Date: 20220105

Docket: IMM-56-20

Citation: 2022 FC 4

Ottawa, Ontario, January 5, 2022

PRESENT: The Honourable Mr. Justice Bell

BETWEEN:

FABIAN ANDRES ALFEREZ MONSALVE GINNA FERNANDA CABELLERO JOVEN MARTIN ALFEREZ CABALLERO JULIETA ALFEREZ CABALLERO

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I. Overview

[1] The principal Applicant, Fabien Andres Alferez Monsalve, his spouse Gina Fernanda Caballero Joven (the “co-Applicant”) and their children Martin Alferez Caballero and Julieta Alferez Caballero (the “minor Applicants”) (collectively “the Applicants”) are citizens of Colombia. On August 1, 2018, the Applicants left Colombia for the United States of America out of fear of being killed by members of the criminal gang, the Urabenos, also known as “Clan Usuga”, “AGC” and “Cartel del Golfo”. Until their departure from Colombia, the Applicants resided in the city of Bogota.

[2] The Applicants’ fears arose from the principal Applicant’s role as a witness to a crime committed in a store co-owned by the principal Applicant and the co-applicant in 2010, by a member of the Urabenos. The member was eventually convicted, and sentenced to a term of imprisonment. The threats to him and his family arose in 2018 following the release of the gang member from prison.

[3] The Applicants entered Canada from the United States on August 7, 2018 to claim refugee protection. Agents of the Canadian Border Services Agency (“CBSA”) determined the Applicants were excepted from the Safe Third Country Agreement and able to make an asylum claim because the principal Applicant’s sister is a Canadian Citizen (ss. 101(1)e) and 102(1)c) of IRPA, s. 159.5(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [“IRPR”]).

[4] The Refugee Protection Division (“RPD”) dismissed the Applicants’ claim for protection. The RPD accepted that the Applicants were targeted by the Urebanos, but not because of a Convention ground, but rather, as an act of retaliation for having an Urebanos member arrested and imprisoned eight years earlier. The RPD found that the Applicants’ claim was therefore best assessed under s. 97 of the IRPA. However, the existence of a viable internal flight alternative (“IFA”) in Colombia was determinative of the claim.

[5] The RPD concluded that the Applicants have a viable IFA in the town of Florencia, Colombia. The RPD concluded that the Urabenos have neither the means nor the motivation to locate the Applicants in the proposed IFA location, and that it would not be unreasonable for them to relocate to that location, given their personal circumstances. The RPD’s rationale in making this determination can be summarized as follows:

• • The Applicants did not hear from the Urabenos until 2018, more than eight years after the robbery took place. They were neither contacted nor located from 2010 to 2018;

• • The Applicants were never physically visited by the Urabenos between the time of the robbery and the time of their departure from Colombia;

• • The principal Applicant has family members residing in Bogota; he testified that the Urabenos have not contacted them;

• • The principal Applicant testified that he does not have evidence to suggest that the Urabenos were still looking for him at the time of the hearing;

• • Although the Applicants alleged that the Urabenos are everywhere in Colombia, the RPD found that according to the Colombia National Documentation Package (“NDP”), the Urabenos are not known to operate in Florencia;

• • The RPD found that the Applicants have not demonstrated that the Urabenos have alliances with other groups in Florencia, nor that they have access to corrupt state actors there;

[6] I note that pursuant to s. 110(2)d) of the IRPA, the Applicants were unable to appeal the decision of the RPD to the RAD.

[7] The Applicants seek judicial review pursuant to s. 72(1) of the IRPA of the December 11, 2019 RPD decision.

[8] For the reasons set out below. I grant the application for judicial review and remit the matter back to a different member of the RPD for redetermination.

II. Relevant Provisions

[9] The relevant provisions are sections 96, 97, 101(1)e), 102(1)c) and 110(2)d) of the IRPA, and s. 159.5(a) of the IRPR, set out in Schedule A attached.

III. Issues

[10] I intend to limit my analysis to the reasonableness of the RPD’s conclusion regarding the first prong of the IFA test set out in Thirunavukkarasu v Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 109 DLR (4th) 682 [“Thirunavukkarasu”] and Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164, 193 FTR 320 [“Ranganathan”] ; namely, whether there is a place in Colombia where the claimant would not be at risk.

IV. Analysis

A. Standard of review

[11] Both parties submit that the RPD’s decision is subject to review on the reasonableness standard. I agree (Canada (M.C.I.) v Vavilov, 2019 CSC 65, 441 DLR (4th) 1 [“Vavilov”] at para 25). None of the exceptions to the presumption of reasonable review applies in the circumstances (Vavilov at para 17.)

B. Reasonableness of the decision

[12] Given that an IFA in another part of the same country is determinative of a claim for refugee status, the onus is on an applicant to prove that he or she is at serious risk of being persecuted throughout the country (Thirunavukkarasu at paras 2 and 6). The test for determining whether a claim for protection under either section 96 or 97 of the IRPA should be rejected because the claimant has a viable IFA derives from Thirunavukkarasu and Ranganathan, and is broadly stated as follows:

(1) Is there somewhere in the country of reference (usually the country of nationality) where the claimant would not be at risk? and

(2) if so, would it be reasonable for the claimant to relocate there?

[13] While the Applicants raise several grounds of error which they contend constitutes unreasonableness affecting the whole of the decision, I intend to limit my analysis to only three, all of which relate to the means and motivation of the Urabenos to locate the Applicants in the proposed IFA.

[14] First, the RPD concluded the Urabenos do not have the means or the motivation to pursue them in the proposed IFA because, in part, they (the Urabenos) do not have a physical presence in the IFA. However, the National Documentation Package (NDP) demonstrates the Urabenos have a country-wide reach. Specifically, as advanced by the Applicants:

• • NDP item 7.2 indicates that the Urabenos “interfere at the national level”, represent the “structure with the biggest presence in Colombia”, “foster 2500 gangs across Colombia”, and “have succeeded in infiltrating divisions of the armed forces and the justice system”.

• • NDP item 7.15 indicates that the Urabenos “are the largest and most influential [gang] currently operating in Colombia”, “are considered the main criminal organization in Colombia with national reach”, and “have extended their significant and violent influence throughout the Americas”.

[15] An organization can have national reach without a physical presence. The RPD improperly conflated the concepts of “presence” and “influence” of the agents of persecution (Mauricio Berrios v. Canada (Citizenship and Immigration), 2021 FC 739 at paras 44 to 47).

[16] Second, the NDP evidence of the national reach of the Urabenos contradicts the findings of the RPD. The RPD failed to refer to this evidence. The failure to refer to relevant evidence, which contradicts a finding, constitutes an error which, standing alone, can render a decision unreasonable (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1999] 1 FC 53, 157 FTR 35 at para 17. A judicial review may be granted when an administrative decision-maker fails to refer to critical evidence that contradicts the conclusion and where the reviewing court determines that the omission, when considered in context, demonstrates that the decision-maker disregarded the material before him or her. (Penez v Canada (Citizenship and Immigration), 2017 FC 1001 at para 25). I am satisfied this is the case here.

[17] Third, the RPD’s conclusion that the Urabenos are not motivated to locate the Applicants contradicts the evidence, accepted by it, of the threats received by the Applicants in 2018. If the Urabenos were sufficiently motivated to threaten and pursue the Applicants in 2018, eight years after a crime was committed, I consider it unreasonable to conclude, without further elaboration, that that same gang would not pursue them in 2019. Also, the RPD’s conclusion about a lack of motivation based upon the fact there were “no attempts to locate the family […] between 2010 and 2018”, is speculative. No one, including the Applicants, is in a position to pronounce upon what the gang attempted to do.

V. Conclusion

[18] I am of the view the shortcomings outlined above are sufficient to demonstrate that the impugned decision lacks justification, transparency and intelligibility (Vavilov at para 99). The decision is not, in my view, based on reasoning that is both rational and logical; I am not satisfied that the decision-maker’s reasoning “adds up” (Vavilov at paras 102 and 104).

[19] The within application for judicial review is granted and the matter remitted to a different member of the RPD for redetermination.

JUDGMENT

THIS COURT’S JUDGMENT is that the within application for judicial review is granted, without costs. The matter is remitted to a different member of the RPD for redetermination. No question is certified for consideration by the Federal Court of Appeal.

“B. Richard Bell”

SCHEDULE

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-56-20
STYLE OF CAUSE:	FABIAN ANDRES ALFEREZ MONSALVE, GINNA FERNANDA CABALLERO JOVEN, MARTIN ALFEREZ CABALLERO, JULIETA ALFEREZ CABALLERO v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	TORONTO, ONTARIO
DATE OF HEARING:	November 1, 2021
REASONS FOR JUDGMENT AND JUDGMENT:	BELL J.
DATED:	January 5, 2022

APPEARANCES:

Terry S. Guerriero	For The ApplicantS
Nick Continelli	For The Respondent

SOLICITORS OF RECORD:

Terry S. Guerriero Barrister & Solicitor London, Ontario	For The ApplicantS
Attorney General of Canada Toronto, Ontario	For The Respondent