Docket: IMM-1227-15
Citation:
2015 FC 1100
[UNREVISED ENGLISH TRANSLATION]
Montréal, Quebec, September 22, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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ANA MARIA PLATA
PEREZ
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CAROLINA MENDEZ
PLATA
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FABIO ALBERTO
MENDEZ DANGON
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[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 of the Refugee Appeal Division [RAD] of the
Immigration and Refugee Board [IRB], dated January 28, 2015, dismissing the appeal
from a decision of the Refugee Protection Division [RPD] dated July 24, 2014,
in which the RPD had rejected the applicants’ claim for refugee protection.
II.
Facts
[2]
The principal applicant, Fabio Alberto Mendez
Dangon, aged 39, and his spouse, Ana Maria Plata Perez, as well as their
daughter, Carolina Mendez Plata, are citizens of Colombia who lived in Bogota
before leaving Colombia.
[3]
In 2007, when we was working at the Ministry of
Transport in Colombia and acting as Director General of the National Institute
of Concessions [INCO], the principal applicant publicly denounced acts of corruption.
Following his denunciations, he was fired and was the subject of a criminal
investigation for falsifying documents (i.e. curriculum vitae). In May 2009, the
file was closed due to a lack of evidence.
[4]
In September 2009, the principal applicant filed
a new complaint about corruption, this time with the Presidency of the
Republic. Following this, a number of officials were fired, including Messrs.
Alvaro José Soto Garcia and Miguel Gomez. The principal applicant claims to
have received threats to his safety, specifically from Messrs. Garcia and Gomez.
In October 2009, the principal applicant and his family moved to a safer part
of Bogota.
[5]
According to the applicant’s affidavit, Mr.
Garcia is an influential person in the community and has influence in the Colombian
government and judicial system. A second criminal investigation of the principal
applicant on the same charges as in 2007 was launched in December 2009.
[6]
Threats against the principal applicant
allegedly began again in 2011 after he filed a written denunciation of
corruption within the Ministry of Transport. The applicants moved to a
different part of Bogota once again. A request for protection was apparently
made to the police, without success. The principal applicant’s mother was
purportedly assaulted, which the principal applicant interpreted as a message
directed at him.
[7]
Fearing the legal proceedings he was facing and
believing that Mr. Garcia would influence those proceedings, the principal
applicant left Colombia for the United States on July 21, 2013. The
applicants found themselves in Panama on August 29, 2013; they arrived in
Canada on September 1, 2013, and claimed refugee protection on September 30,
2013. The Colombian court ultimately found the principal applicant guilty and
sentenced him to eight years of imprisonment. That decision, according to
information in the record, is being appealed in Colombia.
III.
Impugned decision
A.
RPD decision
[8]
In order to analyze the RAD’s decision, it is
necessary to understand the RPD decision that was appealed before the RAD; therefore,
the Court must take into consideration the RAD’s analysis of this previous decision.
[9]
In its decision, the RPD rejected the applicants’
claim, determining that they were not Convention refugees, pursuant to section
96 of the IRPA, or persons in need of protection, pursuant to section 97 of the
IRPA. The RPD found that, on the whole, the applicants were credible, had
properly established the facts and had testified in a detailed manner. However,
it noted a few omissions and inconsistencies. The RPD therefore concluded that the
applicants had not demonstrated a subjective fear of persecution and that they
had not acted like individuals with a fear of persecution or a fear for their
lives if they were to return to Colombia.
[10]
The RPD arrived at this finding based on several
elements. First, the applicants remained in Bogota and moved only 3 kilometres
from their former residence following the threats they had received. Second, the
principal applicant waited until 2011 before filing his written denunciations,
over four years after his dismissal. Third, the principal applicant failed to
establish a link between his mother’s assault and the threats he had allegedly
received. Fourth, the principal applicant had not demonstrated that Mr. Garcia
had influenced the legal proceedings against him. Fifth, the applicants did not
claim refugee protection at the first opportunity, either when the principal
applicant was in the United States or when the applicants were reunited in
Panama. Lastly, between the first threats received by the applicants in 2007
until their departure from Colombia in 2013, no incident against them occurred.
[11]
In short, the RPD found that the principal
applicant had a fear of prosecution, not persecution, if he were to return to Colombia.
B.
RAD decision
[12]
In its decision, the RAD re-examined the RPD’s
decision as to whether the applicants were Convention refugees or persons in
need of protection. However, the RAD deferred to the RPD’s findings with regard
to the credibility of the applicants.
[13]
The RAD confirmed the RPD’s decision and concluded
that applicants’ claim for refugee protection had to be rejected for a number
of reasons. First, the fact that the applicants had waited four years before
leaving Colombia and had moved only 3 kilometres from their former residence,
while remaining in Bogota, shows that they did not have a subjective fear.
Second, Mr. Garcia was forced to resign from his position at INCO in 2009. Had
he wished to cause the applicants harm, he had ample time in which to do so
prior to their leaving Colombia, but did not do so. Third, the RAD did not find
it credible that Mr. Garcia could influence the criminal investigation of the principal
applicant, further concluding that if Mr. Garcia had such influence, he would
not have been forced to resign from his position. Fourth, the RAD found that
although there are many challenges for Colombia to overcome, the Colombian
legal system was not manipulated in a manner that resulted in the persecution
of the principal applicant; and, at any rate, the applicants had not met their
burden of establishing that the legal proceedings had been influenced by Mr.
Garcia. Lastly, the RAD found that the applicants had failed to rebut the
presumption of state protection.
[14]
In short, the RAD concluded that the applicants’
claim for refugee protection under sections 96 and 97 of the IRPA should fail.
IV.
Issues
[15]
The Court considers that the application raises
the following issues:
1)
Did the RAD err in finding that the applicants
had not demonstrated subjective fear?
2)
Did the RAD err in its analysis of the risk of
persecution, in particular by failing to consider the cumulative nature of the
harassment?
3)
Did the RAD err in finding that the applicants
had failed to rebut the presumption of state protection?
V.
Statutory provisions
[16]
The following statutory provisions of the IRPA
apply in this case:
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Convention refugee
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Définition de « réfugié »
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
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a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1)
A person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
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97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
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(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
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(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
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(ii) elle y est exposée en tout lieu
de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
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(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
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(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
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(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
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(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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VI.
Positions of the parties
[17]
With regard to the first issue, the applicants
argue that the RAD erred in finding that they had no subjective fear. Thus,
they contend that the RAD could not have arrived at the conclusion that the
applicants lacked subjective fear when the RPD had acknowledged that the [translation] “applicants
gave detailed testimony and that, in general, the facts were properly
established and credible” (Memorandum of Argument, para 16) (Ramirez-Osorio
v Canada (Minister of Citizenship and Immigration), 2013 FC 461 [Ramirez-Osorio];
Tranquino v Canada (Minister of Citizenship and Immigration), 2010 FC
793). In addition, the RAD erred by failing to consider everything the
applicants had done to ensure their protection, taking into consideration only
the fact that they had moved a distance of 3 kilometres within Bogota.
[18]
Second, the applicants submit that the RAD erred
in its determination that the applicants had failed to establish that they were
persecuted. Thus, the RAD ought to have considered the cumulative nature of the
harassment the applicants were subject to (Mete v Canada (Minister of
Citizenship and Immigration), 2005 FC 840). Moreover, the RAD erred by
omitting several elements mentioned during the principal applicant’s testimony,
including: the re-opening of the investigation in 2009 following Mr. Garcia’s
resignation, irregularities during his criminal proceeding, contradictory
testimony by the investigator who had conducted the investigation of the
principal applicant and the lengthy delays during the proceeding.
[19]
Third, as to the issue of state protection, the
applicants maintain that the RAD disregarded objective evidence that the Colombian
legal system may be subject to corruption. In addition, the RAD failed to
consider the fact that the applicants had made several attempts to seek state
protection, without success. Consequently, a charge issued by a corrupt court
would amount to persecution of the applicants.
[20]
For his part, the respondent submits that the RAD’s
decision was reasonable. First, it was reasonable for the RAD to conclude that the
applicants had no subjective fear of persecution. As far as credibility is
concerned, the respondent points out that RPD had not found all of the evidence
and facts presented to be credible. The RPD did not find it credible that Mr.
Garcia would have had an influence on the legal proceedings against the
principal applicant. Furthermore, the RAD concluded that there was an absence
of subjective fear when it considered the applicants’ conduct in Colombia
between 2007 and 2013, in addition to the fact that the applicants waited a
lengthy six years before claiming refugee status in another country. Second, the
respondent maintains that it is not persecution that the principal applicant
fears, but rather judicial prosecution following criminal charges. Third, the applicants’
argument regarding the cumulative effect must be dismissed because it is a new
argument that had not been raised before the RAD. Lastly, the respondent
submits that the RAD reasonably confirmed the decision of the RPD with respect
to state protection. As a result, the respondent did not put forth an argument
in that regard. For these reasons, in the respondent’s opinion, the RAD’s
decision was reasonable.
VII.
Standard of review
[21]
RAD decisions relating to the credibility of applicants
and state protection are to be reviewed on a reasonableness standard (Celaj
v Canada (Minister of Citizenship and Immigration), 2014 FC 761 at para 14;
Carranza v Canada (Minister of Citizenship and Immigration), 2010 FC 914
at para 16). As such, the Court will only intervene if the RAD’s decision does
not fall within the range of possible, acceptable outcomes which are defensible
in respect of the facts and law, or if the decision-making process lacks
justification, transparency or intelligibility (Dunsmuir v New Brunswick,
[2008] 1 S.C.R. 190, 2008 SCC 9).
VIII.
Analysis
A.
Subjective fear of persecution
[22]
The RAD must extend deference to findings of
credibility made by the RPD (Sajad v Canada (Minister of Citizenship and
Immigration), 2014 FC 1107). The RPD found that although the applicants
provided detailed testimony, [translation] “there were a number of omissions and some inconsistencies
between their narrative and testimony, but on the whole, the facts were
properly established and credible” (RPD decision, at para 18). In its
decision, the RPD raised several elements in respect of which they determined
that the applicants were not credible, and which resulted in the RPD concluding
that the applicants had not demonstrated a subjective fear:
•
They moved only 3 kilometres from their former
residence while going about their normal lives as before;
•
The principal applicant was vague and hesitant
as to why he waited four years before making his denunciations;
•
He had failed to establish a link between his
parents’ assault and his denunciations;
•
Although he claimed to fear Mr. Gomez, the
principal applicant only talked about Mr. Gomez when the RPD questioned him on
the subject.
Those findings
remain unresolved following the inconclusive results of the RAD with respect to
those findings.
[23]
This Court has consistently applied the principle
set out in Shanmugarajah v Canada (Minister of Employment and Immigration),
[1992] FCJ 583, [Shanmugarajah] that “it is
almost always foolhardy for a Board in a refugee case, where there is no
general issue as to credibility, to make the assertion that the claimants had
no subjective element in their fear” (Shanmugarajah, above, at
para 3). Further, in Ramirez-Osorio, the Court extended this principle
when it wrote that “in the absence of a negative
general credibility finding, [the RPD could not] reasonably determine that
the principal Applicant lacks subjective fear” [Emphasis added.] (Ramirez-Osorio,
above, at para 46).
[24]
In this case, the RPD found that the applicants
were generally credible, therefore, the RPD made a favourable finding as to
their credibility. According to the principles in Ramirez-Osorio, in the
absence of a negative general credibility finding, the RAD’s determination that
the applicants lacked subjective fear was not reasonable.
[25]
It is possible that a future decision of the RAD
following the judicial review that returns the matter to it for redetermination
may be the same as the previous decision, but that decision would have to
provide reasons to address the serious concerns identified by this Court
following its analysis of the case law.
IX.
Conclusion
[26]
The Court finds that the RAD’s decision is not reasonable.
Accordingly, the application for judicial review is allowed.
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