Date: 20101124
Docket: IMM-1713-10
Citation: 2010 FC 1177
Ottawa, Ontario, November 24, 2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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WILSON ARRENDONDO RENGIFO,
MARIA CAMILA ARREDONDO TORO, ISRAEL ALEJANDRO MANZO BARRERA A.K.A. ISRAEL
ALEJANDR MANZA BARRERA, JUAN PABLO ARREDONDO TORO, AYDA ROSA TORO GRAJALES
AND MATIAS MANZO ARREDONDO A.K.A. MATIAS MANZA ARRDONDO, BY HIS LITIGATION
GUARDIAN ISRAEL ALEJANDRO MANZO BARRERA
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicants, an extended family of six persons, are citizens of Colombia (except for
a grandson who is a citizen of the United States and a son-in-law who is a
citizen of Mexico). The family
arrived in Canada in June 2008
from the United
States.
They claim protection pursuant to ss. 96 and 97(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) on the basis of
their claimed fear of the paramilitary force known as the United Self-Defence
Forces of Colombia (Autodefensas Unidas de Colombia, referred to as AUC).
[2]
In
1999, the Principal Applicant alleges that he received threats from the AUC
because of his membership in the Movimiento Politico Union Patriotica (the
Patriotic Union), a Colombian political party. The Applicants left Colombia in
1999 for the United
States
where they remained until 2008. The Applicants hesitated to claim asylum. By
the time the Applicants began collecting the necessary documentation and a
relative filed a denunciation with the Colombian police, the limitation period
for their asylum claim had expired. The Principal Applicant claims that he
continues to be a target of the AUC.
[3]
In
a decision dated February 24, 2010, a panel of the Refugee Protection Division
of the Immigration and Refugee Board (the Board) considered the claims of the
extended family (except for the grandson, whose claim was dealt with in a
separate decision of the same date). The Board concluded that the Applicants
are neither Convention refugees nor persons in need of protection. The Board
found that the Applicants did not have a credible well-founded fear of
persecution. In particular, the Board did not find it credible that the AUC
would continue to threaten the Principal Applicant after he ceased activity
with the Patriotic Union, and that the nine-year stay in the United
States,
without claiming asylum, impugned the credibility of the Applicants. In the
alternative, the Board found that the Applicants have a viable internal flight
alternative in Bogota. The Board also concluded that the son-in-law,
who was a citizen of Mexico, was neither a Convention refugee nor a
person in need of protection.
[4]
In
this application, the Applicants seek judicial review of the decision, except
as it relates to the Mexican son-in-law and the grandson.
[5]
The
Board’s decision is reviewable on the standard of reasonableness. On this
standard, the
Court should not intervene where the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47; see also Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).
[6]
The
Board’s finding that it was not probable that the AUC continued to threaten the
Principal Applicant after he discontinued his community work is reasonable. The
Applicant was unable to put forward any convincing evidence that he had been
consistently targeted by the AUC, or that other members of the Patriotic Union
had been targeted by the AUC, in particular. As the Board noted, the burden of
proof is on the balance of probabilities. Given the lack of consistent
evidence, it was reasonable to conclude that it was more likely than not that
the Principal Applicant was not an ongoing target of the AUC.
[7]
I
do not agree with the Applicants that the Member contradicted himself with
regards to the Applicants’ failure to claim asylum in the United
States.
The Board found that the denunciation was only filed after the Principal
Applicant began seeking documents to substantiate his claim in the United
States.
The Board also observed that the Principal Applicant did not begin to collect
such documents until the deadline to file for asylum had passed, indicating a
lack of subjective fear. There is nothing contradictory about these findings.
The Board’s adverse credibility finding regarding the Applicants’ nine-year
stay in the United
States
without seeking asylum was also reasonable. Failure to claim Convention refugee
status at the first available opportunity has often been held to be an
indication of lack of credibility (Fernando c. Canada (Minister of
Citizenship and Immigration), 2001 FCT 759, [2001] F.C.J. No. 1129), as
it exhibits a lack of urgency.
[8]
The
Board’s finding regarding the lack of contact the AUC made with the Applicants,
or their family, is reasonable. The Board noted that the AUC made no contact
with the Applicants’ family before or after they left Colombia. Given the
alleged filing of a denunciation, this was a reasonable observation for the
Board to make in the course of determining whether the Applicant was truly
facing a continued threat.
[9]
Regardless
of how certain the Applicant may be of who threatened him and who murdered
other members of Patriotic Union, it remained open to the Board to weigh the
likelihood of a threat against the Applicant on a balance of probabilities. In
view of the fact that the Applicant had no proof that the AUC had murdered any particular
Patriotic Union member, the finding is reasonable.
[10]
Finally,
the Board’s conclusion regarding an internal flight alternative in Bogota is
reasonable. The documentary evidence to support that finding is thoroughly
reflected in the Board’s reasons
[11]
During
his capable oral submissions, counsel for the Applicants put forward
alternative approaches and conclusions that could have been drawn from the
record. However, the fact that the decision maker could have interpreted the
evidence in a different manner does not mean that the decision was
unreasonable. As stated by the Supreme Court in Khosa, above at paragraph
59:
Reviewing
courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the
outcome falls within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, at para. 47). There
might be more than one reasonable outcome. However, as long as the process
and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome. [Emphasis added.]
[12]
I
am satisfied that, in this case, the decision of the Board falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[13]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the
application for judicial review is dismissed; and
2.
no
question of general importance is certified.
“Judith
A. Snider”
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