Date: 20101021
Docket: IMM-504-10
Citation: 2010 FC 1035
Ottawa, Ontario, October 21, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
GONZALEZ OSPINA,
Jose William
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Jose William Gonzalez Ospina is a citizen of Colombia. He claims
to have fled Colombia on the basis
that he feared harm from the United Autodefenses of Colombia (AUC). He arrived
in Canada in 2007 and
claimed refugee protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[2]
In
January 2010, the Refugee Protection Division (RPD) of the Immigration and
Refugee Board rejected his claim.
[3]
The
Applicant seeks to have the decision set aside on the basis that the RPD erred
by:
i.
concluding
that he had not established a nexus to any basis for protection contemplated by
section 96;
ii.
finding
that the objective basis for his claims was not credible or otherwise
well-founded;
iii.
concluding
that he lacked a subjective fear of persecution;
iv.
ignoring
or misinterpreting important evidence, in reaching its conclusions regarding
the adequacy of state protection and the availability of an internal flight
alternative (IFA) in Bogota; and
v.
concluding
that he did not face a personalized risk contemplated by section 97 of the IRPA.
[4]
For
the reasons that follow, this application is dismissed.
I. Background
[5]
Mr.
Ospina claims that in October 2001, he and his family were confronted at their
family farm near Cali, Columbia by three armed members
of the AUC who demanded that the Applicant’s father pay them 40 million pesos.
Those individuals also threatened to take the Applicant hostage in order to
ensure payment. After negotiating with the men, the Applicant’s father persuaded
them to accept 10 million pesos in two equal instalments.
[6]
The
day before the first instalment was to be paid, the Applicant’s father reported
the extortion to the National Police and the Anti-Kidnapping and Extortion Unit
of Investigation (GAULA). The GAULA set up an ambush at the family farm,
resulting in a well-publicized fire-fight in which the AUC men were repelled
and some of them were wounded. Afterwards, the Applicant and his family did not
return to the farm.
[7]
Shortly
after that ambush, the Applicant claims that he and his family began receiving
threatening phone calls and letters at their home in Cali. In the
first of those letters, dated December 16, 2001, the Applicant’s father and his
family were declared a military target. In a second letter, dated June 2002,
they were ordered to pay the sum of 100 million pesos. The Applicant’s father
reported those letters to the authorities and, together with the Applicant and
other members of his family, petitioned a number of other institutions in Colombia for
protection. Those petitions were unsuccessful.
[8]
In
August 2002, the Applicant claims that he was approached by two men while
waiting at a bus stop. They told him that they belonged to the AUC and that his
father now owed them 100 million pesos. They threatened to kidnap him, but he
was able to escape. A few days later, he and his family received a “funeral
card” in the mail, which suggested that they would be massacred, “because those
who are not with us are against us”. These incidents were also reported. After
the Applicant’s father refused a recommendation by the police that he and his
family relocate to another city, the Applicant fled to the United
States
in February 2003. He remained there until he came to Canada in 2007. His
parents remained in Colombia until 2007, when they departed for the United
States
under the sponsorship of the Applicant’s sister.
II. The Decision
under Review
[9]
The
RPD rejected the Applicant’s claim for protection on multiple grounds. It
characterized the determinative issue as being the Applicant’s credibility as
to the well-foundedness of his stated fears. However, it also found that the
Applicant had not established a nexus to a ground for protection contemplated
by section 96 of the IRPA or a personalized risk contemplated by section 97. In
addition, it found that he had not established a subjective fear of persecution
and that, in any event, he had a viable IFA in Bogota.
[10]
With
respect to the nexus issue, the RPD concluded that the AUC individuals in
question had acted as common criminals, for purposes other than political. The
RPD added that, in any event, its analysis regarding the objective
well-foundedness of the Applicant’s stated fears, as well as its analysis
regarding his subjective fear, were applicable to both sections 96 and 97.
[11]
The
RPD then turned to the Applicant’s credibility and the objective
well-foundedness of his stated fears. In short, the RPD found that the absence
of any follow-up by the AUC on its threats prior to when the Applicant departed
in February 2003 and prior to when his parents departed in 2007, was “incredible
in light of the allegations of the claimant.” After also noting that the
Applicant’s father “was able to sell the farm in 2005 literally under the nose
of the AUC,” the RPD stated that it was unable to conclude that the Applicant
is a target of the AUC.
[12]
Against
this backdrop, the RPD also disbelieved the Applicant’s claim that he was
threatened by two representatives of the AUC at a university bus stop. In
addition, the RPD found that the letters and other correspondence that the
Applicant claims was sent to his family by the AUC likely “were made up to
embellish the [Applicant’s] claim.”
[13]
The
RPD then considered the Applicant’s delay in seeking asylum. The RPD noted that
the Applicant spent 14 or 15 days in Mexico and approximately four
years in the United
States
without ever having sought asylum and without ever having even consulted a
lawyer. The RPD rejected the Applicant’s explanation that he thought that only
a politician could claim asylum. As a result, the RPD concluded that the
Applicant lacked a subjective fear of persecution or harm at the hands of the
AUC.
[14]
The
RPD then identified the existence of an IFA in Bogota as an
independent basis for rejecting the Applicant’s claims. In considering this
issue, the RPD reviewed various country documents, almost all of which dealt
with the Revolutionary Armed Forces of Colombia (FARC). The RPD found this
documentation to be “indicative of the state of the AUC … which … [has] largely
deteriorated into small bands of outlaws.” Based on its view that the Applicant
would not be at risk from the FARC in Bogota, the RPD concluded that the
Applicant also would not be at risk from the AUC in Bogota.
[15]
Finally,
the RPD found that the risk identified by the Applicant was generalized, rather
than personalized, as contemplated by section 97 of the IRPA. In short, the RPD
had concluded that the AUC now consists of “roving bands of criminals bent on
drug trafficking and extortion rather than any semblance of political purpose.”
Accordingly, it characterized the fear claimed by the Applicant as a fear of being
a victim of crime, as a member of a group of people perceived to be wealthy in Colombia. The RPD
described this risk as being a generalized risk faced by a sub-group (i.e.,
landowners) of the population at large, and thereby excluded under paragraph
97(1)(b).
III. Standard
of review
[16]
The
issues raised by the Applicant are issues of fact or of mixed fact and law.
These issues are reviewable on a standard of reasonableness (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 51-56). In short, the RPD’s decision
will stand unless it does not fall within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
at para. 47).
IV. Analysis
A.
Did the
RPD err by concluding that a nexus to a Convention ground had not been
established?
[17]
The
Applicant alleges that the RPD erred (i) by ignoring extensive documentary
evidence in finding that he had not established a nexus to his claim of having
been persecuted on political grounds; and (ii) by failing to provide any evidence
to support this conclusion.
[18]
The
documentary evidence to which the Applicant referred in his written submissions
describes extensive criminal activities and human rights abuses perpetrated by
the AUC and other paramilitary organizations. References to politically
motivated activities are scarce. Importantly, none of that evidence refers to
any political activities engaged in by the Applicant or his family. It also
does not suggest that the Applicant or his family may have been targeted as a
result of their perceived political views.
[19]
As
to the second of the two alleged errors mentioned above, I am satisfied that
the RPD did in fact provide evidentiary support for its conclusion on the nexus
issue. In this regard, it specifically based its conclusion on (i) the AUC’s
“action of extortion and acting like common criminals in threatening their
targets, the claimant’s family”; and (ii) “the fact that the subject AUC men
were actually ambushed and attacked by a joint police-GAULA-armed force, on the
basis of complaints made by the claimant and his father”.
[20]
Based
on the foregoing, and in the absence of any evidence whatsoever to suggest that
the Applicant and his family were targeted because of their actual or imputed
political views, I am satisfied that it was reasonably open for the RPD to find
that the Applicant and his family had not been targeted because of their
political views, but because of their perceived wealth as landowners (Montoya
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 63, at paras.
17 to 24) and because of their failure to accede to the AUC’s extortionist
demands.
B.
Did the
RPD err in assessing the Applicant’s credibility and the well-foundedness of
his stated fears?
[21]
The
Applicant alleges that, in concluding that his testimony was not credible, the
RPD ignored significant amounts of evidence, including his family’s denunciations
to the police; police reports referencing the incident at the bus stop, the threatening
letters and the “funeral card”; a news report of the police ambush at his
family’s farm; a letter from the Representative’s Office to the Sixth
Specialized Prosecutor corroborating the foregoing matters; a letter from the
Interior Ministry denying protection to the family; and a 2004 Order of the
Superior Court of the Judicial District of Cali ordering protection of the
Applicant’s father and family.
[22]
The
Applicant further submits that the RPD (i) relied on plausibility findings,
particularly with respect to the threatening letters, funeral card and bus-stop
encounter mentioned above, and (ii) ignored the presumption of truthfulness
outlined in Maldonado v. Canada (Minister of Employment and Immigration),
[1980] 2 F.C. 302.
[23]
I
do not agree with these submissions.
[24]
It
is clear from the RPD’s decision that its adverse finding regarding the
objective well-foundedness of the Applicant’s stated fear that he remains a
target of the AUC was based on the following facts:
i.
the
AUC never took any action whatsoever in furtherance of its threats;
ii.
the
AUC never confronted or visited the Applicant or any member of his family at
their family home;
iii.
the
AUC never personally confronted or visited the Applicant’s father, the
principal target, when he went back to the family farm to sell it in 2005, or
in the two subsequent years that he remained in Colombia prior to his departure
to the United States in 2007; and
iv.
the
AUC never personally confronted the Applicant prior to his departure from Columbia in February
2003.
[25]
Immediately
following its discussion of the foregoing facts, the RPD stated its conclusion
that it did not believe that the claimant is a target of the AUC.
[26]
The
RPD then noted that the Applicant’s “father was able to sell the farm in 2005
literally under the nose of the AUC.” In this regard, the RPD found it
incredible that (i) “the AUC, who was supposed to be in control of the farm
area, was not aware of or did not go after the proceeds of sale,” and (ii) “the
AUC did not simply have the father sign over title of the farm to an AUC
representative who could then have sold it.”
[27]
It
was only after stating three more times in its decision that it did not believe
that the Applicant faces a risk at the hands of the AUC, that the RPD then
observed that it disbelieved, on a balance of probabilities, (i) that the
alleged encounter with AUC representatives at the bus-stop ever happened; and
(ii) that “the letters or notes were made up to embellish [his] claim.”
Indeed, the RPD repeated its conclusion a fourth time between making these two
observations.
[28]
In
the context of the foregoing, it is clear that the RPD used the word
“credibility” to mean the objective well-foundedness of the Applicant’s claim
that he continues to be a target of the AUC, if he ever was such a target at
all.
[29]
Particularly
based on the RPD’s findings summarized at paragraph 24 above, I am satisfied that
its adverse conclusion regarding the objective well foundedness of the
Applicant’s stated fear of future persecution or harm at the hands of the AUC
was not unreasonable. In my view, this conclusion was well within the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, at para. 47), even if the Applicant may have had a
well-founded fear of the AUC at the time he left Colombia in early
2003.
[30]
Given
that the objective well-foundedness of the Applicant’s stated fear was
explicitly identified as the determinative issue in the RPD’s decision, it is
not necessary to address the remaining issues raised by the Applicant.
V. Conclusion
[31]
The
application for judicial review is dismissed.
[32]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT this application for judicial review is dismissed.
“Paul S. Crampton”
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