Docket: IMM-566-16
Citation:
2016 FC 1334
Ottawa, Ontario, December 2, 2016
PRESENT: The
Honourable Mr. Justice Bell
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BETWEEN:
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L.A., C.R., G.H.,
F.H.
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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.
Overview
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division [RPD] of the Immigration and
Refugee Board in which the RPD rejected the Applicants’ refugee claims and
found that they are not persons in need of protection, as contemplated by
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 [the IRPA].
[2]
For the reasons set out below, I would dismiss
the application for judicial review.
II.
Background
[3]
The four Applicants are members of the same
family from Colombia. L.A. [the male Applicant] was the owner of a prosperous
farm in Columbia. In February 2013, the Revolutionary Armed Forces of Colombia
[FARC] demanded extortion money from the Applicants. When they failed to
comply, C.R. [the female Applicant] was raped in March 2013. While the rape and
the circumstances surrounding it are not in dispute, there is some dispute as
to whether it was perpetrated by FARC members or others.
[4]
Following the events of March 2013, the family
moved to Bogota. In July 2013, the male and female Applicants reported the two
incidents (the extortion and the rape) to the Unit for Attention and Reparation
for Victims of the Armed Conflict [the Unit] established by the Columbian
government. The Unit accepted that the Applicants were victims of the armed
conflict and awarded compensation, including funding for psychological
services.
[5]
In January 2015, after the FARC declared a truce
with the Colombian government, the Applicants returned to their farm. At that
time, a number of FARC members allegedly detained and threatened them, stole
their cell phones, and recorded their address in Bogota. The Applicants escaped
from the farm and returned to Bogota. They did not report this incident to the
police until August 2015, shortly before their departure from Colombia. In
October, 2015 they arrived in Canada via the United States of America and made
their refugee claims.
III.
Impugned Decision
[6]
The RPD first addressed the credibility of the
female Applicant, who testified on behalf of the family. Despite testifying
that she mentioned the FARC in her 2013 complaint to the Unit, the RPD noted
that the victim reparation report does not refer to FARC as the agent of
persecution. Further, the Applicants were unable to produce a copy of the
complaint made to the Unit, which, according to country condition documents, is
easily obtainable. In making its credibility finding, the RPD also took into
consideration the Applicants’ failure to report the January 2015 incident until
August 2015, only two months before departing Colombia. It concluded the August
2015 report was made with a view to substantiate the impending refugee claim.
As a result, the RPD concluded the female Applicant lacked credibility, and, on
a balance of probabilities, the January 2015 incident did not occur.
[7]
After considering the country condition
documents on Colombia, the impugned credibility of the female Applicant, and
its conclusion that the January 2015 incident did not occur, the RPD found the
Applicants had not rebutted the presumption of state protection with clear and
convincing evidence (Canada v Ward, [1993] 2 S.C.R. 689, [1993] SCJ No 74).
The RPD also found that there was an Internal Flight Alternative [IFA] in
Bogota.
[8]
In the course of rendering its decision, the RPD
referred to The Chairperson Guidelines 4: Women Refugee Claimants Fearing
Gender-Related Persecution [the Guidelines]. It found, however, that the
Guidelines were of limited use because the female Applicant did not claim
gender violence arose from the alleged 2015 incident, she had reported and been
compensated for the 2013 incident, and the RPD did not require her testimony
about the 2013 incident. The female Applicant’s request that she be declared a “vulnerable person”, which would have permitted her lawyer
to question her first, was denied.
IV.
Issues
[9]
The Applicants contend that the RPD’s decision is
unreasonable in that it failed to take into account the Guidelines when
assessing the female Applicant’s credibility and it failed to declare her a “vulnerable person”. They also contend that,
generally, the decision is unreasonable with respect to the issues of state
protection and the IFA.
V.
Standard of Review
[10]
When this Court is asked to review questions of
fact, including credibility findings, it is settled law that the standard of
review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at paras
47-48; Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA)). This Court may only intervene if the decision fails to
demonstrate justification, transparency and intelligibility and falls outside
the range of possible, acceptable outcomes which are defensible in respect of
the facts and the law (Dunsmuir, above, at para 47).
VI.
Analysis
A.
Credibility
(1)
Application of the Guidelines
[11]
The Applicants contend the RPD did not consider
the Guidelines when making credibility findings regarding the female
Applicant, even though she was a victim of gender violence in March 2013. While
the RPD referred to the Guidelines, it expressed uncertainty as to their
application in circumstances where the female Applicant sought and received
state protection for the gender-related incident, and where that incident
occurred two years prior to her departure from Colombia. I note that the
Guidelines specifically refer to women who fear persecution “at the hands of private citizens from whose actions the
state is unwilling or unable to adequately protect the concerned persons”.
The Respondent contends that, because the female Applicant sought and obtained
state protection for the gender-related incident, the Guidelines are unhelpful
in explaining the delay in bringing the refugee claim. I agree. At the refugee
hearing, the RPD did not question whether or not the events of 2013 actually
occurred. It accepted the evidence of gender-related violence and did not
question the female Applicant regarding that evidence. The only issue related
to the 2013 incident was whether or not the FARC was the perpetrator of the
gender violence.
[12]
With respect to the delay in reporting the
January 2015 incident, the female Applicant testified that she was afraid to
file a report with the police. However, she did just that in August 2015, “shortly before they left [Colombia]”. In my view, it
was open to the RPD to find that the late filing of that report was an attempt
to substantiate the female Applicant’s future refugee claim.
[13]
I will conclude this part of my analysis by
observing that it is not necessary to consider the Guidelines with respect to
testimony unrelated to gender violence. Furthermore, the Guidelines are not
binding: Ahmed v Canada (Citizenship and Immigration), 2012 FC 1494 at
para 34, [2012] FCJ No 1598. I find the RPD’s approach to the utility of the Guidelines
with respect to the issue of the female Applicant’s credibility to be
reasonable in the circumstances.
(2)
Declaration of Vulnerable Person
[14]
The Co-ordinating Member [the Member] of
the RPD concluded that the female Applicant’s request to be declared a “vulnerable person” did not rise to the level of “exceptional circumstances”. She therefore denied the
request. The Applicants contend this decision was unreasonable in the
circumstances. I note the Member referred to a psychological report, to which
she gave limited weight, and the fact RPD members receive sensitivity training.
A review of the file would also indicate the late reporting of the January 2015
incident which was, of course, not gender related. On the basis of those
observations, I am satisfied the RPD’s decision with respect to the female
Applicant’s vulnerability meets the test of reasonableness.
(3)
Implausibility Finding
[15]
The Applicants contend the RPD’s finding
regarding the motivation behind the reporting of the 2015 incidents is
speculative and implausible. They cite Valtchev v Canada (MCI), 2001 FC
776 at para 7, [2001] FCJ No 1131:
A tribunal must be careful when rendering a
decision based on a lack of plausibility because refugee claimants come from
diverse cultures, and actions which appear implausible when judged from
Canadian standards might be plausible when considered from within the
claimant’s milieu.
[16]
In my view, there was sufficient evidence for
the RPD to reach the conclusion it did. The RPD considered evidence of early
reporting of the 2013 incident which resulted in compensation and the delay in
reporting the January 2015 incident until shortly before the Applicants’
departure from Colombia. Essentially, the Applicants request this Court re-weigh
the evidence on this issue, something it is not permitted to do: Khosa v
Canada (Minister of Citizenship and Immigration), 2010 FC 83 at para 37, [2010]
FCJ No 99. In my view, the RPD was faced with an evidentiary foundation upon
which it could make its plausibility finding.
VII.
State Protection
[17]
The Applicants submit the RPD’s decision on
state protection was largely premised on the adverse credibility finding of the
female Applicant. I disagree. The RPD’s decision was based on the documentary
evidence before it, as well as the Applicants’ failure to promptly seek out
state protection following the January 2015 incident. The RPD concluded as
follows:
While it’s
clear that the government of Colombia has not completely succeeded in defeating
FARC and the ELN both groups are significantly weaker than they had previously
been and over the past year the government has entered in peace negotiations
with both groups and the developments in the news on a regular basis show that
this has been a very successful process…
[18]
The onus to disprove the presumption of state
protection rests with the Applicants (Ruszo v Canada (Minister of
Citizenship and Immigration), 2013 FC 1004 at para 42, [2013] FCJ No 1099; Canada
(AG) v Ward, [1993] 2 S.C.R. 689, [1993] SCJ No 74). They provided no clear
and convincing evidence on this before the RPD. I find the RPD’s finding on
state protection to be reasonable in the circumstances.
VIII.
Internal Flight Alternative
[19]
The findings on credibility and state protection
are sufficient to dispose of the Applicants’ claim. It is therefore unnecessary
to address the Applicants’ contentions regarding the IFA in Bogota, and I
respectfully decline to do so.
IX.
Conclusion
[20]
For the reasons outlined above, I would dismiss
the application for judicial review.
JUDGMENT
THIS COURT’S JUDGMENT is that the application for judicial review is dismissed without costs. No
question is certified.
“B. Richard Bell”
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