Date: 20061128
Docket: IMM-275-06
Citation: 2006 FC 1437
BETWEEN:
GUSTAVO ADOLFO CARO RIOS
RUD YANED MEJIA ARENAS
STEPHANY CARO MEJIA
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing on the 22nd of November, 2006 of an
application for judicial review of a decision of the Refugee Protection
Division (the “RPD”) of the Immigration and Refugee Board wherein the RPD
determined the Applicants not to be Convention refugees or persons otherwise in
need of like protection. The decision under review is dated the 19th
of December, 2005.
BACKGROUND
[2]
Gustavo
Adolfo Caro Rios (the “principal Applicant”), is a thirty-eight (38) year old
citizen of Columbia. Rud Yaned
Mejia Arenas is a thirty-six (36) year old citizen of Columbia and the
spouse of the principal Applicant. Stephany Caro Mejia is a twelve (12) year
old citizen of the United States and the daughter of the principal
Applicant and his spouse.
[3]
In
1986, at the age of seventeen (17), the principal Applicant volunteered to
perform his Columbian military service. In the course of his brief period of
service he underwent weapons training and combat experience. He was discharged
in 1988 and, following discharge, started work in a plastics factory. Toward
the end of 1998, he was invited to join the Revolutionary Armed Forces of
Columbia (“FARC”). He was advised that his military experience could be of
assistance to the FARC. The Applicant declined the invitation as, he alleges,
he does not support the FARC’s policies and practices.
[4]
In
1989, the Applicant was approached by members of FARC on three (3) occasions.
He was pressured to join FARC and was advised that his weapons training while
he was a member of the Columbian military would enable him to instruct young
FARC members. The Applicant found the pressure to aid FARC unsettling.
[5]
To
avoid further pressure from the FARC, the Applicant moved from his family’s
home in Bello to Bogota where he stayed with his aunt and found work as
a security guard. After eleven (11) months, he returned to his family home in Bello, hoping that
the FARC had forgotten him. His hope was ill advised. Shortly after his
return to his family’s home, he was approached by a Commander and six (6) other
members of the FARC who physically abused him and threatened his life for his
refusal to join them. He reported the incident to the police but received no
satisfaction from the police.
[6]
The
principal Applicant determined to leave Columbia. He
remained in hiding at home until he obtained a passport in January of 1991. He
contacted a smuggler, obtained a Mexican visa and, through Mexico, entered the
United
States
illegally in April, 1991.
[7]
The
adult female applicant, the principal Applicant’s spouse, separately entered
the United States, illegally, in June 1990, seeking to study English, work and
spend time with her family in the United States. She did not make a separate
claim for asylum in the United States.
[8]
The
principal Applicant and his future spouse met in May of 1991 and married in
June of 1993. Their daughter was born in the United States on the 23rd
of October, 1994.
[9]
The
principal Applicant applied for political asylum in the United
States
in 1994 but, on learning of the complexities and expense of the process,
abandoned pursuit of his claim. The principal Applicant and his spouse were
identified by U.S. immigration
officials in 1999. They were arrested. They hired a lawyer to represent them
and discovered that the principal Applicant’s asylum claim was still open. The
adult female Applicant joined her spouse’s claim. Their claims were denied on
the 14th of June, 2002. They were directed to leave the U.S. voluntarily
by the 11th of December, 2003.
[10]
The
Applicants entered Canada on the 22nd of December, 2003 and
immediately made refugee claims.
THE DECISION UNDER
REVIEW
[11]
The
RPD quickly rejected the child Applicant’s claim based on her American
citizenship. Unfortunately, it made no note, and equally unfortunately, it was
not raised before the Court, that the child Applicant, in the Personal
Information Form filed on her behalf, recorded that she visited Columbia, to visit
family, from October, 1998 until July of 1999. I regard this fact as relevant to the
Applicants’ subjective fear of return to Columbia, as a family.
[12]
The
adult female Applicant’s claim was rejected largely on the basis of the
dependence of her claim, on that of her husband. That notwithstanding, the
adult female Applicant’s separate fears were noted by the RPD. It wrote:
Rud Janed Mejia Arenas
had entered the United States in June 1990 to study English, work and spend
time with her family there. She entered the United States illegally,
without a visa. She did not make a claim for refugee status in the United
States,
but joined her husband’s claim in June 1999 after learning that her husband’s
claim was still open. The couple met in May 1991 and married in June 1993.
They were together when the asylum claim was initially filed in 1994. The
panel’s findings in relation to the claim of Gustavo Adolfo Caro Rios also
apply to that of his wife.
…
The female claimant
stated that she did not have any problems that forced her to leave Columbia. Her claim
is based on that of her husband. She left Columbia in June 1990
and entered the United States without a visa. She stated that, since she
left Colombia, members of
her family have been the victims of extortion by the FARC, and that her cousin
had been killed by members of the AUC in 2003. However, the panel finds
insufficient credible or trustworthy evidence that the claimant would face a
well-founded fear of persecution, should she return to Columbia. The panel
has arrived at this decision based on the findings with respect to her husband.
[13]
The
RPD identified the issues before it, primarily with respect to the principle
Applicant’s claim, as credibility, delay in making a claim, previous claim
elsewhere, and internal flight alternative.
[14]
The
RPD noted the delay on the part of the Applicant in making his claim in the United
States
and the lack of diligence with which he pursued that claim. In fact, he only
pursued that claim, and his wife only joined that claim, when their illegal
presence in the United States was identified, many years after their
first arrivals. The RPD found the delay and the lack of diligence in pursuit
of the claim to undermine the principal Applicant’s subjective fear.
[15]
The
RPD did not find it credible that the FARC would find the principal Applicant
still to be of interest to it some fifteen (15) years after he fled Columbia,
particularly in light of his relatively low profile as a person of interest to
the FARC, even when the FARC initially pursued him.
[16]
Finally,
the RPD noted the fact that, for some eleven (11) months in 1989 and 1990,
after the FARC had attempted to recruit him, the principal Applicant lived at
his aunt’s home in Bogota and, while living there, did not hide out but
rather held regular employment. At the end of that eleven (11) month period,
in November, 1990, the principal Applicant voluntarily returned to his home
where he again encountered pressure from the FARC. The RPD concluded on the
basis of this evidence that an internal flight alternative would be available
to the Applicants in Bogota. The RPD bolstered this conclusion with
reference to documentary evidence before it notwithstanding that certain of
that documentary evidence indicated that “…Memories are long and data is
systematically recorded and analyzed… .” by organizations such as FARC.
THE ISSUES
[17]
In
the Memorandum of Argument filed on behalf of the Applicants, counsel
identified four (4) issues, those being: first, whether the RPD erred in law,
breached fairness or erred in fact or exceeded its jurisdiction in failing to
consider a decision identified by the RPD as a “Persuasive Decision” that he
urged is relevant on the facts of this matter; secondly, whether the RPD
otherwise erred in law or breached fairness or erred in fact or exceeded
jurisdiction in relation to the claim of the adult female Applicant; thirdly,
whether the RPD erred in law or breached fairness or exceeded jurisdiction or
erred in fact in relation to the findings relating to the principal Applicant,
and in particular, in relation to the internal flight alternative finding
regarding the principal Applicant; and finally, whether the RPD erred in law or
breached fairness or erred in fact or exceeded jurisdiction by adopting
“Reverse Order Questioning”.
[18]
By
letter in advance of the hearing of this application, and again at the hearing,
counsel advised the Court that the Applicants were no longer pursuing the
“Reverse Order Questioning” issue.
ANALYSIS
Standard of Review
[19]
The
issue of standard of review will be briefly dealt with in relation to each of
the substantive issues discussed below.
Failure to acknowledge
or consider a “Persuasive Decision”
[20]
Six
(6) days before the date of the decision under review, the Deputy Chairperson,
Refugee Protection Division, issued a Policy Note to members of the RPD
regarding “Persuasive Decisions”. Such a decision, dated February, 2005,
appears following the Policy Note at pages 117 to 126 of the Applicants’
record. It directly addresses the issue of Internal Flight Alternatives in Columbia and, in
particular, in relation to organizations such as the FARC. It notes, as
earlier quoted from the decision under review, that “Memories are long and data
is systematically recorded and analysed… .” It continues: “In the last several
years it has become increasingly difficult for an individual to escape the long
arm of the guerrilla and para [paramilitary] groups. …They are mobilized and
enjoy a network of contacts throughout the country. …” and finally concludes: “The
bottom line is that if the guerrillas and paras [want] to find you, chances are
very good that they can do so.”
[21]
The
“Policy Note” in relation to “Persuasive Decisions” notes
that
…Although Members are
not expected to follow them, they are decisions that Members are encouraged
to rely upon in the interests of consistency and collegiality.
…
Effective upon release,
members are encouraged to adopt the reasoning in the persuasive decision
where the evidence in the claim they are deciding establishes that the claimant
has a similar claim type to that of the claimant in the persuasive decision,
and the Member is in agreement with the reasoning. Members can cite the
persuasive decision in their reasons.
….
…If new or additional
evidence is before them, that was not before the panel in the persuasive
decision, Members should not simply cite the persuasive decision. They should
go further in their analysis and take into consideration that new or additional
evidence before deciding whether or not to adopt the reasoning in the
persuasive decision.
[emphasis
added]
[22]
It
is to state the obvious that “Policy Note[s]” are not law. They are not
binding on members of the RPD. As indicated in the foregoing quotations
Members are encouraged to rely upon “Persuasive Decisions” in the
interests of consistency and collegiality, nothing more. If there is a sanction
to flow from failure to acknowledge them, it is to be internal to the RPD; it
is not for this Court to sanction such failure.
[23]
It
is, at the highest, unfortunate, that the RPD, in the decision under review,
did not acknowledge the “Persuasive Decision” in issue given its direct
relevance to the decision here under review. If it had done so, it would have
clearly been open to the RPD, in the decision under review, either to treat it
as “persuasive” or to distinguish it. Nothing more need be said.
[24]
Against
any standard of review, I am satisfied that the RPD made no reviewable error in
failing to acknowledge the “Persuasive Decision” identified on behalf of the
Applicants, in failing to follow it, or in failing to distinguish it, no matter
how desirable it might have been to do so.
The Claim of the Adult
Female Applicant
[25]
Earlier
in these reasons, I quoted from the reasons of the RPD in relation to the claim
of the adult female Applicant. The very narrow separate claim basis that she
identified was in fact acknowledged by the RPD. That being said, a careful
reading of the transcript and of the Personal Information Forms of the
Applicants makes it clear that her claim was primarily based on that of the
principal Applicant. The RPD also correctly identified this reality. For
reasons given, the RPD dismissed the claim of the principle Applicant. It
therefore followed, without further analysis than that provided by the RPD,
that the adult female Applicant’s claim must also fail.
[26]
Against
the standard of review of either patent unreasonableness or reasonableness simpliciter,
I conclude that the RPD made no reviewable error in this regard.
The Findings of the RPD
in relation to the principal Applicant
[27]
As
earlier identified in these reasons, the principle findings of the RPD leading
to its decision not to allow the claim of the principal Applicant related to
delay in claiming anywhere, in particular in the United States, the failure of
the principal Applicant’s claim in the United States and internal flight
alternative. Although credibility was identified as an issue and was
determined against the principal Applicant, I do not regard it as central to
the RPD’s conclusion.
[28]
The
RPD’s analysis on each of the issues in relation to the principal Applicant is
persuasive and thorough. Determinations on credibility, delay in claiming and
failure of a previous claim are all, I am satisfied, essentially fact driven.
On a pragmatic and functional analysis, which I will not pursue in detail here
because I am satisfied that the result is clear, the appropriate standard of
review on these issues is patent unreasonableness. Against that standard, I am
satisfied that the decision of the RPD was, on each issue, reasonably open to
it.
[29]
The
issue of internal flight alternative, impacted as it is by the fact that the
RPD was conducting its analysis some fifteen (15) years after the principal
Applicant left Columbia is, I am satisfied, reviewable on a standard of patent
unreasonableness or, at the highest, reasonableness simpliciter.
Against either of those standards, on the particular facts of this matter, I am
satisfied that the decision under review was open to the RPD. The “Persuasive
Decision” earlier referred to and touching on the same issue in relation to the
FARC and Columbia was simply
that, persuasive. I am satisfied that the facts that were here before the RPD
are substantially distinguishable. In any event, as earlier noted, the panel
of the RPD that here reached the decision under review was not bound by that
decision.
CONCLUSION
[30]
For
the foregoing reasons, this application for judicial review will be dismissed.
CERTIFICATION OF A
QUESTION
[31]
At
the close of the hearing in connection with this application for judicial
review, I advised counsel that I would reserve my decision and indicated to
them that I would distribute reasons and provide an opportunity for submissions
on certification of a question. These reasons will be circulated. Counsel for
the Applicants will have seven (7) days from the date of these reasons to serve
and file written submissions on certification of a question. Thereafter,
counsel for the Respondent will have seven (7) days to serve and file
submissions on the same issue. Thereafter, counsel for the Applicants will
have three (3) days to serve and file any responsive submissions. Only
thereafter will an Order issue.
“Frederick
E. Gibson”
November
28, 2006
Ottawa, Ontario
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