Date: 20110110
Docket: IMM-1867-10
Citation: 2011 FC 15
Ottawa, Ontario, January 10, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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NORBERTO ANDRADE RAMOS
and
MARIA LUZDARY NIETO MARTINEZ
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Applicants
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (IRB), dated 5 March 2010 (Decision), which refused the Applicants’
applications to be deemed Convention refugees or persons in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Male and Female Applicants are married citizens of Colombia. The Male
Applicant is a retired soldier in his seventies and the Female Applicant is sixty.
The claims of both are based on the Female Applicant’s narrative.
[3]
The
Applicants claim that, on 28 September 2008, they were visiting friends when
five men of the Revolutionary Armed Forces of Colombia (FARC guerrillas) invaded
the house and demanded everyone’s identity documents and cash. The armed men informed
the group of friends that they would all be killed if anyone reported the
incident to the police, so none of them did.
[4]
On
13 October 2008, a FARC guerrilla hijacked the Applicants’ car at gunpoint and
forced them to drive to an abandoned warehouse, where they kept the Female
Applicant overnight while the Male Applicant gathered together a three-million
peso ransom. It was paid the following day and the Female Applicant was
released.
[5]
On
20 January 2009, the Male Applicant received a telephone call from a FARC
person demanding one million pesos. On 31 January 2009, the Male Applicant paid
this money and was informed that this would be the first of a series of monthly
payments that the Applicant would be making to the FARC or they would kidnap
his wife and kill her. The men again warned him not to report the extortion to
the police.
[6]
On
18 February 2009, the Applicants filed a police complaint and left the country
the following day. They travelled by air to the United States, where they
were met by their son, who drove them to his home in Canada. They
entered Canada on 20
February 2009 and immediately made their refugee claims.
[7]
The
Applicants appeared before the RPD on 19 February 2010. The RPD found that the
material aspects of the Female Applicant’s story were not credible and that the
Applicants’ fear was not well-founded. Alternatively, the Applicants have a
viable internal flight alternative in Bogotá, Colombia. For these
reasons, the RPD found that they were neither Convention refugees pursuant to
section 96 of the Act nor persons in need of protection pursuant to section 97.
This is the Decision under review.
DECISION UNDER REVIEW
[8]
The
RPD found the Applicants’ claim to have no nexus to a Convention ground and, in
consequence, proceeded with the analysis under section 97. Even if there were
such a connection, the RPD stated, its analysis applied to section 96 as well.
[9]
The
RPD identified the determinative issue to be lack of credibility with respect
to the Applicants’ well-founded fear of persecution. It did not believe
material aspects of the Female Applicant’s oral evidence and her Personal
Information Form (PIF) narrative. Specifically, it found it unlikely that FARC
guerrillas were after them. The Female Applicant’s statement that the guerrillas
warned them against making a police complaint because the guerrillas feared the
police was nonsensical, as FARC guerrillas are outlaws already. The RPD
concluded that the Female Applicant’s evidence was an embellishment, and it drew
a negative inference from that evidence.
[10]
The
RPD also found the timing of the Applicants’ police complaint to be suspect.
Filing the complaint immediately before leaving the country would provide them
with no opportunity to follow up or benefit in any way. The RPD concluded that
the Applicants filed this complaint to bolster their refugee claims, which were
otherwise uncorroborated by documentary evidence. The Applicants had no bank
statements showing withdrawals of the extortion money, no death note from FARC
and no police report detailing the invasion of the friends’ home by guerrillas.
The RPD took a “serious negative inference” from this and found it unlikely
that FARC guerrillas ever extorted money from the Applicants.
[11]
When
asked by the RPD whether any of their close relatives remaining in Colombia had been
targeted or even approached by FARC guerrillas for information concerning the Applicants’
whereabouts after they escaped to Canada, the Female Applicant
said that they had not. The RPD found it reasonable to expect that, if the
Applicants’ claims were genuine, their relatives would be so targeted by FARC.
For this reason, the RPD concluded that the Applicants likely were never
targets themselves.
[12]
The
RPD also found that the Applicants lacked a subjective fear of persecution,
evidenced by the fact that they had an opportunity to file an asylum claim when
they entered the United States on their way to Canada but failed
to do so. In the RPD’s view, if the Applicants’ situation really was urgent,
they would have filed for refugee protection in the United States in case
their claim in Canada was rejected. The RPD relied on Leon v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1867 (Leon)
(QL) at paragraph 22, in which Justice Francis Muldoon found that delay vitiates
the well-foundedness of the fear that must be established to make out a
Convention refugee claim.
[13]
Finally,
the RPD found that the Applicants have a viable internal flight
alternative
(IFA) in Bogotá. The Male Applicant has a good pension from his service in the
military and also engages in furniture-making on the side, which suggests they
can live reasonably well in the country’s capital. The RPD found that state
protection was available to them and that FARC guerrillas were unlikely to
track them to the city. The RPD noted that Colombia is a constitutional democracy with generally
free and fair elections; that the civilian authorities generally maintain
control of the security forces and hold them accountable for their actions; and
that procedures are in place to provide recourse to the rule of law for victims
of criminal acts and human rights abuses.
[14]
Although
the Female Applicant believes the FARC would be able to track them down
wherever they settled in Colombia, the RPD found that
they would be safe in Bogotá. The 2008 report of the United Nations High
Commissioner of Refugees (UNHCR), unlike its 2005 predecessor, omits to say
that FARC can track down its victims throughout the country. The RPD was
satisfied that this reference was not included in the 2008 UNHCR report because
it no longer applies.
[15]
Also
persuasive were the 2008 and 2009 reports of the International Crisis Group,
which indicate that support for FARC has vanished in urban centres and that
government surveillance and efforts against the group have “severely disrupted
communication and cohesion within the FARC organization.”
[16]
Based
on this evidence, the RPD concluded that Bogotá constitutes a viable IFA for
these Applicants. For this reason, and based on its negative findings regarding
credibility and well-founded fear of persecution, the RPD rejected the
Applicants’ claims that they were Convention refugees or persons in need of
protection under the Act.
ISSUES
[17]
The
Applicants raise the following issues:
1. Whether the
RPD erred in finding that the Female Applicant lacked credibility;
2. Whether the
RPD erred in finding that the Applicants have an internal flight alternative;
3. Whether the
Applicants had an opportunity to respond to the RPD’s concerns and to know the
case to be met.
STATUTORY PROVISIONS
[18]
The
following provisions of the Act are applicable in these proceedings:
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Convention refugee
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.
Person in need of protection
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,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Définition de « réfugié »
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.
Personne à protéger
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,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la
personne qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
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STANDARD OF REVIEW
[19]
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 the 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.
[20]
The
first issue concerns the determination of the Female Applicant’s credibility,
which is within
the RPD’s expertise and, therefore, attracts a standard of reasonableness on
review. See Aguebor v. Canada (Minister of Citizenship and Immigration) (1993), 160 N.R. 315
(F.C.A.);
Aguirre v. Canada (Minister of
Citizenship and Immigration), 2008 FC 571 at paragraph 14.
[21]
The
second issue concerns the RPD’s finding that the Applicants have an internal
flight alternative, for which reasonableness is the appropriate standard. See Khokhar
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 449; Agudelo v. Canada (Minister of
Citizenship and Immigration), 2009 FC 465 at paragraph 17.
[22]
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. 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.”
[23]
The third issue concerns the Applicants’ opportunity to respond to
the RPD’s concerns and to know the case to be met. This is a procedural
fairness issue, for which correctness is the appropriate standard. See Weekes
(Litigation Guardian) v. Canada (Minister of Citizenship and Immigration), 2008 FC 293.
ARGUMENTS
The
Applicants
Credibility
Findings Were Unreasonable and Procedural Fairness Breached
[24]
The
Applicants assert that the RPD’s credibility findings were flawed. First, the
Female Applicant’s speculation as to why the FARC guerrillas insisted that she
and the Male Applicant refrain from reporting the extortion to the police is no
basis to doubt her credibility. Her opinion that the guerrillas were motivated
out of fear of the police in no way assists the RPD in adjudicating on the
legitimacy of these refugee claims. The question to be determined is whether
the Applicants fear the FARC guerrillas and not whether the guerrillas fear the
police.
[25]
Second,
the Applicants’ filing of the police complaint one day prior to their escape is
entirely consistent with their testimony that they were afraid of what would
happen to them if they enlisted the help of the authorities. The finding that
the complaint was made to bolster the refugee claims is based solely on how the
RPD chose to view the timing and is unreasonable.
[26]
Further,
the RPD’s expectation that there should be other documentary evidence, such as
a death note or a copy of the police report from the owners of the invaded
house, is also unreasonable. There was no death note and no police complaint
from the friends because FARC authored no death note and the friends
discouraged the Applicants from complaining to the police and so would be
unlikely to make such a complaint themselves. The RPD never asked the
Applicants for their banking records, although it was obliged to do so if it
intended to identify a lack of such records as a material omission. According
to the rules of procedural fairness, the Applicants had a right to be informed of
the RPD’s concerns in this regard and to be given an opportunity to respond. The
Applicants contend that the RPD breached the duty of fairness in failing to
provide them this opportunity.
[27]
The
RPD’s statement that FARC would “go after” the Applicants’ close relatives
remaining in Colombia, and the negative inference it draws from the fact that such
a pursuit did not occur in the instant case, are completely unsupported by any
evidence regarding the typical behaviour of FARC guerrillas. This statement is simply
a bald and unproved generalization.
[28]
In
addition, the RPD’s conclusion that the Applicants’ failure to claim asylum at
the earliest opportunity (that is, in the U.S.) indicates their lack of
subjective fear is contrary to Federal Court of Appeal jurisprudence, which
says that a board may consider this factor in assessing subjective fear,
provided it is not the only evidence upon which the board relies. See Hue v.
Canada (Minister of
Employment and Immigration), [1988] F.C.J. No. 283 (F.C.A.). In the instant
case, there is no other supporting evidence. Moreover, the Applicants’ personal
circumstances furnish a reasonable explanation for the delay. They do not speak
English. The Male Applicant is 72 years of age, the Female Applicant 60. They
claimed refugee status within 48 hours of leaving Colombia in Canada, where their
son is resident. In light of the circumstances, the RPD cannot reasonably rely
on Leon, above, a
case in which the applicant waited over five years before filing a refugee
claim.
Finding of a
Viable IFA Was Unreasonable
[29]
The
Applicants contend that the RPD’s findings regarding Colombia’s system of
government and its law enforcement mechanisms are irrelevant to the question at
issue, which is whether the state can protect people such as the Applicants who
have been threatened with extortion, abduction and death by FARC.
[30]
Moreover,
it is unreasonable for the RPD to infer that the 2008 UNCHR report does not say
that FARC can track it victims throughout Colombia because FARC
can no longer do so. The RPD is speculating. The report’s omission could just
as easily be due to lack of information or a typographical error.
[31]
The
Applicants assert that four days after the hearing, the Research Directorate of
the IRB published Response to Information Request (RIR) COL103286.E, which
contains evidence that is pertinent to the instant case. Three experts quoted
in this RIR state that, if it so wishes, FARC is “absolutely capable” of
tracking individuals throughout Colombia by tracing their paper trail, eavesdropping
on family members and bribing neighbours and acquaintances for information. Only
one expert provided contradictory evidence. The Applicants submit that the experts
provided this information to the IRB before the hearing, on 9 November 2009, 10
January 2010 and 19 January 2010. They further submit that the Male Applicant
attracts FARC’s heightened interest due to his participation in the Colombian
Armed Forces.
[32]
The
Applicants acknowledge that they were unable to place any of this evidence before
the RPD at the hearing because it did not appear in the National Documentation
Package until 30 April 2010. However, they argue that Bill C-11, An act respecting
immigration to Canada and the granting of refugee protection to persons who are
displaced, persecuted or in danger, 1st Sess., 37th Parl., 2001 (Royal
Assent, November 1, 2001), which has been included in section 110(1) of the
Act but which remains unproclaimed, allows this new evidence to be adduced.
[33]
The
preponderance of the documentary evidence that was properly before the RPD at
the hearing and the further evidence made available to the RPD after the
hearing accords with this RIR, and it was unreasonable for the RPD to base its
Decision on a minority view.
The Respondent
RPD’s
Credibility Findings Are Deserving of Deference
[34]
Although
the Applicants have submitted alternative explanations for the RPD’s
credibility concerns, this does not change the fact that the RPD’s findings
were reasonable and that they are owed deference unless proven to be
unreasonable. See Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12 at
paragraphs 45-46, 59.
The Finding
of a Viable IFA Is Determinative of the Claim
[35]
The
RPD’s finding that the Applicants have a viable IFA in Bogotá was based on a
review of the most recent country condition documents, including the 2009
United States Department of State (DOS) Report and the 2008 and 2009 reports by
the well-renowned International Crisis Group. The Applicants’ submissions refer
to additional documentation that was not before the RPD. This new evidence should
not be considered by this Court. The Applicants will have an opportunity to
apply for a Pre-removal Risk Assessment (PRRA), at which time they may
introduce new evidence.
[36]
Contrary
to what the Applicants have said, the RPD’s observations regarding the country
conditions in Colombia are not
irrelevant. Rather, they demonstrate that the government of Colombia has put in
place the general infrastructure to deal with FARC and that these measures have
been effective both in shifting FARC’s influence out of the urban areas and in narrowing
its influence within the country.
[37]
The
Applicants claim that it was unreasonable for the RPD to infer that the 2008
UNHCR report indicated that FARC was no longer able to track its victims
throughout Colombia. However,
the Respondent contends that that was one of many factors which the RPD found
as persuasive in reaching its conclusion. Moreover, RIR COL103286.E, upon which
the Applicants rely, provides mixed information, as the Applicants themselves
acknowledge. Their assertion that the RPD’s finding of an IFA was unsupported
by the preponderance of the evidence fails to acknowledge that the documentary
evidence as a whole provided differing opinions and that it is within the
purview of the RPD to weigh the evidence. See Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 at paragraph 1 (F.C.A.)
(QL); Woolaston v. Canada (Minister of Manpower
and Immigration) (1972), [1973] S.C.R. 102 (QL).
[38]
With
respect to the documentary evidence that became available after the 5 March
2010 Decision was signed and transmitted to the registrar, the Federal Court of
Appeal has stated that such evidence should not be considered. See Avci v. Canada (Minister of
Citizenship and Immigration), 2003 FCA 359 at paragraph 9. Such
documentation is more appropriately considered in a PRRA application.
Applicants’
Further Memorandum
[39]
The
Applicants submit that the RPD breached the duty of fairness not only when it
failed to alert them to its concerns regarding the Male Applicant’s banking
records but also when it failed to question them regarding the timing of the
filing of the police complaint.
[40]
With
respect to the matter of the Applicants’ delay in making a refugee claim, the
Applicants draw the Court’s attention to Mendez v. Canada (Minister of
Citizenship and Immigration), 2005 FC 75 at paragraph 37, in which Justice
Max Teitelbaum held that a
short stay in a safe third country en route to Canada is not necessarily
a material enough sojourn to oblige a claimant to declare themselves a refugee.
The Applicants submit that this is particularly true of the U.S., as many
claimants pass through that country to get to Canada.
ANALYSIS
[41]
I
agree with the Applicants that some of the RPD’s grounds for negative
credibility and lack of subjective fear seem particularly weak. The issue of
what the Female Applicant believed about the FARC’s fear of the police, and the
failure to make a claim in the U.S. are not a reasonable basis for a negative
credibility finding. The RPD’s reliance upon Leon, given the
facts of the present case, is perverse. This was not a protracted postponement.
The RPD’s reliance upon such grounds brings into question the RPD’s whole
credibility finding and, if this were the sole ground for the Decision, I think
it would have to be returned for reconsideration. However, the RPD found in the
alternative that the Applicants had a viable IFA in Bogota.
[42]
Based
upon the documentation that was before the RPD at the time it made the
Decision, it cannot, in my view, be said that the RPD’s conclusions regarding a
viable IFA in Bogota were
unreasonable with the meaning of Dunsmuir, above. Also, I do not think
that there was specific contrary evidence that the Board needed to refer to in
accordance with the principles in Cepeda-Guitierrez. It is possible to
argue about the evidence and assert that different conclusions could have been
drawn, but this does not render the IFA finding unreasonable. There was enough
of an objective basis for the RPD to say that the
FARC has moved away its bases of
operations 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 government security forces and their ability
to interrupt communications.
[43]
More
recent documentation raised by the Applicants from the IRB Research Directive that
may have had some impact upon this issue was not before the RPD and, hence,
cannot be used to challenge the reasonableness of the RPD’s Decision. The new Response
which the Applicants refer to is dated February 23, 2010 but it did not become
part of the National Documentation Package until April 30, 2010, which was well
after the March 5, 2010 Decision. The Applicants say that the RPD had a
continuing obligation to consult and refer to documentation received by the IRB
even if not posted to the National Documentation Package. However, I see no
jurisprudence to support this position. The mere receipt of a document does not
mean it will become part of the package and a reasonable time has to be allowed
for vetting by the Research Directorate. This does not mean that this new
evidence will not play a role in deciding whether the Applicants remain in Canada. As the
Respondent points out, the Applicants will have an opportunity to present this
evidence if they should make a PRRA application.
[44]
It
seems to me that it would not be reasonable, or even possible, to require that
RPD members must make themselves aware of and review information before it is
vetted and becomes part of the National Documentation Package; unless of course
an applicant directs their attention to the information in question prior to a
decision being made. That did not occur in this case.
[45]
I
believe this matter has been addressed by the Federal Court of Appeal in Tambwe-Lubemba
v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1874 (F.C.A.):
Is it a reviewable error if a panel of
the Refugee Division determining a refugee claim pursuant to section 69.1 of
the Immigration Act, ignores documentation not introduced into evidence by a
claimant, nor in the possession of a panel but which comes into the possession
of the Refugee Division after the conclusion of the hearing?
In considering this question the Federal
Court of Appeal stated:
The second issue is whether the Board
member was under a continuing obligation, after the conclusion of the hearing
and before she signed her written reasons, to consider documents that were not
filed at the hearing but which had come into the possession of the Refugee
Division in the meantime. There is no evidence in the case at hand that the
Board member ever saw the document at issue prior to signing her written
reasons. Again we endorse the reasons for judgment of Mr. Justice McKeown and
find that there was no such continuing obligation on the Board member.
[46]
The
Applicants have suggested the following question for certification:
“Whether the Refugee Protection Division
is under an on-going obligation to consider relevant evidence in its
possession, for example at the Immigration & Refugee Board documentation
centre, even if not adduced by the claimant, where it was [extremely
difficult/impossible] for the claimant to have become aware of this relevant
evidence before the Board became functus officio and which provided
evidence to explain an evidentiary omission relevant to a determinative issue.”
[47]
I
believe this question has already been answered by the Federal Court of Appeal
in Tambwe-Lubemba, above. Hence, it does not qualify for certification
in this application.
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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