Ottawa, Ontario, April 12, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
MARIA CRISTINA BUENANO DIAZ
DANIEL ALEJANDRO LEAL BUENANO
RAYZA MILENA LEAL BUENANO
MARLON JULIAN LEAL BUENANO
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicants are a family of Colombian nationals who seek refugee protection in Canada based upon their fear of persecution at the hands of the Armed Revolutionary Forces of Colombia (or "FARC"). The Refugee Protection Division of the Immigration and Refugee Board rejected the family's clams, finding that they were neither Convention refugees nor persons in need of protection.
[2] The applicants now seek judicial review of the Board's decision, asserting that the Board erred in failing to consider the risk that they faced in Colombia as members of a particular social group, namely "internally displaced persons". The Board further erred, the applicants say, in finding that Mr. Leal lacked the type of profile that would have made him an ongoing target of FARC, while, at the same time, seemingly accepting the authenticity of a letter to Mr. Leal declaring him and his family to be "military objectives".
[3] For the reasons that follow, I am satisfied that the Board did not err in its handling of this case, and that, as a result, this application for judicial review must be dismissed.
Background
[4] Luis Fernando Leal, is a 41 year old former small businessman. The remaining applicants are the members of Mr. Leal's immediate family.
[5] Mr. Leal testified that he owned a pizza business in the town of Mesitas del Colegio. He says that he became involved with the Liberal Party in 1994, and that in February of 1998, he became active in campaigning for the May, 1998 presidential elections in Colombia. Around this time, he also began organizing a co-operative to help the people of Mesitas del Colegio. This endeavour ultimately did not get off the ground, due to lack of finances.
[6] In November of 1997, FARC sent a messenger to his pizza shop demanding that he begin making payments to them to support their cause. He was given a deadline to begin paying this "tax". He was told that if he refused to pay, he would face the consequences.
[7] FARC sent several people to his shop in November and December of 1997, demanding money, but he refused to pay them. In January of 1998, he says that he received a letter from FARC, reminding him that he had not paid their "tax". Mr. Leal says that at this point, he began to panic.
[8] According to Mr. Leal, in March of 1998, several FARC members came to his shop demanding payment. These individuals allegedly told him that they had "special ways" of making people pay. They also told Mr. Leal that they would take "revolutionary measures" against him. About two weeks later, Mr. Leal says that he was again threatened.
[9] In April of 1998, Mr. Leal went to the police in Mesitas and reported the threats and extortion demands. He was told that there was nothing that the police could do without any evidence to support his claims.
[10] In July of 1998, Mr. Leal says that he was intercepted on his way home by three FARC guerrillas who stabbed him, and hit him on the head so hard that he lost consciousness. He was afraid to go to the hospital or to the police because he says that if FARC found out that he had done so, they would take reprisals against both him and his family. Instead, Mr. Leal says that he approached a nurse in his neighbourhood for medical assistance.
[11] After this incident, Mr. Leal says that he closed his pizza business.
[12] In September of 1998, Mr. Leal received another letter from FARC stating that because he had failed to do as they had 'suggested', FARC was declaring Mr. Leal, his family and the co-operative to be "military objectives". The letter also informed Mr. Leal that FARC's threats would be carried out if he did not cease his political activities.
[13] Mr. Leal testified that he then made a report to the office of the government Ombudsman in Bogota regarding FARC's extortion demands. He did not, however, advise the Ombudsman's office of the fact that he had been stabbed, nor did he mention the threats that he had received because of his political activities, as he says that he feared reprisals from FARC if it found out about his complaint.
[14] The Ombudsman's office provided Mr. Leal with a letter dated September 23, 1998, stating that Mr. Leal and his family had been identified as persons "displaced by violence of the Social Solidarity Network".
[15] Mr. Leal then prepared to leave Colombia, departing for the United Statesin December of 1998. Mr. Leal's family joined him in the United Statesin May of 1999. A few months after this, Mr. Leal visited a lawyer in the United Statesto inquire about applying for asylum. He was informed that the family was unlikely to succeed because they had not sought refugee protection within a year of arriving in the United States. According to the letter from the family's American lawyer, asylum claims for people who delay in claiming for more than a year are only successful in very limited situations.
[16] As a result, the applicants did not seek refugee protection in the United States, but continued to live in that country without status for another five years before deciding to move to Canada in December of 2004, whereupon they filed their claims for refugee protection.
The Board's Decision
[17] The Board accepted that the applicants were citizens of Colombia, and that their fear of persecution was linked to grounds enumerated in the Convention definition. Nevertheless, the Board rejected the applicants' claims based upon its finding that the applicants were not at risk of harm beyond that faced by ordinary citizens, were they to return to Colombia.
[18] In analyzing the risk of harm faced by the applicants, the Board conducted an extensive review of the documentary evidence relating to guerrilla and paramilitary groups operating in Colombia, which describes the kidnappings of civilians, as well as the kidnapping, killing and torture of public officials by FARC members. Based on this evidence, the Board found that extortions, kidnappings and killings by guerrilla groups, such as FARC, continue to be a serious problem in Colombia.
[19] The Board went on to conclude that the determinative issue was whether the applicants' fear of persecution at the hands of FARC was both subjectively and objectively well-founded. The Board found that it was not.
[20] The Board expressed concerns with respect to Mr. Leal's credibility and his subjective fear of persecution as a result of the family's failure to make asylum claims after their arrival in the United States. While Mr. Leal testified that he had not known how to go about making a refugee claim in the States, the Board found this explanation to be unreasonable, concluding that Mr. Leal's failure to seek refugee protection in the United States undermined the credibility of his allegations of past mistreatment at the hands of FARC, and was inconsistent with his having a subjective fear of persecution in Colombia.
[21] The Board also drew a negative inference from Mr. Leal's lack of documentary evidence supporting his involvement in the Liberal Party, pointing out that when asked if he had a membership card, Mr. Leal stated that he was helping out the party on an informal basis. He also stated that because he did not make any financial contributions to the party, he did not have any documents indicating his involvement. Furthermore, he testified that he never held any position or office with the Liberal Party in Colombia.
[22] The Board concluded that Mr. Leal's failure to provide corroborative evidence of his alleged Liberal Party membership and political activities undermined the credibility of his claim to have been involved with the Liberal Party.
[23] The Board further found that Mr. Leal's failure to mention both the stabbing and the letter from FARC identifying his family as "military objectives" to the Ombudsman's office in September of 1998 to be unreasonable.
[24] Thus the Board did not accept that Mr. Leal was an active member of the Liberal Party in Mesitas during the 1998 elections, nor did it accept that he and his family had been targeted by FARC for this reason.
[25] However, based on the documentary evidence before it, the Board found it to be plausible that the applicants had been found to be internally displaced persons in Colombia, because Mr. Leal had been the victim of extortion demands at the hands of FARC.
[26] The Board then went on to carefully examine the documentary evidence before it regarding those who are at risk of being targeted for extortion, kidnapping and murder at the hands of illegal guerrilla groups such as FARC, finding that those at risk included individuals with an important public or community profile. Also at risk were those who were, or were perceived to be supporters or former members of guerrilla, paramilitary or government, as well as municipal and departmental authorities, persons involved in the administration of justice, human rights activists, journalists, and members of marginalized social groups such as drug addicts and prostitutes.
[27] Finally, the Board noted that leaders of groups of internally displaced persons, particularly in the indigenous and Afro-Colombian communities, were also at risk of being targeted by paramilitary groups.
[28] The Board observed that FARC has a long memory, and that information regarding those who have crossed FARC is systematically recorded and analyzed. The Board noted that it has become increasingly difficult for individuals to escape the long arm of guerrilla and paramilitary groups in Colombia such as FARC, as they are mobilized, and have networks of contacts throughout the country.
[29] The Board then considered Mr. Leal's profile as a former small businessman in Mesitas, finding that it was not one that would lead him to continue to be at risk from FARC, if he were to return to Colombia. Based on his localized profile as a small businessman, coupled with the passage of time since the family left Colombia and the documentary evidence, the Board found that the applicants were at no greater risk from FARC guerrillas than were any other Colombians.
[30] That is, the Board found that there was no serious possibility that the applicants would be personally targeted for extortion, kidnapping or murder at the hands of FARC if they returned to Colombia and resided in a large urban centre such as Bogota.
[31] Given the Board's findings that the applicants' fear of persecution was not subjectively or objectively well-founded, the Board also concluded that their removal to Colombia would not subject them personally to a risk to their lives or to a risk of cruel and unusual treatment or punishment, and, as a result, their refugee claims were dismissed.
Issues
[32] The applicants raise two issues in this application:
1. Did the Board err in failing to consider the risk faced by the applicants in Colombia by virtue of the fact that they were internally displaced persons? and
2. Did the Board err in concluding that Mr. Leal lacked a sufficient political profile so as to be at risk of being targeted if he were returned to Colombia?
Standard of Review
[33] The applicants say that the Board erred in law in failing to consider whether the applicants were refugees based on their membership in the social group of "internally displaced persons", and that, as a result, the decision should be reviewed against the standard of correctness.
[34] In contrast, the respondent contends that the issues identified by the applicants involve allegations that the Board erred in ignoring or misconstruing the evidence before it, and that, as a result, the decision should be reviewed against a standard of patent unreasonableness: Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (C.A.).
[35] It is unnecessary to resolve this issue, as I am satisfied that the Board did indeed consider the status of the applicants as internally displaced persons in its analysis.
Analysis
[36] It is well established in the jurisprudence that in order to succeed in a refugee claim, an applicant must demonstrate that he or she has a subjective fear of persecution in his or her country of origin, and that fear must be objectively well-founded: see, for example, Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
[37] Both issues raised by the applicants in this case relate to the question of whether their fear of persecution in Colombia is objectively well-founded. No issue is taken with respect to the Board's finding that they had not demonstrated that they have a subjective fear of persecution in that country. However, the applicants say that given the forward-looking nature of the refugee analysis, regardless of whether they had a subjective fear of persecution in the past or not, the question for the Board was whether the family faces persecution in the future, should they return to Colombia.
[38] I am not persuaded that the Board erred in the manner alleged by the applicants. A review of the Board's reasons, read fairly, and in their entirety, discloses that the Board was well aware of the fact that FARC's reach within Colombia is extensive, and that, in some situations, individuals targeted by FARC continue to be at risk, notwithstanding the fact that those individuals may have relocated within the country.
[39] Indeed the Board held that "Depending on the reasons for the threat, the victims can be pursued relentlessly".
[40] In a careful and reasoned analysis, the Board weighed and assessed the documentary evidence respecting the profile of persons at risk of extortion, kidnapping and murder by guerrilla groups in Colombia, and found that guerrilla groups most often targeted persons with an important public or community profile related to leadership or community involvement, persons involved in the administration of justice, human rights activists, journalists, indigenous persons and members of marginalized social groups, among others.
[41] The Board was also aware of the fact that, as internally displaced persons, the applicants were members of a vulnerable group. However, the Board found that it was those individuals in leadership roles within IDP communities who were at risk from FARC. There is no suggestion in the evidence that the applicants occupied leadership roles within the IDP community.
[42] The Board considered whether, based upon the evidence before it, the circumstances of Mr. Leal made the family potential FARC targets, should they return to Colombia. In this regard, the Board weighed all of the evidence relating to the profile of the applicants, concluding that they were at no greater risk from FARC than were other Colombians. In my view, this conclusion was one that was open to the Board, and I see no basis for interfering with the Board's conclusion in this regard.
[43] I am similarly not persuaded that the Board erred in concluding that Mr. Leal lacked a sufficient political profile in the face of the letter from FARC indicating that he was being targeted because of his political activities.
[44] The applicants contend that having accepted the authenticity of the FARC letter advising the applicants that they had been declared to be military objectives, and threatening them if Mr. Leal did not cease his political activities, it was perverse for the Board to have found that Mr. Leal did not have a political profile that would result in him continuing to be of interest to FARC.
[45] A review of the Board's decision discloses that the premise upon which the applicants' argument is based is flawed. That is, a review of the Board's analysis does not demonstrate that the Board accepted the authenticity of the FARC letter.
[46] What the Board did accept as authentic was the letter from the Ombudsman's office declaring that the applicants were internally displaced persons. However, the existence of this letter does not establish the veracity of Mr. Leal's claim to having been persecuted by FARC because of his political activities.
[47] Indeed, Mr. Leal himself testified that he did not provide a copy of the FARC letter to the Ombudsman's office, nor did he tell the Ombudsman's representatives that he had been stabbed. Rather, the Ombudsman's office accepted that Mr. Leal had been the victim of extortion at the hands of FARC, based upon Mr. Leal's report of threats.
[48] There is nothing in the Ombudsman's letter to say that Mr. Leal's story of having been persecuted because of his political activities had been accepted by the Ombudsman's office, or that the office was even aware of Mr. Leal's purported political activities.
[49] Moreover, a review of the Board's reasons makes it clear that the Board did not accept this aspect of Mr. Leal's story as credible. As a consequence, there was nothing inconsistent in the Board coming to the conclusion that Mr. Leal did not have a political profile that would result in him being of continuing interest to FARC.
Conclusion
[50] For these reasons, the application is dismissed.
Certification
[51] Neither party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5698-05
STYLE OF CAUSE: LUIS FERNANDO LEAL
MARIA CRISTINA BUENANO DIAZ
DANIEL ALEJANDRO LEAL BUENANO
RAYZA MILENA LEAL BUENANO
MARLON JULIAN LEAL BUENANO
and
THE MINISTER OF CITIZENSHIP
AND IMMGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: April 5, 2006
REASONS FOR JUDGMENT
APPEARANCES:
| Ms. D. Jean Munn
|
|
| Ms. Camille N. Audain
|
SOLICITORS OF RECORD:
| Caron and Partners LLP Calgary, Alberta
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |