Docket: IMM-38-14
Citation:
2015 FC 1044
Ottawa, Ontario, September 2, 2015
PRESENT: The
Honourable Mr. Justice Gleeson
|
BETWEEN:
|
|
HERNANDO
GONZALEZ CAMARGO
DIANA MARINA DE
LOS RIOS DE GONZALEZ AND
JUAN MANUEL
GONZALEZ DE LOS RIOS
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review,
brought under s. 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] seeking to set aside a decision of the Refugee Protection
Division of the Immigration and Refugee Board [the Board], finding that the
applicants are neither Convention refugees nor persons in need of protection
under sections 96 or 97 of the IRPA, respectively.
[2]
For the reasons that follow, the application for
judicial review is granted.
I.
Background
[3]
The applicants are the Colombian citizens
Hernando Gonzalez Camargo [the Principal Applicant], his wife Diana Marina de
Los Rios de Gonzalez [the Female Applicant], and their adult son Juan Manual
Gonzalez de Los Rios [the Adult Son].
[4]
On December 2, 2003 the Principal Applicant was
kidnapped by the National Liberation Army [ELN], a leftist guerrilla group
while travelling for work purposes. A few days later the police informed his
wife, the Female Applicant, of the kidnapping, advising that they had received
a note from the ELN. Soon thereafter the ELN contacted the Female Applicant by
phone to demand a ransom of 300 million Colombian pesos.
[5]
A government body specialized in dealing with
kidnappings, the Unified Action Groups for Personal Freedom [GAULA], opened an
investigation in response to the Female Applicant’s formal complaint. The
Female Applicant was reluctant to fully cooperate with the GAULA investigation
at that time.
[6]
The Principal Applicant was released on December
26, 2003 when the family of another man who had been kidnapped with the
Principal Applicant paid his share of the ransom. The Principal Applicant
subsequently reimbursed this family, triggering further demands from the ELN, who
were of the view that the applicants still owed them ransom money.
[7]
Commencing in January 2004, and continuing until
the applicants left Colombia for Canada in July 2012, the applicants were
subject to ongoing demands for money from the ELN. In 2005 the ELN threatened
the Adult Son’s young daughter and as a result she was sent to Spain to live
with her mother. The applicants report paying 317 million Colombian pesos to
the ELN between 2003 and 2012 and also provided the ELN with personal items in
lieu of cash over this period at the suggestion of the ELN. The applicants did
not notify the Colombian authorities of the demands because the ELN had
threatened them to keep quiet and they believed the ELN had infiltrated the
authorities.
[8]
On numerous occasions during this period the
applicants travelled to the United States, Mexico, Panama and Canada in the
hope that an extended absence would see the situation improve, but on each
occasion their return to Colombia triggered further demands from the ELN. The
Principal Applicant and the Female Applicant travelled to Canada in July 2012
and made a claim for refugee protection on the basis that they would be harmed
by the ELN if they were to return to Colombia as they had refused to pay
extortion money demanded by the ELN.
[9]
In August 2012 the Adult Son, who initially
remained in Colombia, contacted the Colombian police. He was told by the police
that the matter was within the jurisdiction of the GAULA. When the Adult Son
approached the GAULA, he was told that a file was already opened as a result of
the 2003 kidnapping and there was an ongoing process in place. The Adult Son
left Colombia for the United States one year later, in August 2013, and then
joined his parents in Canada about a week later.
II.
Decision
[10]
The Board decision noted no credibility issues
with respect to the applicants, and accepted that the Principal Applicant had
been kidnapped by the ELN, that a ransom had been paid for his release, and
that the ELN continued to target the family for extortion from January 2004
until they left Colombia for Canada in 2012. The Board found that the
determinative issue was whether state protection was available to the
applicants.
[11]
The Board, relying on Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 [Ward] and Hinzman v Canada
(Minister of Citizenship and Immigration), 2007 FCA 171, 63 Imm LR (3d) 13
[Hinzman] identifies the following principles of state protection: (1)
there is a presumption that the state is capable of protecting its citizens,
except in situations where the state is in complete breakdown; (2) to rebut the
presumption of state protection, a claimant must provide clear and convincing
evidence of the state’s inability to protect its citizens; (3) the claimant
must approach the state for protection in situations where it might be
reasonably forthcoming; (4) a claimant must exhaust all recourses available to
her domestically before claiming refugee status; and (5) the standard for
protection is not that of perfect protection, but rather of adequate protection.
[12]
The Board found that the documentary evidence
before it indicated that the Colombian government had tried to improve
protection for citizens through new programs and that the government continued
to implement programs aimed at improving state protection. Despite these
efforts the Board further noted that financial constraints impacted some
programs and noted more generally that Colombian authorities had not always
been successful.
[13]
The Board found that the applicants’ failure to
report ongoing extortion due to fear of reprisals from the ELN did not give the
Colombian authorities an opportunity to assess the risk they faced from the ELN
and provide protection. The applicants’ doubt in the effectiveness of the
protection offered by the state had not been tested and therefore the
presumption of state protection had not been rebutted. The Board recognized
that the Adult Son had made a report to the authorities in 2013 but held that
he then left the country without giving GAULA the opportunity to investigate.
[14]
The Board pointed to the fact that the GAULA
took a report, opened a file and began an investigation into the kidnapping of
the Principal Applicant in 2003 as an indication that the authorities were
willing to provide assistance to the applicants. The Board further states that
the applicants chose not to cooperate in the investigation, instead preferring
to pay ransom and extortion demands over the years. This included failing to
notify police when a serious threat to kidnap the Adult Son’s daughter was made
in 2005.
[15]
The Board found on a balance of probabilities
that the applicants had not demonstrated that there was inadequate state
protection in Colombia, and therefore they were neither Convention refugees nor
persons in need of protection.
III.
Applicant’s Submissions
[16]
The applicant claims that the Board applied the
wrong test for state protection by focusing on the nature of the efforts made
by the government of Colombia to improve protection for its citizens instead of
focusing on the operational adequacy of the protection available to persons in
the applicants’ circumstances. The applicants submit that there was evidence to
demonstrate that state protection was not adequate at the operational level had
the Board applied the correct test.
[17]
The applicants further argue that the Board
ignored evidence of the Colombian authorities’ dismissive response when
approached by the Adult Son. The applicants note that when the Adult Son
attempted to make a complaint about the threats he was receiving the
authorities were not sympathetic to him and put the blame on him.
[18]
The applicants also argue that the Board
misconstrued the timing of the events when holding that the Adult Son had left
Colombia without giving the authorities an opportunity to investigate and
provide protection. The applicants argue that not only did the Board
erroneously conclude that the authorities were investigating the complaint
rather than acknowledge that the authorities did not act on the complaint, but
that the Board also appeared to believe that the Adult Son had left Colombia
soon after making the complaint. The facts demonstrate that the Adult Son
actually remained in the country for a year. No protection materialized during
this period.
IV.
Respondent’s Submissions
[19]
The respondent submits that the Board properly
articulated the test for state protection, cited the appropriate jurisprudence,
and considered the evidence that Colombian authorities were willing and able to
assist when called upon. The respondent submits that the Board was aware of the
distinction between state efforts to protect and the operational adequacy of
that protection to the applicants and persons like them by virtue of its
citation of the correct jurisprudence and its consideration of the evidence.
[20]
The respondent notes that the onus is on the
applicants to rebut the presumption of state protection with clear and
convincing evidence. The respondent notes that in 2003, the Colombian
authorities had been prepared to assist the applicants and interviewed the
Female Applicant in 2003, where they offered a range of operational measures to
assist them, but the applicants did not permit them to help. After 2003, the
Principal Applicant made no effort to seek state protection. The Adult Son only
approached the police once in 2012 but provided no useful information to assist
with the investigation.
[21]
The respondent further submits that the Board
did not misconstrue the timing of the Adult Son’s departure. Instead, the
respondent submits that the basis for finding that GAULA had not been provided
the opportunity to investigate is the fact that the applicants – who were
apparently the principal targets of the extortion – never gave the authorities
a real opportunity to investigate and help them.
V.
Applicant’s Reply
[22]
In reply, the applicants submit that they are
relying on more than a single line from their narrative to rebut the
presumption of state protection; they rely on the country conditions evidence
and the authorities’ reaction to the Adult Son’s complaint. The applicant
argues that this evidence demonstrates that Colombian authorities were not
willing or able to provide sufficient protection to them from the actions of
the ELN. The applicant further argues that even if the evidence related to the
authorities’ lack of response may have been brief, it did not relieve the Board
of the obligation to deal with this part of the evidence.
VI.
Issues
[23]
I would frame the issues raised in this
application as follows:
A.
Did the Board identify and apply the appropriate
test for state protection?
B.
Was the Board’s determination on the issue of
state protection reasonable in light of the evidence?
VII.
Standard of Review
[24]
The applicant submits that in considering
whether or not the Board identified the appropriate test for state protection
the correctness standard is to be applied by the court. This question was
recently addressed by my colleague Justice John O’Keefe in Dawidowicz v
Canada (Minister of Citizenship and Immigration), 2014 FC 115, 23 Imm LR
(4th) 61 [Dawidowicz] where he states:
[22] Where previous jurisprudence has
determined the standard of review applicable to a particular issue before the
court, the reviewing court may adopt that standard (see Dunsmuir v New
Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190 [Dunsmuir]).
[23] The parties agree that the standard
of review for all issues is reasonableness, but I do not. Chief Justice Paul
Crampton recently explained the standard of review for decisions on persecution
and state protection in Ruszo v Canada (Minister of Citizenship and
Immigration), 2013 FC 1004 at paragraphs 20 to 22, [2013] FCJ No 1099 (QL)
[Ruszo]. In essence, since the jurisprudence has developed clear tests
for both, a board cannot depart from them. Therefore, where applicants allege
that a board misunderstood the test, the standard is correctness and no
deference is owed to the board’s understanding of the relevant tests. However,
where applicants challenge how the tests were applied to the facts, those are
questions of mixed law and fact and the standard is reasonableness (Ruszo
at paragraphs 20 to 22; Gur v Canada (Minister of Citizenship and
Immigration), 2012 FC 992 at paragraph 17, [2012] FCJ No 1082 (QL); Hinzman
v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at
paragraph 38, 282 DLR (4th) 413 [Hinzman]). Here, the applicants allege
both types of errors, so I will review the former type for correctness and the
latter type for reasonableness.
[25]
As was the case in Dawidowicz, here the
applicants allege both types of errors. I will therefore review the first issue
on the standard of correctness and the second on the standard of
reasonableness.
VIII.
Analysis
A.
Did the Board identify and apply the appropriate
test for state protection?
[26]
The jurisprudence establishes that the fact that
a state has undertaken serious efforts at state protection is not determinative
of the issue (Kanto v Canada (Minister of Citizenship and Immigration),
2012 FC 1049 at paras 39-43; Rodriguez v Canada (Minister of Citizenship and
Immigration), 2012 FC 1291 at para 48, 14 Imm LR (4th) 89; Kemenczei v
Canada (Minister of Citizenship and Immigration), 2012 FC 1349 at paras 56
and 57, 14 Imm LR (4th) 265). The appropriate test involves an assessment of
the adequacy of that protection at the operational level; is the level of
protection adequate within the context of the person seeking to rely on that
protection? As stated by my colleague, Justice O’Keefe in Burai v Canada
(Minister of Citizenship and Immigration), 2013 FC 565 at para 28:
[28] […] The Board, in its reasons, properly
described the test for state protection as one of adequacy. This is in line
with this Court’s repeated instruction that the existence of “serious efforts”
at state protection are not determinative of the adequacy of state protection.
As I said in Harinarain v Canada (Minister of Citizenship and Immigration),
2012 FC 1519, [2012] FCJ No 1637 at paragraphs 27 to 29:
[27] The use of the phrase “in
other words” in the passage is incorrect: “adequate protection” and “serious
efforts at protection” are not the same thing. The former is concerned with
whether the actual outcome of protection exists in a given country, while the
latter merely indicates whether the state has taken steps to provide that
protection.
[28] It is of little comfort to
a person fearing persecution that a state has made an effort to provide
protection if that effort has little effect. For that reason, the Board is
tasked with evaluating the empirical reality of the adequacy of state
protection.
[29] This Court has affirmed
this interpretation of state protection repeatedly. …
[27]
The Board correctly identifies the principles
underpinning state protection as set out in Ward and Hinzman
including the claimant’s burden of providing clear and convincing evidence of
the state’s inability to protect its citizens and the requirement that
claimants must approach the state for protection in situations where that
protection might be reasonably forthcoming. In my opinion, however, the Board
failed to correctly recognize that the assessment of the adequacy of state
protection involves more than a consideration of state efforts. This caused the
Board to focus on state efforts and not consider the operational adequacy of
state protection for the applicants and individuals in like circumstances; the
proper test when considering the question of adequate state protection.
[28]
The Board relied on the documentary evidence
before it to conclude that the Colombian authorities had undertaken measures to
improve protection for citizens and to improve the security situation in the
country. In particular the Board cites the development of two new programs to
demonstrate efforts in this regard, the National Protection Unit and the
Protection Program for Victims and Witnesses. What the Board failed to address
was how these efforts might provide operational level protection to the
applicants and individuals like them – a necessary step if the Board were
conducting a particularized operational adequacy analysis.
[29]
The Immigration and Refugee Board’s National
Documentation Package for Colombia, found at pages 226 through to 272 of the
Certified Tribunal Record [CTR] states the following at page 267 with respect
to the purpose of the National Protection Unit Program:
The purpose of the National Protection Unit
is to articulate, coordinate and execute the provision of protection service to
those whom the National Government determines, owing to their political,
public, social, humanitarian, cultural, ethnic or gender activities, condition
or situation or their status as a victim of violence, displaced person or human
rights activist, to be at extraordinary or extreme risk of death, personal
injury or loss of liberty or personal safety or to be in danger because they
hold public office or engage in other activities that may involve extraordinary
risk, such as leading a labor union, non-governmental organization (NGO) or
groups of displaced persons, and to ensure the timeliness, effectiveness and
suitability of the measures taken.
[30]
Similarly the CTR describes the Protection
Program for Victims and Witnesses at page 269 where it states “this program is open to victims and witnesses who are
providing information in a criminal proceeding”.
[31]
The Board noted that financial limitations have
constrained the National Protection Unit program and that Colombian attempts to
improve the security situation have not always been successful which reflects
the principle that state protection need not be perfect. However, the Board
then fails to consider the likelihood of the applicants falling within the
scope of the National Protection Unit Program or whether or not they would meet
the requirements for the Protection Program for Victims and Witnesses. The
Board did not address how these programs might provide operational level
protection to the applicants and individuals like them – again, a necessary
step in the analysis if the Board were applying the adequacy test.
[32]
I am satisfied that the Board erred by
incorrectly applying a serious efforts test when considering the question of
state protection.
B.
Was the Board’s determination reasonable in
light of the evidence?
[33]
The Board’s application of a serious efforts
test instead of focusing on the operational adequacy of the protection
available to persons in the applicant’s circumstances resulted in the Board
failing to address evidence relevant to the presumption of state protection.
[34]
The Board concludes, relying on the response of
authorities to the 2003 kidnapping complaint, that state authorities had
demonstrated a willingness to assist the applicants. The Board notes that the
applicants did not fully cooperate with authorities at that time. The Board,
however, fails to address the applicants’ explanation for their limited
cooperation and reluctance to engage state authorities in response to the
ongoing extortion they experienced. The applicants believed that state
institutions had been infiltrated by the ELN and reporting the extortion or
cooperating with authorities would place them at greater risk. The National
Documentation Package [NDP] speaks to concerns of ongoing infiltration of
security forces by paramilitary groups and their successors, evidence directly
relevant to the applicants’ explanation but not addressed by the Board.
[35]
In addition, and as noted above, the Board
identifies the development of two new programs to deliver protection to citizens,
the National Protection Unit and the Protection Program for Victims and
Witnesses program. However, the applicability and effectiveness of these
protection programs are not addressed. There was relevant evidence on both of
these questions in the NDP, evidence that contradicts a conclusion that these
programs are both available and effective in delivering state protection to
persons in the applicants’ situation.
[36]
I am mindful of the challenges vast amounts of
documentary evidence relating to country conditions can present for the Board (Bustos
v Canada (Minister of Citizenship and Immigration), 2014 FC 114 at paras
36-39, 24 Imm LR (4th) 81 [Bustos]), however in this case the applicants
justified their reluctance to complain to police authorities on the grounds
that “the guerillas have been able to infiltrate the
authorities” (CTR para 379 line 43) and fear of reprisals from the ELN.
As noted by my colleague, Justice O’Keefe, in Bustos at para 39:
[39] Therefore, if the board explains
what documentary evidence it relies on and that evidence is reliable and
reasonably supports its conclusions, then finding a few contrary quotations
that it did not specifically explain away will not make the decision
unreasonable. If, on the other hand, the contrary evidence is overwhelming and
the board does not explain what documentary evidence supports its conclusions,
then it may be easier to conclude that the decision was unreasonable.
[37]
Similarly the finding that the Adult Son left
the country without giving GAULA an opportunity to investigate is not
explained. The respondent has argued that this finding is a reference not to
the Adult Son but rather to the Principal and Female Applicants as the primary
targets of the ELN extortion. I am not convinced. A plain reading of the
Board’s decision leads me to conclude that the Board was referring to the Adult
Son leaving without giving the authorities an opportunity to investigate. This
conclusion, absent some explanation, is unreasonable.
[38]
In this case I am of the opinion the Board’s
failure to address contradictory documentary evidence and address the evidence
as it relates to the timing of the Adult Son’s departure from Colombia was
unreasonable.
[39]
The parties did not identify a question for
certification.
IX.
Remedy
[40]
In oral submissions before this Court the
applicants’ counsel noted that the issues in dispute related solely to state
protection. The applicants’ counsel further noted that the Board found that the
applicants were credible and that on a balance of probabilities the Board was
satisfied that the 2003 kidnapping had occurred, ransom had been paid to the
ELN and that the applicants had continued to target the family for extortion
from 2004 until they departed for Canada in 2012.
[41]
The applicants submitted, in light of the Board’s
findings on the issue of credibility, that should the Court grant the
application for judicial review it also direct the sole question to be
determined on reconsideration be the availability of state protection. The
respondent made no submissions in response.
[42]
Section 18.1(3)(b) of the Federal Courts Act,
RSC 1985, c F-7 gives this Court jurisdiction to issue directions when
referring a decision back for a redetermination by a different panel. The
nature of the direction will vary depending on the circumstances, but directed
decisions are exceptional and granted only in the clearest of circumstances; (Rafuse
v Canada (Pension Appeals Board), 2002 FCA 31, 222 FTR 160 [Rafuse]).
[43]
In this case the applicants have not sought
direction that would determine the outcome of the application. Rather the
applicants are seeking a direction from the Court that would require the Board
to accept, based on a previous finding on the issue of credibility, that the
reconsideration be limited to the issue of state protection.
[44]
In this case, the state protection
reconsideration will not be limited to a question of law. The Board will be
required to consider not only the documentary evidence but also the evidence
and conduct of the applicants as it relates to their reluctance to seek out
state protection. The reconsideration will engage issues of fact and law. I am
of the opinion the issue should be evaluated in its totality by the Board; (Rafuse,
para 14 and Freeman v Canada (Minister of Citizenship and Immigration),
2013 FC 1065 at paras 78-81). As such I am not prepared to exercise my
discretion and limit the scope of the Board’s reconsideration.
Email this Content