowledge of their siblings in Canada. The RPD’s failure to explore these connections during the hearing or explain its disconnection conclusion, they submit, renders the decision unreasonable.
[24] The analysis is further compromised, the Applicants argue, by the RPD’s narrow focus on the Principal Applicant’s property claims as the key source of risk. They point to evidence showing the existence of multiple motivations of pursuit, particularly emphasizing vengeance for police complaints filed by family members, including a brother who subsequently fled to Canada after being threatened. The Applicants contend that the RPD’s suggestion that formally relinquishing property claims could resolve the risk ignores both the Principal Applicant’s explicit testimony about multiple verbal renunciations and the group’s clear demonstration of other motivations to continue persecution.
[25] I am not persuaded. In my view, the RPD’s assessment demonstrates a coherent rationale that reasonably addresses the evidence before it and arrives at justifiable conclusions regarding the agent of harm’s capacity to pursue the Applicants in the proposed IFA locations.
[26] First, the Applicants’ contention that the RPD erroneously focused on the formal structure of Águilas Negras mischaracterizes the decision’s analysis. I accept that the RPD took an in-depth look at the use of this name as a cover by various other criminal organizations, but I disagree with the Applicants that this approach is misplaced. The RPD’s analysis on the group’s ability to pursue the Applicants did not focus solely on the decentralized organizational structure. The RPD reviewed the evidence in its totality, including the demonstrated pattern of threats being primarily localized to Tamalameque, the Principal Applicant’s ability to live safely in other locations for extended periods notably 8-9 years in Barranquilla, the sporadic nature of interactions over time, and the geographically localized nature of actual threats. The RPD’s reasoning on this point is therefore multi-layered, and reasonably supports the RPD’s conclusion about limited pursuit capability. While the Applicants point to documentary evidence about state infiltration, it fails to demonstrate how this general issue translates into a specific ability to locate them in the proposed IFAs of Bogotá and Medellín.
[27] Second, the Applicants’ argument regarding the connection between incidents within and outside of Tamalameque fails to appreciate the RPD’s overall chain of reasoning. The RPD’s observation that threats primarily occurred upon returns to Tamalameque, coupled with extended periods of safety elsewhere, logically supports its conclusion about the localized nature of risk. While the Applicants emphasize the temporal connection between the July and August 2022 threats, the RPD was entitled to view these incidents within the broader context of the group’s demonstrated operational patterns over many years. The fact that the multiple other threats occurred sporadically and primarily in connection with Tamalameque reasonably supports the RPD’s conclusion about limited geographic reach. For this Court to find otherwise would be veering into the prohibited territory of unwarranted substitution of administrative decision-maker’s evidentiary weighing by the judiciary.
[28] Third, with respect to the Applicant’s argument regarding the RPD’s failure to grapple with the existence of other motivations for persecution and fixation on the property, I determine that the RPD’s emphasis on property claims aligns with the jurisprudence in Sanchez v Canada (Citizenship and Immigration), 2007 FCA 99 [Sanchez]. In paragraph 16 the Federal Court of Appeal explains that “claimants who are able to make reasonable choices and thereby free themselves of a risk of harm must be expected to pursue those options.”
Significantly, in Sanchez, the Court found it reasonable to expect the applicant to abandon his business to eliminate the source of the risk, even though this meant foregoing a preferred economic activity. I am of the view that the present case parallels the situation in Sanchez. The RPD identified that formal relinquishment of property claims through legal mechanisms from outside of Tamalameque was a reasonable and available option to the Applicants. While the Applicants argue that verbal renunciations were made and rejected, I find this largely irrelevant because the RPD’s core finding is about the Applicants’ failure to take formal legal steps.
[29] The Applicants try to distinguish Sanchez by arguing that other motivations, particularly vengeance for complaints made to the police, would persist after property relinquishment. I find two difficulties with this argument. First, as in Sanchez where the appellant faced alternative issues beyond just business interference, the existence of additional motivating factors does not negate the reasonableness of the immigration authority expecting claimants to address risk factors within their control. Second, the RPD concluded that the property dispute formed the fundamental source of risk, with other claimed motivations being derivative of or secondary to this core issue. The Applicants do not dispute that the property claims form a significant risk. In my view, this more than justifies the RPD’s focus on this risk factor in its reasons.
[30] For the second prong of the test, the Applicants argue that the RPD has failed to properly grapple with two critical aspects of their personal circumstances. First, they contend that the RPD’s analysis overlooks the practical challenges of relocating from a rural setting to major urban centres. They emphasise that their rural background, combined with the inherent difficulties of adapting to a bustling city environment, creates real risks. These include exposure during essential employment-seeking activities, risks compounded by the Principal Applicant’s high-profile status as the son of a murdered politician, and the Associate Applicant’s academic difficulties, which further hinder their capacity to integrate. They also assert that the stability and educational needs of the Minor Applicant add additional layers of complexity to their resettlement prospects.
[31] Second, the Applicants argue that the RPD erred by dismissing evidence regarding the experience of the brother in Bogotá. Although acknowledging that only limited details were provided, they maintain that his need to flee Colombia after being located in Bogotá serves as prima facie evidence of risk in the proposed IFA. This, they argue, is particularly persuasive given that, as family members pursued for the same reason, their circumstances are analogous.
[32] I am again not convinced. The RPD’s assessment of both personal circumstances and corroborative evidence demonstrates a sound approach that aligns with established jurisprudential principles regarding IFA viability and Vavilov.
[33] Regarding personal circumstances, the RPD conducted a comprehensive evaluation that appropriately balanced adaptation challenges against demonstrated capacities. The decision properly recognized that while transitioning from a rural environment to major urban centres presents inherent difficulties, the Applicants possess skills and characteristics that support the reasonableness of the relocation. Specifically, the Principal Applicant’s documented seven-year tenure as an industrial assistant at a glass company and two-year experience as a logistics assistant in a superstore chain show both professional adaptability and sustained employment experience. This work history, combined with both adult Applicants’ completion of secondary education, establishes a foundation for economic integration in urban environments.
[34] The RPD’s analysis appropriately contextualized these personal circumstances within the specific characteristics of the proposed IFA locations. Bogotá and Medellín are large population centres. They offer anonymity and diverse employment opportunities suitable for the Applicants. While the Associate Applicant expressed concerns about academic credentials, the RPD reasonably concluded that these challenges are mitigated by the family’s demonstrated pattern of mutual support, with the Principal Applicant’s consistent employment history providing financial stability while the Associate Applicant maintains primary caregiving responsibilities. This arrangement, which has proven successful in their previous relocations, lays a solid foundation for urban adaptation.
[35] The RPD’s treatment of potential exposure through employment-seeking activities is proper. While the Applicants argue that such activities could compromise their safety, this concern must be evaluated against the established jurisprudential threshold for unreasonableness articulated in Thirunavukkarasu. The evidence does not demonstrate that normal employment-seeking activities in major urban centres, even considering the Principal Applicant’s connection to a former rural politician whose reputation in those cities remains uncertain, would “jeopardize the life and safety of the claimant”
to the degree required to render an IFA unreasonable. Indeed, the Associate Applicant’s own testimony failed to identify specific barriers to accessing services in these urban locations, further supporting the reasonableness of relocation.
[36] Regarding the Principal Applicant’s brother’s experience in Bogotá, the RPD’s analysis demonstrates a reasonable assessment of the evidence. The Principal Applicant’s testimony that his brother “had to leave the country because they found him in Bogotá,”
while relevant, lacks critical contextual details about the circumstances, timing, and nature of the alleged pursuit. The RPD reasonably concluded that such limited evidence, without specification of how the brother was located or what specific threats he faced, falls short of the “actual and concrete evidence”
threshold required by Thirunavukkarasu to establish unreasonableness. While the Applicants argue this experience demonstrates risk in the proposed IFA, the isolated and inadequately detailed nature of this incident, particularly when considered against the backdrop of extensive documentation about the localized nature of the group’s activities, does not substantiate an objectively unreasonable risk in large urban centres with millions of people.
[37] The RPD’s determination falls within the range of reasonable outcomes contemplated by the jurisprudence. The RPD arrived at its conclusion through sound methodology that guided its evaluation of both safety considerations and reasonableness factors. Its reasons are therefore justified, transparent, and intelligible in light of the factual and legal constraints at play.
[38] No question for certification was posed, and there is none.
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