Docket: IMM-2118-11
Citation: 2011 FC 1357
Ottawa, Ontario, November 24, 2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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GLORIA INES NINO YEPES
LUIS HECTOR CUERVO CHAVES
(A.K.A. LUIS HECTOR CUERVO CHAVEZ)
HECTOR DAVID CUERVO NINO
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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]
The
Applicants are three members of a Colombian family whose claim to refugee
protection was denied by the Refugee Protection Division of the Immigration
Refugee Board (Board) on February 24, 2011. Their claim to protection was
based on a story of threats and persecution primarily directed at Luis Cuervo
by the National Liberation Army (ELN) between 1988 and 1994. Mr. Cuervo
alleged that he was targeted by the ELN because of his employment in the Second
Criminal Court in Bogota.
[2]
According
to the Applicants, the situation was so dangerous that in 1994 they fled to the
United
States.
In 1996 their claims to asylum in the United States were denied and in 2009
they sought protection in Canada on the strength of the same risk
allegations.
[3]
The
Board rejected the Applicants’ claims on the basis that they had failed to
rebut the presumption of state protection. Despite summarizing the evidence,
the Board made no findings concerning the Applicants’ credibility or the
truthfulness of their factual allegations. This is surprising because the
Board also concluded without any evidentiary analysis that there was no nexus to
any of the statutory grounds for protection. The absence of a justification
for this finding is, by itself, a basis for setting the Board’s decision
aside. However, for the reasons that follow, the Board’s state protection
finding is also insufficient and is a further basis for setting the decision
aside.
[4]
In
the absence of any factual or credibility findings, I am obliged to carry out
my review of the Board’s state protection finding on the basis that the
Applicants’ allegations of past persecution by the ELN were accepted.
Notwithstanding that history, the Board concluded, on the strength of
country-condition evidence, that past victims of persecution at the hands of
the ELN could now be adequately protected in Columbia and are no longer at
risk.
[5]
Where
the Board fails to address the evidence of personal risk in a meaningful way
or, as in this case, fails to address it at all, the application of
country-condition evidence can be profoundly more difficult. This is because
the Board lacks an evidentiary framework for its state protection analysis.
Any lingering but unstated reservations about credibility or plausibility may
cause the Board to apply the state protection evidence in a way that is
unjustified or insensitive to the asserted risks. In this case that failure
appears to have caused the Board to overlook material evidence that
contradicted its conclusion that adequate state protection was available to the
Applicants. If the Board had reminded itself that it had an obligation to
consider the country-condition evidence in the context of a family that had
been repeatedly targeted by the ELN, it undoubtedly would not have overlooked
the evidence from several sources which indicated that, as targeted victims of
the ELN, they could not be protected by the Colombian authorities. This
evidence included the following:
The state has clearly shown an inability
to sustain or protect Colombians from targeted threats, violence, or attack.
…
The Colombian state has actively
under-represented information related to the civil war so as to prevent a
negative image of those in power from getting out to the domestic and foreign
public.
James J. Brittain, “Continued Insecurity:
Documenting the Performance of the FARC-EP Within the Context of Colombia’s Civil
War” (2009) 21, 25; Certified Tribunal Record at pp 935, 939.
The findings of this report indicates
that Colombian authorities are still attempting to paint a positive picture,
despite the increasing reports of forced internal displacement, attacks against
social and human rights activists and killings by security forces. Our report,
further debunks statements repeated by the Colombian government, such as
paramilitary groups no longer operate, human rights abusers are held to account
and the work of social activists and trade unionists is being fully respected.
…
Amnesty International is of the view that
while there have been some military advances against paramilitary and guerrilla
groups in Colombia, these advances do not translate into state protection
for those who have been targeted by the FARC, ELN or former AUC.
[Footnotes omitted and emphasis added]
Letter from Gloria Nafziger (9 September
2010), Amnesty International (2, 11); Applicants’ Record at pp 283, 292.
The protection of victims and their
organizations continues to be a challenge, which must be faced by competent
authorities with decisive and effective action.
UN Human Rights Council, Annual Report
of the United Nations High Commissioner for Human Rights and Reports of the
Office of the High Commissioner and of the Secretary-General, UNHRC, 10th Sess,
A/HCR/10/032 (9 March 2009), 18; Applicants’ Record at p 408.
What is clear is that the Colombian state
is unable to protect those who have been targeted, be they communities facing
forced internal displacement, or individuals threatened with kidnapping,
extortion or extra-judicial assassination. Almost all human rights violations in Colombia occur with impunity.
…
The successful military operations
against the FARC that occurred in 2008 have weakened the FARC but this has
not translated into a reduced risk to individuals who have been directly
targeted by the FARC.
…
The State Department report underscores
the problem with widespread impunity in the country. Despite the Uribe Administration’s
stated hard-line policies towards terrorism, the Colombian government is
unable to protect a targeted individual.
[Emphasis added.]
Marc Chernick, “Country Conditions in
Colombia Relating to Asylum Claims in Canada”
(2009) 3, 15-16; Certified Tribunal Record at pp 1224, 1236-37.
[6]
Counsel
for the Minister relies on the decisions of this Court in Ortega v Canada
(MCI), 2011 FC 657, [2011] FCJ no 856 (QL);Pena v Canada (MCI), 2011
FC 746, [2011] FCJ no 964 (QL);and Guevara v Canada (MCI), 2011 FC 242, [2011]
FCJ no 447 (QL) all of which, she says, support her position that a valid state
protection finding can be made in isolation from the evidence of personal
risk. Each of these cases did involve refugee claimants from Colombia who claimed
to be at risk from the Revolutionary Armed Forces of Colombia (FARC) and each
claim failed on the basis of a finding of adequate state protection.
Nevertheless, these decisions are distinguishable from this application.
[7]
In
Guevara, above, the Court noted that “a complete lack of analysis of an
applicant’s personal circumstances may render a decision unreasonable”. It is
also clear from the Court’s reasons that the Board carefully weighed evidence
from Dr. Marc Chernick and discounted it for reasons that were found
to be reasonable. In this case, the Board made no mention whatsoever of
Dr. Chernick’s evidence or the similar evidence submitted from Amnesty
International, the U.N. Human Rights Council and Dr. Brittain.
[8]
The
decision in Pena, above, indicates that the Board did examine the
evidence of personal risk and rejected it on credibility grounds albeit for
reasons that the Court later rejected as unreasonable. In commenting on the
Board’s state protection analysis, the Court held that the evidence said to
have been overlooked was “not of such relevance that the failure to
specifically address it results in a decision made without regard to the
evidence”. In this case, the evidence that the Board failed to mention starkly
and directly contradicted its finding that adequate state protection was
available for victims personally targeted by the FARC and the ELN.
[9]
The
decision in Ortega, above, indicates that the Board was influenced in
part by the applicants’ failure to pursue any state protection options before
leaving Colombia. In
upholding the Board’s state protection finding, the Court also made no mention
of any material evidence being overlooked and it described the Board’s
evidentiary analysis as principled and balanced. That is not a finding that is
available on the record before me.
[10]
Even
if the Board’s failure to make factual or credibility findings did not in this
case give rise to a reviewable error, its failure to refer at all to the
evidence of Drs. Brittain and Chernick is a further basis for sending this
matter back for a redetermination: see Villicana v Canada (MCI), 2009
FC 1205, 357 FTR 139.
[11]
On
the basis of the foregoing, this application is allowed with the matter to be
redetermined on the merits by a different decision-maker.
[12]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is allowed with the matter to be redetermined on the merit by a different
decision-maker.
"R.L.
Barnes"
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