Date:
20121127
Docket: IMM-3359-12
Citation: 2012 FC 1374
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 27, 2012
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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JOSE JERSAIN MEDINA CANCHON AND MARTHA
JANETH CANCHON CIFUENTES
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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]
This is an
application for judicial review of a decision of the Refugee Protection
Division [the RPD] of the Immigration and Refugee Board, dated March 9,
2012, determining that Martha Janeth Canchon Cifuentes and her son, Jose
Jersain Medina Canchon, are not Convention refugees under section 96 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [the
IRPA], or persons in need of protection under section 97 of the IRPA.
I. Facts
[2]
Since
1992, the female applicant had been operating a home-based day-care centre
accredited by the Instituto Colombiano de Bienestar Familiar (Colombian family
welfare institute). She opened the day-care centre after her husband, a
prosperous merchant, left her. He left the female applicant and her two
children in a difficult financial situation.
[3]
On
December 6, 2007, five armed persons came to her home, threatened and
insulted her, and asked where her sons Johan and Jersain were. These people
identified themselves as members of the Armed Revolutionary Forces of Colombia
[the FARC] and explained that they were on a mission to kidnap her children.
After realizing that her sons were not at home, they left, warning her not to
report them to the authorities or they would kill her sons. The female
applicant therefore contacted her sons and asked them to go to their maternal
grandmother’s home.
[4]
Two
days later, the female applicant closed the day-care centre and notified the
agency that manages home-based day-care centres. After several weeks of
discussions with her sons, they decided to go to the United States for a while.
On February 16, 2008, her son Johan left to join his girlfriend in the
United States, and the female applicant left to join him, along with her son
Jersain, on February 28, 2008.
[5]
The female
applicant returned to Colombia in March 2008 to try to find her spouse and
ask him for financial support, but she was unable to contact him because his
family refused to give her his contact information. She settled in Topaipi upon
her arrival but did not feel safe there, so she moved to Ibagué first and
later, to Bogota.
[6]
In November 2008,
the female applicant was told by her brother that he had found pamphlets and
letters containing death threats under the door where she had lived with her
sons. Her neighbour also telephoned her to tell her that men were coming to her
former residence late at night and knocking on the door.
[7]
The female
applicant alleges that she filed a complaint with the police on
February 2, 2009, and that the police themselves had passed on the
complaint to the Public Prosecutor’s Office. Eight days later, the female
applicant was assaulted in Bogota when she was arriving at her mother’s house.
The assailants threatened her and tried to kidnap her. Neighbours heard her
screams and threatened to call the police, which allowed her to escape and take
refuge at a neighbour’s home.
[8]
The female
applicant then went to a friend’s home and telephoned her brother to tell him
about the attack. The next day, a doctor came to treat her because she had been
seriously injured. She and her brother therefore decided that she would leave
the country. The female applicant could not understand why the FARC wanted to
kidnap her sons, thinking that they perhaps wanted to ransom them or use them
for forced labour.
[9]
On
February 18, 2009, the female applicant left Colombia for the United
States. She then arrived in Canada on February 28, 2009, accompanied by
one of her sons, Jose Jersain, and they immediately claimed refugee protection.
II. Impugned
decision
[10]
The
RPD determined that the applicants are not Convention refugees and are not
persons in need of protection under section 97 of the IRPA because they are not credible and
because adequate state protection is available in Colombia.
[11]
First, the RPD found
that the fact that the applicants had not claimed refugee protection at the
first opportunity, that is, upon their arrival in the United States in
February 2008, undermined their credibility. The panel was not satisfied
with the male applicant’s explanation to the effect that he knew that the
refugee protection claim process is very long and that he did not have legal
status in the United States.
[12]
Regarding
the reasons given by the female applicant to justify why they had not claimed
refugee protection at the first opportunity, in the United States, the RPD made
an unfavourable finding because of a contradiction that emerged from her
testimony. In addition, the explanation given by the female applicant to the
effect that she was not aware she could claim refugee protection there was not
satisfactory. As for the justification for her decision not to claim refugee
protection in February 2009, she stated that she feared that such a claim
would take too long and that her illegal status would play against her. The RPD
found that these justifications were not reasonable.
[13]
The
RPD therefore found that the applicants had not shown that they have a
subjective fear of returning to Colombia.
[14]
It
also drew an unfavourable conclusion from the fact that the female applicant
had not filed a complaint after her attempted kidnapping and found it
unacceptable that the female applicant had not made a complaint because there
had been no follow-up on her complaint from February 2, 2009. Furthermore,
the RPD was of the view that the document filed by the female applicant to show
that she had filed a complaint on February 2, 2009, had no weight because
it did not contain an address and was not printed on letterhead.
[15]
The
RPD was also of the opinion that the female applicant had not been threatened
by the FARC since she left in February 2009. It also found that the female
applicant did not know why the FARC was particularly interested in coming after
her sons.
[16]
Finally,
regarding state protection in Colombia, the RPD concluded that the applicants did
not rebut the presumption that the Colombian authorities are able to provide
adequate protection. It found that although the situation in Colombia is not
perfect, the documentary evidence shows that the Colombian government has
implemented concrete measures to fight the FARC’s criminal activities.
III. Applicants’
position
[17]
The applicants
submit that the RPD’s decision to reject the applicants’ explanations for not
having claimed refugee protection in the United States is unreasonable. They
argue that the explanations they gave are clear and precise and that their
testimonies do not contain any contradictions.
[18]
Regarding
the female applicant’s reasons for not filing a complaint after the attempted
kidnapping, she alleges that it was unreasonable to reject the explanations she
gave about the infiltration of the police by the FARC, particularly since the
documentary evidence confirms this fact. According to the female applicant, the
fact that she was the victim of an attempted kidnapping eight days after filing
a complaint against the FARC with the police should have been interpreted as
proof of this infiltration of the police by the FARC. However, the Court notes
that the female applicant did not give this explanation during her testimony
before the RPD.
[19]
In
addition, the RPD did not give any weight to the female applicant’s explanation
to the effect that the FARC targets young people in particular because they are
easier to exploit.
[20]
Regarding
state protection, the applicants submit that the RPD erred in concluding that it
is adequate because recent documentary evidence indicates the opposite.
[21]
Finally,
the applicants argue that the RPD erred in not considering the psychological
assessment of the female applicant.
IV. Respondent’s position
[22]
The
respondent, on the other hand, suggests that the RPD’s finding that the
applicants lack credibility because they did not claim refugee protection at
the first opportunity is well established in the case law and that the panel
was entitled to take into account the delay in claiming refugee protection
after the kidnappings on which the claim is based took place. Moreover, the
female applicant even went back to Colombia, which indicates that she did not
truly fear for herself. It was also reasonable for the RPD to reject the
applicants’ explanations for not having claimed refugee protection in the
United States.
[23]
Second,
the female applicant did not file a complaint regarding the attempted
kidnapping of February 10, 2009, arguing that there was no point in going
to the police because in her opinion they had done nothing in response to the
report she had filed on February 2, 2009. The RPD was correct to reject
his explanation because it is not reasonable to refuse to make a complaint to
the police simply because they still had not provided the results of their
investigation eight days after the report was made. Furthermore, it was
reasonable not to give any evidentiary weight to the police report because it
did not bear the hallmarks of an authentic official document.
[24]
Third,
regarding state protection, the RPD correctly concluded that the applicants had
not discharged their burden of proving that Colombian authorities were
incapable of providing them with effective protection. Indeed, the female
applicant did not submit any evidence to rebut the presumption of state
protection. On the contrary, the female applicant did not seek state protection
when illegal acts were committed against her, and the documentary evidence
supports the argument that Colombia is capable of protecting its citizens.
V. Issues
[25]
This
application for judicial review raises the following issues:
1) Did the RPD err in analyzing the
applicants’ credibility?
2) Did the RPD err in concluding
that there is effective state protection in Colombia?
VI. Standard of review
[26]
The
standard of review applicable to both issues is reasonableness since an
applicant’s credibility is a question of fact (Aguebor v Canada (Minister of Employment and Immigration), 160 NR 315 at
paragraph 4, 1993 CarswellNat 303 (FCA))
and the question of the state protection available to the applicants is a question
of mixed fact and law (Dunsmuir v New Brunswick, 2008 SCC 9 at
paragraphs 164-166, [2008] 1 SCR 190).
VII. Analysis
A. Did the RPD err in analyzing
the applicants’ credibility?
[27]
The
RPD’s analysis of the applicants’ credibility is reasonable, and the
intervention of this Court is not required.
[28]
First,
the RPD was of the opinion that the fact that the female applicant returned to
Colombia after arriving in the United States and that her son remained in the
United States for a year without claiming refugee protection are evidence
indicating the absence of a subjective fear of persecution. Indeed, returning
to the country of origin demonstrates that a refugee protection claimant does
not really fear persecution there (Lopez v Canada (Minister of Citizenship
and Immigration), 2004 FC 1318 at paragraph 5, 2004
CarswellNat 3462). Moreover, it is trite law that a delay in seeking the
protection of a state that is in a position to provide adequate protection is a
factor that may undermine the credibility of a refugee protection claimant when
there is no convincing explanation for the delay (Huerta v Canada (Minister of Employment
and Immigration) (1993), 157
NR 225, 40 ACWS (3d) 487 (FCA)).
[29]
As
regards the male applicant, the RPD correctly concluded that he could have
claimed refugee protection in the United States on the basis that members of
the FARC were looking for him and his brother in Colombia. Furthermore, when he
learned of his mother’s attempted kidnapping, he had additional reasons
justifying a refugee protection claim.
[30]
The
RPD also came to the right conclusion when it stated that the fact that persons
are in a country illegally should encourage them to regularize their status.
[31]
The
Court notes that the RPD found an inconsistency in the female applicant’s
testimony that affects her credibility. At first, the female applicant stated
that she had not claimed refugee protection in February 2008 because the
threats had been against her son, but she then changed her story and said that
the FARC had also threatened her by asking her to co-operate with them in
finding her sons. Such a finding is a reasonable one.
[32]
As
regards the psychological assessment filed by the female applicant, a reading
of the RPD hearing transcripts shows that the assessment was presented to the
panel before the hearing began, and that the panel took into consideration that
the female applicant has problems with anxiety and her memory.
[33]
Lastly,
the RPD properly drew a negative conclusion regarding the authenticity of the
police report of February 2, 2009. It does not contain an address and is
not written on letterhead. Such a finding is appropriate in the circumstances.
B. Did the RPD err in concluding that
there is effective state protection in Colombia?
[34]
The
RPD’s conclusions regarding the availability of state protection to the female
applicant and her son in Colombia are reasonable. The documentary evidence
before the RPD shows that, although they are not perfect, concrete measures
have been taken by the Colombian authorities to fight acts of aggression
committed by the FARC. Therefore, the RPD did not engage in a selective
analysis of the evidence.
[35]
Moreover,
the RPD was correct to consider the fact that the female applicant did not file
a complaint after her attempted kidnapping in concluding that she had not made
every effort to obtain state protection. A claimant is required to exhaust
every option available to him or her when the state is a democracy (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at p 709, 20 Imm LR (2d)
85). The RPD’s finding regarding the evidentiary weight of the police report of
February 2, 2009, is also reasonable since it is clear, simply from
looking at it, that it did not come from an official source.
[36]
In
closing, it is important to note that the RPD’s decision is well written. It is
a well-reasoned, detailed, precise decision that has been carefully drafted to
ensure that it complies with the prescribed legal framework while making a
balanced assessment of the evidence.
[37]
The
parties were asked to submit a question for certification, but no question was
submitted.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
the application for judicial review is dismissed, and no question will be
certified.
“Simon Noël”
______________________________
Judge
Certified true translation
Michael Palles
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