Date: 20070619
Docket: IMM-4804-06
Citation: 2007 FC 644
Ottawa, Ontario, June 19, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
TEDDY JOSE RIVALDO ESCORCIA,
ROSA HORTENCIA OSORIO CASTELLANOS,
GABRIEL ALEJANDRO RIVALDO,
HEINER ANDRES RIVALDO ESCORCIA
AND TEDDY ALEXANDER RIVALDO OSORIO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Teddy
Jose Rivaldo Escorcia (the Principal Applicant), his wife, Rosa Hortencia
Osorio Castellanos, and their children, Heiner Andres Rivaldo Escorcia, Teddy
Alexander Rivaldo Osorio, and Gabriel Alejandro Rivaldo seek protection in
Canada. Except for Gabriel Alejandro, who is a citizen of the United States,
all are citizens of Colombia. The Principal Applicant bases his claim for
protection on an alleged fear of persecution at the hands of the Armed
Revolutionary Forces of Colombia (the FARC) by reason of political opinion and
membership of a particular social group, namely, the Administrative Department
of Security (the DAS). The other members of the family base their claim on
their membership in a particular social group, namely, the family.
[2] In a decision
dated August 9, 2006, a panel of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) concluded that the Principal
Applicant is excluded from protection under Article 1F of the United Nations
Convention Relating to the Status of Refugees (the Convention)
because he was complicit in crimes against humanity. The Board also found that
the other family members were not Convention refugees. The Applicants seek
judicial review of this decision.
Key Findings
of the Board
[3] The Board
held that the DAS does not have a limited, brutal purpose, and as such, held
that complicity must be established by examining the six factors to determine
whether there were serious reasons to consider that the Principal Applicant was
personally and knowingly participating in the DAS’s crimes.
[4] The Board
found that there was compelling, credible and corroborated information that
support the allegation that the DAS has committed excludable crimes and that
the Principal Applicant should be held to be complicit in these crimes. The
Board held that the facts establish that the Principal Applicant was a knowing
and active participant of an organization that was responsible for the
widespread or systemic murder, torture, and enforced disappearance of
individuals and groups considered to be operating contrary to the interest of Colombia. Considering
the Principal Applicant’s position in the DAS as Chief of the Intelligence
Section, the Board held that it did not find it credible that the Principal
Applicant never heard or had some knowledge of what was taking place unless he
wilfully chose to ignore it.
[5] The Board, in
noting that the wife and children were relying on the Principal Applicant’s
story as a basis for their claims, held that the alleged aggressors are not
interested in the Applicants. Thus, the Board found that the FARC members were
looking for the Principal Applicant and not his family.
Issues
[6] The Applicant
raises the following issues:
1.
Did
the Board err in its finding that the Principal Applicant is excluded from
refugee protection under Article 1(F)(a) of the Convention?
2.
Was
the Board, once it made its exclusion finding, obligated to conduct an
inclusion determination for the Principal Applicant?
3.
Do
the Board’s reasons provide a sufficient analysis for the Principal Applicant’s
family pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA)?
Analysis
General
Principles on Exclusion
[7] Before
turning to the specific issues raised in this application, it would be helpful
to review the generally accepted principles involved in exclusion
determinations.
[8] The purpose
of Article 1F of the Convention is to ensure that perpetrators of
serious crimes are not entitled to international protection in the country in
which they are seeking asylum (see, for example, Lai v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 125, 253 D.L.R. (4th)
606, [2005] F.C.J. No. 584 at para. 22 (F.C.A.) (QL)). Of particular relevance
to this application, crimes against humanity are a specifically-referenced type
of crime. Article 1F(a) provides that:
|
F. The provisions of this
Convention shall not apply to any person with respect to whom there are
serious reasons for considering that:
(a)
he has committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make
provision in respect of such crimes;
…
|
|
F. Les
dispositions de cette Convention ne seront pas applicables aux personnes dont
on aura des raisons sérieuses de penser :
a) Qu’elles ont commis un crime
contre la paix, un crime de guerre ou un crime contre l’humanité, au sens des
instruments internationaux élaborés pour prévoir des dispositions relatives à
ces crimes;
…
|
[9] This
principle of international protection law is embedded in s. 98 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) which provides
as follows:
|
A person referred to in section E or F
of Article 1 of the Refugee Convention is not a Convention refugee or a
person in need of protection.
|
|
La personne visée aux sections E ou F
de l'article premier de la Convention sur les réfugiés ne peut avoir la
qualité de réfugié ni de personne à protéger.
|
[10] Thus, the
effect of a Board finding that this Article is applicable to the Principal
Applicant is that he cannot be found to be a Convention refugee or a person in
need of protection pursuant to s. 96 or s. 97 of IRPA. In other words,
such persons do not have access to what has been described as the “refugee
protection stream” (Xie v. Canada (Minister of Citizenship and Immigration),
2004 FCA 250, 243 D.L.R. (4th) 385, [2004] F.C.J. No. 1142 (F.C.A.)
(QL) at para. 33, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 418).
As stated by Justice Pelletier in Xie:
Those who are subject to the exclusion in
section 98 are excluded from the refugee protection stream but are eligible to
apply for protection at the PRRA stage [IRPA, s. 112(1)]. The basis on which
the claim for protection may be advanced is the same, but the Minister can have
regard to whether the granting of protection would affect the safety of the
public or the security of Canada. If protection is granted,
the result is a stay of the deportation order in effect against the claimant.
The claimant does not have the same access to permanent resident status as does
a successful claimant for refugee protection.
[11] An
'exclusion' hearing under Article 1F is not in the nature of a criminal trial
where guilt or innocence must be proven beyond a reasonable doubt. As explained
by Justice Malone, writing for the Federal Court of Appeal in Lai, above
at para. 25:
Overall,
the Board must assess and weigh the evidence that it has accepted as credible
or trustworthy in the circumstances and determine whether or not the threshold
test of "serious reasons for considering" has been met with regard to
the serious non-political crimes alleged (see Moreno v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 298 at 309, 311 (C.A.)). The
standard of evidence to be applied to this threshold test is higher than a mere
suspicion but lower than proof on the civil balance of probabilities standard
(see Zrig at paragraph 174; and Ramirez v. Canada (Minister of Employment and
Immigration), [1992] 2 F.C. 306 at 312-14 (C.A.)).
[12] It is also
important to note that the Board need not find that the Principal Applicant
personally committed the crimes. The definition of a crime against humanity
includes complicity therein (Zazai v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 303, 259 D.L.R. (4th)
281, [2005] F.C.J. No. 1567 (F.C.A.) (QL)).
[13] What is also clear from
the jurisprudence is that the closer the Applicant is involved in the decision
making process of the organization and the less he or she does to thwart the
commission of the criminal acts enumerated in subsection 1(F)(a) of the Convention,
the more likely the Board will find that there are serious reasons to believe
the individual was complicit in the commission of the crimes (Moreno v.
Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298, 107
D.L.R. (4th) 424, [1993] F.C.J. No. 912 at para. 53 (F.C.A.)
(QL); Collins v. Canada (Minister of Citizenship and Immigration), 2005 FC 732 at para. 25, 276 F.T.R. 60; Sivakumar
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, 163
N.R. 197, [1993] F.C.J. No. 1145 at para. 10 (F.C.A.) (QL)).
[14] However, the Board, in being aware of a person’s position
within an organization that committed a crime under Article 1(F)(a) of the Convention,
must also balance that factor with circumstances which show that the individual
protested against the crime, tried to stop its commission or attempted to
withdraw from the organization (Sivakumar, above at para. 10; see
also Penate
v. Canada (Minister of Employment and Immigration, [1994] 2 F.C. 79, 71
F.T.R. 171, [1993] F.C.J. No. 1292 at para. 6 (F.C.T.D.) (QL)).
[15] Justice Pinard in Justino v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1138, 152 A.C.W.S. (3d) 117
went further and stated at para. 10:
A
person’s rank within an organization, among other things, speaks to the
likelihood of that person’s knowledge and involvement in the organization’s bad
acts. However, one need not be in a leading position in order to be found
complicit.
[16] Thus, the person’s position in the organization may
demonstrate to the Board of that person’s personal and knowing participation,
and ultimately the person’s complicity in the organization’s commission of
crimes.
[17] As in this case, where the organization does not have a
limited, brutal purpose, the nature of the acts of the organization and the
role of the individual within it must be examined by the Board. Justice Hughes
in Bedoya v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1092 at para. 12, 141 A.C.W.S.
(3d) 612, has simplified the Board’s analysis in determining whether there are
serious reasons to believe an Applicant was complicit in crimes in Article
1(F)(a) of the Convention by listing six factors the Board should
consider:
1. The nature of the
organization;
2. The
method of recruitment;
3. The
position/rank in the organization;
4. The
length of time in the organization;
5. The opportunity to
leave; and
6. The knowledge of the
organization’s atrocities.
(See also Ardila v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1518, 143 A.C.W.S. (3d) 1072, [2005]
F.C.J. No. 1876 (F.C.) (QL).)
Issue #1: Alleged Errors
in Exclusion Finding
[18] The Principal
Applicant submits that the tribunal exaggerates and mischaracterizes the nature
of the DAS and specifically the alleged institutional complicity of the DAS in
crimes. The Principal Applicant states that the Board did not base its
conclusion, that the DAS was involved in crimes against humanity, on credible
and trustworthy evidence. Rather the Board ignores the legitimate, essential
and beneficial state security functions of the DAS in Colombia. The
Principal Applicant argues that documents that refer to “security forces”
cannot be inferred that these security forces include ipso facto the
DAS, and that this is a perverse and capricious error. As well, the Principal
Applicant submits that there is no evidence the Principal Applicant would have
first hand knowledge of DAS involvement in the commission of crimes and erred
in making such an inference. In making its finding with regard to the length of
service supporting a finding of complicity, the Principal Applicant claims that
this was an error.
[19] In the
Applicants’ further memorandum, the Applicant argues that the Board should have
found whether the Principal Applicant was an accomplice in the crimes within
the ambit of subsection 1(F)(a) of the Convention and that there were no
findings made with respect to any specific crimes.
[20] On the question of
exclusion via Article 1F of the Convention (or section 98 of IRPA),
the Board’s decision will, in general, be reviewed against the standard of
reasonableness (Médina v. Canada (Minister of Citizenship and Immigration),
2006 FC 62, [2006] F.C.J. No. 86 (F.C.T.D.) (QL); Qazi v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1204,
142 A.C.W.S. (3d) 319, [2005] F.C.J. No. 1461 at paras. 8-9 (F.C.)
(QL)), although particular findings of fact will, of course, be subjected to a
higher standard. On
this standard, the Court can only intervene where the decision cannot stand up
to a somewhat probing examination.
[21] The Board, in its decision, went through, in detail, the six
factors that Justice Hughes laid out in Bedoya, above. In
particular, the Applicant takes issue with the Board’s finding with regards to
the nature of the organization, length of time in the organization and the
knowledge of the organization’s atrocities.
[22] On the first question of the nature of the DAS, contrary to
the Principal Applicant’s submissions, the Board did acknowledge the DAS’s
legitimate functions:
The
DAS was set up in 1962 to organize intelligence regarding the state’s
counter-insurgency effort. It is divided into four main branches: intelligence,
protection, investigations, and foreign affairs.
The
DAS is included in Colombia’s public security forces and references
to the “security forces” in human rights documentation [sic] will be
interpreted to include the DAS. While the DAS is [sic] an independent
organization reporting to the President, it acknowledged that part of the DAS’s
mandate was to gather intelligence against any organization that worked
contrary to the Colombian constitution and that the DAS provided intelligence
reports to the President and his advisors who would pass it on to the military
and/or police. The principal claimant stated that this unit shared technical
information with the police and carried out missions against subversive groups
as a joint team….
(Certified
Tribunal Record, pg. 14)
[23] Further, the Board reasonably came to the conclusion that
“the DAS has been directly involved in murder, torture, and disappearances in Colombia on a widespread or
systematic basis and that it has collaborated with paramilitaries, acting as an
accomplice in the same crimes committed by others.” Indeed, there is ample documentary
evidence to support this finding and the notion that the DAS resorted to human
rights abuses as a “regular part” of its operation or a “way of life” of the
DAS (Justino, above at para. 16; Ramirez v. Canada (Minister
of Employment and Immigration), [1992] 2 F.C. 306, 89 D.L.R. (4th)
173, [1992] F.C.J. No. 109 at para. 37 (F.C.A.) (QL)).
[24] For example, the Inter-American Commission on Human Rights
reports that public institutions that have committed human rights violations
include the DAS (Applicant’s Record, pg. 81). As well, the Inter-Church
Committee on Human Rights in Latin America reports that according to the United Nations
Working Group on Enforced or Involuntary Disappearances, those responsible for
disappearances during 1993 include the DAS (Applicant’s Record, pg. 141). A
United Nations Economic and Social Council report stated that the Special
Rapporteur received reports concerning assassinations and threats related to
the disappearance and subsequent killing, in 1990, of more than 40 persons in Trujillo and that investigations
revealed that the DAS was involved (Applicant’s Record, pg. 185). The United
States Department of States report on Colombia Human Rights Practices 1995
reported that three detectives of the DAS were charged for their presumed
participation in incidents of torture. The United States Department of State
(DOS) Report for 1996 states that the DAS was being investigated for cases of
torture. The Board detailed these and other alleged human rights violations
committed by the DAS in its reasons (Certified Tribunal Record, pgs. 15-21).
[25] In addition to its direct involvement in human rights
abuses, the DAS, as an intelligence organization, worked hand in hand with both
the official Colombian authorities and the paramilitaries. Membership in the
organization that actually commits the international crimes is not an essential
requirement where, as in this case, the link between the person and the
organizations can be established (Bazargan v. Canada (Minister of Citizenship
and Immigration), [1996] F.C.J. No. 1209 (F.C.A.) (QL), A-400-95). Here,
the evidence shows that the DAS was very much implicated in crimes of both the
military and paramilitary forces. Even more specifically, the evidence contains
numerous references to the role of DAS in the Sucre area, where the Principal Applicant was
stationed for a significant period of time. Accordingly, on these facts, even
had there been no evidence (which there was), the Board could reasonably
conclude that the DAS was an organization which, through its provision of
intelligence services to and collaboration with the perpetrators of human
rights abuses, was engaged in a continuous and regular pattern of human rights
abuses.
[26] As well, contrary to the Principal Applicant’s submissions,
there was nothing unreasonable about the Board’s finding that the Principal
Applicant would have first-hand knowledge of DAS involvement in the commission
of alleged crimes.
[27] The Principal Applicant was member of the DAS for
approximately 13 years, voluntarily joining on October 17, 1983 (Certified
Tribunal Record, pgs. 52 and 804). Starting as a Detective Agent and
Investigator, he was promoted to Chief of Intelligence for Sucre in 1991 and in 1994 he
was Chief of Investigation in Riohacha, which is the same position of Chief of
Intelligence (Certified Tribunal Record, pgs. 52 and 830). The Principal
Applicant testified that as an investigator/detective, he was responsible for
collecting and gathering intelligence and information using various techniques
including collaboration with civilians such as farmers. As Chief of
Intelligence, he was in charge of a number of detectives and managed
intelligence gathering and information (Certified Tribunal Record, pg. 52).
[28] As well, during his testimony, the Principal Applicant
stated that he attended security meetings with high-ranking members of the DAS,
the police, the army and government officials where he heard about abuses
taking place. He testified that he reported to his superiors about what he
heard (Certified Tribunal Record, pgs. 845-46). The Principal Applicant also
testified that he became aware of abuses of the army from his detectives who
worked out in the field (Certified Tribunal Record, pgs. 863-64) which
corresponds with documentary evidence (Certified Tribunal Record, pgs. 512-789).
He also became aware of abuses by the DAS through the newspaper, the radio,
internal faxes and internal investigations (Certified Tribunal Record, pgs.
877, 900). This corresponds with reports of DAS abuses in documentary evidence
presented to the Board.
[29] The Principal Applicant testified that he rarely felt that
orders given by DAS were incorrect or improper (Certified Tribunal Record, pg.
890) and also stated that he would not have left the DAS if he did not receive
the death threats from FARC (Certified Tribunal Record, pg. 911). From this,
the Board can reasonably infer that he shared a common purpose with the DAS and
had personal knowledge of the DAS’s human rights violations (Penate, above
at para. 14).
[30] The Principal Applicant held a supervisory position with the
DAS as Chief of Intelligence. This speaks to the likelihood of his knowledge
and involvement in the organization’s bad acts (Justino, above at
para. 10). The Principal Applicant provided no evidence that he took steps to
prevent criminal acts from occurring. Further, he did not disengage from the
organization at the earliest opportunity for reasons of disassociating himself
from the DAS and its alleged criminal acts. It can reasonably be inferred from
this that he shared a common purpose with the organization (Justino, above
at para. 10).
[31] This case is not unlike El-Kachi v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 403, [2002] F.C.J. No. 554 at paras.
24-26 (F.C.T.D.) (QL), where the Court found that evidence supported the
Board’s conclusion that the organization had committed crimes and that based on
the evidence the Board’s conclusion was not patently unreasonable. As well, the
Court found that the applicant joined the impugned organization and worked for
it for 16 years and was promoted to a rank where he was in charge of 45 men. The
Court held that it was reasonable for the Board to conclude from this that the
applicant became involved in the organization because he agreed with its
objectives and wished to help achieve them, which he in fact did. Finally, the
Court found that the applicant was aware that crimes had been committed by the
organization and that the applicant admitted in the hearing that he knew of
specific crimes.
[32] In sum on this issue, the Board’s decision on the issue of
exclusion is not unreasonable.
Issue #2: Inclusion for
Principal Applicant
[33] The Applicant
submits that, notwithstanding its finding that the Principal Applicant was
excluded under Article 1(F)(a) of the Convention and section 98 of IRPA,
it was incumbent upon the Board to address the merits of the Principal
Applicant’s claim to Convention refugee status. As well, the Applicant argues
that by addressing the issue of exclusion before inclusion was an error.
[34] In my view, this question has been answered by the recent
jurisprudence. Once the Principal Applicant was found to be excluded, he was no
longer entitled to be part of the “refugee protection stream” (Xie, above).
Accordingly, any further analysis by the Board, insofar as the Principal
Applicant was concerned, was unnecessary.
[35] In certain situations, the Board may be required to assess
the claim of the excluded claimant in order to assess the claims of the other
non-excluded family members. The question of whether this is one of those cases
is addressed in the following issue.
Issue #3: Alleged
Failure to Assess Principal Applicant’s family
[36] Having found
that the Board is not obligated to conduct a s. 96 analysis for the Principal
Applicant, when found to be excluded under s. 98 of IRPA, I now turn to
the question of whether the Board should, nevertheless, engage in a s. 96 and
s. 97 analysis for the purposes of evaluating the claims of the remaining family
members.
[37] The
Applicants submits that the Board failed to consider the nexus between the
facts underlying the claims of the remaining family members and their alleged
membership in a particular social group within the meaning of the definition of
Convention refugee. In particular, the Applicants feel that the Board did not
take into account any of the documentary evidence before it concerning the
alleged agent of persecution, the FARC.
[38] The
Federal Court of Appeal in Moreno, above at para.
67, stated that a Board may err in law by failing to determine whether, for the
purposes of evaluating dependent refugee claims, the principal applicant would
have been declared a Convention refugee. As stated in Moreno, above at
para. 63, “The likelihood of the female appellant suffering persecution is not
extinguished simply because the exclusion clause renders the male appellant
ineligible for consideration”.
[39] Saying,
however, that a claim is not extinguished does not relieve non-excluded family
members from putting forward evidence that supports their claim. The
jurisprudence of this Court has found that persecution against one
family member does not automatically entitle all other family members to be
considered refugees (see Pour-Shariati v. Canada (The Minister of Employment
and Immigration) (1997), 215 N.R. 174 (F.C.A.), 39 Imm. L.R. (2d) 103; Marinova
v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.T. 178, 103 A.C.W.S. (3d)
1198). In Granada v. Canada (Minister of Citizenship and Immigration),
2004 FC 1766, 136 A.C.W.S. (3d) 123, [2004] F.C.J. No. 2164 (F.C.) (QL), a similar case
of a family claiming their refugee status dependent upon a family member’s fear
of persecution against the FARC, the Court stated at para. 16:
The
family can only be considered to be a social group in cases where there is
evidence that the persecution is taking place against the family members as a
social group: Al-Busaidy v. Canada (Minister of Employment and Immigration)
(1992), 139 N.R. 208 (F.C.A.); Casetellanos v. Canada (Solicitor General),
[1995] 2 F.C. 190 (F.C.T.D.); Addullahi v. Canada (Minister of Citizenship and
Immigration) (1996), 122 F.T.R. 150; Lakatos v. Canada (Minister of Citizenship
and Immigration), 2001 FCT 408, [2001] F.C.J. No. 657 (F.C.T.D.) (QL). However,
membership in the social group formed by the family is not without limits, it
requires some proof that the family in question is itself, as a group, the
subject of reprisals and vengeance or, in other words, that the applicants are
targeted and marked simply because they are members of the family even though
they themselves have never been involved in politics and never will be so
involved. (Canada (Minister of Citizenship and Immigration) v. Bakhshi,
[1994] F.C.J. No. 977 (FCA) (QL)).
[Emphasis
added]
[40] A review of the decision demonstrates that the Board turned
its mind to the evaluation of the claims of the family members. The Board
stated:
While the principal claimant is precluded
by his past from being considered for protective status in Canada, his story is presented as
the basis for the claims of Rosa and the children. Therefore, the story needs
to be examined to see if there is a valid basis therein.
[41] The Board continued by
reviewing the evidence before it and concluded as follows:
The
panel finds that the alleged aggressors are not interested in Rosa, according to the principal claimant’s testimony and
written documentation, they are interested in him due to his work with the DAS.
On April 22, 1999, they came to the pharmacy store where they held her up at
gunpoint and asked her for the whereabouts of the principal claimant and stole
medicine and her wedding ring. It appears that the FARC were looking for the
principal claimant and when they realized that he was not at the pharmacy
store, they left.
(Certified
Tribunal Record, pg. 36)
[42] Had the family members
put forward any credible evidence to establish that, because of their
association with the Principal Applicant, they have a well-founded fear of
persecution upon their return, I would readily agree with the Applicants that
the Board would have an obligation to examine and analyze that evidence.
However, where no evidence was put forward, there is nothing upon which to base
their fear. That was the situation before the Board.
[43] The Applicants, in oral
argument before me, reference a few passages in the documentary evidence that
appears to indicate that family members may be targeted. However, none of this
was relied on by the Applicants or their counsel before the Board or in written
final submissions. The Board cannot be required to consider an issue or alleged
risk that was not even raised by the Applicants (Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 164, 266 N.R. 380, [2000]
F.C.J. No. 2118 at paras. 10-11 (F.C.A.) (QL)).
[44] The Board, in
my view, carried out the necessary analysis of the claims of the family members
based on the evidence before it. I can see no error.
[45] Finally, the
Applicants submit that the Board did not consider s. 97 at all and that it
would have been open to the Board, on evidence before it, to find that the
Applicants are persons in need of protection under s. 97 of IRPA. The
problem with this argument is that the family members simply placed no evidence
before the Board upon which to make a s. 97 determination. In these
circumstances, it was not a reviewable error for the Board to fail to undertake
a separate s. 97 analysis (Soleimanian v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1660, 135 A.C.W.S. (3d) 474, [2004] F.C.J.
No. 2013 at paras. 22-24 (F.C.) (QL); Kilic v. Canada (Minister of
Citizenship and Immigration), 2004 FC 84, 245 F.T.R. 52, [2004]
F.C.J. No. 84 at paras. 26-27 (F.C.) (QL)).
[46] Even if the
Board ought to have carried out a more explicit s. 97 analysis, this deficiency
in the Board’s reasons is “not material to the result” and thus not compelling
enough to send the decision back for redetermination (Nyathi v. Canada
(Minister of Citizenship and Immigration), 2003 FC 1119, 125 A.C.W.S. (3d)
873). There does not appear to be any evidence that would suggest that the
Applicants are persons at risk. Rather, it was reasonable for the Board to
find, based on the evidence before it, that the Applicants are not targeted by
FARC.
Conclusion
[47] Having found that the Board did not err with respect to its
determination on the exclusion of the Principal Applicant or on the claims of
the family members, I will dismiss this application for judicial review.
Neither party proposed a question for certification and none will be certified.
ORDER
This Court orders that:
- The application for
judicial review is dismissed; and
- No question of
general importance is certified.
“Judith A. Snider”
___________________________
Judge
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