Docket:
IMM-1811-13
Citation: 2013 FC 987
Ottawa, Ontario, this 26th
day of September 2013
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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DANIEL ALEJANDRO LOZANO LOPEZ
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Applicant
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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 applicant, Daniel Alejandro Lozano Lopez,
seeks judicial review of the decision of a Senior Immigration Officer (the
“officer”), dated January 28, 2013, rejecting his Pre-Removal Risk Assessment
(“PRRA”) application. His judicial review application is made pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (the “Act”).
[2]
The applicant entered Canada on January 7, 2008.
He claimed refugee protection one week later. However, he cannot claim refugee
protection because he has been found to be inadmissible by the Immigration
Division of the Immigration and Refugee Board of Canada for “being a member of
an organization that there are reasonable grounds to believe engaged in
terrorism”. Paragraph 34(1)(f) of the Act reads:
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34. (1) A permanent resident or a foreign national is inadmissible on
security grounds for
(f) for being a member
of an organization that there are reasonable grounds to believe engages, has
engaged or will engage in acts referred to in paragraphs (a), (b)
or (c).
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34. (1) Emportent interdiction de territoire pour raison de sécurité
les faits suivants :
f) être membre d’une
organisation dont il y a des motifs raisonnables de croire qu’elle est, a été
ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
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[3]
In this particular case, the acts referred to
are with respect to paragraph 34(1)(c), “engaging in terrorism”.
[4]
As a result of the application of subsection
112(3) of the Act, refugee protection was denied and a deportation order was
issued. Thus, the PRRA application was based on an allegation that the
applicant would be subject to danger of torture, risk to life or risk of cruel
and unusual treatment or punishment if he returned to his country.
[5]
In essence, the applicant claims that the
reasons for which he is inadmissible as a refugee is the reason why he should
not be returned to his country of origin. In my view, his application cannot succeed.
The facts
[6]
The applicant is a Colombian citizen. As
indicated earlier, he came to Canada in January of 2008. The applicant claimed
that he is afraid of the members of the Autodefensas Unidas de Columbia [AUC]
because he was once associated with that paramilitary organization.
[7]
He would have joined the Colombian Army in March
1995, where he served until October 1999. In the months that followed, he
joined the AUC. He claims that he limited his activities to information
gathering where he was then located.
[8]
It appears that the AUC was involved in illegal
activities, including the smuggling of heroin and other drugs to countries such
as Spain. The applicant would have helped the AUC in finding people who would
be willing to smuggle drugs into Spain.
[9]
The applicant states that, towards the end of
2000, the Colombian Army discovered that he was no longer officially in the
military.
[10]
In spite of pressures exerted by members of the
AUC for the applicant to take part in what is described as “social cleansing
efforts”, the applicant resisted. Thus, in December 2001, the applicant is
claiming that he left the AUC and returned to his hometown of Santa Rosa.
[11]
Within a month, people in his neighbourhood
warned the applicant that men in white trucks were looking for him. The
applicant left Santa Rosa and travelled to an area on the Atlantic Coast of
Colombia. There, he changed his appearance and started selling jewellery, in
the hope of avoiding detection and living safely in Colombia.
[12]
He claims that he was able to live safely for
about five years. However, he would have been confronted in December of 2006 by
two men on motorcycles in the public market of Cartagena. For some reason, the
applicant recognized these men as being paramilitaries. A second encounter occurred
three days later, this time with four men on two motorcycles. Of the four men,
two were the individuals who had confronted him three days earlier.
[13]
As he feared for his life, the applicant would
have told the group of four that “their boss knew the Applicant” (paragraph 22
of the Applicant’s Memorandum of Fact and Law). They would have indicated to
the applicant that they were going to investigate him and that they would get
back to him. The applicant decided that he had to flee Colombia.
[14]
Instead of seeking protection from the
authorities, the applicant chose to leave the area where he had been living for
five years and went to Monterria and Medellin. In Medellin, a cousin indicated
to him that money would be made available in order to flee Colombia and travel to the United States.
[15]
The applicant obtained a US visa and he travelled by air to Miami on September 3, 2007. The applicant then went to Buffalo, in the state of New York, where he tried to cross into Canada by swimming. I
reproduce in their entirety the following paragraphs of the Applicant’s
Memorandum of Fact and Law:
[29] In
July 2007, the Applicant returned to his parents’ home in Santa Rosa, and on
September 3, 2007 the Applicant travelled by air to Miami. The Applicant then
went to Buffalo, New York, where he tried to cross into Canada by swimming, but the water was too cold and there were two helicopters flying over
the area. The Applicant met a fellow from Honduras and together they travelled
to Seattle, Washington.
[30] The
Applicant did not claim asylum in the US because he does not trust the US government and believes the US is funding and supporting terrorists in Colombia, including the
paramilitaries. The Applicant also feared that if he sought asylum in the US, they would return him to Colombia.
Arguments
[16]
The applicant challenges the decision of the
PRRA officer on the basis that it is based entirely on state protection and
that it was wrong to have concluded that the applicant had not rebutted the
presumption of state protection.
[17]
The officer is faulted for not having reviewed
documentary evidence presented by the applicant to the effect that the state of
Colombia is not able to curtail the serious violence committed by
paramilitaries. The applicant points to some evidence indicating that the AUC,
and groups of that nature, have the capacity to pursue victims throughout the
country, including those who have spent many years outside of the country.
[18]
The applicant contends that, although the
decision-maker does not have to refer to each and every piece of evidence,
important and relevant evidence directly relevant to the findings cannot be
ignored.
[19]
The respondent argues in return that the
presumption of state protection has not been rebutted. Indeed, in this case,
the applicant did not even seek that protection, claiming that the state would
not be willing or able to protect him. In the view of the respondent, there is
nothing in the argument put forward by the applicant that points to the
unwillingness of the state to assist ex-AUC members. Actually, the evidence
goes in the other direction. Since the presumption can only be overcome by
clear and convincing evidence of a state’s inability to protect, the
application must fail. The burden on the applicant was to establish reliable
and convincing evidence which would satisfy the decision-maker that state
protection is inadequate. Such has not been made in this case. The mere
subjective belief in the inability of the authorities to protect is
insufficient. As for the argument that the decision does not address some
arguments, the respondent relies on Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
SCR 708, to counter that argument.
Standard of
Review
[20]
The parties agree that the judicial review of a
PRRA officer’s decision is to be conducted on the basis of a standard of review
of reasonableness. I share that view.
Analysis
[21]
The story as told by the applicant barely has an
air of reality. It lacks in precision and some aspects of it seem to stretch
credibility. For instance, the episode about swimming to Canada from Buffalo appears to be rather odd. Be that as it may, the PRRA decision is based on the
ability of the state of Colombia to protect its citizens from the violence that
could be exerted by paramilitary organizations, even to this day.
[22]
While I agree with the argument that important
and relevant evidence cannot be simply disregarded by a decision-maker without
examination and analysis, it remains that there must be on the record that kind
of evidence that was actually disregarded by the trier of fact. Here, we are
faced with voluminous evidence that confirms that paramilitary organizations in
Colombia are still active. So be it. Given the evidence, and the limited
involvement that the applicant claims was his while associated with the AUC,
the applicant falls well short of establishing that he cannot benefit from
state protection on the basis of that evidence.
[23]
It is not so much that evidence was disregarded.
It is rather that the kind of relevant evidence which might convince was never
presented to the decision-maker. As it is well known, the presumption of state
protection can only be overcome by clear and convincing evidence. Thus, in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, one can read at page 709:
. . . International
refugee law was formulated to serve as a back-up to the protection one expects
from the state of which an individual is a national. It was meant to come into
place only in situations when that protection is unavailable, and then only in
certain situations. The international community intended that persecuted
individuals be required to approach their own state for protection before the
responsibility of other states becomes engaged.
[24]
In Flores Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 FCR 636, the Federal
Court of Appeal confirms that the evidence submitted by an applicant must be of
a certain quality. It does not suffice that the evidence is relevant, or even reliable.
It must convince:
[30] In
my respectful view, it is not sufficient that the evidence adduced be reliable.
It must have probative value. For example, irrelevant evidence may be reliable,
but it would be without probative value. The evidence must not only be reliable
and probative, it must also have sufficient probative value to meet the
applicable standard of proof. The evidence will have sufficient probative value
if it convinces the trier of fact that the state protection is inadequate. In
other words, a claimant seeking to rebut the presumption of state protection
must adduce relevant, reliable and convincing evidence which satisfies the
trier of fact on a balance of probabilities that the state protection is
inadequate.
[25]
Evidence that points in the direction that
paramilitary groups continue to be active in Colombia will not have the quality
required. In his Memorandum of Fact and Law, the applicant refers to the
evidence that, he claims, was unduly disregarded by the officer. With great
respect, what the decision-maker had to consider was evidence of a different
order if the applicant can hope to be successful.
[26]
Evidence however voluminous it can be which merely
tends to show that the state is not completely successful at curtailing serious
violence committed by paramilitary groups would appear to remain largely
inconclusive with respect to the issue at hand. What would have been much more
relevant and convincing, for example, would have been evidence that these
groups are systematically targeting former members, however small their role
may have been many years ago. Connecting this kind of evidence, as opposed to
generic evidence of criminality by former paramilitary organizations, together with
that of the applicant who would have shown that he was effectively targeted in
December 2006, and not merely two encounters with unknowns, would go some way
towards making the case more compelling. Faced with this kind of evidence, one
would have expected the trier of fact to explain further how state protection
can still be adequate. Instead, the officer was told a story that is vague and generic,
and stretches credibility, including the episode of December 2006.
[27]
We do not have, in this case, the clear and
convincing proof of the state’s inability to protect. The activities of
paramilitary groups do not logically lead to the conclusion that state
protection would not be available to a former member of one of those
organizations. The probative value of that kind of evidence, given the issue
that needs to be decided, was simply insufficient.
[28]
On the basis of two encounters which were, at
best, ambiguous because it is not even clear that they involved AUC operatives
looking for the applicant, the latter chose, a few months after these alleged
incidents, to leave his country, go to the United States on a US visa and then
come to Canada, having crisscrossed the continent. He claimed that, at the
time, in 2007, he had a real belief that he could not avail himself of state
protection. Six years later, he seems to be making the same assertion. I can
only be in complete agreement with Justice Near, then of this Court, who wrote
in Ceban v Minister of Citizenship and Immigration, 2012 FC 875:
[18] This
Court has stressed in the past that the subjective belief of applicants that
they could not avail of themselves of state protection is insufficient. The
test for whether state protection “might reasonably be forthcoming” is
objective (see for example Judge v Canada (Minister of Citizenship and Immigration),
2004 FC 1089, [2004] FCJ no 1321 at para 13; Castaneda v Canada (Minister of Citizenship and Immigration), 2010 FC 393, [2010] FCJ no 437 at para 26).
[19] The
Board considered the Applicant’s testimony but still found the degree of police
involvement speculative. In light of the evidence presented, that conclusion
was reasonable, even if the Applicant disagrees with the Board’s overall
assessment. Moreover, it is not a comment on the Applicant’s credibility so
much as a need to demonstrate an objective basis for his belief that the police
would not protect him because they were directly involved with the trainers’
match-fixing activities. The Applicant still had an obligation to approach the
police and seek other avenues of protection thereby allowing the state an
opportunity to respond (see Castro v Canada (Minister of Citizenship and
Immigration), 2006 FC 332, [2006] FCJ no 418 at paras 19-20). As an
alternative, the Board also suggested that the Applicant could have done more
to bring his concerns to the attention of officials in the sports Federation.
[29]
I find that on the basis of the evidence that
was presented to the officer, it was reasonable to come to the conclusion that
he reached. He acknowledged the voluminous material offered by the applicant
showing that paramilitary groups are guilty of violent and criminal activities.
But that is not sufficient. On the facts of this case, it has not been
established that the fear of persecution is well-founded in an objective sense.
Furthermore, general assertion about the continuing activities of the AUC does
not establish that adequate state protection will not be forthcoming. I would
have thought that the documentary evidence tended clearly to show that the
state of Colombia takes a special interest in cases such as that of the
applicant, such that it is not objectively reasonable for the applicant not to
have sought the protection of his home authorities.
[30]
The conclusion that there was no clear and
convincing evidence to support a conclusion that Colombia is unable to
adequately protect people like the applicant is reasonable and the judicial
review application must be dismissed.
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