Date: 20121127
Docket: IMM-800-12
Citation: 2012
FC 1367
Ottawa, Ontario,
November 27, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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MARIA ISABEL
MENDOZA-RODRIGUEZ and GUSTAVO ADOLFO GARCIA-ACOSTA
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 28 December 2011 (Decision), which refused the Applicants’ application to
be deemed Convention refugees or persons in need of protection under sections
96 and 97 of the Act.
BACKGROUND
[2]
The
Principal Applicant and her husband, the Secondary Applicant, are citizens of Colombia. The Secondary Applicant relied on the claim on his wife, so the Court will refer
to her throughout as “the Principal Applicant”. The Principal Applicant claimed
refugee status on 4 April 2011. Her narrative is as follows.
[3]
The
Principal Applicant grew up with her mother, Miryam Rodriguez de Mendoza, and
brother, Diego German Mendoza (Diego), in Bogota, Columbia, in a neighbourhood
called Santa Elena de Baviera. She remained very close with her family into
adulthood, and they all lived near each other in the same neighbourhood.
[4]
On
7 May 2000, Diego was arrested for kidnapping and extortion, and the Principal
Applicant found out he was being investigated for belonging to a paramilitary
group. Diego was under the orders of Miguel Angel Hernandez (Miguel), a friend
of Diego’s who grew up in the same neighbourhood as the Principal Applicant’s
family. Miguel’s uncle was Victor Carranza, who was a prominent emerald dealer
in Colombia and had been involved in paramilitary organizations for years. The
Principal Applicant learned that Diego was under the command of Victor Carranza
and Angel Gaitan (Angel), who had also been arrested.
[5]
The
day that Diego was arrested he called the Principal Applicant and asked her to
visit him where he was being detained. Diego told her that he was part of
Victor Carranza’s paramilitary group and that the organization would take care
of getting him out of jail. The paramilitary hired a lawyer for Diego, and
managed to get him moved to the maximum security section of the prison.
[6]
One
or two days after Diego’s arrest, Miguel and other members of the paramilitary
showed up at the Principal Applicant’s home. They were carrying weapons, and
using aggressive and violent language. They told the Principal Applicant and
her family that they had better follow the paramilitary’s order; if not, the
paramilitary would kill them at any moment they wanted. The paramilitary
members told them not to tell anything to anyone, and forbade them from hiring
a lawyer for Diego or speaking to any government authorities. They also told
the Principal Applicant that her phones were being tapped and that her family
was being watched.
[7]
The
Principal Applicant started receiving threatening phone calls from paramilitary
members. They told her to stay quiet and obey their demands. Miguel and his men
showed up at the Principal Applicant’s house on a weekly basis, and were
watching her constantly. Miguel would keep the Principal Applicant informed on
what was going on with Diego’s case because the paramilitary did not allow her
to have any contact with his lawyer. The Principal Applicant would visit her
brother in prison every Sunday, but these visits were controlled by Angel’s
security men, who were members of the paramilitary group.
[8]
Based
on her religious beliefs, the Principal Applicant thought Diego should leave
the paramilitary group, and she often told him so when she went to visit him.
He was always worried about her family’s safety and would tell her to stay away
from what was happening. Diego always told the Principal Applicant not to say
anything to anyone about the harassment her family was dealing with, or the
corruption in the jails. Diego would never talk to her about his involvement
with the paramilitary group, but Miguel told the Principal Applicant that her
brother was his trusted man, and that he had opened bank accounts and put real
estate documents in his name.
[9]
The
Principal Applicant was afraid, and so in November 2000 she and her family
moved to an apartment on the north side of the city to distance themselves from
what was going on. The new apartment was about 45 minutes away by car from the
Principal Applicant’s old neighbourhood.
[10]
In
December 2000, the Principal Applicant received an invitation to visit a church
in the USA, and so the Principal Applicant and her family went there for a
month. Also in December 2000, the Principal Applicant’s mother was diagnosed
with cervical cancer. Due to her mother’s health and Diego’s legal troubles,
the Principal Applicant returned to Colombia in January 2001.
[11]
Around
February 2001, the Principal Applicant started receiving threatening phone
calls and noticed that she was being followed. She surmised that the
paramilitary had found her family’s new apartment. She also figured they had
tapped her phone lines again, because during one of her visits to Diego he
warned her to be careful what she said on the phone.
[12]
Also
in that month, Miguel and his bodyguards visited the Principal Applicant’s
husband’s work. They showed up on the pretext of purchasing a vehicle and asked
one of her husband’s colleagues about his schedule and type of work. The
Principal Applicant and her husband were very nervous, and so decided to get
travelling documents together in case they needed to leave the country. They
received tourist visas to the USA in March 2001.
[13]
Miguel
was found murdered around the end of April or beginning of May, 2001. People
who worked for him, much like Diego, were murdered one by one around the same
time. This series of murders scared the Principal Applicant very much, and she
and her family decided to leave the country.
[14]
Around
the last week of April 2001, the Principal Applicant moved to another apartment
about 40 minutes by car away from the previous apartment. Her family moved
there just to get ready to leave for the USA and to wait for her mother to get
her visitor’s visa. Given all the people who had been murdered, the Principal
Applicant decided it was too risky for them to stay in Colombia any longer. The Principal Applicant, her husband, and her daughter left Colombia on 29 May 2001. In June 2001, the Principal Applicant’s mother told her that the sister and
mother of Miguel had been found tortured and murdered.
[15]
On
4 July 2001, Diego was supposed to be released from prison because the
paramilitary group had paid the prosecution a large bribe to release him and
they could not prove he was guilty of anything. On 3 July 2001, Diego was taken
out of his cell and executed. The government’s official version of events says
that he was killed during an uprising at the prison, but the uprisings took
place in a different area of the prison from where Diego was held. The
Principal Applicant believed that Diego wanted to leave the paramilitary and
that is why he was killed. The Principal Applicant’s mother told her that the
paramilitary had been looking for her family in places like her beauty parlour
and church, and that it was too dangerous for them to return for Diego’s
funeral. The Principal Applicant therefore stayed in the USA.
[16]
The
Principal Applicant thought that after her brother’s death the paramilitary
would leave her family alone. However, shortly after Diego’s murder her mother
started receiving threatening phone calls from Angel. He wanted the documents
Diego had given her concerning the bank accounts and properties that were in
his name. The Principal Applicant’s mother gave Angel the documents he wanted,
and he told her that if anyone in their family disclosed his relationship to
the paramilitary or blamed his death on them, then they would be killed as
well.
[17]
In
August 2001, the Principal Applicant and her sister hired a lawyer named Tulio
Nieto Arbelaez to start a legal process against the institution responsible for
the management of jails in Colombia. In September 2001, Angel was murdered. On
10 December 2001, the Principal Applicant’s mother received her visa to the USA and joined the Principal Applicant and her family there on 18 December 2001.
[18]
Once
in the USA, the Principal Applicant and her family applied for refugee
protection. The Principal Applicant’s mother returned to Colombia in December 2002, because she could not afford her medical costs in the USA. Since that time the Principal Applicant’s mother has been moving around to try to avoid the
paramilitary.
[19]
The
Principal Applicant was granted political asylum in the USA in December 2003, but that decision was appealed and she lost her status. The Principal
Applicant appealed that decision and the process finally ended in December
2010, with the Principal Applicant being denied asylum. Facing deportation to Colombia, the Principal Applicant left the USA for Canada.
[20]
The
Principal Applicant filed a refugee claim on 4 April 2011. She fears that if
she returns to Colombia she will be killed by the paramilitary of which her
brother used to be a member because they think or assume that her brother
revealed information to her and her family about their activities. The
paramilitary also knows that the Principal Applicant advised her brother to
leave the group, and that she has made a complaint to the authorities about her
brother’s death. Her claim was denied on 28 December 2011.
Documentary
Evidence
[21]
The
Principal Applicant submitted a large amount of documentation in support of her
claim. The personal documentation includes:
•
A
copy of the materials submitted in support of the refugee claim she made in the
United States;
•
Letters
corroborating the Principal Applicant’s statements about the harassment her
family suffered at the hands of the paramilitary;
•
Materials
about the lawsuit started by the Principal Applicant related to her brother’s
death;
•
Evidence
and newspaper articles corroborating the death of Diego, Angel, and other members
of the paramilitary.
[22]
The
Principal Applicant also submitted many materials dealing with country
conditions and paramilitary groups in Colombia. Three of these submissions are
of particular interest to this application. The first is an article from a publication
called In Sight titled “Emerald Czar a Test for Colombian Justice,”
dated 22 March 2011. It is available on page 1060 of the Certified Tribunal
Record (CTR). This article discusses the political and economic power wielded
by Victor Carranza, and states “Carranza is Colombia’s Teflon man, who, over a
30-year period, has beat back numerous attempts to assassinate or prosecute
him. His ability to survive is surpassed only by his business acumen – he
remains one of the world’s top emerald dealers and one of Colombia’s largest,
and most politically-connected, landowners.” The article describes numerous
attempts to prosecute Carranza for illegal activities, but none have been
successful. He even managed to avoid conviction when a mass grave containing 50
bodies was found on his property. The article also discusses Carranza’s
numerous high-powered political connections.
[23]
There
is also a publication by Gendercide Watch called “Case Study: Colombia.” On page 1069 of the CTR this article describes Carranza as a “legendary emerald
dealer, rancher, and paramilitary chieftain linked to hundreds of political
killings in the department of Boyaca and Colombia’s eastern plains.” Another
article that discusses Carranza is dated January, 2001 and called “Columbia’s paramilitaries”; it is found on page 1072 of the CTR. This article discusses
how fights over emerald-rich territories cumulated in the “Green War” of 1988,
with Carranza emerging as the principle victor. By the 1990s Carranza emerged
as one of the country’s wealthiest and most powerful individuals. It also says
that Carranza is expanding his acquisitions with help from paramilitary groups.
[24]
The
RPD heard the Principal Applicant’s claim on 12 December 2011, and issued the
Decision rejecting it on 28 December 2011.
DECISION UNDER
REVIEW
[25]
The
RPD found the Principal Applicant was not a Convention refugee or person in
need of protection because state protection was available to her in Colombia, and that she did not make reasonable attempts to avail herself of it.
[26]
The
RPD began its state protection analysis by stating that a claimant who alleges
that state protection is inadequate must present evidence to persuade the Board
of such. Canada (Attorney General) v Ward, [1993] 2 SCR
689 establishes a presumption that unless a state is in complete breakdown it
is capable of protecting its citizens. After canvassing the country condition
documents, the RPD found that Columbia is a democracy, and while the situation
is not perfect it has effective control of its territory and is able to uphold
the laws of the country. A failure to pursue state protection will usually be
fatal to a refugee claim where the state is a functioning democracy, and the
more functioning the democracy the heavier the burden on the claimant to demonstrate
that he/she has exhausted all the resources available to him/her.
[27]
At
paragraph 24 of the Decision, the RPD stated that the Principal Applicant
“fears the paramilitaries in Colombia, and specifically, Victor Carranza, who
is the head of the paramilitary organization… The claimant testified that
Victor Carranza, and other members of the paramilitary had visited her home on
a number of occasions…” The RPD pointed out that when the Principal Applicant
was asked what information she had that was of concern to the paramilitaries
she said that the paramilitary members who visited her home on a regular basis
had told her of their illegal arms permits obtained through the Ministry of
Defence, and about scientific material they used for the men who worked for them.
The Principal Applicant testified that this information was divulged to her
because the paramilitary wanted her family to know how powerful it was. She
also testified that the paramilitary did not want her to hire a lawyer for her
brother because it wanted their own lawyers to deal with all their men who were
incarcerated.
[28]
The
RPD then reviewed country conditions in Colombia. It found that Colombia has functioning democratic institutions and a relatively independent and impartial
judiciary. The RPD stated that there was persuasive evidence that Columbia was trying to rectify its past problems of criminality and corruption. The RPD
recognized inconsistencies in the documentary evidence (paragraphs 27-33 of the
Decision), but found that the preponderance of the evidence suggested that
state protection is adequate in Colombia. The RPD also found, at paragraph 27
of the Decision, that a “person sought by paramilitary groups would have to
have sufficient value to that group for it to [be] motivated or inclined to
pursue that person elsewhere in Colombia.”
[29]
The
RPD pointed out that the Principal Applicant testified that she never went to
the authorities out of fear for her own life, as well as fear for Diego’s life.
The RPD found that although “the claimants would have been justifiably afraid,
I find it unreasonable that they did not seek the protection of police given
they knew that the state was both willing and able to apprehend members of the
paramilitaries as evidenced by the arrest and incarceration of her brother and
two other heads of the paramilitary.” The RPD found that the evidence of these
other arrests demonstrated that the state could provide protection to its
citizens and that it is willing to bring top members of the paramilitaries to
justice. Because the Principal Applicant never reported any of the incidents to
any authority, she has denied the state the opportunity to protect her. The
presumption of adequate state protection cannot be rebutted simply by asserting
a reluctance to engage the state. The RPD said that doubting “the effectiveness
of the protection offered by the state when one has not really tested it does
not rebut the existence of a presumption of state protection.”
[30]
The
RPD found there was insufficient evidence to support the assertion that the
Principal Applicant is at a heightened risk due to the lawsuit started in 2001;
her sister and mother remain in Colombia, and have received no further threats.
The RPD also stated that there was insufficient evidence adduced to demonstrate
that any member of the paramilitary is still seeking the Principal Applicant.
Again, the Principal Applicant’s mother and sister have been living in Colombia without incident, and the Principal Applicant said that she is not aware of anyone
currently looking for her or her family. The RPD stated that, on a forward
looking assessment, there is no more than a mere possibility that the Principal
Applicant will be sought by paramilitaries in Colombia.
[31]
The
RPD found the Principal Applicant had not rebutted the presumption of state
protection, so her claim for protection could not succeed. The Principal
Applicant had established her identity, and she was accepted as credible. The
Principal Applicant had proven that her brother was murdered by a paramilitary
organization and that her family was harassed by them. However, there is a
presumption that a democratic state, like Colombia, is able to protect its
citizens (which the Principal Applicant had not rebutted). The Principal
Applicant had a burden to demonstrate that she took all reasonable steps to
available herself of the state protection available to her, and to provide
clear and convincing evidence of the state’s inability to protect. She did not
do so in this case. The RPD found that the Principal Applicant was not a
Convention refugee or a person in need of protection under sections 96 or 97 of
the Act. As the Principal Applicant’s husband’s claim rested entirely upon
hers, it was refused as well.
ISSUES
[32]
The
Applicants raise the following issue in this proceeding:
a.
Did
the RPD ignore evidence about the agent of persecution (Victor Carranza) in
conducting its state protection analysis?
STANDARD
OF REVIEW
[33]
The Supreme
Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[34]
The
Principal Applicant says the RPD ignored evidence which showed that Victor
Carranza is above the protection able to be offered by Colombia. The standard of review on this issue is reasonableness. In Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, the Federal Court of
Appeal held at paragraph 36 that the standard of review on a state protection
finding is reasonableness. Justice Leonard Mandamin followed this approach in Lozada
v Canada (Minister of Citizenship and Immigration), 2008 FC 397, at
paragraph 17. Further, in Chaves v Canada (Minister of Citizenship and
Immigration), 2005 FC 193, Justice Danièle Tremblay-Lamer held at paragraph
11 that the standard of review on a state protection finding is reasonableness.
[35]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
ARGUMENTS
The Applicants
[36]
The
Applicants submit that although the RPD considered evidence about Colombian
paramilitaries in general, it failed to address the evidence concerning the
specific paramilitary leader the Applicants fear. The Principal Applicant
provided evidence of the power and influence of the main agent of persecution,
and it is unreasonable that this evidence was not considered in the Decision.
[37]
The
RPD found the Principal Applicant to be credible and did not dispute that the
events recounted in the Principal Applicant’s PIF had occurred. The Decision
rested on the RPD’s conclusion that the Principal Applicant had not rebutted
the presumption that Colombia, as a democratic state, was able to adequately
protect her. The RPD did not take issue with any other portion of the
Applicants’ refugee claim.
[38]
One
of the RPD’s key findings was that Colombian authorities have demonstrated a
willingness to bring members of paramilitary organizations to justice, and that
the Applicants’ failure to seek state protection was not objectively justified.
The Applicants submit that in coming to this conclusion the RPD ignored the
evidence submitted about Victor Carranza, the Applicants’ main agent of
persecution.
[39]
The
documentary evidence submitted indicates that although the Colombian government
has demonstrated a willingness, in general, to bring paramilitaries to justice,
it has not been able to bring Victor Carranza to justice due to his immense
power and influence.
[40]
The
Applicants point to the decision in Torres v Canada (Minister of Citizenship
and Immigration), 2010 FC 234 [Torres]. In that case, the RPD
found the applicant had not taken reasonable steps to seek state protection in Mexico, and that the state was adequately able to protect him. However, in coming to that
conclusion the RPD failed to consider the specific profile of the agent of
persecution. Justice Russel Zinn found this unreasonable, stating at paragraph
39:
The
profile of the alleged human rights abuser is important due to the fact that,
even in democratic countries, certain individuals can be above the law. The
adequacy of state protection frequently depends on the characteristics of the
abuser. If the abuser is in a position of power or has close ties to the police
or other authorities, it may be very difficult, if not impossible, for a
claimant to obtain protection.
[41]
Justice
Zinn also said, at paragraph 43 of Torres:
In
this case, the Board thoroughly reviewed the incidents of abuse that the
applicant suffered. However, the Board provided only minimal discussion of the
profile of the abusers. There was no substantive discussion of the applicant's
allegations that Mr. Almendariz was involved with organized crime, or that he
was politically connected, or that he had connections to the police. These
issues are important in determining whether the Mexican authorities would be
able and willing to provide protection, particularly in light of the
documentary record that suggests powerful individuals in Mexico can commit crimes with impunity.
[42]
The
RPD’s discussion of the agent of persecution was minimal. In fact, Victor
Carranza was only mentioned once, in passing. The RPD said nothing about his
power and influence, and never acknowledged that his profile may be more than an
ordinary paramilitary leader.
[43]
The
Applicants provided three articles specifically discussing Victor Carranza: In
Sight, “Emerald Czar a Test for Colombian Justice” dated 22 March 2011, Gendercide
Watch, “Case Study: Colombia” undated, Afn.org, “Colombia’s Paramilitaries” dated January 2001.
[44]
The
In Sight publication included the following information:
•
Over
a 30-year period, there have been numerous attempts to prosecute Mr. Carranza,
as well as numerous attempts to assassinate him;
•
Mr.
Carranza has survived numerous legal, political, and physical attacks, and his
ability to survive these attacks has garnered him the nickname “Colombia’s Teflon Man”;
•
Even
in the face of repeated testimony from various former paramilitary members, Mr.
Carranza has still managed to avoid prosecution;
•
Mr.
Carranza avoided conviction even when a mass grave holding 50 bodies was found
on his property;
•
Mr.
Carranza is one of the world’s top emerald dealers and one of Colombia’s most politically well-connected landowners;
•
New
evidence has emerged linking Mr. Carranza to paramilitary groups, but it is
unlikely to lead to a conviction;
•
Mr.
Carranza was imprisoned in 1998 on charges of drug trafficking and maintaining
a paramilitary army, but was released in 2001 and later cleared of all charges
and was compensated for wrongful imprisonment;
•
Spain tried to
extradite Mr. Carranza in 2002 and 2010, but these attempts were unsuccessful;
•
There
is evidence of links between Mr. Carranza and Colombian President Juan Manual
Santos, as well as other influential people such as a former Defence Minister;
•
Mr.
Carranza wields substantial economic power, and while he was in prison Colombia’s revenues from the emerald trade dipped significantly.
The Principal
Applicant points out that this item was relied upon in her final submissions at
the oral hearing.
[45]
The
Applicants submit that the reasonable conclusion to be drawn from this evidence
is that Victor Carranza is “above the law.” This will also likely be the case
on a prospective basis, as there is little indication that the situation is
bound to change. This evidence contradicts the RPD’s finding that the state is
able and willing to provide the Applicants with adequate protection. It also
provides corroborating evidence to her position that to complain to the police
about Victor Carranza would be risky and futile.
[46]
The
evidence submitted about Victor Carranza was very important to the Applicants’
claim. It was uncontradicted, and no reason was offered why it was given no
weight in the Decision. The RPD simply ignored this evidence. The RPD may be
correct that some paramilitary members have been arrested and prosecuted, but
this has little applicability to the Applicants’ specific agent of persecution.
The RPD recognized that Colombia’s legal system is “overburdened, inefficient,
and hindered by subordination and intimidation of judges, prosecutors, and
witnesses.” Considering this type of environment, it is understandable that the
Applicants would not risk confronting Victor Carranza.
[47]
The
Applicants submit that the issue in this judicial review is not whether this
evidence would have necessarily swayed the RPD, but whether the evidence was
important enough that it should have been given specific consideration in the
Decision. The Applicants submit that it was. The RPD accepted, at paragraph 24
of the Decision, that the Principal Applicant was “specifically” afraid of
Victor Carranza. It was therefore incumbent on the RPD to consider his specific
power and influence, not only that of the paramilitaries in general.
[48]
The
RPD also stated there was no evidence the paramilitaries have shown any
interest in the Principal Applicant or her family in recent years. The
Principal Applicant points out that her 72-year-old mother returned to Colombia, in part to obtain ongoing cancer treatment, the cost of which was prohibitive in the United States. Since returning to Colombia she has been living in different residences to
avoid the paramilitary. The Principal Applicant also submits that her mother is
not similarly situated and that her age and ill health may have protected her.
The Principal Applicant’s half-sister was also not similarly situated because
it was the Principal Applicant who took an active role in visiting her brother
after his arrest, and the threats against her were made in this context.
[49]
Although
the RPD did not actually go into an internal flight alternative analysis, it
did suggest that the Principal Applicant is not of a sufficiently high profile
for the paramilitaries to pursue her in other areas of Colombia. The Principal Applicant submits the failure of the RPD to take into account the profile of
the Principal Applicant’s agent of persecution also impacted this analysis.
This was also addressed in Torres, where Justice Zinn said at paragraph
53:
The
Board also concludes that Mr. Almendariz would not have the national reach to
follow the applicant to either of the proposed IFAs but provides no
justification for this conclusion. As was discussed above, the applicant
alleged that Mr. Almendariz had connections with organized crime and with
powerful political figures, in addition to his role as the President of the
Mexican Association of Hotels and Motels. The Board did not address these and
did not, as has been said, examine the IFAs considering the profile of the
agent of persecution. Its analysis of the availability of an IFA given the
identity of the agent of persecution was unreasonable.
[50]
The
Applicants submit that this evidence is sufficient to demonstrate that the
Decision might have been different absent the RPD’s errors (see Pankou v Canada (Minister of Citizenship and Immigration), 2005 FC 203; Alam v Canada (Minister of Citizenship and Immigration), 2005 FC 4; Hassan v Canada (Minister of Citizenship and Immigration), 2005 FC 601). That being so,
the Applicants submit that the Decision is unreasonable and request that it be
referred back to the RPD for redetermination. The Applicants also submit that
given the only issue is the availability of state protection, that it would be
appropriate for the Court to direct that reconsideration be limited to that
issue.
The Respondent
[51]
The
Respondent submits that the RPD is a specialized tribunal and an expert in its
field. Evidence of country conditions fall into its expertise, and the RPD is
entitled to determine the weight to be assigned to each piece of evidence (see Meija
v Canada (Minister of Citizenship and Immigration), 2009 FC 354; Aguebor
v Canada (Minister of Employment and Immigration), (1993) 160 NR 315
(FCA); Medarovik v Canada (Minister of Citizenship and Immigration), 2002
FCT 61). The onus rested with the Principal Applicant to rebut the presumption
that adequate state protection was available (see Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 at page 709; Thirunavukkarasu v
Canada (Minister of Employment and Immigration), [1993] FCJ No
1172 (FCA) at paragraphs 5-6), and she failed to rebut that presumption in this
case.
[52]
In
concluding that the Principal Applicant had not rebutted the presumption of
state protection, the RPD considered the following evidence:
•
The
Principal Applicant testified she never sought legal counsel for her brother
and never reported the incidents of being threatened to the authorities;
•
The
incarceration of the Principal Applicant’s brother and two other paramilitary
members demonstrated that the state was both willing and able to apprehend
members of the paramilitaries.
[53]
The
RPD also made the following findings:
•
The
Principal Applicant’s failure to report the incidents to the police denied the
state the opportunity to protect her;
•
There
was insufficient evidence adduced to indicate that any member of a paramilitary
organization is currently seeking out the Principal Applicant.
[54]
Refugee
protection is only provided when the protection of a claimant’s country of nationality
is unavailable (Carrillo, above, at paragraph 25). The onus is on
the Principal Applicant to establish that she is unwilling or unable to avail
herself of the protection of Colombia. It is not sufficient for the Principal
Applicant to demonstrate that the Colombian government has not always been
effective at protecting its citizens from the paramilitary groups. Further, a
subjective reluctance to approach the state for protection does not demonstrate
that state protection is unavailable (Ward at pages 724-725; Camacho
v Canada (Minister of Citizenship and Immigration), 2007 FC 830; Canada
v Villafranca, (1992) 18 Imm LR (2d) 130 (FCA) at pages 132-133).
[55]
Absent
a complete breakdown, a state is presumed able to protect its citizens. The RPD
acknowledged there is some tolerance by the police in Columbia of the illegal
activities of the paramilitaries; however, this did not suggest a heightened
risk to this particular Principal Applicant. The Respondent submits there was a
great deal of evidence that Colombia has made significant gains in combating
the paramilitary groups. It was open to the RPD to prefer some evidence over
other evidence (see Cepeda-Gutierrez v Canada, [1998] FCJ No 1425
(FC) [Cepeda-Gutierrez] at paragraph 16; Szucs v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1614 at paragraph 11).
[56]
The
Respondent submits that the articles that specifically mention Victor Carranza
do not undermine the RPD’s finding that the state has presented a willingness
to bring the paramilitary group in question to justice. The articles do not
stand for the proposition that the Colombian government allows Victor Carranza
to act with impunity. While the articles note that the Colombian government has
been unsuccessful in prosecuting Victor Carranza, they do not say why. One
article speculates there may currently be insufficient evidence to bring formal
legal proceedings. The other two articles simply mention Victor Carranza in
passing, saying that he is a paramilitary leader who has been linked to
killings. No mention is made of attempts to arrest or prosecute him. The
Respondent submits that these articles do not undermine the RPD’s finding that
if the Principal Applicant had approached the authorities for protection it
would have been available.
[57]
The
Respondent further submits that it does not make sense that the Principal
Applicant was afraid to approach the authorities about Victor Carranza because
he was in prison during the time in question. When the Principal Applicant was
asked why she did not approach the authorities for protection she did not
specifically mention Victor Carranza, but stated that she was afraid the police
had been infiltrated by the paramilitaries and that she would be harmed for
going to the police. The Respondent states that this demonstrates that Victor
Carranza had little, if anything, to do with the Principal Applicant’s failure
to approach the authorities.
[58]
The
Respondent also states that the Torres decision is distinguishable from
the present situation. In that case, the applicant approached the authorities
and was specifically told that his complaint would go nowhere due to the
profile of his persecutor. The applicant’s failed attempts to obtain protection
were a significant factor in Torres, with Justice Zinn stating at
paragraph 40 that the applicant’s failed attempts to seek protection were
“crucial,” and that they were all that could rebut the presumption of state
protection. He went on to say at paragraph 41 that the response the applicant
received from the authorities was essential in determining the adequacy of the
protection received.
[59]
Furthermore,
the powerful assailants in the Torres case were specifically involved in
the persecution. Here, there is no evidence that Victor Carranza took an active
role in anything to do with the Principal Applicant. The threats came from
other paramilitary leaders while Carranza was in prison. The Principal
Applicant clearly indicated that she was persecuted by the group as a whole, so
the RPD considered whether the authorities would take action against the
specific leaders of the group. It reasonably concluded, based on the
imprisonment of three of the paramilitary’s leaders, that the authorities have
demonstrated a willingness to take action. Thus, the RPD concluded that the Principal
Applicant had not taken reasonable measures to seek state protection.
[60]
Further,
the Respondent points out that the Principal Applicant’s sister and mother
still reside in Colombia, and have not been threatened by the paramilitaries
since 2001. The RPD found that there was no evidence the paramilitaries are
still interested in the Principal Applicant, and that the paramilitaries would
not pursue the Principal Applicant if she were to return to Colombia. The Respondent submits that this is independently sufficient to dispose of this
application.
[61]
The
Principal Applicant argues that she is at greater risk than her family members,
but the factors she puts forward do not distinguish her from her family members
in a meaningful way. One of the reasons the Principal Applicant claims she is
at risk is because her family started a lawsuit in relation to her brother’s
death. However, the law suit was started by her entire family, including her
mother and sister, and they have not been harmed.
[62]
Another
reason the Principal Applicant claims to be at risk is because she possesses
important information about the paramilitary, but the Principal Applicant
testified that her mother was present when she learned this information. The
Principal Applicant also claims that she is more at risk because it is she who
took an active role in visiting her brother in jail. However, there are
multiple references in her PIF to other people visiting her brother as well;
she said things such as “we went to the prison,” and “we went to see my
brother.”
[63]
The
Principal Applicant further claims that she is not similarly situated to her
mother due to her mother’s age and poor health. However, according to the
Principal Applicant’s story her mother was as much a target to the paramilitary
as she was; her mother was even personally threatened once. Like the Principal
Applicant, the mother initiated the law suit and she holds information about
the paramilitary. The Respondent points out that the RPD specifically
considered the fact that the Principal Applicant’s mother has been keeping a
low profile in Colombia, but still came to the conclusion that the fact that
she had no further encounters with the paramilitary indicates that they are no
longer interested in the Principal Applicant or her family.
[64]
The
Respondent submits that considering all the evidence in this case it was open
to the RPD to find that state protection, although not perfect, was adequate.
The Respondent requests that this application be dismissed.
The Applicants’
Reply
[65]
The
Applicants submit that the Respondent has not demonstrated that it was
reasonable for the RPD to make an adverse state protection finding without at
least referring to the evidence specifically concerning Victor Carranza. The
issue is not that the RPD preferred some evidence over other evidence; the
issue is that it ignored the evidence concerning Victor Carranza.
[66]
Considering
the importance of the evidence, the Principal Applicant submits that she has
rebutted the presumption that the RPD considered it. The RPD canvassed the
general documentary evidence extensively; thus it is even more reasonable to
expect the Decision to at least mention the evidence about the specific agent
of persecution that the Principal Applicant fears. If the RPD did weigh this
evidence, and for some reason found it worthless, it would be reasonable to
expect to find some hint of this reasoning in the extensive Reasons. If the RPD
refers in detail to evidence in support of its conclusion, but is silent on
evidence pointing the other way, it is easier to infer that evidence was
ignored (Cepeda-Gutierrez, above, at paragraph 17). The Applicants
submit that to recognize such an error is not substituting the Court’s view of
the evidence, it is simply saying that it must be satisfied the RPD turned its
mind to the evidence.
[67]
The
evidence in question is not about the imperfections of state protection offered
by Colombia; it is about the complete impunity for the particular paramilitary
leader in question. Further, the Applicants point out that the Respondent has
not attempted to distinguish the decision in Torres, which the
Applicants submit is right on point.
[68]
The
Principal Applicant submits that her failure to approach the state for
protection is not determinative. There is no absolute requirement for a refugee
claimant to approach the state, especially if it may be dangerous or futile to
do so. This cannot always be characterized as “subjective reluctance.” It was
incumbent on the RPD to determine whether the Principal Applicant’s failure to
approach the state was justified, and whether protection by the state in the
Principal Applicant’s situation might be reasonable forthcoming.
[69]
As
regards the Respondent’s allegations that the events in question occurred over
a decade ago, the Principal Applicant points out that no adverse credibility
findings were made in relation to her evidence. Further, the documentary
evidence suggests that “due to their presence in vast sectors of Colombia and extensive information networks, it is likely that FARC, ELN, and successor
groups to the AUC [paramilitaries] have the capacity to pursue victims even
after they have spent many years outside the country”. A report of the United
Nations High Commission for Refugees also says that paramilitaries “often
employ highly sophisticated databases and computer networks and are able to
trace people even years after their initial search.” The Applicants submit that
this is also something that should have been considered in the Decision.
[70]
The
Applicants acknowledge that the Decision is for the RPD to make, but only after
assuring the parties that all evidence has been considered. The Applicants
submit that did not occur in this Decision, and requests that it be
reconsidered.
ANALYSIS
[71]
The
Applicants place particular reliance upon Justice Zinn’s decision in Torres.
Torres was, however, an IFA decision, at least in part, and the profile
of the principal abuser, Mr. Almendariz, and his reach throughout Mexico assumed a particular importance in the context of that case. Also, in Torres,
the evidence was strong that Mr. Almendariz had taken direct violent action
against the applicants and this had occurred in the fairly recent past, so that
his continued interest in them was obvious. In addition, Torres places
significant emphasis on the applicants’ attempt to seek protection; in the
present case, no attempts were made. [
[72]
The
present case bears little factual resemblance to the Torres situation.
The Principal Applicant’s evidence concerning the man she called the “main
agent of persecution” was that
Our
lives were peaceful, but on May 7, 2000, everything changed for us when I found
out through a TV newscast that my brother had been arrested by the Gaula
police. He was being charged with kidnapping, extortion and was being
investigated to see if he belonged to the paramilitary. My family and I were
surprised because we had no idea my brother was involved with this group,
apparently under the orders of Miguel Angel Hernandez, a man my family knew
because he grew up in the same neighbourhood as we did and was a friend of my
brother. Miguel was the nephew of Victor Carranza. We only new Victor because
we knew he was Miguel’s uncle and we could see him, very seldom, in the
neighbourhood or in the neighbourhood’s mall. As time passed, we learned through
my brother that Miguel was under the command of Victor and Angel Gaitan, who
had also been arrested. Victor Carranza was being investigated by the DAS unit
of the police and was also detained. Victor Carranza got out with 286 million
Pesos bail.
[73]
The
RPD specifically addresses the Principal Applicant’s evidence concerning Victor
Carranza at paragraph 24 of the Decision:
The
claimant testified that she fears the paramilitaries in Colombia, and specifically, Victor Carranza, who is the head of the paramilitary organization. The
claimant testified that her brother, who was the head member of the
paramilitary, had been arrested and incarcerated in May 2000. The claimant also
testified that two other heads of the paramilitary organization had also been arrested
and incarcerated. The claimant testified that Victor Carranza, and other
members of the paramilitary had visited her home on a number of occasions
warning her, her husband and her mother against obtaining legal counsel for her
brother, as well as against sharing any information they knew about the
organization with anyone. The claimant testified that they were told that if
they do not comply with the two stipulated demands, they would be assassinated.
When asked what information the claimant knew about the paramilitaries, that
was of little concern to them, she testified that the paramilitaries, who had
visited their home on a regular basis, had told them of their illegal arms
permits which had been obtained from the Ministry of Defense and about scientific
materially used for the men who worked for them. The claimant testified that as
a result of having this information she and her family were military
objectives, regardless of whether they shared the information or not. When
asked if she knew why the paramilitaries would reveal incriminating evidence to
them, if they were concerned about it being divulged, the claimant testified
that it was because they wanted claimants to know that they had power. When
asked why the members of the paramilitaries did not want her family to obtain a
lawyer to help free her brother, the claimant testified that she had been told
that they wanted to retain their own lawyers to deal with all of their men who
were incarcerated.
[74]
The
RPD makes no IFA finding in this case. Its conclusion is that no one is
currently seeking the Applicants:
Furthermore,
I find that insufficient evidence was adduced to indicate that either Mr.
Hernandez or any other member of the paramilitary organization is currently
seeking out the claimant. The claimant testified that her mother remains in Colombia, although maintaining a low profile and moving around, however she has had no further
encounters with any members of the paramilitaries since the claimant left Colombia. The claimant also testified that her sister, also, lives in Colombia, and that none of the claimant’s family members have had any further encounters with Mr.
Hernandez or any of his men since she left Colombia, nor is she aware of anyone
currently looking for her or her family.
Insufficient
reliable and probative evidence was forwarded to indicate that any members of
the paramilitaries are currently looking for the claimant or that they would
have an ongoing interest in her stemming from the incident which occurred in
2000 and early 2001. Consequently, in a forward looking assessment, I find
that, there is no more than a mere possibility that the claimant would be
sought out by the paramilitaries if she was to return to Colombia.
[75]
The
Decision is mostly about state protection, but there is also a clear finding
that no member of a paramilitary organization is seeking the Applicants.
[76]
The
Applicants say, in accordance with Cepeda-Gutierrez principles, that it
was unreasonable of the RPD not to specifically address the evidence presented
on Victor Carranza, the principal agent of persecution.
[77]
The
RPD’s conclusion that no member of the paramilitary organization in question
was currently seeking the Applicants is based upon similarly situated person
grounds. The Principal Applicant’s mother and sister have remained in Colombia and have had “no further encounters with any members of the paramilitaries since the
claimant left Colombia.” I think this finding is reasonable.
[78]
The
reasons put forward by the Principal Applicant as to why she feels threatened
by the paramilitary, and Mr. Carranza in particular, are that she has knowledge
of the paramilitary group, they know that she visited her brother in jail and
wanted him to leave the group, and the family hired a lawyer after the
brother’s death to start the legal process. All of these factors apply equally
to her mother. The evidence about Victor Carranza’s present impunity does not
come into play if neither he nor his group is seeking the Principal Applicant.
Nor does the evidence concerning the sophisticated data collecting abilities of
paramilitary groups. Neither the Principal Applicant’s sister or mother have
been bothered by Victor Carranza or his group since the Principal Applicant
left Colombia in 2001.
[79]
As
regards the state protection analysis itself, the Applicants say that it was
reasonable for them not to approach the police because of Victor Carranza’s
impunity, and the RPD simply fails to mention or deal with the profile of the
main agent of persecution, as was the case in Torres.
[80]
In
my view, however, even if the RPD’s finding that no member of a paramilitary
organization is currently seeking the Applicants is not a stand-alone reason
for rejecting the claim, it still has to be taken into account when reviewing
the RPD’s state protection analysis.
[81]
The
RPD’s basic position is that
the
fact remains that at no time did the claimant seek the protection of the state,
even though she had first-hand knowledge of their willingness and ability to
arrest and incarcerate three heads of the organization she feared.
[82]
The
Principal Applicant says that, in considering whether it was reasonable for her
not to approach the state, the RPD has failed to consider the evidence that
demonstrates the power, and impunity enjoyed by Victor Carranza.
[83]
When
the Decision is read as a whole, however, I do not think this is the case.
[84]
The
RPD finds that no member of a paramilitary organization is currently seeking
(and this includes Victor Carranza) the Applicants. I have already concluded
that, given the experience of the Principal Applicant’s mother and sister, this
was not an unreasonable conclusion for the RPD to reach. If Victor Carranza was
interested in punishing the Principal Applicant, he would be equally interested
in punishing her mother and sister, and he has taken no action against them for
a long time.
[85]
The
RPD is assessing forward-looking risk and the availability of state protection
against paramilitary violence if the Applicants return to Colombia. Having concluded, reasonably, that the Principal Applicant does not face a threat
from “Mr. Hernandez or any other member of the paramilitary organization,” Mr.
Carranza cannot be considered as the main agent of persecution. He is not
interested in the Principal Applicant, in the same way that he is not interested
in the Principal Applicant’s mother and sister. Hence, there is no reason for
the RPD to assess the In Sight article that refers in a general way to
Victor Carranza’s “Teflon” prowess. There is nothing in this article that says
that Victor Carranza is interested in the Applicants. The Principal Applicant
took no steps to seek state protection in the past, at a time when the police
had actually taken steps against Victor Carranza and his paramilitary group,
and there is no evidence to suggest that these people will harm the Applicants
if returned to Colombia. As the Decision makes clear, this is the reason why
the RPD felt the Applicants had not rebutted the presumption of adequate state
protection for what had happened to them in the past, or for what they face in
the future. The Victor Carranza evidence needs no specific mention if he is not
a specific threat.
[86]
The
evidence which the Applicants refer to about Victor Carranza speaks of his
connection to a paramilitary group, and his use of that group to protect his
business interests.
[87]
The
evidence suggests that Victor Carranza has been very successful at avoiding
“numerous attempts to assassinate or prosecute him.” In my view, assassination
attempts on Victor Carranza have nothing to do with the adequacy of state
protection available to the Applicants.
[88]
The
article also reveals that Victor Carranza has been able to avoid convictions in
various prosecutions brought against him in the past. It also points out that
he has been prosecuted and convicted in the past and that he has spent time in
jail. None of this is sufficiently connected to the Applicants as to require
specific mention in the RPD’s state protection analysis.
[89]
I
can find nothing unreasonable in the Decision.
[90]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
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