Date: 20110218
Docket: IMM-4561-10
Citation: 2011
FC 200
Vancouver, British
Columbia,
February 18, 2011
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
JORGE
ALBERTO MOLINA CASTANEDA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant, Jorge Alberto Molina Castaneda, seeks judicial review of the July 15, 2010 decision of a panel of the
Refugee Protection Division of the Immigration and Refugee Board (the Panel)
wherein the Panel dismissed the Applicant’s refugee claim, finding that he did
not have a well-founded fear of persecution on a Convention ground in Colombia pursuant
to Section 96 of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the IRPA), and that he was not a “person in need of protection” within
the meaning of section 97 of the IRPA.
Factual
Background
[2]
The Applicant is a 35-year-old
citizen of Colombia and bases his refugee claim on events
that occurred 22 years ago. In 1988, the Applicant lived in the town of Medellin, Colombia. He was 13 years old when he was
approached by two classmates who tried to recruit him in the Revolutionary
Armed Forces of Colombia (the FARC). He refused the recruitment attempts and
that same year, the Applicant moved to the United States to live with his
grandmother in Florida and has not returned to Colombia since. He was eventually joined by the rest of his
immediate family.
[3]
In 1998, while the
Applicant was living in the United States, his extended family in Colombia was a victim of violence relating to attempted extortion by
the FARC. His uncle was killed and his nephew was shot at.
[4]
The Applicant was
charged and convicted by U.S. authorities for possession of marijuana
in 2001, impersonating a U.S. citizen in 2003 and for procuring a
false driver’s license in 2004.
[5]
The Applicant made an
unsuccessful application for asylum in the U.S. in 2007 and came to Canada on March 31, 2009. He applied for refugee protection the
following day.
The
Decision under Review
[6]
The Panel found that
the offence(s) for which the Applicant was convicted in the U.S. would not be considered “a serious non-political crime” for
the purposes of exclusion under Article 1F(b) of the Appendix of
the IRPA. The Panel consequently found that the Applicant was not excluded from
protection under that provision of the IRPA.
[7]
Regarding the
Applicant’s refugee claim, the Panel found that the Applicant had failed to
establish that his fear of persecution is well-founded and concluded that he
does not face a serious possibility of persecution by the FARC based on the
recruitment attempt in 1988 and the extortion-related violence against his
relatives in 1991.
[8]
The Panel relied on
the documentary evidence which provided a strong indication that the capacity
for the FARC to operate in Colombia has been greatly reduced over the past
several years, principally due to a significant change in Colombia’s country
conditions, to the reduction of the FARC’s offensive capability, and to the
country’s success to neutralize its communication systems and strategies.
Particularly, the Panel noted that there is no indication the FARC has the
capacity to identify, track, or target a significant proportion of the
large number of individuals who have resisted, opposed, or deserted them over
the past years.
[9]
The Panel also
considered the Applicant’s profile, that is to say his personal circumstances,
geographical location within Colombia and length of time since he left Colombia. The Panel observed that the Applicant’s interactions with
agents of FARC were relatively minimal. His resistance in 1988, over 20
years ago, comprised only of telling young classmates that he did not want to join
the FARC; he never got in any argument with them, no violent threats were made
against him and he never informed the authorities about them.
[10]
Relating to the
violence against his extended family in Colombia in 1991, the Panel found that the
Applicant was not in Colombia at that time and there is no evidence, apart
from the family connection, that he is in any way related to the violent
incidents. Further, the Panel noted that the Applicant is from Medellin and this area is not considered to be within the FARC’s
area of influence according to the country documentation.
[11]
The Panel considered
the evidence of experts who believe that there is a risk to those returning to Colombia, but noted that these experts acknowledge the risk is
dependent on whether the person is a high value target. The Panel found that
the Applicant was not such a high value target. He was not subjected to intense
recruitment pressure, threats of violence or desertion nor did he have any direct
contact with extorters. The Panel found that there is nothing in the
Applicant’s personal circumstances that would establish that the FARC has an
on-going interest in him.
[12]
The Panel also
considered the Applicant’s fear of being kidnapped if people, including the
FARC, believe he has money. The Panel found that the Applicant “may be
vulnerable to extortion attempts due to his perceived wealth in returning from
the United States or Canada” but found this to be a generalized
risk. The Panel determined that those who are perceived to be wealthy do not
constitute a particular social group for the purpose of a refugee claim under
section 96 of the IRPA. It further determined that perceived wealth cannot be
the basis for a claim of a person in need of protection pursuant to section
97(1)(b) of the IRPA. It found, “The fact that they share the same risk
of other persons similarly situated does not make their risk a ‘personalized
risk’ subject to protection under section 97.”
Issue
[13]
Did the Panel err in
law by not considering cumulatively the two fears alleged by him, namely fear
of the FARC and fear of generalized violence?
Analysis
[14]
The Applicant does
not dispute the Panel’s findings that he does not face a well-founded fear of
persecution from the FARC, based on the recruitment and extortion attempts, and
that he only faces a risk of generalized violence. The Applicant argues that
the Panel erred in law by not considering cumulatively the two fears alleged by
him.
[15]
The Applicant relies
on the cumulative effect of incidents doctrine (“Cumulative Effects Doctrine”)
set out by the Federal Court of Appeal in Munderere v. Canada (M.C.I.),
2008 FCA 84, to argue that the Panel was required to consider cumulatively
the future risk that he may be kidnapped by the FARC as a general victim of
violence together with the risk that they would impute that he was a political
opponent because of his past refusal to join the FARC. The Applicant argues
that it is not sufficient that the Panel found separately that his fears are
unfounded.
[16]
The Applicant
contends that the Panel failed to consider whether the likelihood the Applicant
will be kidnapped by the FARC has any bearing on the likelihood his political
opposition to the FARC will arise while he is in FARC custody. It is submitted
that, in circumstances where the Applicant’s imputed political opposition
to the feared agent of political persecution is not questioned, and where the
agent of persecution is the same organization that is likely to kidnap the
Applicant for criminal purposes, there is a clear onus on the Panel to explain
why the cumulative impact of these risks does not give rise to a heightened risk
of political persecution. It is submitted that the Panel erred by failing to do
so.
[17]
For the reasons that
follow I reject the Applicant’s argument. In my view the “Cumulative Effects
Doctrine” does not apply in the manner argued by the Applicant. The doctrine
applies to a series of incidents of harassment and discrimination. Those are not
the circumstances of this case. In assessing the Applicant’s fear of the
FARC and in assessing whether a risk of violence is a generalized risk, the
Panel is required to consider all the relevant facts of the case and come to a
reasonable decision. The question is simply whether the Panel‘s finding that
the Applicant’s fear of the FARC is not well-founded is reasonable on the
evidence.
[18]
On the facts, the
Panel determined that the FARC has no ongoing interest in the Applicant. It
accepted that two school friends of the Applicant joined the FARC and then
asked him three or four times whether he would join when he was 13 years old.
When the Applicant refused to join, the Panel reasonably found that to be the
end of the matter. As a result of the above described recruitment effort, the
Panel found that the Applicant had not described a personal interaction with
the FARC that would appear to give rise to a suspicion of political opposition.
The Panel found the circumstances of the recruitment attempt and the extortion
of his relatives did not give rise to a serious possibility of persecution by
the FARC and that the possibility the FARC would have an ongoing interest in
him was speculative. These findings were not challenged by the Applicant and in
any event were reasonably open to the Panel.
[19]
Given that the Panel
found the Applicant was not at risk from the FARC, the cumulative assessment he
suggests could not have resulted in a different result. Since the FARC would
have no suspicion that the Applicant was a political opponent, he would then
only be subject to a generalized risk.
[20]
The Applicant relies
on Martinez Pineda v. Canada (M.C.I.) 2007 FC 365 in support of his
argument. A review of that decision reveals that it can be distinguished on its
facts. The decision concerned whether the Refugee Division reasonably
determined that the applicant did not face a personal risk of harm under s. 97
of the IRPA. The applicant in Pineda had been threatened by a well-organized
gang that was terrorizing the entire country, had repeatedly been targeted and
was subjected to repeated threats and attacks. The circumstances here are far
different.
Conclusion
[21]
I am satisfied that
the Panel considered all of the evidence before it, correctly applied the law
and rendered a reasonable decision. 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 paras. 46-49 and 53.
[22]
For the above reasons
the application for judicial review will be dismissed.
[23]
The parties have had
the opportunity to raise a serious question of general importance as
contemplated by paragraph 74(d) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, and have not done so. I am satisfied that
no serious question of general importance arises on this record. I do not
propose to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application
for judicial review of the
July 15, 2010 decision of a
Panel of the Refugee Protection Division of the Immigration and Refugee Board is dismissed.
2. No question of general importance is certified.
“Edmond P. Blanchard”
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