Toronto, Ontario, January 19, 2006
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
MARIA NOELLA GRAJALES DE VANEGAS
RAFAEL ANDRES VANEGAS GRAJALES
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division, wherein the Board determined that while the Applicants were credible and found to be refugees from Columbia, they are able to seek state protection from the government of Hugo Chavez in Venezuela.
[2] Rafael Angel Vanegas Marin, and his spouse, Maria Neolia Grajales de Vanegas are natives of Columbia. Between 1978 and 1995 they resided in Venezuela and became naturalized Venezuelans in 1985. Their minor son, Rafael Andres Vanegas Grajales, was born in Venezuela.
[3] During their time in Venezuela the adult Applicants were victims of discrimination and became targets of criminals. They returned to live in Colombia in October 1997 because Mr. Vanegas Marin was suffering from kidney problems and required a transplant. While there he operated a cattle ranch. Within a short period of time, the Applicants were victims of extortion by members of the Revolutionary Armed Forces of Colombia (FARC). The family was offered protection, in exchange for monetary contributions to FARC and through telephone calls, were threatened if they did not comply.
[4] The Applicants moved several times, but the FARC pursued them. The police did not assist. The Applicants decided to flee Colombia as they feared the FARC would kill them. They chose not to return to Venezuela, as they believe the FARC are active there. The Applicants initially went to the United States in October 1999, and arrived in Canada in May 2004 at which time they claimed Convention refugee status.
[5] In his decision dated March 2, 2005, the Board member stated that "the testimony was presented in a consistent and straightforward manner, and there were no credibility issues." He accepted that the FARC had threatened their lives, and that they were unable to get state protection in Colombia. The Board member found their allegations of persecution in Colombia plausible and that they had established that adequate state protection was unavailable to them in that country. However, he rejected their claims as he found that they had not rebutted the presumption that state protection was available to them in Venezuela.
[6] In making this determination, the Board member stated that he had considered documentary evidence which showed that Venezuela is a constitutional democracy that respects the rights of its own citizens and offers protection to Colombian citizens. The member's analysis includes a reference to a United States Department of State Report indicating that Venezuela had granted refugee status to Columbian asylum seekers in February 2004.
[7] Other documentary evidence referred to by the Board member concerned attacks by the Venezuelan military against Columbian paramilitary forces pursuing peasants perceived to support FARC in the border region. The member also cited evidence respecting calls by Venezuelan citizens for more action against incursions by Columbian guerrilla and paramilitaries in its territory. The member concluded that this evidence makes it evident that the government is making serious efforts at protecting its territory and its citizens.
[8] The Board member noted that the Applicants had complained that they felt unsafe in Venezuela before they left that country, but found that their only complaint was of an incident in 1995. In that incident, the police had investigated the matter and the criminals who targeted the Applicants were apprehended and jailed. Their later release did not demonstrate that the Applicants had been refused state protection or that, if returned there, they would be refused protection.
[9] The central issue in these proceedings is whether the Board member's conclusions with respect to conditions in Venezuela were perverse, capricious and without regard to the totality of the evidence. This corresponds to the standard of review of patent unreasonableness: Mugesera v. Canada(Minister of Citizenship and Immigration), [2004] 1 F.C.R. 3, 2003 FCA 325.
[10] There is also a question as to whether the Board member erred in citing references to documents received post-hearing which, from affidavit evidence submitted by the Applicants, appears to have never been sent. If the Board member relied on evidence which was neither submitted, or which the Applicant did not have a chance to address, the Applicants submit that this would be a reviewable error.
[11] The Applicants' principal complaint about the Board's decision is that it was made without regard to the evidence that the government of Hugo Chavez is a self-styled radical leftist government which supports the FARC. Accordingly, the Applicants submit, the Board member was required to direct his mind to the question of whether, because of this, they would be unable to receive state protection in Venezuela from the threat of FARC extortion. This Board failed to do, the Applicants' contend.
[12] The Board's only acknowledgement that the evidence shows Chavez has supported the FARC is his comment that "some documents even accuse the Venezuelan government of taking sides." This implies that there are only some documents which state this, when all five documents on record contain statements indicating that the Chavez regime supports the FARC.
[13] The Respondent acknowledges that the documentary evidence shows that the government of Hugo Chavez is supportive of the FARC. However, the Respondent contends that this does not undermine the Board's finding that the Applicants would be safe from FARC extortion in Venezuela.
[14] From the evidence, the Respondent submits, it appears that the Chavez government either tolerates or does not prevent guerrilla activity along the Colombian-Venezuelan border. This does not demonstrate that the Applicants are at risk of FARC extortion throughout Venezuelan territory. Therefore, the Board's conclusion that the Applicants could be safe from FARC extortion in Venezuela has not been shown to be capricious.
[15] In my view, it was open to the Board to conclude from the evidence that while it appears that the Chavez administration lends support to the FARC in the border region, that does not mean that the FARC are active throughout Venezuela or that the Applicants would be unable to receive state protection from FARC extortion in Caracas or some other location. However, the Board did not conduct that analysis in its assessment of the availability of state protection.
[16] The Board appears to have construed the evidence of Venezuelan military attacks in the Border region as supporting its conclusion that the Chavez government is making serious efforts to protect its territory and its citizens. But the evidence does not show that these attacks were aimed at controlling FARC. To the contrary, they were aimed at the right-wing paramilitaries fighting FARC in Columbia and the border region of Venezuela. This evidence called for an analysis of what the implications of this would be for the Applicants, which the Board, in my view, did not perform.
[17] As submitted by the Applicants, the Board member does not demonstrate in his reasons an appreciation of the differences between Columbia and Venezuela. In Colombia there is a right-wing government that is opposed by left-wing guerrillas. In Venezuela, the left-wing is in power and it is opposed by the right-wing political class that used to be in power. It is somewhat difficult to understand the Board's conclusion that the Applicants cannot get state protection in Colombia, where the government is hostile to the FARC, but can get state protection in Venezuela, where the government either actively supports FARC or at the very least tolerates the group.
[18] I am satisfied, therefore, that in determining that the Applicants would be able to safely live in Venezuela, the Board member has not properly conducted the bipartite test for state protection articulated by the Supreme Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1. The test as to whether a state is unable to protect a national is twofold: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. In this case the Board member has accepted that the applicants subjectively fear persecution in Venezuela, but has not engaged in an analysis of whether this is well-founded in an objective sense based on the documentary evidence on Venezuela.
[19] I am less concerned about the member's citation of documents received post-hearing as it appears, from a close reading of his reasons, that every document referenced was in fact part of the tribunal record. It appears that the footnote in question may be simply the result of confusion between the documentary evidence on country conditions and certain supporting documentation that was required from the Applicants to complete the file which was submitted post-hearing. Accordingly, I would not interfere with the decision on this ground alone.
[20] However, in view of my findings on the analysis of the availability of state protection, I conclude that the decision as a whole is patently unreasonable and must be remitted for reconsideration by a differently constituted panel. No questions of general importance were proposed and none will be certified
ORDER
THIS COURT ORDERS that the application is granted and the matter remitted for reconsideration by a differently constituted panel.
"Richard G. Mosley"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1826-05
STYLE OF CAUSE: RAFAEL ANGEL VANEGAS MARIN
MARIA NOELLA GRAJALES DE VANEGAS
RAFAEL ANDRES VANEGAS GRAJALES
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: JANUARY 19, 2006
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER AND
ORDER BY: HONOURABLE MR. JUSTICE MOSLEY
DATED: JANUARY 19, 2006
APPEARANCES BY:
Raoul Boulakia FOR THE APPLICANT
Kevin Lunney FOR THE RESPONDENT
SOLICITORS OF RECORD:
Raoul Boulakia
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of