Docket: IMM-1138-15
Citation:
2015 FC 1276
Toronto, Ontario, November 17, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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MARGARITA ROSA
GARCIA OSORIO
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RAFAEL CAMPI
VARGAS
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(A.K.A. RAFAEL
ROVY CAMPI VARGAS)
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ANTONELLA CAMPI
GARCIA
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MARGOTH OSORIO
VILORIA
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(A.K.A. MARGOTH
REGINA OSORIO VILORIA)
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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]
How many times must applicants be personally targeted
before a recognition that incidents of assault are not ones of generalized risk
but rather of an individualized risk to their lives?
[2]
In this case, the Applicants had undergone more
than one serious assault and warning; and, only, thereafter, did they finally
decide that the last incident of assault was the last straw in respect of peril
to their lives.
II.
Introduction
[3]
The Applicants seek judicial review pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], of a decision rendered by the Refugee Protection Division [RPD] of
the Immigration and Refugee Board of Canada, wherein the RPD rejected the
Applicants’ claim for refugee protection under sections 96 and 97 of the IRPA.
III.
Background and Decision under Review
[4]
The Applicants, Margarita Rosa Garcia Osorio
(age 37) [Principal Applicant], her husband Rafael Campi Vargas (age 34), their
daughter Antonella Campi Garcia (age 6), and the mother of the Principal
Applicant Margoth Osori Viloria (age 78) are citizens of Colombia.
[5]
The Applicants lived in the city of
Barranquilla. The Principal Applicant is a physiotherapist and every week-end
she would go with her husband to the town of Sitio Nuevo to assist poor people
and sick children by providing medicine, clothes and food. The Applicants
believe that these activities displeased the Revolutionary Armed Forces of
Colombia [FARC] as rumours started that the husband of the Principal Applicant
was considered to be a strong candidate for the next mayoral election. The
Applicants allege they were targeted by the FARC because they received death
threats. The Principal Applicant was physically assaulted in August 2014; the
Applicants, subsequently, received threatening phone calls; and, on
October 10, 2014, a gunman fired gunshots at the Applicants while they
were travelling in a taxi. The claimed that they tried several times to seek
protection from Colombian authorities, without success. The day following the
incident, the Applicants left Colombia, landed in the United States, rented a car
and arrived in Canada on October 11, 2014. They made a refugee claim
shortly thereafter.
[6]
In a decision dated February 12, 2015, the
RPD rejected the Applicants’ claim for refugee status pursuant to sections 96
and 97 of the IRPA. In its decision, the RPD held that the Applicants lacked
credibility; did not demonstrate a nexus between their fear of persecution and
at least one of the grounds enumerated at section 96 of the IRPA. They also did
not rebut the presumption of state protection in Colombia. Firstly, the RPD
found that the risk feared by the Applicants was related to general criminality
and not persecution for reasons of race, religion, nationality, or membership
in a particular social group or political opinion. Secondly, the RPD found
that, with regard to section 97 of the IRPA, the Applicants did not demonstrate
a personalized risk as there are widespread incidents of extortion, kidnapping
and threats in Colombia. The risk faced by the Applicants is generally faced by
others in Colombia. The Applicants also did not establish, on a balance of
probabilities, credible and trustworthy evidence that they were targeted for
their work for the poor. Thirdly, the Applicants did not rebut the presumption
of state protection as the documentary evidence does not support their
allegations that they were unable to make a written statement to the police in
Barranquilla regarding the August incident. Furthermore, the RPD found that the
Applicants left the country before giving the authorities sufficient time to
investigate the alleged incidents as the Applicants left Colombia only two
months after the first incident and left the day after the shooting incident.
Finally, the RPD found that the documentary evidence demonstrates that,
although not perfect, the Colombian government continues to battle the FARC
throughout Colombia with some measure of operational effectiveness; and, as a
result of the measures taken by the Colombian government, the FARC has felt the
impact of the measures.
IV.
Issues
[7]
The central issues to be determined by the
application for judicial review consist of the following:
1)
Did the RPD err in finding the Applicants did
not demonstrate a nexus?
2)
Did the RPD err in finding the Applicants lacked
credibility
3)
Did the RPD err in its findings in respect of
state protection in Colombia?
V.
Legislation
[8]
The following are the relevant legislative
provisions of the IRPA:
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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.
Position of the Parties
A.
Position of the Applicants
[9]
The Applicants submit that the RPD’s findings
that the Applicants lack credibility is unreasonable for several reasons: the
RPD had the obligation to provide reasons or the basis for that conclusion (Cobo
v Canada (Minister of Citizenship and Immigration), 2005 FC 69); a
presumption exists that sworn statements are true unless disbelieved on adequate
grounds (Roozbahani v Canada (Minister of Citizenship and Immigration),
2005 FC 1524); the discrepancies between the Basis of Claim [BOC] Form and the
testimony of the Applicants are minor (Feradov v Canada (Minister of
Citizenship and Immigration), 2007 FC 101); and, the failure to produce
supporting documentation cannot reflect negatively on the Applicants’
credibility in the absence of evidence contradicting the Applicants’ testimony
(Attakora v Canada (Minister of Employment and Immigration), [1989] FCJ
No 444).
[10]
The RPD also erred by not examining the
persecution on grounds of political opinion from the perspective of the
persecutor (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689). Regarding
the issue of generalized risk, the RPD’s conclusions are unreasonable as the
RPD failed to conduct an individualized inquiry of the situation of the
Applicants (Chinchilla v Canada (Minister of Citizenship and Immigration),
2014 FC 546); and, to take into consideration that the Applicants have been
personally targeted by the FARC (Olvera v Canada (Minister of Citizenship
and Immigration), 2012 FC 1048 [Olvera]). Furthermore, the RPD
failed to consider both the degree and the nature of the risk which the
Applicants would face if they were forced to return to Colombia (Melendez v
Canada (Minister of Citizenship and Immigration), 2014 FC 700).
[11]
Finally, in respect of state protection, the
Applicants submit that the documentary evidence clearly demonstrates that there
is no state protection available for individuals who are personally targeted by
the FARC in Colombia. The RPD erred by placing the legal burden of seeking
state protection on the Applicants (Majoros v Canada (Minister of
Citizenship and Immigration), 2013 FC 421); and, also erred by not
considering whether the efforts of the Colombian authorities translated into
adequate state protection – that is whether the programs put in place by the
Colombian authorities have actually translated into adequate state protection (Henguva
v Canada (Minister of Citizenship and Immigration), 2013 FC 912).
B.
Position of the Respondent
[12]
Conversely, the Respondent submits that the
RPD’s credibility findings regarding the Applicants are reasonable as the RPD
was entitled to draw negative inferences based on inconsistent allegations;
contradictory evidence; the failure to mention significant facts in the BOC,
and the Point of Entry Notes; and, implausible or incredulous testimony (Abid
v Canada (Minister of Citizenship and Immigration), 2012 FC 483). It was
also reasonable for the RPD to find that there was no nexus between the fear of
persecution of the Applicants and a ground on the basis of section 96 of the
IRPA as the Applicants, themselves, admitted that the allegations that the
husband of the Principal Applicant was running for the mayoral election are
based on rumors. Moreover, the Respondent submits that the RPD reasonably found
that the Applicants were not personally persecuted, but were victims of general
criminality, given that their allegations of being targeted for political
aspirations were based on rumors and conjecture; and, given that the Applicants
asserted that they had no political aspirations.
[13]
Regarding the issue of state protection, the
Respondent submits that the Applicants had the burden to rebut the presumption
of state protection by adducing relevant, reliable and convincing evidence
which demonstrates, on the balance of the probabilities, that state protection
in Colombia is inadequate (Carrillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94 at para 30). Contrary to the submissions of the
Applicants, the RPD applied the proper test as the test for state protection is
adequacy and not effectiveness (Flores v Canada (Minister of Citizenship and
Immigration), 2008 FC 723 at paras 9-11). Furthermore, according to the
Respondent, it was reasonable for the RPD to find that the Applicants did not
take reasonable steps to pursue available protection within Colombia (Santos
v Canada (Minister of Citizenship and Immigration), 2007 FC 793). As a
result of the foregoing, the Respondent submits that the RPD’s conclusions
regarding state protection were reasonable as the RPD based its findings on
objective documentary evidence as well as comprehensive evidence based on the
entire file.
VII.
Standard of Review
[14]
Undoubtedly, findings by the RPD regarding
whether Applicants have established a nexus to one of the Convention grounds,
whether the risks faced by the Applicants are generalized, and, findings of credibility
are questions of fact and law reviewable on the standard of review of
reasonableness (Cerrato v Canada (Minister of Citizenship and Immigration),
2015 FC 179 at paras 23-25; Acosta v Canada (Minister of Citizenship and
Immigration), 2009 FC 213).
VIII.
Analysis
[15]
The Applicants have been personally targeted by
a gang; their allegations of assaults have not been disputed. The
Applicants, in their memorandum, at paragraph 43, submit that it was
unreasonable for the panel to find that a refugee claimant who has been
personally threatened by a criminal gang faces a risk of general criminality
simply because criminal violence was rampant in the Applicant’s country of
citizenship (Olvera, above; Portillo v Canada (Minister of
Citizenship and Immigration), 2012 FC 678 at para 38).
•
In this case as alleged by the Applicants, the
FARC personally targeted them. The first incident occurred when the Principal
Applicant was pushed in the street and suffered injuries; then phone calls to
the husband of the Principal Applicant confirmed that it was not an accident;
and, finally, as was the shooting while the Applicants were riding in a taxi.
Given the number of incidents in such a short period of time, it is more than
likely they were personally targeted by a criminal organization due to
attributed political opinion of the Principle Applicant and her spouse without
adequate state protection.
[16]
The RPD found that there was no nexus between
their alleged fears and a convention ground. The Applicants relied on Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689 [Ward], to submit that
the examination of persecution based on political opinion should be approached
from the perspective of the persecutor. The Applicants are alleging that they
were persecuted because of rumors that the Principal Applicant’s husband was
running for a mayoral position. From the perspective of the FARC, it would make
sense that they would try to prevent someone from the outside to run for a
mayoral position – they would want someone favorable to them. From that point
of view, the Applicants have provided a nexus between their fear of persecution
and a convention ground (political opinion):
[82] Two refinements must be added to
the definition of this category. First, the political opinion at issue need not
have been expressed outright. In many cases, the claimant is not even given the
opportunity to articulate his or her beliefs, but these can be perceived from
his or her actions. In such situations, the political opinion that constitutes
the basis for the claimant's well-founded fear of persecution is said to be
imputed to the claimant. The absence of expression in words may make it more
difficult [page747] for the claimant to establish the relationship between that
opinion and the feared persecution, but it does not preclude protection of the
claimant.
[83] Second, the political opinion
ascribed to the claimant and for which he or she fears persecution need not
necessarily conform to the claimant's true beliefs. The examination of the
circumstances should be approached from the perspective of the persecutor,
since that is the perspective that is determinative in inciting the
persecution. The political opinion that lies at the root of the persecution,
therefore, need not necessarily be correctly attributed to the claimant.
Similar considerations would seem to apply to other bases of persecution.
(Ward, above)
IX.
Conclusion
[17]
For the above reasons, the application for
judicial review is granted.
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