Date: 20110225
Docket: IMM-3412-10
Citation:
2011 FC 227
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa,
Ontario, February 25, 2011
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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LUIS FERNANDO VILLA RAMIREZ,
BIVIANA MARIA OSORIO OTALVARO, ESTEBAN VILLA OSORIO, LUIS FERNANDO VILLA
OSORIO, LUISA FERNANDA VILLA OSORIO
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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 under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001 c. 27 (IRPA), of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated May 27, 2010, determining that the applicants are not Convention refugees
or persons in need of protection.
I. Background
[2]
Luis
Fernando Villa Ramirez (the principal applicant), his spouse Biviana Maria
Osorio Otalvaro and their daughter Luisa Fernanda Villa Osorio are citizens of Colombia. Their other
two children, Esteban Villa Osorio and Luis Fernando Villa Osorio, are citizens
of the United States (U.S.). All of them claimed refugee protection in Canada on August
18, 2008. The applicants’ refugee protection claim is founded on that of the principal
applicant, who claims to fear being subjected to threats from various paramilitary
militias (FARC, EPL, ELN) that would try to recruit him if he were to return to
Colombia.
[3]
The
principal applicant alleged that he had worked for the national police in Medellin, Colombia, from June
1986 until March 1989. He quit his job as a police officer because of telephone
threats he received principally at his mother’s residence. According to him,
the people making the threats were members of various paramilitary militias
(FARC, EPL, ELN), but never identified themselves. He moved several times for
his own safety but continued to receive calls at his mother’s residence. The
callers were now trying to recruit him as a member of these militias.
[4]
The
applicant worked as a prison guard from 1996 to 1997 and stated that he had
resigned in 1997 because he had been targeted by members of the militias. He
had received a threatening call at work and sought to protect himself and his
family by resigning. He subsequently worked as a security guard from 1997 to 1999
before resigning because he was still receiving threats from paramilitary militias.
[5]
He
stated that he had not made a complaint to the police or to other authorities
because these institutions were infiltrated by members of paramilitary militias
and this would have increased the danger to him and his family. In 1999, the
principal applicant’s spouse and daughter left for the United States. In 2000, the
principal applicant left Colombia for the United States in order to
join his spouse and daughter. The couple’s other two children were born in the United
States.
[6]
In
October 2002, he returned to Colombia to see if he could
return there to live without receiving threats and to obtain documents that
would help him claim asylum in the United States. In February 2003, he
returned to the United States with the intention of seeking asylum. After
receiving some advice he decided to claim refugee protection in Canada for himself
and his family. No fear in the United States was alleged by the
applicants.
II. Impugned decision
[7]
The
Board determined that the principal applicant’s narrative was not credible. It
also determined that an internal flight alternative (IFA) was available to the
applicants, specifically in Bogota, and that they had failed to demonstrate
that it would be unreasonable for them to seek refuge in Bogota. The Board
found that this conclusion was determinative and sufficient to dispose of the
claim for refugee protection under section 96 or subsection 97(1) of the IRPA.
[8]
The
Board found that it was implausible that the militias would try to recruit the
principal applicant more than 10 years after he had left Colombia. The Board
based its finding on the fact that the documentary evidence showed that recruitment
by the militias was carried out on a voluntary basis and that forced
recruitment was prohibited. The Board also found that the principal applicant,
who is about 45 years of age, did not fit the profile of candidates sought by
the militias, who are normally between 15 and 30 years of age. It also noted
that the principal applicant had not been the target of direct threats, but had
instead received threats anonymously, and that he failed to demonstrate that
he had been forced to join the militias.
[9]
The
Board was also of the opinion that the principal applicant had not demonstrated
that the militias’ recruitment efforts could change to reprisals if he were to
refuse to join their ranks. In addition, it found that it was implausible that those
responsible for the threatening calls would have continued their recruitment
efforts after he had left Colombia or that they would
pursue these efforts today.
[10]
As
for the IFA, the Board noted that it had asked the principal applicant what he
would fear if he were to return to live elsewhere in the country, specifically
in the city of Bogota. It indicated that the principal applicant had
not provided any reason that would lead it to conclude that it would be
unreasonable for the applicants to seek refuge there. The only reason cited by
the applicants was that the people who had made the threatening calls would be
able to track them down throughout Colombia. The Board dismissed
this allegation, judging that it was implausible that the principal applicant
would be of such interest to the militias that they would pursue him in other
parts of Colombia.
III. Issues
[11]
The
applicants’ criticisms of the decision raise the following two issues:
1) Did the panel
err in determining that the principal applicant was not credible?
2) Did the panel
err in finding that an internal flight alternative was available to the
applicants?
IV. Standard of review
[12]
It
is settled law that questions of fact and assessment of credibility are
reviewable on a reasonableness standard. Reasonableness is concerned mostly
with the existence of justification, transparency, and intelligibility within
the decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, at para. 47).
[13]
The
IFA finding must also be reviewed on a reasonableness standard and the Court
must exercise deference with regard to the panel’s determination (Guerilus v.
Canada (Minister of
Citizenship and Immigration), 2010 FC 394, at para. 10 (available on
CanLII) [Guerilus]).
V. Analysis
[14]
The
principal applicant argues that the Board erred in its assessment of his
credibility. He claims that the Board ought to have determined that it was
reasonable that the militias would try to recruit him about 10 years later and
in spite of his age because, in the past, the guerrillas had wanted to give him
an important position and because several years after he had resigned as a
police officer members of the guerrillas continued to call him.
[15]
The
principal applicant also criticizes the Board for having based its decision on
documentary evidence that dealt exclusively with the FARC’s recruitment methods
and not those of the other militias, when he had always maintained that the
FARC were not the only group who were trying recruit him. The principal
applicant also argues that the Board ought to have taken into consideration the
complaint and the statement he had made to the authorities regarding the death
threats.
[16]
The
principal applicant argues that the Board’s errors in assessing his credibility
tainted its reasoning with regard to the IFA assessment. He also alleges that
the Board’s IFA finding was unreasonable because it did not correctly assess
his fear. The Board should have also considered the documentary evidence in the
record, according to which an IFA does not exist when a person is persecuted by
militias such as the FARC or the ELN.
[17]
As
held in Perez v. Canada (Citizenship and
Immigration), 2010 FC 345 (available on CanLII), it is up to the
panel to assess the explanations provided by the applicant:
[28] The Court notes that the Board
is in the best position to assess the explanations provided by the applicant
with respect to the perceived inconsistencies and it is not up to the Court to
substitute its judgment for the findings of fact drawn by the Board concerning
the applicant’s credibility (Singh v. Canada (Minister of Citizenship and Immigration),
2006 FC 181 (CanLII), 2006 FC 181, 146 A.C.W.S. (3d) 325, at par. 36; Mavi
v. Canada (Minister of Citizenship and Immigration), (2001), 104 A.C.W.S.
(3d) 925, [2001] F.C.J. No. 1 (QL)).
[18]
I
have read the transcript of the hearing before the Board and reviewed all of
the documentary evidence in the record. I find that the Court’s intervention is
not warranted because the Board’s finding with regard to the principal
applicant’s credibility was reasonable in light of all of the evidence, both
documentary and testimonial. It complies with the applicable legal principles.
The applicants are essentially in disagreement with the Board’s assessment, but
it is not for the Court to proceed with its own assessment of the facts and no
error warrants its intervention.
[19]
In
spite of its findings with regard to the principal applicant’s credibility, the
Board nonetheless proceeded with the IFA analysis and found that it was
possible for the applicants to settle in an area away from the alleged place of
persecution and, more specifically, in Bogota. The Board’s
analysis and findings are reasonable and do not warrant the intervention of the
Court.
[20]
It
is up to the applicant to prove that it is objectively unreasonable for him to
seek an IFA in another part of the country. It is also up to him to demonstrate
that the risk of persecution existed everywhere in the country, as stated in Guerilus,
above, at para. 14:
… Refugee protection claimants have the
burden of proof to demonstrate that it would be unreasonable for them to seek
refuge in another part of the country or to prove that there are in fact
conditions which would prevent them from relocating elsewhere (Ramirez v.
Canada (Minister of Citizenship and Immigration), 2008 FC 1214, [2008]
F.C.J. No. 1533 (QL); Palacios v. Canada (Minister of Citizenship and Immigration),
2008 FC 816, 169 A.C.W.S. (3d) 619 at paragraph 9). …
[21]
In
this case, even though the panel gave the applicants the opportunity to bolster
their evidence at the hearing, they failed to meet their burden when they
limited themselves to claiming that the people allegedly responsible for the
telephone calls could track them down anywhere in the country. The applicants
also failed to provide actual and concrete evidence showing that they could be
persecuted or subjected to a risk to their lives or a risk of cruel and unusual
treatment or punishment if they were to return to Colombia. The Board
found that it was highly unlikely the principal applicant would be of such
interest to the militias that they would try to find him elsewhere in Colombia and this
finding was reasonable in light of the evidence. The Court’s intervention is
not warranted.
[22]
For
all these reasons, the application for judicial review is dismissed. No
question is certified.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the
application for judicial review is dismissed and no question is certified.
“Marie-Josée
Bédard”
Certified true
translation,
Sebastian Desbarats,
Translator
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