Date:
20121128
Docket:
IMM-9792-11
Citation:
2012 FC 1372
Toronto, Ontario,
November 28, 2012
PRESENT: The
Honourable Mr. Justice Mandamin
BETWEEN:
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ROBINS STRUSBERG RAMOS
ERIKA IRENE CRESPO PAEZ and
ASHLEY STRUSBERG CRESPO
by her litigation guardian,
ROBINS STRUSBERG RAMOS
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicants apply for judicial review of the November 28, 2011 decision of a
Member of the Refugee Protection Division (RPD) of the Immigration and Refugee
Board. The RPD refused the Applicants’ claims for refugee protection under
section 96 and subsection 97(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 (IRPA). The RPD determined that the Applicants
are not Convention refugees or persons in need of protection.
Background
[2]
The
Applicants, Dr. Robins Strusberg Ramos, his spouse, Erika Irene Crespo Paez who
is also a doctor, and their minor children, Ashley Strusberg Crespo and Caleb
Joshua Strusberg Ramos, seek refugee protection under sections 96 and 97 of the
IRPA. The Applicants are citizens of Columbia with the exception of
Caleb who is a citizen of the United States of America (USA).
[3]
In
early 2005, members of the United Self-Defence Forces of Columbia (AUC)
approached Dr. Strusberg at his medical clinic and demanded that he pay them
protection money. He acquiesced and made regular payments to the AUC. In early
2005, members of the Revolutionary Armed Forces of Columbia (FARC) demanded he
make monthly payments to them as well.
[4]
In
October 2007, an AUC leader asked Dr. Strusberg to purchase 12,000 doses of the
medicine, Glucantime. Dr. Strusberg said he could not do so because it was a
controlled substance. The AUC told Dr. Strusberg that he knew that Dr.
Strusberg had treated members of the FARC, that he had paid members of the FARC
and that he was under surveillance by the AUC as a FARC collaborator. Following
that visit Dr. Strusberg began receiving threatening telephone calls from
members of the AUC. They continued to insist that he provide them with the demanded
medication and they also demanded a large additional payment. He complied with
the monetary demand but continued to receive threatening phone calls.
[5]
In
December 2007, the Applicants left Colombia for the USA. They returned to Colombia six months later in May 2008. In June the threatening calls began again. Graphic
threats of sexual violence were directed against Ms. Crespo and their daughter,
Ashley, resulting in Ms. Crespo suffering a miscarriage. The Applicants fled to
the USA in August 2008 as soon as Ms. Crespo’s medical condition permitted. Dr.
Strusberg returned to Colombia every six months to renew his USA visa so he could live in the USA legally. Caleb was born in the USA on September 19, 2009.
[6]
Dr.
Strusberg returned to Colombia in May 2010 to apply for a pardon related to
Erika’s status in the USA. On June 11, 2010, he received a threatening
telephone call from the AUC. The caller told Robins that as an enemy of the AUC
he would pay with his life. Dr. Strusberg was advised by his uncle, a prominent
lawyer who had information from confidential sources that his life was in
danger. Dr. Strusberg fled Colombia to the USA on July 6, 2010.
[7]
Dr.
Strusberg entered Canada on August 21, 2010 and filed a claim for refugee
protection on August 31, 2010. He was joined by Ms. Crespo, and their child,
Caleb, on September 14, 2010. Their other child, Ashley, entered Canada on September 15, 2010. Their respective claims for refugee protection filed on their
respective arrivals were all joined.
Decision Under
Review
[8]
The
RPD doubted the Applicants’ subjective fear as they failed to seek asylum at
the first opportunity in the USA and given their re-availment to Colombia.
[9]
The
RPD also ruled the Applicants had not rebutted the presumption of adequate
state protection. The RPD determined that the Applicants failed to show that
they could not access adequate state protection in Colombia.
Issues
[10]
The
issues that arise in this case are:
1. Did
the RPD err in law in finding that the Applicants lacked subjective fear of
persecution in Colombia, because the Applicants could and should have claimed
asylum in the USA and because they re-availed themselves of the protection of Colombia?
2. Was
the RPD’s analysis of state protection in Colombia unreasonable?
Standard of
Review
[11]
The
Supreme Court of Canada held in Dunsmuir v New Brunswick, 2008 SCC 9, [Dunsmuir]
that there are only two standards of review: correctness for questions of law
and reasonableness involving questions of mixed fact and law and fact. Dunsmuir
at paras 50 and 53. The Supreme Court also held that where the standard of
review has been previously determined, a standard of review analysis need not
be repeated. Dunsmuir at para 62.
[12]
The
standard of reasonableness applies when determining whether an Applicant has
established a subjective fear of persecution and whether a person is in need of
protection. Cornejo v Canada (Minister of Citizenship & Immigration),
2010 FC 261 at para 17.
[13]
Questions
of the adequacy of state protection are “questions of mixed fact and law
ordinarily reviewable against a standard of reasonableness.” Hinzman v Canada (Minister of Citizenship & Immigration), 2007 FCA 171, 282 DLR (4th) 413 [Hinzman]
at para 38.
Analysis
Subjective Fear
Assessment
[14]
The
RPD stated that genuine refugee claimants would be expected to seek protection
as soon as practical once out of the reach of their oppressors. The RPD
rejected the adult Applicants’ explanation for failing to file asylum claims in
the United States. The RPD focused solely on the Applicants’ explanation why
they did not file refugee claims in the USA: two lawyers advised the Applicants
that their claims would not be successful because of the protection money paid
to terrorists.
[15]
The
Applicants submit the RPD erred by failing to consider other material evidence.
I agree. The evidence before the RPD was that once Ms. Crespo decided she would
not return to Colombia after the May 2008 threats she tried to regularize her US status through sponsorship by her mother who was a US citizen. That approach was not successful
because Ms. Crespo would have to first regularize her status by returning to Colombia which she was not prepared to do. Dr. Strusberg continued to return to Colombia until he was advised by his uncle that his life was in danger and he fled Colombia.
[16]
It
is clear that the RPD did not consider Ms. Crespo’s efforts to regularize her
status in the USA since the RPD stated: “I am persuaded that if Robins and
Erika were genuinely fearful of returning to Colombia they would have made
further attempts to normalize their status in the USA.” [emphasis added] On
this point I am satisfied the RPD erred in not considering Ms. Crespo did make
further efforts to regularize her status in the USA.
[17]
The
Applicants also submit the RPD failed to grasp the evidence as to the
Applicants’ conduct regarding the re-availment. The Applicants argue that the
first time the Applicants went back to Colombia as a family it was with the
intention to settle back into their life in Colombia. When they fled in August
2008 as a result of the renewal of the threatening phone calls, Ms. Crespo and
her daughter Ashley never returned to Colombia. Dr. Strusberg returned to Colombia because he wanted to get his life back in Colombia and tried to fix the problem. He finally
abandoned that effort when he was warned his life was in danger.
[18]
The
Respondent submits the RPD appreciated the Applicants’ attempts to gain status
in the USA. However, such temporary visa status is no substitute for the
permanent status that refugee protection would afford. The Respondent argues
the RPD appreciated why the Applicants returned to Colombia – their visitor’s
status in the USA had expired and their application for permanent status as
members of the family class was refused. However, the Respondent submits the
Applicants freely returned to Colombia when their status in the USA expired. They returned multiple times for extended periods on each occasion. The Respondent
submits it was reasonable for the RPD to conclude that the Applicants’ pattern
of return constituted a re-availment to Colombia.
[19]
The
RPD relies on Caballero, Fausto Ramon Reyes v Canada (Minister of Employment
and Immigration), [1993] FCJ No. 483 (FCA) [Caballero] which
“suggests that a negative inference may be drawn in instances where a claimant
takes sojourns outside of the country of alleged persecution and fails to take
advantage of the opportunity to seek asylum elsewhere, and then re-avails him
or herself.” The RPD found the Applicants’ actions were not consistent with
subjective fear of persecution.
[20]
The
RPD offers no reasons as to why the Applicants’ explanations were not accepted.
The RPD explanation conflates Ms. Crespo’s single return with Dr. Strusberg’s several
returns and fails to have regard for the turning point for each Applicant when
each came to their own realization that a return free from persecution was not
possible.
[21]
The
RPD drew its negative inference from Caballero without regard to the
different circumstances of these Applicants from those applicants in Caballero.
In doing so I find the RPD erred.
State
Protection
[22]
The
RPD found that the Applicants, in the circumstances of this case, had failed to
rebut the presumption of state protection with clear and convincing evidence.
[23]
The
Applicants argue that the RPD’s state protection analysis is completely
inadequate as the RPD produced, for the most part, a “boilerplate” set of
reasons in which the RPD spoke in generalities about the measures put in place
by the Colombian state.
[24]
The
Applicants also submit the RPD ignored several critical factors. The Applicants
argue that not only had the Applicants been systematically targeted by the AUC
over several years, but the group had shown its ability to locate Dr. Strusberg.
The Applicants submit the RPD made no attempt to analyse the availability of
state protection, as it should have, against the factual context of the risk
the Applicants because of the targeting by the AUC.
[25]
The
Respondent submits the RPD’s state protection analysis is not boilerplate. The
Respondent points out that the RPD was entitled to outline the general
principles that apply as well as review the documentary evidence on the
protection available in Colombia. The Respondent submits the RPD’s careful
review of both highlights the care that it applied when considering the state
protection issue.
[26]
The
Respondent notes the Supreme Court recently observed that reasons are not
inadequate because they do not reference every piece of evidence. Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 at para 1.
[27]
The
Respondent submits the RPD did not ignore evidence of the Colombian
authorities’ inability to protect persons from the AUC. The Respondent submits
the Applicants have not shown that they specifically directed the panel to this
evidence and the panel cannot be faulted for not considering evidence the
importance of which was not highlighted. Owusu v Canada (Minister of Citizenship
& Immigration), 2004 FCA 38 at paras 5-8. The Respondent also submits
that the Applicants’ argument presumes that the onus and burden of the sate
protection is reversed. It is not for the RPD to be satisfied that state
protection exists, but rather for the Applicants to rebut the presumption of
adequate state protection with clear and cogent evidence demonstrating that
adequate protection is not available to them.
[28]
The
appropriate standard of review for determinations of state protection is reasonableness.
The RPD’s finding of adequate state protection should not be interfered with
unless it can be demonstrated that the RPD based its decision or order on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it. Federal Courts Act, RSC, 1985,
c F-7, s 18.1(4)(d).
[29]
There
is a presumption that state protection exists and the burden is on the
Applicant to adduce clear and convincing evidence to rebut this presumption.
The jurisprudence of this Court is clear that absent a situation of complete
breakdown of the state apparatus, there is a presumption that a state is able
to protect its citizens. Pacasum v Canada (Minister of Citizenship &
Immigration), 2008 FC 822 at para 19. To rebut this presumption, an
applicant must adduce clear and convincing evidence that state protection is
inadequate or non-existent. Carrillo v Canada (Minister of Citizenship &
Immigration), 2008 FCA 94, [2008] 4 FCR 636 at para 38.
[30]
It
is also evident from a review of the jurisprudence on state protection that a
state’s ability to protect its citizens need not be perfect. Canada (Minister of Employment and Immigration) v Villafranca, (1992), 99 DLR (4th)
334, 18 Imm LR (2d) 130 at para 7.
[31]
In
this case, the evidence is clear that the Applicants never sought the
protection of the Colombian state. The question is therefore whether the
Applicants provided evidence that no adequate state protection would be
available if they returned to Colombia.
[32]
In
Da Souza v Canada (Minister of Citizenship and Immigration), 2010 FC
1279, Justice Lemieux stated:
It is clear from Ward, above, that the fact a
claimant did not approach the state for protection will not automatically
defeat a claim. An objective assessment must be undertaken to establish is the
state is able to protect effectively. In other words, the test is whether
effective state protection may be reasonably forthcoming. What has to be
determined, in each case is whether it was objectively unreasonable for the
claimant not to have sought the protection. If it was not objectively
unreasonable for the claimant not to have sought state protection, she need not
have approached the police in St. Vincent. The answer to the question is a
matter of the evidence produced on the point.
[33]
The
evidence before the RPD is that the AUC told Dr. Strusberg they considered him
to be a FARC collaborator and an enemy of the AUC. Although the question of
state protection is prospective, the Applicant’s status as being targeted and
at high risk is a factor the RPD must consider in its analysis.
[34]
The
RPD stated:
[26] Robins testified that he did not report
any of the threats or extortion demands made by members of the AUC or FARC to
police. He also indicated that he spoke with friends, acquaintances and
patients who were police officers about his problems but did not want to report
it because something bad could happen and they recommended against it. Robins
was asked if state protection would be available to him today in Colombia. He testified that he watches the news and everything seems rosy but new emerging
criminal gangs known as Bandas Criminales Emergentes (BACRIM) have formed and
the director of the domestic intelligence agency (DAS) is accused of crimes. He
went on to say that the first process to prosecute the director of DAS was
dismissed and they are attempting to re-try him.
[27] Robins’ evidence regarding the prosecution
of the DAS director demonstrates that Colombia is serious about curbing
corruption. Robins’ oral testimony regarding the advice he received from
friends in the security forces and the news of emerging criminal gangs does not
rebut the presumption of state protection existing in Colombia.
[35]
The
RPD skirts around Dr. Strusberg’s evidence that he was specifically warned by his
uncle, a prominent lawyer with access to confidential information, advising Dr.
Strusberg that he and his family were in such danger that they must
“immediately abandon the country”. This was for Dr. Strusberg the strongest
evidence that the risk to himself was real and immediate.
[36]
The
evidence also included documentation that the Colombian security forces
continue to “turn a blind eye” to paramilitary atrocities and continued to
collaborate with paramilitary forces. The government response to the violence
and human rights violations of the AUC requires examination by the RPD.
[37]
The
RPD was not obliged to accept the Applicant’s opinion that they could not
safely remain in Colombia and obtain official protection but it could not
ignore evidence which is at the crux of the Applicants’ claim.
[38]
These
Applicants did not lightly abandon their country. They moved to Bogota. They then tried leaving Colombia for six months to allow for things to cool off.
When they returned to Colombia, violent sexual threats were levelled against
Ms. Crespo and their daughter Ashley. Dr. Strusberg continued to return with a
determined effort to, as he put it, “get his life back”. The RPD is obligated
to examine the evidence about events upon which the Applicants based their
decision to flee Colombia and seek refugee status.
Conclusion
[39]
I
find the RPD did not consider the evidence that Dr. Strusberg was specifically targeted
by the AUC nor did it consider evidence concerning the inadequacy of state
protection for those who are at risk from paramilitary groups allied with the
government. In failing to do so, the RPD erred.
[40]
Neither
party proposed a question of general importance for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is allowed, the decision of the RPD is quashed
and the matter is referred to a differently constituted panel for
redetermination.
2. No
question of general importance is certified.
“Leonard S. Mandamin”
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