Date: 20110308
Docket: IMM-4089-10
Citation: 2011 FC 265
Ottawa, Ontario, March 8, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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INGRID ZAMIRK DIAZ JARMA
ANDRES JOSE VILLA VILLA
OSCAR ANDRES VILLA DIAZ
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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]
This
is an application pursuant to section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA). The applicants, Andres Jose Villa
Villa, his wife Ingrid Zamirk Diaz Jarma and their minor son Oscar, are
Columbian citizens who claimed protection on the basis of threats related to
extortion attempts. They seek judicial review of a decision by the Immigration
and Refugee Board that the applicants had failed to establish a nexus to a
Convention Refugee ground and that the risk faced by the applicants was not
personalized. For the reasons that follow, this application is dismissed.
BACKGROUND:
[2]
The
adult applicants are medical doctors from Barranquilla, Columbia. In 2007 and
2008, Dr. Villa received several phone calls from an unidentified caller
demanding money. As a result, he took a number of measures to protect himself
and his family including transferring from the hospital where he worked,
changing his cell phone, seeking police protection and sending the son to his
grandmother’s. In November 2008, having received another threatening phone
call, he approached the authorities again and was advised they could do nothing
without evidence to identify the perpetrators. He sought advice from a lawyer
who told him to lodge a complaint with the Prosecutor General’s Office because
the lawyer believed that the extortionists were members of Aguilas Negras
(“Black Eagles”), a resurfacing paramilitary group.
[3]
On
March 23, 2009, the applicants received a funeral card and a threatening letter
at their home which stated that the three applicants were already dead. The
parents left their jobs and their home. They sent for their son, and the three
applicants fled Columbia on March 28, 2009, transiting the United
States
to come to Canada. They did
not make their refugee claim in the United States, as Dr. Jarma’s sister has
lived in Canada for several
years and advised them to make their claim here. Because she is a resident
here, having succeeded in a refugee claim in 2001, they benefited from an
exception to the Safe Third Country Agreement
DECISION UNDER REVIEW:
[4]
The
Board found the applicants’ claim that the threats were from the Aguilas Negras
was not credible, but rather that the extortionists were common criminals
targeting the applicants because of their perceived wealth. The Board held that
even if the threats came from the Aguilas Negras, the applicants had failed to demonstrate
a nexus between the persecution and imputed political opinion because the
Aguilas Negras had devolved into a criminal gang and are no longer a
paramilitary group, as they once were. Accordingly, the Board determined that
the applicants were not Convention refugees.
[5]
Having
considered the explanation that the applicants relied on advice to wait until
they arrived in Canada to make their claim, the Board found that the
applicants’ failure to make their refugee claim during the five days they spent
in the United States indicated a lack of subjective fear.
[6]
Finally,
the Board concluded that extortion of the wealthy was on the rise in Columbia and that any
risk the applicants would face in Columbia would be a generalized
risk, which excluded them from IRPA para. 97(1) (b) protection.
ISSUES:
[7]
The
applicants concede that if there is no Convention nexus, they have no claim to
protection against a generalized risk of crime under s.97. They contend that
the objective evidence pointed to a different conclusion with regard to the
motives behind the extortion threats. The sole issue, therefore, is whether the
Board misapprehended or ignored evidence that contradicted its conclusions.
ANALYSIS:
[8]
The
questions in this matter are factual, calling for a reasonableness standard of
review: Canada (Citizenship & Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339 and Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190.
[9]
The
applicants submit that the Board ignored evidence in finding that the Aguilas
Negras were not responsible for the threats and that the panel’s reasons lack a
meaningful analysis of the documentary evidence they provided. Further, they
submit that the Board erred in determining that, even if the threats were from
the Aguilas Negras, they did not arise from imputed political opinion. The
applicants argue that they provided documentary evidence that the Aguilas
Negras continue to operate as a paramilitary group rather than a mere criminal
gang. It is sufficient that one of the motives
for the persecution be a Convention ground, even if there are additional
non-Convention reasons for the persecution such as mere criminality: Sopiqoti
v Canada (Minister of Citizenship and Immigration), 2003 FCT 95, 34 Imm LR
(3d) 126.
[10]
There
was a significant amount of documentary evidence before the Board to the effect
that extortion of the wealthy is on the rise in Columbia. The
evidence also pointed to the continued existence, even resurgence, of groups
such as the Aguilas Negras in several parts of the country. From my reading of
the decision, the panel member did not ignore this evidence.
[11]
At
the hearing before the Board, the applicants’ counsel acknowledged that the
threats either came from the Aguilas Negras or from “some criminal organization
that involves itself in extortion. It’s either one or the other.” He conceded
that, if the Board found that the extortionists were not members of the Aguilas
Negras, there was no nexus to a Convention ground. Counsel went on to argue
that the evidence established that the threats came from the Aguilas Negras.
That evidence consisted of Dr. Villa’s account of what the Columbian lawyer
told him and a drawing of what appears to be a black eagle on one of the
threats. The lawyer was not certain that the threats were from the Aguilas
Negras, but only suspected that they were. The extortionists never identified
themselves when they called Dr. Villa.
[12]
In
light of the lack of evidence, it was reasonably open to the Board to conclude
that the threats did not come from the Aguilas Negras. While it was not
strictly necessary for the Board to make a finding as to the source of the
threats to impute a political motive, the Board’s determination that the
threats came from a criminal gang was not unreasonable. The finding is supported
by considerable documentary evidence in the record about the rise in extortion
attempts against the wealthy in Columbia by criminal gangs.
[13]
As
stated in Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, 83 ACWS (3d) 264 at paragraph
17, the Board’s burden of explanation increases with the relevance of the
evidence in question to the disputed facts. The presumption that the Board has
reviewed all of the evidence before it or a blanket statement to that effect
will not suffice when the evidence omitted from any discussion in the reasons
appears squarely to contradict the Board's finding of fact. But, that is not
the case here. There is no direct evidence to contradict the Board’s finding.
The documentary evidence indicates that certain of the former paramilitary
groups, including the Aguilas Negras, have turned to crime to support
themselves. The fact that they may bear resentments against elements of
Columbian society does not establish that they are pursuing a political agenda,
as they did during the conflict that formerly divided that country.
[14]
The
evidence supports the Board’s conclusion that even if the extortionists are
members of the Aguilas Negras, the attempted extortion was based on the
applicants’ perceived wealth and not on imputed political opinion. Indeed,
there is no evidence in the record of the applicants’ political opinion,
imputed or otherwise. Some of the evidence provided by the applicants shows
that individuals and groups that are politically active and in the public eye
such as journalists, human rights workers and politicians, have been targeted.
The applicants do not fit this description.
[15]
The
applicants rely on a news article regarding a doctor from Barranquilla who was
gunned down as he left the hospital. The report states that the motives for the
killing and the identity of the perpetrators remained under investigation.
There is no evidence to link this killing to any group or to suggest that it
occurred because of the deceased’s politics or refusal to submit to extortion.
As this evidence did not contradict the Board’s conclusions, it was not
necessary to refer to it in the panel’s reasons.
[16]
The
applicants argue that they will be targeted by the Aguilas Negras if they are
returned to Columbia because they
denounced the group to the authorities. There is no evidence in the record to
support this assertion. The applicants left numerous family members behind in Columbia and there is
no evidence that the Aguilas Negras have gone after these family members in pursuit
of the applicants or in retaliation for the denunciation.
[17]
I
agree with the applicants that it was unreasonable for the Board to draw a
negative inference from their failure to claim refugee protection in the United
States.
The authorities cited by the panel member in his decision all dealt with cases
of prolonged delay and for which the claimants had failed to provide a
reasonable explanation. That was not the case here. While the reasonableness of
the explanation for failing to claim in a safe third country is a factor to be
taken into consideration, a delay of a few days while in transit should not
normally undermine a claim of subjective fear: Mendez v Canada (Minister of
Citizenship and Immigration), 2005 FC 75, 307 FTR 48.
[18]
The
negative inference which the Board drew from the applicants’ failure to claim
at the first opportunity in a safe third country was not, however, material to
its decision. It made that finding only after
concluding that there was no nexus to a Convention ground and that the risk
faced by the applicants was a general one. The inference was not required to
support either finding.
[19]
In
the result, the Board’s decision fell within the range of acceptable outcomes
defensible on the facts and the law and this application must be dismissed. No
serious questions of general importance were proposed and none will be
certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application is dismissed.
No questions are certified.
“Richard
G. Mosley”
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