Date: 20080215
Docket: IMM-888-07
Citation: 2008 FC 192
BETWEEN:
CAMPO ELIAS RIVERA
BLANCA ROSA
PENA DE RIVERA
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing at Toronto on the 12th
of February, 2008 of an application for judicial review of a decision of the
Refugee Protection Division (the “Board”) of the Immigration and Refugee Board
wherein the Board determined the Applicants not to be Convention refugees or
persons otherwise in need of protection equivalent to refugee protection. The
decision under review was delivered orally at the close of the Applicants’
hearing before the Board on the 13th of February, 2007.
BACKGROUND
[2]
The
Applicants are husband and wife and citizens of Colombia. In August
of 2002, their principle residence was in Bogotá but they had a country house
in the municipality of Guarinosito,
department of Caldas. They describe the region of their country house at that
time as being a “red zone” dominated by armed guerrilla groups.
[3]
While
at their country house on the 25th of August, 2002, the Applicants
were required by members of one of the guerrilla groups to attend a meeting.
The Applicants refused to attend. Rather, they returned to Bogotá and never
again returned to the Guarinosito area and their home there.
[4]
Having
failed to cooperate with the guerrillas, the Applicants feared for their
safety, even in Bogotá. They felt they were being watched. They were aware of
other property owners who were kidnapped after failing to attend guerrilla
meetings as required. In the narrative to their Personal Information Form,
they wrote:
…
…we cannot even go to
the park with our grandchildren without fears.
It is this type of
dangerous situation even in Bogotá that causes our fears to increase.
…
We know that we cannot
obtain any real protection from the authorities as they are not able to deal
with all the violence in Columbia [sic].
…
[5]
In
May of 2004, the male Applicant’s half-brother who had, on occasion, gone to
check on the Applicants’ country home, was murdered. Shortly, thereafter, the
Applicants left Colombia. They arrived in Canada on the 23rd
of July, 2004, having sojourned in the United States. Their
claim for protection in Canada followed.
THE DECISION UNDER
REVIEW
[6]
After
briefly reciting the factual background to the Applicants’ claim, essentially
without analysis, the Board concluded with respect to the Convention refugee
aspect of the claim:
Certainly, nothing
specific happened to them [the Applicants] personally between August 2002 and
July 2004. They were anxious, but as the documentary evidence shows, all Colombians
were anxious about the revolutionary forces in their country in particular.
In light of the
proceeding, I must conclude that the claimants were not subjected to
persecution in their country of origin within the meaning of section 96 of the
Act.
Indeed, despite the
claimant’s testimony – the panel being well aware of the situation in Colombia – if the
guerrillas had targeted the claimant since 2002, he would undoubtedly have
suffered direct consequences, which is not the case in the matter at hand.
[7]
The
Board disposed of the Applicants’ claim to Convention refugee-like protection
under section 97 of the Immigration and Refugee Protection Act
in equally brief reasons. In each case, the Board reached its conclusion
essentially without analysis.
[8]
Finally,
and once again in very brief terms, the Board concluded that the Applicants had
not rebutted the presumption in favour of state protection for them if they
were required to return to Colombia.
ANALYSIS
[9]
At
the close of the hearing before me, I advised counsel that I would allow this
application for judicial review and indicated that I found the Board’s reasons
to be entirely inadequate in that they were devoid of analysis and thus failed
to meet the Board’s obligation to provide “written reasons” for its decisions
where a claim is rejected by it.
Having reconsidered the materials before me following the hearing, I reach the
same conclusion, that is, that this application for judicial review must be
allowed, but I now choose to rely on a more substantive issue, that being the
failure of the Board to apply the appropriate test for determining whether or
not the Applicants should succeed on their claim to Convention refugee status.
[10]
I
reiterate one paragraph from the Board’s reasons earlier quoted:
In light of the
proceeding, I must conclude that the claimants were not subjected to
persecution in their country of origin within the meaning of section 96 of the
Act.
The foregoing brief paragraph is the sole
basis provided for rejection of the Applicants’ Convention refugee claim.
[11]
To
succeed on a Convention refugee claim, it is not necessary for claimants such
as the Applicants to establish that they were subjected to persecution in their
country of origin. Rather, it is only necessary that claimants establish that
there are “good grounds” or a “reasonable chance”, or even a “serious
possibility” that they will be subjected to persecution if returned to the
country against which they claim protection. Past persecution is simply not a
condition precedent to a successful claim.
[12]
In
Adjei v. Canada (Minister of Employment and Immigration), the
following oft-quoted brief paragraph appears at page 683:
What is evidently
indicated by phrases such as “good grounds” or “reasonable chance” is, on the
one hand, that there need not be more than a 50% chance (i.e., a probability),
and on the other hand that there must be more than a minimal possibility. We
believe this can also be expressed as a “reasonable” or even a “serious
possibility”, as opposed to a mere possibility.
[13]
Here,
the Board simply did not address the issue of the forward-looking nature of the
test for Convention refugee status. In the result, the Board erred in law in
rejecting the Applicants’ Convention refugee claim.
CONCLUSION
[14]
Based
upon the foregoing considerations, this application for judicial review will be
allowed. The decision under review will be set aside and the Applicants’
application will be referred back for reconsideration and redetermination. While
counsel for the Applicants raised other issues, in light of the foregoing, I
need not address them in these reasons.
CERTIFICATION OF A
QUESTION
[15]
At
the close of the hearing of this matter, counsel requested an opportunity to
review my reasons and to make submissions on certification of a question.
These reasons will be distributed and counsel will have ten (10) days from
their date to file and serve any submissions they wish to make on certification
of a question. Only thereafter will an Order disposing of this matter be
issued.
“Frederick E. Gibson”
Ottawa,
Ontario
February
15, 2008
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