Date: 20101013
Docket: IMM-6246-09
Citation: 2010 FC 1010
Ottawa, Ontario, October 13,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ROBINSON ANDRES RODRIGUEZ
GUTIERREZ
VICKY MILLEY MIRA OSORIO
ALEXIS MATEO RODRIGUEZ MIRA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Applicants apply for judicial review of the November
12, 2009 decision of the Refugee Protection Division (RPD) refusing their
application for refugee status. The principal Applicant (the Applicant) is a
former police officer from Columbia. The other two applicants are his wife and son. They are citizens of Columbia.
[2]
I have concluded that the judicial review should be granted
for the reasons that follow.
Background
[3]
The Applicant was a highway patrol police officer. The
Applicant claims that while he was stationed in Magdalena Medio, he received
information from an informant about a cocaine drug shipment by the
Revolutionary Armed Forces of Columbia (FARC). He passed on that information to
the intelligence section of the highway police which resulted in the July 20,
2006 interception of 1,850 kilograms of cocaine. He participated in the seizure
of this substantial cocaine drug shipment as a field investigator.
[4]
The Applicant says he then began to receive anonymous phone
calls on his cell phone, at his home in Puerto Berrio, and at the police
department, asking for information about him. In August 2006, the Applicant
received a letter from the FARC stating the Applicant would be killed if he did
not reveal the name of the informant. On September 15, 2006 the body of the
informer was discovered. The Puerto Berrio Police Station Commander reported
the deceased was apparently assassinated by the FARC.
[5]
On October 25, 2006 the Applicant says he received a second
letter from the FARC stating he and his family were military targets who were
to be executed. On December 2006, after men came twice looking for him, the
Applicant moved to Medellin, a
city of approximately one million people. Nevertheless he received a phone
call and was threatened. The Applicant retired from the highway patrol and
enrolled in university in Medellin. In January 2007, a vehicle blocked his vehicle while he was driving in San Jose de Nus and shots were fired at him but the Applicant
managed to escape. The Commander of the Police Station reported the attack as
an assassination attempt.
[6]
In February 2007, the Applicant received a third letter at
his home stating that the FARC had him in their sights and that no matter where
he fled he would be killed for being a snitch. The Applicant moved his family
to another apartment in Medellin. On May 21, 2007 shots were fired at the family’s third floor apartment.
The Chief of the Judiciary Police in Bello believed the FARC was responsible because of the modus operandi involved.
[7]
The Applicant was advised by the superintendent
of the apartment building that men had come looking for him. The Applicant fled
to the United States with his
family. He made an asylum claim which was rejected. Upon receiving legal
advice that an appeal of the U.S. asylum decision “would not help” the Applicants came to Canada and made a refugee claim.
Decision Under Review
[8]
The RPD rejected the Applicants claim on the basis of
credibility, a lack of subjective fear of persecution, existence of an internal
flight alternative and generalized risk.
[9]
The RPD did not believe the Applicant was targeted by the
FARC. It made much of the Applicant’s response when asked if he had proof that
the cocaine was seized from the FARC. The Applicant said the FARC was
identified on a police intelligence report on the seizure which he did not
have. When asked if the FARC was specifically identified in the police seizure
report which he had provided, he said no. The RPD took that exchange as a
deliberate attempt to mislead. The RPD also noted the telephone callers did not
identify themselves as the FARC. It rejected the threatening notes as being
easily fabricated. The RPD chose to find it highly likely that, on the
Applicant’s admission that drug cartels operated in the area, a drug cartel was
targeting the Applicant.
[10]
The RPD
found the Applicant could settle in Bogota,
a metropolis of eight million people. The RPD found that country documentation
provided evidence that the FARC had retreated to the rural areas. The RPD also found that if the Applicant was targeted by a drug cartel,
this was a risk faced by those in the justice system, which was an excluded
risk since it was a generalized and prevalent risk faced by this subgroup of
the population at large.
Legislation
Immigration and Refugee Protection Act, 2001, c.27 (IRPA)
|
96. A Convention refugee is a person
who, by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries
of nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
|
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
|
|
97. (1) A person in need of protection
is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or to a
risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country…
|
97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
|
Standard of Review
[11]
The standard of review with respect to questions of fact
and mixed fact and law are assessed on the standard of reasonableness: Dunsmuir
v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190. In addition, the Supreme Court has held that where a
standard of review has been previously determined then a review analysis need
not be conducted anew.
[12]
The standard of review for whether there exists a
well-founded fear of persecution is reasonableness: Mendoza v. Canada (Minister of Citizenship and
Immigration), 2008 FC 387.
The standard of review for an internal flight alternative is also
reasonableness: Esquivel v. Canada (Minister of Citizenship and Immigration), 2009
FC 468.
Issue
[13]
In my view the substantive issues in this proceeding are
credibility and internal flight arrangement (IFA).
Analysis
[14]
The Applicant submits that the RPD erred in determining he
was not credible in alleging he was targeted by the FARC. Further, the
Applicant says that the RPD erred in determining the Applicants had an internal
flight alternative as it did not take into account the Applicant’s personal
circumstances.
Credibility
[15]
The RPD is due deference in receiving and assessing oral
testimony since the member is able to observe the witness’s demeanour.
However, that deference is not due where the RPD differs in its summation from
the Applicant’s testimony without further reference to contradictions or
evasive demeanour. The RPD made much of what it decided was the Applicant’s
attempt to lie. It stated:
During his
oral testimony, the principal applicant was asked if he had a copy of a news
report, police report or other persuasive evidence indicating that the cocaine
had been seized from the FARC. He said that the FARC was identified in a police
report on the seizure but did not have a copy of the report included into
evidence. However, when pressed if the FARC was specifically identified in
the police report as the owner of the illegal shipment, he said, “no,”
basically admitting to the attempted lie.
[16]
A close review of the hearing transcript concerning the
“admitted lie” discloses that the RPD conflated the police intelligence
report allegedly identifying the FARC as the drug owners with the seizure
report that does not identify the FARC. At worst, the Applicant’s response was
not clear but quickly clarified. There is no attempted deception here. Jurisprudence
establishes that the RPD should not be overzealous in finding instances of
insignificant contradiction in an applicant’s testimony: Attakora
v. Canada (Minister of
Employment and Immigration), (1989) 99 N.R. 168 (F.C.A.).
[17]
Further, there is a presumption that the RPD need not
explicitly refer to every piece of evidence before it: Cepeda-Gutierrez v. Canada (Minister of Citizenship of Immigration),
[1998] 157 F.T.R. 35. However, where relevant evidence
bears on the issue before it, failure to refer to such evidence supports an
inference that the RPD did not consider it.
[18]
The RPD dismissed the threatening notes the Applicant says
are from the FARC on the basis that they could be easily fabricated. However,
the Applicant also presented police reports identifying likely FARC involvement
in the death of the drug informant and in the attacks on the Applicant and his
family. The RPD makes no mention of these reports and its failure to evaluate
the police reports is an error.
[19]
I conclude the RPD erred in how it conducted its assessment
of the Applicant’s credibility.
Internal Flight
Arrangement
[20]
The Applicant submits the FARC was motivated to pursue the
Applicant because of his central role in the interception of the large cocaine
shipment. Further the Applicant submits the documentary evidence demonstrates
a difference between the FARC’s ability to pursue covert attacks in urban
centres, including Bogota, and
its conventional armed confrontations now pulled back into rural areas.
[21]
The test for determining whether the Applicants have an IFA
involves two steps. First, there must be no serious possibility that an
individual would be persecuted or subjected to persecution, or to a danger of
torture or to risk of life or of cruel and unusual treatment or punishment in
the proposed IFA; and second, it would not be unreasonable for the individual
to seek refuge in the proposed IFA area: Rasaratnam v. Canada (Minister of
Citizenship and Immigration, [1992] 1 F.C. 706 (F.C.A.). The onus is on a
claimant to prove actual and concrete evidence of conditions which would
jeopardize his or her life: Morales v. Canada (Minister of Citizenship and Immigration), 2009
FC 216.
[22]
Notwithstanding the RPD’s finding that the Applicant was
not a FARC target, the RPD did proceed with its IFA analysis on the basis that
he was being targeted by the FARC. The RPD decided that:
In summary, the panel
is satisfied that the FARC has moved away from its bases from urban areas to
rural areas with headquarters in the mountains or jungles and no longer has the
ability to track an individual from one area to another, due to surveillance by
security forces and their ability to interrupt communications.
[23]
The RPD concedes that the Applicant may be the target of a
drug cartel. Yet, the RPD does not have regard to the documentary evidence that
identifies the FARC as the largest dealer of illegal drugs. FARC would be
highly motivated to seek out those responsible for the loss of its large
illegal cocaine shipment.
[24]
The
National Documentation Packages suggest the FARC is adapting and capable of
conducting urban terrorist activities including targeting police and others. As
an example, one report by the International Crisis Group: Policy Briefing: Colombia: Making
Military Progress Pay Off states:
“There is reason to believe
that the FARC is still capable to a degree of adapting and resisting, at least
in the short to medium term….Unable to carry out large strikes, units have
specialized in the use of landmines and explosives, attacks by snipers and selective
killings (plan pistola) against specific police and military targets. The
FARC is also undertaking more intelligence operations, managing to infiltrate
armed force commands to obtain classified information…. (emphasis added)
[25]
The RPD did not explain why it chose to disregard this
evidence which speaks directly to the Applicant’s situation contradicting its
conclusion.
[26]
Finally,
notwithstanding the RPD’s analysis that the Applicant has an internal flight
alternative in the megalopolis of Bogota, the personal history
of the Applicant suggests otherwise. The Applicant’s narrative involves three
different towns and cities where the FARC was involved in his life: Puerto
Berrio, where he lived with his family and received death threats by phone,
Medellin, where he moved to but continued to receive death threats, and San
Jose de Nus, where he had been driving and forced off the road. These are
three different areas in Colombia, one of which is Medellin, which has a
population of over a million people. The Applicant’s personal history would
suggest that the FARC may be able to track him wherever in Colombia.
[27]
I conclude the RPD failed to have regard for the
Applicant’s personal circumstances and documentary evidence relevant to the
availability of an IFA.
Conclusion
[28]
The application for judicial review is granted.
[29]
The Parties have not proposed a general question of
importance for certification and I do not certify any question.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is granted.
2.
I
do not certify any question of general importance.
“Leonard
S. Mandamin”
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