Date: 20081216
Docket: IMM-2839-08
Citation: 2008 FC 1381
Toronto, Ontario, December 16, 2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
VICTOR
HUGO LARGO CARDENAS and DEISY JOHANNA LOPEZ CESPEDES
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants are adult male (Cardenas) and adult female (Cespedes) both citizens
of Colombia. Their
claim for protection as refugee claimants was rejected in a written decision of
a Member of the Immigration and Refugee Board dated June 9, 2009. This is a
judicial review of that decision.
[2]
For
the reasons that follow I find that the application is dismissed.
[3]
The
Applicants’ claim for protection is based upon political opinion and membership
in a particular social group. Particularly, the female Applicant’s mother is
said to have been a social worker and community activist in Columbia. She is
alleged to have received a series of threats from FARC guerrillas, including at
least one threat directed to her daughter, the female Applicant. Evidence
concerning conditions in Colombia and the risk to persons of profiles like that
said to be similar to the female Applicant’s mother, was received.
Certificates from persons in Colombia as to the mother’s
circumstances were put evidence.
[4]
The
female Applicant’s mother appears to be presently a resident of the United
States
in the Miami area. The
mother fled Colombia in about
2000 and for several years has resided in the United States where she married a
United
States
citizen. The female Applicant preceded her mother in coming to the United States having lived
there for about one year before her mother’s arrival. The female Applicant and
her mother made a joint claim for asylum in the United States. That claim
was denied.
[5]
While
in the United
States
the female Applicant married the male Applicant, also a citizen of Colombia,
who was living without status in the United States. The two Applicants
came to Canada in 2007 and
made their claim for refugee status here.
[6]
The
basis of the refugee claim has to do with the female Applicant’s mother. It is
alleged the mother made certain remarks about FARC and drug trafficking at a
conference when she was in Colombia which resulted in
threats of violence from FARC. The female Applicant alleges that it was at her
mother’s insistence, for fear of threats to the female Applicant, that she fled
Colombia for the United
States.
When her claim for asylum in the United States was unsuccessful, she came to Canada.
[7]
The
Member of the Board determined that the female Applicant has not established
that it was more likely than not that, if she returned to Colombia she would be
pursued by FARC. The male Applicant stated in examination at the hearing
before the Board that he had no fear and no one wanted him if he returned to Colombia. It was
because he was married to the female Applicant that he feared returning to Colombia.
[8]
The
Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008]
S.C.R. 190 has established that in matters not pertaining to legal questions
but to matters where discretion and weighing evidence is concerned, a standard
of reasonableness is to be applied, with deference being given to tribunals
whose expertise lie in the subject matter under review. This is such a matter.
The evidentiary issues, while involving the female Applicant’s mother, had to
come down to whether the female Applicant, not her mother, had been threatened
and the consequences flowing from that. There is only one scant reference to a
threat directed to the female Applicant and that is in a narrative provided by
her mother, similar to a Canadian PIF, to the United States
authorities. The mother herself has provided no evidence of any kind in the
proceedings before the Board in Canada which is remarkable
since she lives in the United States and one would have
presumed that she would be supportive of her daughter’s claim.
[9]
Applicants’
counsel asks this Court, and previously the Board was asked, to draw a number
of inferences from the fact that the daughter stayed in the United
States
and was joined by her mother. Counsel pointed to numerous occasions during the
oral testimony of the female Applicant before the Board where corroborative
evidence was asked for and none given. The Board was right, given the scanty
evidence, to seek corroboration and not simply to draw inferences.
[10]
Counsel
for the Applicants argued that the Board Member applied the wrong test as to
the burden of proof. The Member at one point in the Reasons said that the evidence
was weighed on the basis as to whether “it was more likely than not” that those
threatening the female Applicant would continue to pursue her. Counsel for the
Respondent agreed that the test has been stated in the cases more correctly as
“seriously possibility” or “more than a mere possibility” and pointed out that
the Member stated in conclusion that the test applied was “…on the balance of
probabilities, (is there) a serious possibility that they would be persecuted…”
[11]
I
am satisfied that the Member was addressing the correct test and that the
evidence as to persecution or risk to the two Applicants was, at best, very
scanty and provides no basis even on the “more than a mere possibility”
standard for supporting a refugee claim.
[12]
The
application will be dismissed. No Counsel requested certification and none
will be made. There is no special reason to award costs.
JUDGMENT
For the
Reasons given:
- The application is
dismissed;
- There is no
question for certification;
- No Order as to
costs.
“Roger
T. Hughes”
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