Ottawa, Ontario, April 12th, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
Applicant
and
CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the Board) dated June 22, 2005 which found that the applicant was not a Convention refugee or person in need of protection in Venezuela because he had an internal flight alternative (IFA).
Facts
[2] The applicant, a 27 year-old dual citizen of Colombia and Venezuela, was born and lived in the city of Valencia, Venezuela until 1994. He moved to Colombia at the age of 13 to live with his step-mother and older brother, Juan Fernando Polanco. Mr. Polanco was an architect involved in a construction project in the Bello Horizonte zone of Colombia. When the project ran into delays in 1996, Mr. Polanco was subject to repeated extortion demands and death threats by Front 47 of the Revolutionary Armed Forces of Colombia (FARC). Fearing for their lives, Mr. Camargo's family moved to the city of Cali, where they were pursued by FARC who continued to threaten their lives. In May 1998, Mr. Camargo's brother fled to the United States, at which time FARC threatened to kill the applicant and his step-mother because of their relationship to Mr. Polanco. In February 1999, a security guard at their residence told them men in a pickup truck had attended the scene asking for them, at which time Mr. Camargo and his step-mother decided to flee Colombia.
Flight to Canada
[3] Mr. Camargo fled Colombia on July 24, 1999 and legally entered the United States on a tourist visa. In 2000 he was granted a U.S. student visa, which status he lost because of financial problems. Mr. Camargo entered Canada on December 15, 2004 at the Canada-U.S. border at Fort Erie, intending to join his step-mother and brother, Mr. Polanco, who resided in Toronto and who had been granted refugee status in Canada. The applicant claimed refugee protection the day he arrived in Canada.
Claim for refugee protection
[4] The applicant claimed a well-founded fear that he would be persecuted by the FARC because of his relationship to his older brother, Mr. Polanco. Mr. Camargo further claimed that his life would be at risk if he were returned to Venezuela because of the previous death threats made against him and because the FARC had contacts throughout all of Venezuela.
The decision under review
[5] The Board concluded that Mr. Camargo established his identity and was a credible witness, for which reason it accepted his evidence that he feared reprisals by FARC because of his relationship to Mr. Polanco. The panel determined that while the applicant has a well-founded fear of persecution by FARC in Colombia, he is not a Convention refugee because he has an IFA in the region of Venezuela not bordering Colombia, including but not limited to the cities of Caracas and Valencia. The panel also decided that Mr. Camargo was not a person in need of protection because he failed to establish that his life would be at risk or would be subjected to cruel and unusual treatment if he returned to the IFA.
Issues
[6] Did the Board err in finding that an IFA existed in the region of Venezuela not bordering Colombia, including but not limited to the cities of Caracas and Valencia?
Analysis
Did the Board err in finding that an IFA existed in the region of Venezuelanot bordering Colombia, including but not limited to the cities of Caracasand Valencia?
[7] The standard of review on a question of IFA is patent unreasonableness (Ramachanthran v. Canada(Minister of Citizenship and Immigration) (2003), 234 F.T.R. 206 (F.C.)). The applicant has the onus of proof to show on a balance of probabilities that there is a serious risk of persecution in the IFA (Karthikesu v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 772 (F.C.T.D.) (Q.L.)).
[8] The IFA legal test is two-fold: first, the applicant must show that there is a serious possibility of being persecuted in the identified IFA. Second, he must show that the conditions in the potential IFA are such that it would be unreasonable for him to seek refuge there (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.)). For an IFA to be unreasonable, conditions must exist that would jeopardize the life and safety of a claimant if travelling or temporarily relocating to that area. The absence of relatives in the IFA is not relevant unless it affects the claimant's safety. (Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.)).
Specific IFA location identified
[9] Mr. Camargo submits that the Board failed to identify a specific IFA or address the prevailing conditions within the location to establish its safety. The applicant relies on the decision of this Court in Rabbani v. Canada(Minister of Citizenship and Immigration) (1997), 125 F.T.R. 141 (T.D.) per Mr. Justice Marc Noël at paragraph 16:
¶ 16 [...] The conclusion as to the existence of an IFA requires more than the identification of the approximate area where the agent of persecution is thought to be in control and a general conclusion that the claimant is free to flee elsewhere. A specified geographic location must be identified where the conditions are such as to make it a realistic and attainable safe haven. [...] That in turn requires some discussion as to the prevailing conditions within the identified location.
[Footnotes omitted.]
[10] The Board notified Mr. Camargo that an IFA was an issue to be raised at his hearing. In this case the Record shows that the Board identified the IFA to be the region of Venezuela not bordering Colombia, including but not limited to the cities of Caracas and Valencia. Specifically, it found that the FARC was isolated to the states of Apure, Tachira, Zulia, Merida and Barinas (the border states).
Documentary evidence disclosed no serious possibility of persecution
[11] The applicant submits that the Board erred by failing to assess the prevailing conditions within the IFA to establish its safety and misinterpreted Country of Origin Research documents to support its conclusion.
[12] The Board considered the National Documentation Package for Venezuela dated January 17, 2005 and the Country of Origin Research documents VEN42074 and VEN42081. I find that it was reasonably open to the Board to conclude that FARC does not pose a serious threat to Mr. Camargo outside the border states.
[13] The applicant failed to discharge his evidentiary burden to establish that there is a serious possibility of being persecuted in the identified IFA.
Board did not err in assessing reasonableness
[14] Under the second prong of the IFA test, the Board concluded that it was not unreasonable to expect Mr. Camargo to reside in the potential IFA because:
1. he was 26 years old, no longer a minor, and could care for himself;
2. he had no language or cultural barriers to Venezuela;
3. he completed his high school education and had no dependents to support;
4. he had work experience with which to establish himself; and
5. fluctuating political and economic conditions in Venezueladid not undermine the reasonableness of the IFA.
[15] The applicant submits that the Board erred by failing to consider his emotional reliance on Mr. Polanco and his step-mother, both of whom reside in Toronto. The emotional reliance contemplated by the applicant is precisely in the nature of factors which do not meet the high threshold for the unreasonableness test articulated by the Federal Court of Appeal in Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.) where Mr. Justice Létourneau held at paragraph 15:
¶ 15 [...] It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations.
[16] The applicant's objection to the IFA is based on "undue hardship", not his safety in the IFA. An "undue hardship" claim is properly the subject of an H & C application, not a refugee claim. The applicant says that it would be an undue hardship for him to move to Venezuela where:
1. he has not lived except as a young boy;
2. he has no family or friends except his estranged mother and a sibling who he has not seen for most of his life;
3. he is emotionally close and dependant upon his brother and step-mother, who live in Toronto;
4. he has no employment prospects or place to live; and
5. the living conditions are impoverished and crime-ridden.
[17] For these reasons, the Board did not err when it found that the identified IFA was open to the applicant in Venezuela.
[18] The parties did not propose a question of general importance for certification, and none is certified.
JUDGMENT
THIS COURT ORDERS that:
This application for judicial review is dismissed.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4370-05
STYLE OF CAUSE: OSCAR ADAN PORRAS CAMARGO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 5, 2006
APPEARANCES:
Matthew Jeffrey FOR APPLICANT
Mr. John Pro
SOLICITORS OF RECORD:
Matthew Jeffrey
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT