Date:
20130802
Docket:
IMM-12724-12
Citation:
2013 FC 846
Ottawa, Ontario, August 2, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ADRIANA PATRICIA
GUTIERREZ INFANTE FABIO ENRIQUE NIETO CARDENAS
JUAN CAMILO NIETO
GUTIERREZ
PAULA VANESSA NIETO
GUTIERREZ SANTIAGO NIETO GUTIERREZ
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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
I. Overview
[1]
Ms
Adriana Patricia Gutierrez Infante, with her husband and three children, sought
refugee protection in Canada after receiving threats from the Revolutionary
Armed Forces of Colombia (FARC). FARC members asked her to obtain information
about students attending a private Catholic school in Bogota where she worked as
an administrator. The members explained that they were looking for information
about wealthy families, presumably for purposes of extortion. They threatened
to harm Ms Gutierrez Infante’s family if she did not comply.
[2] Ms Gutierrez Infante
went to the police who said they would increase their patrols of the area, but
that they could not offer her personal protection. FARC members found out about
Ms Gutierrez Infante’s visit to the police station and threatened to harm her
family if she went again.
[3] Further threats resulted
from Ms Gutierrez Infante’s failure to comply with FARC’s demand. The family
decided to flee to the United States. From there, they arrived in Canada in 2011.
[4] A panel of the
Immigration and Refugee Board, while believing her account of events, refused
Ms Gutierrez Infante’s refugee claim on the basis that she had failed to make
sufficient efforts to obtain state protection in Colombia before seeking asylum
in Canada. The Board concluded that state authorities have improved their
capacity to contain FARC’s activities and, therefore, Ms Gutierrez Infante
should have approached police on more than just one occasion.
[5] Ms Gutierrez Infante
argues that the Board’s conclusion on state protection was unreasonable because
it failed to take into account FARC’s threat to harm her if she went back to
the police. Further, the Board emphasized the efforts that state authorities
are making toward limiting FARC’s criminal conduct, instead of considering
their actual ability to protect someone in Ms Gutierrez Infante’s
circumstances. She asks me to overturn the Board’s decision and order another
panel to reconsider her claim.
[6] I agree that the Board’s
conclusion on state protection was unreasonable. The Board failed to explain
why Ms Gutierrez Infante’s rationale for not contacting the police again should
be rejected. Further, the Board did not consider whether Colombia’s efforts to combat FARC would actually result in protection for someone in Ms
Gutierrez Infante’s circumstances. I must, therefore, allow this application
for judicial review.
II. The Board’s analysis
of state protection
[7] The Board accepted the
essence of Ms Gutierrez Infante’s claim and stated that the determinative issue
was state protection. It noted that she had approached the police only once. On
that occasion, police told her that they would increase their surveillance but
could not do anything more than that because of the number of people who were
being threatened by FARC. FARC members knew that she had gone to the police,
told her that they would know if she returned, and threatened to harm her and
her family if she did so.
[8] The Board characterized
Ms Gutierrez Infante’s efforts to secure state protection as “minimal”. She did
not make inquiries about whether the police had contacted the school where she
worked, she continued to walk to work, she did not use her cell-phone to call
for help when she was approached by an armed man, she did not approach the
police in Pacho when she received threats there, and she did not try to get
help from any other agencies.
[9] Further, while FARC
members told Ms Gutierrez Infante that they would know if she went back to the
police station, she could not explain how they would find out. Documentary
evidence showed that FARC’s communications abilities are limited. Further, FARC
did not act on any of its threats and has not harmed any members of Ms
Gutierrez Infante’s extended family since she left Colombia. Therefore, the
Board found that her explanation for not making further complaints to police
was unconvincing.
[10] The Board turned to the
documentary which showed great improvements in Colombia over recent years.
FARC’s membership and capacity has declined. However, it still has 8,000 to
10,000 members and carries out small-scale operations. The Board noted that Colombia has made “serious efforts . . . to address problems with the FARC”.
[11] In light of that
evidence, the Board concluded that Ms Gutierrez Infante’s efforts to obtain
protection were inadequate.
III. Was the Board’s
conclusion on state protection unreasonable?
[12] In my view, the Board’s
conclusion was unreasonable on the evidence before it.
[13] When the issue of state
protection arises, the real question is whether the claimant meets the
definition of a refugee. A refugee is a person who has a well-founded fear of
persecution in his or her country of origin and who cannot obtain protection
there, whether it is because the state apparatus is inadequate, the authorities
are unresponsive, or the person fears reprisals for seeking out protection. The
essential question to be answered, after considering all of the evidence –
including the evidence relating to the state’s capacity to protect the claimant
and the consequences that the claimant may face for seeking protection – is
whether the claimant has shown that he or she likely faces a reasonable chance
of persecution in the country of origin. If so, the claimant meets the
definition of a refugee (Muvangua v Canada (Minister of Citizenship
and Immigration), 2013 FC 542, at para 7).
[14] Here, the Board accepted
that FARC members threatened to harm Ms Gutierrez Infante and her family if she
reported them to police a second time. However, the Board found that that was
not a good enough reason not to go back to the police because it was not clear
how FARC would find out that she had done so, and FARC had not yet harmed
anyone in her family.
[15] The fact that Ms
Gutierrez Infante could not explain how FARC would find out about her going to
the police should not have caused the Board to discount her fear of reprisal.
FARC already knew about her first complaint; there was no reason to doubt it
would find out about a second one, even if FARC’s communication capabilities,
overall, have been curtailed.
[16] Similarly, the fact that
FARC has not yet harmed anyone in Ms Gutierrez Infante’s family is not
inconsistent with her fear of the consequences of going to the police a second
time. Her unwillingness to make another report may well have protected her and
her family from harm.
[17] Finally, the Board
reviewed the documentary evidence and reasonably found that the situation in Colombia is improving. However, it did not go on to consider whether those improvements
would help someone in Ms Gutierrez Infante’s circumstances. The fact that
FARC’s capabilities have generally been reduced does not necessarily mean that
Ms Gutierrez Infante, a person specifically targeted by FARC members, was not
at risk of serious harm.
[18] Again, the question to be
answered is whether she would likely face a reasonable chance of persecution if
she returned to Colombia. The Board did not address that question. Given the
evidence, its conclusion on the issue of state protection was unreasonable.
IV. Conclusion and
Disposition
[19] The Board’s rationale for
doubting Ms Gutierrez Infante’s explanation for why she failed to seek out
state protection did not take account of the fact that the persons who had
threatened her already knew that she went to police and promised to harm her
and her family if she did so again. Further, the documentary evidence did not
show that state protection would be available to a person in Ms Gutierrez
Infante’s personal circumstances – someone whom FARC had specifically targeted.
[20] Accordingly, I find that
the Board’s conclusion did not fall within the range of defensible outcomes
based on the facts and the law, and I must allow this application for judicial
review. Neither party proposed a question of general importance for me to
certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is allowed;
2. The matter
is returned to a different panel of the Board for reconsideration; and
3. No question
of general importance is stated.
“James
W. O’Reilly”
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