Docket: IMM-2200-13
Citation:
2014 FC 623
Ottawa, Ontario, June 26,
2014
PRESENT: The
Honourable Mr. Justice Annis
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Docket: IMM-2200-13
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BETWEEN:
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MANUEL ALEJANDRO HERNANDEZ ESTEVEZ ET AL.
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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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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of a decision by the Refugee Protection Division [RPD]
of the Immigration and Refugee Board of Canada made on February 20, 2013. The
Board Member determined that the applicant and principal claimant, Manuel
Alejandro Hernandez Estevez, as well as his common law partner and their two
children, were not Convention refugees or persons in need of protection under
sections 96 and 97 of IRPA.
[2]
For the reasons that follow, the application is
dismissed.
II.
Facts
[3]
The applicant and his business partner began a
telecommunications business in his home country of Colombia on January 15,
2008. The company provided internet and data transmission services to areas
that not all providers could service due to lack of infrastructure. Their main
customers were flower farms on the outskirts of Bogota. In order to provide
service they used repeaters on two hilltops. One of these repeaters was located
350 metres from a telecommunications station located within the base of an army
battalion on the same hilltop.
[4]
On November 7, 2010, the applicant’s car was
stolen. He reported the theft to the police Immediate Attention Centre, but
alleges that the police were not very helpful. The next day he went to a police
station to make a formal report, and was told to come back in a month to check
on the matter.
[5]
The applicant alleges that the same evening, he
received a phone call from a caller who identified himself as a member of the
FARC. The caller told the applicant not to go to the police because they would
be the first ones to find out that he had made a report. The caller told him
they would return his car if he did a favour for them, and then hung up.
[6]
The applicant alleges that he did not report the
phone call to the police because the FARC and the paramilitaries have
infiltrated the police.
[7]
On January 23, 2011, the applicant’s business
began receiving signals about a fault in their equipment on the hilltop where
the military base was located. They tried to repair it remotely but were
unsuccessful. They went to the hilltop location, where they discovered that the
antenna and radio transmitter were missing. They replaced the missing
equipment. The applicant stated that he did not make a report to the police
because he was busy contacting clients about the interruption in service.
[8]
The applicant alleges that he received a call on
his cell phone that evening from a person who identified himself as a member of
the FARC. The caller spoke of the theft of the car, and told him that they had
also stolen the antenna and radio transmitter. The caller told the applicant
that they needed him to install a video camera and internet access on the tower
pointing towards the military base so that the FARC could use the camera
remotely. The caller told the applicant not to go to the police, and said that
they had all the details on his family. They would call him again to give him
the camera.
[9]
The applicant told his business partner about
the phone calls, and his business partner advised him to leave the country to
keep his wife and children safe. The next day the applicant took his family to
his wife’s brother’s home, five hours away, abandoning their home, company and
offices.
[10]
The applicant alleges that his business partner
subsequently received a phone call from the FARC stating that the applicant had
promised to do something for them and needed to follow through on the promise.
His partner told the applicant that he, too, was planning on leaving Colombia, but the applicant now does not know the whereabouts of his partner. They are not
in contact.
[11]
The applicant fled to the USA with his family on February 3, 2011, and entered Canada on February 15, 2011, where he and they
claimed refugee protection.
III.
Decision under review
[12]
The Member made a negative credibility finding
in regards to the applicant’s business. The applicant was unable to provide
financial information for his business, despite testifying that it was a
successful business. Further, the applicant stated in his application for
refugee protection that he fears the FARC because they have declared him a
military objective, yet he was unable to provide persuasive evidence that he
had been declared a military objective.
[13]
Further, the Member found that there was
adequate state protection in Colombia, and that the applicant had not rebutted
this presumption. There was no evidence of government complicity in the matter.
Colombia is a democracy, and therefore the presumption of state protection is
a strong one. Furthermore, the evidence in the file indicated that the
Colombian police arrest and prosecute the perpetrators of crimes, including
when crimes are committed by members of the FARC.
[14]
The Member acknowledged that the evidence
indicated continuing serious problems, the most serious being the impunity for
actions of certain groups, an inefficient judiciary, corruption, and societal
discrimination. The Member pointed out however the acknowledgment by the
government of its past problems and the serious efforts to rectify, amongst
others, the corruption and impunity issues. With respect to weighing these
problems against the government’s efforts to combat them, the Member stated as
follows:
“The Board recognizes that there are some
inconsistencies among several sources within the documentary evidence submitted
by the Refugee Protection Division and the claimants; however, the
preponderance of the objective evidence regarding current country conditions
suggests that, although not perfect, there is adequate state protection in Colombia for victims of crime.”
[15]
The Member referred to evidence which shows that
the Colombian government has formed a National Policy for Territorial Consolidation
and Reconstruction which focuses on combatting guerrillas, and which has
successfully neutralized the threat posed to Bogota, according to various NGOs.
The Member also referenced other successful measures taken by the Colombian
government, including the creation of an elite unit of the Ministry of Defence
called the Unified Action Groups for Personal Freedom, an intelligence
organization called the Intelligence Consolidation Centre of the Armed Forces
General Command, and a strategy called Operation Sword of Honour for air force
and navy surveillance. The Member canvassed some successful operations carried
out by the military against the FARC, including the killing of a group of
guerrillas, the detention of another group of guerrillas, the capture of the
FARC’s plans to attack Bogota police stations, the discovery of clandestine
hospitals belonging to the FARC, and the seizure of mortar shells and other
explosives and equipment belonging to FARC urban militias.
[16]
The Member also discussed the government’s
creation of the National Protection Unit that has provided protection to 10,806
at-risk individuals, including human rights defenders and trade unionists, and
various other programs including an association of NGOs that work together to
prevent attacks and protect the lives of people at risk such as those working
as human rights advocates.
[17]
Most relevant to this discussion was the
Member’s description of a program recently initiated by the Attorney General
and open to victims and witnesses who are providing information in a criminal
proceeding. The assistance provided free of charge includes: relocating a
person to another part of the country in a place chosen by program authorities
to enable a person to be subjected to any necessary security measures;
financial and other support during the relocation, issuance of documents,
psychological and medical support. In 2011, 5,307 applications were received of
which 10 percent, 540 applications, were accepted.
[18]
The Member characterized all of this evidence as
a reflection of the importance that Colombia has placed on the protection of
its citizens, as well as the success it has had in improving the safety and
security of all its citizens.
[19]
In regard to the applicant’s actions, the Member
pointed out that the applicant never reported to the police or any other
authority that he had been asked to place a video camera on the tower and to
configure software so that the FARC could remotely observe activity at the
military base. However, he did report the car theft, to which the police
responded by taking a report and telling him to check back within a month. The
member indicated that this did not mean that the police failed to investigate
the matter and perform their required duties. In any event, the applicant failed
to advise the Police that FARC had stolen it. Further, even if the police
didn’t respond sufficiently to the car theft, the potential breach of military
activity via potential espionage would be much more significant than the car
theft, and would have elicited a stronger reaction from the police. The Member
remained unconvinced that the police would not investigate all the applicant’s
allegations if he were to return to Colombia and continue to have problems with
the FARC.
IV.
Issues
[20]
The relevant legal issues that arise in this
case are the following:
1. Was the member’s conclusion that the
applicant had failed to rebut the presumption of state protection reasonable?
2. Did the Member commit an error in failing to
conduct an individualized analysis for each claimant in the file?
V.
Standard of review
[21]
The Federal Court of Appeal stated in Hinzman
v Canada (Minister of Citizenship and Immigration), 2007 FCA 171, at
paragraph 38 that questions of the adequacy of state protection are questions
of mixed fact and law reviewable on a standard of reasonableness; see also Cobian
Flores v Canada (Citizenship and Immigration), 2010 FC 503 at paras 20-21.
VI.
Analysis
1.
The Presumption of State Protection
(a)
Onus, Standard of Proof and Contextual Approach
for State Protection
[22]
The jurisprudence is clear that there is a
presumption of state protection and a claimant seeking to rebut it must adduce “. . . relevant, reliable and convincing evidence which
satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate” (see Canada (Minister of Citizenship
and Immigration) v Carrillo, 2008 FCA 94 at paragraph 30 [Carrillo]).
[23]
The applicants cited the decision of Salamanca v Canada, 2012 FC 780 [Salamanca] at paragraph 17 as
stipulating the test for adequacy of state protection as follows:
If only one in a great number receives
protection, can it be said to be adequate? While no state offers perfect
protection, and there will always be instances of persons who were not able to
obtain adequate or any protection, in my view, the level necessary to show
“adequate” state protection is a level where it is far more likely than
not that the individual will be protected.
[24]
In my view, this passage was taken somewhat out
of context and does not represent the law on state protection either as to the
measure of the adequacy of state protection or the party bearing the onus to
demonstrate it. Given that “more likely than not” describes an onus of proof of
a balance of probabilities, adding “far” to this standard describes a higher
onus than a balance of probabilities.
[25]
In addition, I do not understand that the
respondent has any onus to demonstrate that a level of state protection is
adequate. As indicated in the passage cited from Carrillo above, it was
for the applicants to satisfy the Board by relevant, reliable and convincing
evidence on the balance of probabilities that the state protection was
inadequate. In addition, before this Court the applicants must demonstrate that
the Board’s decision on adequacy of protection (accepting it as the
determinative issue) falls outside of the range of acceptable reasonable
outcomes reached on the basis of the facts and the law.
[26]
It is certainly true that a state protection
analysis must take into consideration the individual circumstances of the
applicant. In LAO v Canada (Minister of Citizenship and Immigration),
2009 FC 1057 at paragraph 24, and in Torres v Canada (Minister of
Citizenship and Immigration), 2010 FC 234 at paragraphs 37 to 43, Justice
Zinn observed that state protection cannot be determined in a vacuum, and the
analysis of state protection instead calls for a contextual approach that takes
into account the individual circumstances of each refugee claimant. Justice
Zinn also pointed out in Salamanca at para 8 the need to consider, weigh,
mention, and distinguish evidence that is in “stark contrast” to the Board’s
findings.
(b)
The Applicants’ Arguments
[27]
The applicants, who bear the onus, contend that
the Member failed to consider evidence before him which they argue clearly
refuted his state protection finding. They argue first that the evidence shows
that Mr. Estevez would not qualify for any of the protection programs on which
the member relies, and second that even if he qualified, the protection was not
adequate and did not extend to his family.
[28]
With respect to the issue of eligibility, the
applicants note that the National Protection Unit only protects documented
members of organizations and human rights defenders, which the applicant is
not. They further attribute a limitation to protection under the
Attorney-General’s Protection and Assistance Program for Victims and Witnesses
which requires that a person be a witness in a criminal proceeding and
experience risk as a result of their role as a witness, which the applicant has
not. In any case, only 10% of applicants to the program were accepted. Further,
the applicants infer that to qualify for this program, Mr. Estevez would have
to make a criminal report to the police and charges would have to be laid
against the perpetrators, and they suggest that this is unlikely in light of
the impunity that prevails in the vast majority of cases, as they argue is
shown by the evidence.
[29]
I am satisfied with the reasonableness of the
Member’s inference that had the applicants disclosed the threats by the FARC to
use Mr. Estevez’s towers to carry out surveillance against army facilities they
could well have been accorded the witness protection referred to in the
Attorney-General’s plan. Protecting the integrity of military programs is of
the utmost importance to security agencies as intelligence about their
operations would render their efforts less effective. It is also logical that
the Attorney-General would want to encourage community whistleblowers to come
forward to prevent criminals from undermining the policing system. A further
reasonable inference is that reporting FARC’s plans to breach military security
would cause Mr. Estevez to become an important witness in proceedings which
would increase the probability of the applicants receiving protection under the
Attorney-General’s program.
[30]
The applicants’ second submission is that there
exists extensive documentation concluding that the police would not be able to
adequately protect Mr. Estevez and his family. They argue that the Member
selectively read from the Response to Information Request, failing to cite the
information from reliable sources which indicated that FARC could act with
impunity to search out and harm or kill targeted members of Colombian society.
[31]
As already noted, the Member made reference to
security failures by the police and other protection forces in Columbia, noting “the inconsistencies among several sources within
the documentary evidence submitted by the Refugee Protection Division and the
claimants.” It is to be remembered that the Supreme Court in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 [Newfoundland Nurses] emphasized that the principles
outlined in Dunsmuir v New Brunswick, 2008 SCC 9 provide significant
scope for specialized decision-makers to decide cases within a range of
reasonable outcomes without the necessity to refer to items of evidence in the
reasons.
[32]
In any event, my review of the materials
referred to by the applicants stipulating the inadequacies of the Colombian
Government to protect its citizens does not reveal descriptions of any
inadequacies of the Attorney-General’s witness protection program apart from
the limitations on available places described above. The Member placed reliance
on the serious and motivated efforts being made by the Government to bring the
situation under control. The Member weighed the evidence and concluded that the
“preponderance of the objective evidence regarding
current country conditions suggests that, although not perfect, there is
adequate state protection in Columbia for victims of crime”. I cannot
conclude that the Member ignored evidence in “stark contrast” to her
conclusions, nor that there was insufficient evidence to support her
conclusions.
2.
Requirement for Separate Analysis for Each
Claimant
[33]
The applicants also contend that that the Member
should have conducted an independent analysis of the availability of state
protection in regards to the applicant’s common-law partner and children. They
argue that there is a duty to consider state protection for other individuals (Tufino
v Canada, 2005 FC 1690) and to assess a child claimant’s claim and evidence
of state protection separately (SRH v Canada, 2012 FC 1271).
[34]
In Gilbert v Canada (Citizenship and
Immigration), 2010 FC 1186, Justice O’Keefe addressed a very similar
argument in relation to a principal applicant and her minor son. The applicant
alleged that the Board in that case had breached its duty of fairness with
respect to the minor applicant by not rendering a separate decision in his
regard. Furthermore, as in the case at hand, the applicants’ claims were joined
and based on the same alleged fear, though they argued that the claims needed
to be considered differently because while the principal applicant’s claim for
protection was based on being an abused woman, her son’s claim was based on
child abuse. Justice O’Keefe rejected that argument on the basis that at no
time during the proceeding had the principal applicant or her counsel made the
submission that her son’s claim should be treated as being substantially
different on that ground.
[35]
Justice O’Keefe went on to state at paragraph 26
that:
The joined
claims of the applicants were rejected on the basis that state protection was
available for them. It was not an error for the Board to consider implicitly
that the minor applicant would and could avail himself of that same protection
from the agent of persecution.
[36]
Furthermore, Justice Near concurred with Justice
O’Keefe’s holding on that matter in Castanon Garcia v Canada (Citizenship and Immigration), 2011 FC 1080 at paragraphs 22-23, where he stated
the following:
[…] it was reasonable for the Board not to
conduct an independent analysis of the minor Applicants’ claims. All claims
were based on sufficiently similar facts, the fear of continued threats and
violence perpetrated by Pedro if returned to Mexico. Issues specific to the
children were discussed by the Principal Applicant, who did not express a
desire for them to be addressed separately.
[37]
The same reasoning applies to the case at hand.
The applicants’ claims were joined, with Mr. Estevez named as the principal
applicant, and at no juncture do the applicants appear to have requested that
the claims be considered separately. Furthermore, there were no allegations
that the alleged fear varied between the claimants. I have already indicated
that it is reasonable to conclude that state protection would be provided for a
whistleblower’s family in these circumstances where a community member
intervenes to ensure the integrity of policing. As a result, it was not an
error for the Member to draw the conclusion that the applicant’s common-law
partner and children also should have availed themselves of the available state
protection mechanisms before making refugee claims.
VII.
Conclusion
[38]
I conclude that the decision fell within a range
of reasonable acceptable decisions based on the facts and law and was
sufficiently justified, intelligible and transparent as to deny any grounds for
the Court’s intervention. Accordingly, the application is dismissed. There was
no question requiring certification.
VIII.
Judgment
For the reasons provided this Court’s
judgment is that:
1.
The application is dismissed; and
2.
No question is certified.
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