Docket: IMM-553-16
Citation:
2016 FC 1032
Ottawa, Ontario, September 12, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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SANDRA MILENA
LOZANO MOLINA
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Ms. Molina, is a citizen of
Colombia who claimed protection in Canada because she fears the National
Liberation Army [ELN], a guerilla group in Colombia.
[2]
In her Basis of Claim form [BOC] Ms. Molina’s
alleges that she was employed as a communications specialist on a solid waste
project that encouraged residents to abandon criminal activities and work in
recycling projects. Her work involved travel to high risk areas of Medellin.
She also spoke on local radio and wrote articles in local newspapers relating
to the solid waste project.
[3]
She alleges that the ELN approached her in her
workplace in September 2015 demanding that she accompany them to see their ELN
commander. She refused. She believes the commander had an interest in her and
did not like the work she was doing with displaced persons in poor
neighbourhoods. After the refusal, the ELN members returned frequently to her
office threatening her life and, on one occasion, attempted to physically
remove her from her office. They also threatened her life while she was at
home. She left her job and her home, making plans to leave Colombia for Mexico.
She arrived in Canada from the United States in October 2015 after meeting and
marrying her partner, a permanent resident of Canada, in Mexico.
[4]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Protection Board of Canada [IRB] rejected Ms. Molina’s
claim finding that her allegations relating to the ELN were not credible. The
RPD alternatively concluded that even if the allegations were credible she had
not provided clear and convincing evidence that Colombia would not be
reasonably forthcoming with adequate state protection.
[5]
Ms. Molina asks that the Court set aside the RPD
decision and return the matter for redetermination. She argues that the RPD’s
credibility findings were unreasonable and that the RPD erred in making its
state protection findings.
[6]
The state protection finding is determinative
and is the sole issue I need to address in considering this application. In
this regard, I am not convinced the RPD erred. The RPD reasonably concluded
that Ms. Molina had failed to rebut the presumption of state protection as she
made no efforts to report threats or otherwise seek protection.
II.
Standard of Review
[7]
The RPD’s state protection findings engage
issues of mixed fact and law to be reviewed on a reasonableness standard (Nava
v Canada (Minister of Citizenship and Immigration), 2008 FC 706 at para
12).
III.
Analysis
[8]
Ms. Molina submits that the RPD erred in finding
that her failure to seek protection from Colombian authorities was
unreasonable. She argues that the evidence before the tribunal demonstrated
that it was objectively unreasonable for her to seek protection from the state
and therefore she was under no obligation to do so. She further submits that
the RPD selectively reviewed the documentary evidence and erred in giving more
weight to that evidence than her reasons for not seeking protection. She also
argues that the RPD considered serious state efforts but failed to address the
availability of adequate state protection for her. Finally Ms. Molina argues
that the RPD erred in failing to consider her profile as a female government
employee and community activist. I disagree.
[9]
It is not disputed that Ms. Molina had the legal
burden of providing clear and convincing evidence that Colombia was unable to
provide adequate state protection (Carillo v Canada (Minister of Citizenship
and Immigration), 2008 FCA 94 at para 19). Ms. Molina’s evidence before the
RPD was that she had not sought out any state protection resources in Colombia
and did not report any threats to police or authorities prior to departing for
Mexico. She testified to the effect that reporting ELN threats to the police
was too risky, the police would not protect her and to report would amount to a
death sentence.
[10]
Contrary to Ms. Molina’s submission that the RPD
selectively reviewed the documentary evidence, it is clear from the decision
that the RPD reviewed Ms. Molina’s country documents and the documentation in
the Board’s National Documentation Package. In conducting its review, the RPD
noted that there are several agencies and programs through which citizens can
seek protection but that Ms. Molina made no effort to do so. The RPD
acknowledged that the evidence relating to the adequacy of state protection is
mixed. The RPD also concluded that Ms. Moklina’s concerns with the adequacy of
state protection were speculative. On the basis of this evidence, the RPD gave
more weight to the documentary evidence before it relating to the adequacy of
state protection than Ms. Molina’s stated concerns.
[11]
The RPD’s reasoning is transparent and
intelligible. This is not a case where the RPD failed to address and assess Ms.
Molina’s evidence or the contrary country condition evidence, the situation in Guerrero
Hidalgo v Canada (Minister of Citizenship and Immigration), 2016 FC 222
upon which Ms. Molina relies. Similarly, while the RPD reviewed the efforts of
the state to improve protection, it links those efforts to the operational
adequacy of state protection for someone in Ms. Molina’s circumstances.
[12]
It was reasonably open to the RPD to conclude
that Ms. Molina’s failure to make any effort to seek out or obtain state
protection was fatal to her claim. While a reviewing court might prefer to see
more detailed reasoning relating to her profile “[r]easons
may not include all the arguments, statutory provisions, jurisprudence or other
details the reviewing judge would have preferred, but that does not impugn the
validity of either the reasons or the result under a reasonableness analysis”
(Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para 16). The RPD did not err in its state
protection findings.
IV.
Conclusion
[13]
The RPD decision falls within the range of
possible, acceptable outcomes defensible in respect of the facts and law (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
[14]
Neither of the parties has proposed a question for
certification and none arises.
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