Date:
20130124
Docket:
IMM-3767-12
Citation:
2013 FC 65
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
January 24, 2013
PRESENT: The
Honourable Mr. Justice Martineau
BETWEEN:
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LUIS ANGEL PARRA
GLADYS FRANCISCA
BELTRAN URREA LILIANA PATRICIA PARRA BELTRAN
IVON LORENA PARRA
BELTRAN
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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 are challenging the lawfulness of a decision by the Refugee
Protection Division of the Immigration and Refugee Board (panel) rejecting
their refugee claim filed under sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (as amended) (Act).
[2]
The
principal applicant, his spouse and their two adult children are citizens of
Colombia. The children and spouse based their claims on the allegations of the
principal applicant. His credibility was not seriously questioned by the panel,
which rejected the refugee claims simply because there was an internal flight
alternative (IFA) in Bogotá,
Guaviare and Santander.
[3]
The
principal applicant worked for a Family Compensation Fund (CAFAM) in Bogotá for
18 years. After an initial unsuccessful attempt to form a local union, the
principal applicant and about twenty colleagues succeeded in circumventing
Colombian law by forming a national union in 1993 known as SINALTRACAF (union).
The successes obtained in defending the 5,000 CAFAM workers greatly troubled management
and caused a lot of difficulty for the principal applicant. As a union activist,
his name was blacklisted. He was harassed and threatened several times by management
and paramilitaries because of his union activities.
[4]
In
fact, on December 28, 1998, the principal applicant was assaulted by three men
who severely beat him as a final warning. Among his attackers was the CAFAM chief
of security, a paramilitary and a former member of the national police. It was
then that the principal applicant left his job and took refuge at the home of his
parents-in-law in the city of Gacheta, five hours from Bogotá. He took great
precaution to not be found while he prepared for his departure from Colombia
and was still being sought by paramilitaries [translation]
“who are his enemies”.
[5]
In
March 1999, the principal applicant arrived in the United States; the rest of
the family joined him later. Their asylum claim was rejected by the American
authorities, and on October 19, 2008, the family crossed the American
border by car. The next day, they claimed refugee protection in Canada. More
than 13 years have passed since the principal applicant left Colombia. Still,
in his testimony, the principal applicant stated the following: [translation] “I am marked for life for being
the founder of a union. I am on the black list of the paramilitaries as a
military target and I do not want to run the risk with my family and me”.
[6]
The
panel readily acknowledged that there is indeed a nexus between the refugee
claims and two of the five Convention grounds: membership in a particular
social group and political opinion of the principal applicant. The panel also did
not challenge the fact that the principal applicant was persecuted and that
there could be a personalized risk under paragraph 97(1)(b) of the Act, but
excluded, however, the application of paragraph 97(1)(a) of the Act (because
no state agent was believed to be involved). Finally, even though the panel may
have had certain doubts with respect to the principal applicant’s credibility, it
did not reject the refugee claim based on that aspect but based its
determination exclusively on the existence of an IFA.
[7]
The
existence of an IFA involves two separate components: (1) the panel must be satisfied
that the circumstances in the part of the country to which the refugee claimant
could have fled are sufficiently secure to ensure that the claimant would be
able to enjoy the basic and fundamental human rights; and (2) conditions in
that part of the country must be such that it would not be unreasonable, in all
the circumstances, for the refugee claimant to seek refuge there. See Rasaratnam
v Canada (Minister of Employment and Immigration), [1992] FC 706, 140 NR
138 (FCA).
[8]
The
panel stated the following at paragraphs 21 and 22 of its decision:
. . . In
this case, the panel determines that the claimants did not submit evidence
demonstrating that their attackers are willing or have the means to find them
anywhere in Colombia. Consequently, given the testimonies and the evidence on
file, the panel concludes that the claimants did not establish that there is a
serious possibility that they would be subjected to persecution regardless of
where they settle in their country.
With
respect to the second prong, when asked in turn to state whether, according to
them¸ there were obstacles in the suggested regions making it unreasonable for
them to seek refuge there, they did not raise other obstacles to their settling
in the suggested locations.
[9]
Counsel
for the respondent acknowledged at the hearing that the panel’s few comments
elsewhere in the impugned decision (paragraphs 10 to 12) on how the applicants
were able to cross the American border and on the severity of the attack on
December 26, 1999 (whether he was kicked and/or hit with a pistol), were not
determinative in this case. Instead, the basis of the panel’s reasoning for an
IFA is found in paragraphs 16 to 20, where the panel explained why it was of
the opinion that Bogotá, Guaviare and Santander were safe locations.
[10]
First,
more than 13 years have passed since the principal applicant left his company.
Also, the panel “does
not believe that it is plausible that these same individuals who were set
against him and his companions by CAFAM management would still be motivated
enough, after so many years, to want to spend the money and the time to look
for him across Colombia in order to hurt him” (paragraph 17).
[11]
Second,
by noting that “no
evidence on file indicates that his agents of persecution are still active in
CAFAM”
(paragraph 18), the panel diminished the role the principal applicant supposedly
played within the union. It noted that he “has not been a member of the union since
December 1998” (paragraph 16), adding “that he was not a manager of the
national union and that he was a member of a national committee”
(paragraph 18). The panel assumed that the principal applicant could return to Bogotá,
which continues to be a safe location, and that he could resume his previous
activities without danger.
[12]
On
this point, the principal applicant testified that he would resume his union or
activist activities if he were to return to Colombia, which is corroborated by his
daughter’s testimony and the psychological report in the record. Furthermore,
after leaving Colombia in 1999, the principal applicant continued to be
actively involved in fighting for justice, but this time through his work with
sporting officials. In its decision, the panel simply pointed out in passing
that if he “returns
to Colombia, nothing is preventing him from continuing to believe that he should
be a union member” (paragraph 17).
[13]
However,
it is very dangerous for the panel to rely on the existence of an IFA based solely
on plausibilities because that does not allow the panel to be satisfied that
the circumstances in the part of the country to which the refugee claimant
could have fled are sufficiently secure to ensure that the claimant would be
able to enjoy the basic and fundamental human rights. In the absence of a
careful consideration of the documentary evidence available, it takes no great
leap to conclude that the panel’s finding is unfounded or speculative. See, for
example, Sabogal Riveros v Canada (Citizenship and Immigration), 2012 FC
547 at paragraphs 32, 35 and 44 to 49, 215 ACWS (3d) 188.
[14]
Yet,
if the panel had carefully reviewed the testimony and the documentary evidence
in the record, it would have found that the situation in Colombia has not
improved since 1998 for human rights advocates and union activists. That is why
the panel’s restrictive approach, which bases the existence of an IFA on the plausibility
that the principal applicant is no longer being sought by paramilitaries or
that paramilitaries do not have the means to find him in Bogotá, Guaviare or
Santander, seems problematic to me here.
[15]
According
to the evidence in the record, since his departure from Colombia in 1999, the
principal applicant has remained in contact with the union even though he had
already made several enemies among management and the paramilitaries. In
passing, the panel erred when it stated that the applicant is no longer part of
the union. According to the letter dated December 16, 2010, from the union, the
principal applicant is an honorary member and continues to advise the union.
[16]
The
principal applicant is who he is: an activist because of his political beliefs.
Furthermore, the principal applicant was not simply an active member of the
union in Colombia; to the contrary, he is one of the founders of a
national union that is present throughout the entire territory of Colombia. The
principal applicant’s name, if one believes him, was blacklisted.
[17]
It
is odd for the panel to have stated that the principal applicant would have an
IFA in Bogotá because that is the very place where the national union was
founded, where he is known, where he worked for 18 years and where he was
persecuted in 1998, when he was forced to flee to a location five hours from Bogotá.
The panel also did not assess the extensive documentary evidence on Colombia,
which is directly related to the current situation of trade unionists and human
rights advocates.
[18]
To
be clear, this Court cannot substitute itself for the panel, but the fact is that
“the agency’s burden of explanation increases with the relevance of the
evidence in question to the disputed facts” (Cepeda-Gutierrez v Canada (Minister
of Citizenship and Immigration), 157 FTR 35 at paragraph 17, [1998] FCJ No
1425). In this case, the current conclusion to reject the refugee claims could
not reasonably be justified without a true contextual analysis by the panel of
the prospective risks the applicants face. That is where the trouble lies and it
renders the panel’s finding unreasonable (Delgado Ruiz v Canada (Citizenship
and Immigration), 2012 FC 163, 211 ACWS (3d) 175).
[19]
According
to Human Rights Watch, “Colombia remains the country with the most murders of
trade unionists to register more than 175 in the last three years and only a
handful of these crimes have been solved . . . ” According to the Colombian Commission
of Jurists, paramilitary groups are in collusion with the state’s security
forces in the departments of Antioquia, Arauca, Bolivar, Chocó, Córdoba,
Cundinamarca, Veta, Santander North, Santander, Sucre, Tolima and Valle
(National Documentation Package on Colombia; Colombia: State protection). Finally,
according to another independent analysis of the situation, “it is likely that
the FARC . . . and successor groups to the AUC have the capacity to
pursue victims even after they have spent many years outside the country” (Response
to Information Requests COL103286.E dated February 23, 2010) [Emphasis
added.].
[20]
This
application for judicial review therefore falls within those cases where the
panel misunderstood or too narrowly characterized the profile of a refugee
claimant with respect to his or her specific risk profile. See, for example: Olivares
v Canada (Minister of Citizenship and Immigration), 2012 FC 1010 at paragraph
6, [2012] FCJ No 1116; Arias v Canada (Minister of Citizenship and
Immigration), 2012 FC 322, [2012] FCJ No 1105; and Walcott v Canada
(Minister of Citizenship and Immigration), 2011 FC 415 at paragraph 44,
[2011] FCJ No 540.
[21]
I
note that, in Garcia v Canada (Minister of Citizenship and Immigration),
2012 FC 366, [2012] FCJ No 431 (Garcia), the Court decided to intervene
in a case very similar to this one. Even though the applicant in Garcia
left Colombia 13 years earlier, she was, however, very involved in the union
movement in 1997 and 1998 and planned on resuming her activities if she were to
return to Colombia. However, the panel decided that the people who threatened
her 13 years earlier would not have the capacity to find her even if they were
still trying to locate her. By finding the decision unreasonable, the Court
found that the panel was required to, namely, consider the connection between
the documentary evidence relating to the current situation in Colombia and the situation in which the principal applicant would find herself if she returned there.
[22]
Thus,
my colleague, Justice Barnes, stated the following at paragraphs 9, 10, 13 and
14 of Garcia:
The issue of concern, however, is with the Board’s
assessment of the evidence of a new risk to Ms. Osorio if she returned to
Colombia and resumed, as she said she would, her political and socially
progressive activities. The Board appears to have accepted her evidence on
this point but it carried out no meaningful analysis of the evidence bearing on
her current risk profile.
In its IFA assessment the Board simply repeats its
state protection finding that the risk that prevailed in 1997 and 1998 was no
longer relevant. The Board’s only other assessment of current risk conditions
was limited to the observation that the evidence on point was “mixed” as
reflected in a few passages from country-condition reports. What is notably
absent from the Board’s reasons is any attempt to reconcile the
country-condition evidence and to connect that evidence to Ms. Osorio’s
situation if she returned to Colombia and again took up political causes in
opposition to the governing regime or contrary to the interests of the AUC or
its paramilitary successors.
. . .
The record indicates very clearly that the
historical links among state security forces, some government representatives
and paramilitary groups have not disappeared in Colombia and that human rights
advocates and trade union leaders remain at risk with questionable recourse to
state protection.
I am not satisfied that the Board’s decision is
justified by the reasons it gave. In the result, the application must be
redetermined on the merits by a different decision-maker.
[23]
Justice
must not only be done, but it must also be seen to be done. In deciding here to
set aside the impugned decision, I am not saying that the refugee claim must
succeed, but I am certain that a new assessment is necessary. This time, the
panel must carry out a more focused reading of the relevant documentary
evidence in light of any prospective risk, and even redetermine the principal
applicant’s credibility and the allegations that he will resume his involvement
in social causes in Colombia, if need be.
[24]
For
these reasons, this application for judicial review will be allowed. The
panel’s decision will be set aside and the matter will be referred back to the
panel for redetermination by a different decision-maker. There is no question
of general importance for certification.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that this application for judicial
review is allowed. The panel’s decision is set aside and the matter is referred
back for redetermination on the merits by a different decision‑maker. No
question is certified.
“Luc Martineau”
Certified
true translation
Janine Anderson,
Translator
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