Date: 20110311
Docket: IMM-925-10
Citation: 2011
FC 299
Ottawa, Ontario, March 11,
2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
OMAR YOVANI ORTIZ GARZON
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
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 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated January 22, 2010, wherein the applicant was determined
not to be a Convention refugee or a person in need of protection under sections
96 and 97 of the Act. This conclusion was based on the Board's finding that the
applicant lacked credibility and did not have a well-founded fear, or in the
alternative, that an internal flight alternative (IFA) existed.
[2]
The applicant requests that the decision of the Board be set aside
and the claim be remitted for redetermination by a differently constituted
panel of the Board.
Background
[3]
Omar
Yovani Garzon (the applicant) was born on April 5, 1977 and is a citizen of Colombia.
[4]
The
applicant was a member of the Colombian National Police (CNP) from January 1997
until the end of 2003 and captain until February 2006. In November 2005, the
applicant’s superior told him to allow several trucks carrying chemicals to
enter Santa
Rosa
without being checked by the CNP. The applicant refused, as it was against
policy, and he was retired from the CNP in February 2006 for not following
orders.
[5]
On
April 13, 2007, the applicant and his common law spouse’s car was stopped by
several guerrillas of the Revolutionary Armed Forces of Colombia (FARC). The applicant was
forced to exit the car and his spouse was told to drive away. The FARC led the
applicant through the woods for several hours. After about four hours, the
applicant was able to escape and made his way back to Bogotá. He did not go to
the police because he states that he knew they did not give protection to
anyone in his situation.
[6]
On
April 18, 2007, the applicant received a phone call at his business telling him
that he was lucky to have escaped from the FARC and that he was now a military
target that they would find and kill. Because of this, the applicant applied
for temporary resident permits for his family to the United States. He also sold his
business at the end of April 2007.
[7]
The
applicant received several more phone calls saying that the FARC had located
him and in June 2007, a man was seen looking for the applicant at his
condominium. The applicant went to stay with his parents and left Colombia for New York on July 10, 2007
without his spouse and step-daughter.
[8]
In New York, the applicant asked
his friend to inquire about applying for asylum. His friend told him that it
was difficult for Colombians to gain asylum in the United States. The applicant remained
in the United
States for
one and a half years. He paid an immigration centre to help him extend his
temporary resident permit, but this never took place.
[9]
On
January 14, 2009, the applicant entered Canada and claimed refugee status.
Board’s Decision
[10]
The
Board found that the applicant did not have a credible well-founded fear of returning
to Colombia. In the
alternative, the Board found that a viable IFA existed for the applicant in
Bogotá.
[11]
The
Board found that the applicant lacked credibility based on four negative
inferences that it drew. First, on a balance of probabilities, the Board found
that the CNP would have a policy to protect its retirees and as such, the Board
drew a negative inference from the fact that the applicant did not report his
captivity by FARC to the police. Second, the Board found that it was hard to
believe that the FARC would not simply kidnap the applicant, if they knew where
he was located, but rather, content themselves with calling him and watching
his condominium building. Third, the applicant was able to sell his business
while being targeted by FARC. Finally, the Board found that the FARC normally
exact reprisals on close relatives of their military targets who escape them
but the applicant’s spouse and parents have not been contacted in Bogotá. The
Board found that this casts doubt on the applicant’s assertions that he was or
is being targeted by the FARC.
[12]
The
Board found that the applicant’s fear was not well-founded. Specifically, they
found that he lacked subjective fear due to his lack of serious effort and a
lack of any urgency to claim asylum in the United States, although he
lived there for one and a half years.
[13]
In
the alternative, the Board found that the applicant had a viable IFA. The Board
found that the FARC is now a degraded military force which lacks internal
communication and which has lost its command posts in urban areas. Therefore,
the FARC would be unable to track the applicant in Bogotá and he would be safe
in another part of the city.
Issues
[14]
The
applicant submitted the following issues for consideration:
1. Did the Board member
err in making blue sky bald statements with no supporting evidence on the
following?
(a) Colombia
National Police’s policy on protecting its retirees; and
(b) That
FARC should have raided the applicant’s condominium or his internet café
without positively locating him?
2. Did the Board member
err in quoting from the National Documentation Package, Colombia Section 7
respecting FARC would normally exact reprisals on close relatives of their
military targets?
3. Did the Board member
err in falsely stating that the applicant lived in the United States for one and
a half years without taking any action to legalize his status?
4. Did the Board member
err in stating that the applicant had an IFA in Bogotá?
5. Did the Board member
err in not mentioning and dealing with the issue of change in country
conditions in Colombia?
6. Did the Board member
err in failing to mention the continuation of kidnappings by the FARC?
[15]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err by
finding that the applicant lacked subjective fear by not claiming asylum in the
United
States?
3. Was the Board’s
negative credibility finding made in a capricious manner without regard to the
material before it?
4. Did the Board err in
finding a viable IFA existed in Bogotá?
Applicant’s Written Submissions
[16]
The
applicant submits that the Board erred by not supporting its decision with any
evidence or by basing its decision on extrinsic evidence. There was no evidence
to support the Board’s finding that the CNP protect their retirees, that the
FARC exact reprisals on family members of their military targets, or that the
FARC would have kidnapped the applicant instead of calling him and watching his
condominium, if they had been targeting him. These unsupported findings of fact
formed the basis of the Board’s negative credibility finding.
[17]
The
applicant submits that the Board erred in finding that the applicant lacked
subjective fear. The applicant did make efforts to seek asylum in the United
States;
he called a friend to look into the asylum process and he tried to regularize
his temporary residence status. The Board erred by not addressing the fact that
Colombians have a low rate of acceptance in the United States as refugees and
by not recognizing that the American asylum process differs from the Canadian process
because refugees do not receive permanent residence as quickly.
[18]
The
applicant submits that the Board erred in its determination that there was a
viable IFA for the applicant. The Board was required to indicate what part of
Bogotá the applicant would be safe in and what the prevailing conditions are in
that area. In addition, the Board was required to indicate and analyze if there
has been a material change in the country conditions of Colombia,
particularly since there was conflicting documentary evidence that suggests
that the FARC continues to be involved in kidnappings and murder of Colombian
security and police officers.
Respondent’s Written Submissions
[19]
The
respondent submits that the Board drew negative inferences about the applicant
not alerting the Colombian security to the threats he faced from FARC, the
applicant selling his business while under threat and the fact that the
applicant’s relatives in Colombia have not been
contacted.
[20]
The
respondent submits that the finding that the applicant’s fear was not
well-founded is reasonable. Refugee claims are forward-looking and the
applicant had to prove that his fear was objectively and subjectively
reasonable. The respondent submits that it was reasonable for the Board to draw
a negative inference as to the subjective fear of the applicant based on his
failure to apply for asylum in the United States. The respondent submits that the Board
found that the FARC has been diminished and the applicant can return to Bogotá
without reasonable fear of being at risk.
[21]
The
respondent submits that the Board’s finding regarding the IFA of Bogotá was an
alternative finding and the determination of refugee status did not rest on
this. However, the respondent submits that the Board did discuss the prevailing
conditions in Bogotá. The respondent submits that the Board was establishing
that the applicant’s fear was not objectively well-founded by discussing the
weakening of the FARC.
[22]
The
respondent submits that there was some evidentiary basis for the Board’s
finding that the FARC often exact reprisals from family members. Further, the
respondent submits that it is common sense that armed groups might put pressure
on their targets by attempting to harm relatives. The respondent submits that
even if the Board misstated this fact, the ultimate determination did not
depend on this finding. The respondent submits that even if this was a breach
of natural justice or the duty of fairness, the matter does not need to be
returned to the Board for re-determination where the Board would inevitably
come to the same conclusion.
Analysis and Decision
[23]
Issue
1
What is the appropriate
standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard of review (see
Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[24]
It
is established law that in reviewing assessments of credibility, the applicable
standard of review is that of reasonableness (see Siad v. Canada (Secretary
of State), [1997] 1 F.C. 608, [1996] F.C.J. No. 1575 (QL) (C.A.) at
paragraph 24). Likewise, the finding of whether an applicant lacks subjective
fear which is a determination of mixed fact and law is also reviewable on the
standard of reasonableness.
[25]
The
settled standard of review for the determination of whether a viable IFA exists
is also reasonableness (see Goltsberg v. Canada (Minister of
Citizenship and Immigration), 2010 FC 886 at paragraph 16).
[26]
In
reviewing the Board's decision using a standard of reasonableness, the Court
should not intervene on judicial review unless the Board has come to a
conclusion that is not transparent, justifiable and intelligible and within the
range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph
47).
[27]
Issue
2
Did the Board err by finding
that the applicant lacked subjective fear by not claiming asylum in the United
States?
The Board
found that the applicant had not made serious efforts to apply for asylum in
the United
States
during the one and a half years that he lived there.
[28]
Failing
to apply for refugee status in a foreign state is a factor which the Board is
entitled to consider in assessing the applicant’s subjective fear (see Baykus v. Canada
(Minister of Citizenship and Immigration), 2010 FC 851 at paragraph 19, Alvarez
Cortes v. Canada (Minister of Citizenship and Immigration), 2010 FC 770 at
paragraph 20).
[29]
The
applicant submits that the Board did not acknowledge that he had a friend
inquire about the asylum process in the United States, that he attempted to
legalize his status through a visitor visa or that the acceptance of Colombian
applications for asylum in the United States is low and refugees in the United
States are not granted permanent residence as quickly as in Canada.
[30]
However,
the Board’s finding that there was a lack of serious effort on the part of the
applicant to apply for asylum is reasonable despite the applicant’s
submissions. As Mr. Justice
Yvon Pinard held in Bobic v. Canada (Minister of Citizenship and Immigration), 2004 FC 1488 at
paragraph 6, an applicant’s reasons for not claiming refugee status in a
foreign country must be valid in order to avoid an adverse inference. Serious
efforts require more than having a friend inquire about the asylum process. A
Mr. Justice Roger Hughes held
in Stojmenovic v. Canada (Minister of Citizenship and Immigration) 2010 FC 873 at paragraph
5, that “a refugee claim should not be looked at simply as one of many choices
as to how best to seek status in Canada.” The applicant’s submission that he did not
apply for asylum because it would be granted more easily in Canada or because
he would gain permanent residence faster in Canada are not valid reasons for
negating the adverse inference that he lacked subjective fear by not applying
for asylum in the United States. A finding that the applicant lacked subjective
fear due to his failure to apply for asylum in the United States is sufficient,
alone, for the Board to reasonably deny the refugee claim (see Goltsberg v.
Canada (Minister of Citizenship and Immigration), 2010 FC 886 at
paragraph 28; Gamassi
c. Canada (Ministre de la Citoyenneté et de l'Immigration) (2000), 194 F.T.R. 178
at paragraph 6).
[31]
Because
of my finding on Issue 2, I need not deal with the remaining issues as an
applicant needs to have a subjective fear in order to succeed in a refugee
claim.
[32]
The
application for judicial review is therefore dismissed.
[33]
The
applicant submitted the following proposed serious questions of general
importance for my consideration for certification:
1. If the Refugee Protection
Division Member attributes an important statement to a document or group of
documents filed at the Refugee Protection Division hearing, but that statement
is NOT even there: is this a case of the Refugee Protection Division based (sic)
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it, and
therefore it is a reversible error?
2. If the Refugee Protection
Division Member only mentions documents which agrees with his conclusion, but
totally ignores documents or information in the Record which did not agree with
his conclusion, has the Refugee Protection Division contravened the Zrig
decision, which states that the Refugee Protection Division Member has to
present both side (sic) of the case, contained in the Record?
3. For an undivided City, can the
Refugee Protection Division Member propose one part of the City as safe haven
for the refugee claimant who has been persecuted in another part of the same
City?
[34]
I
have reviewed the proposed questions and the decision of the Federal Court of
Appeal in Canada (Minister of
Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4
(F.C.A.) and I am satisfied that none of the questions satisfy the test set out
by the Federal Court of Appeal. None of the proposed questions transcend the
immediate interests of the parties to the litigation, contemplate issues of
broad significance or general application nor are they determinative of the
appeal.
JUDGMENT
[35]
IT IS
ORDERED that the
application for judicial review is dismissed and no question is certified.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
|
72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
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.
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.
|
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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.
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.
|
Email this Content