Toronto, Ontario, November 1, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
MARIA ZULIDMA CASTANEDA VANEGAS
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Maria Zulidma Castaneda Vanegas is a citizen of Colombia. She claims to have been threatened with death by members of the Revolutionary Armed Forces of Colombia (or "FARC"). Her claim for refugee protection was rejected by the Refugee Protection Division of the Immigration and Refugee Board, which found that her testimony was not credible, and that her story had been manufactured.
[2] The applicant's claim for refugee protection was heard along with that of her daughter and son-in-law, although the bases of their claims were different. While the son-in-law also claimed to have been threatened by FARC, he was not sure if the threats made against him related to his own work with a state-owned company, or his support of the Conservative party. The son-in-law was found to be credible, and his claim, along with that of his wife, was accepted.
[3] While she does not challenge the Board's negative credibility findings, the applicant asserts that the Board erred in failing to consider the risk that she faced if she were to return to Colombia, as a member of her son-in-law's family. I am not satisfied that the Board made any such error, and accordingly, the application will be dismissed.
Background
[4] The applicant lived in Colombia, with her daughter and son-in-law, until she left the country in January of 1999. She lived in the United States for several years, before coming to Canada in August of 2002, whereupon she immediately sought refugee protection.
[5] The problems that the applicant's son-in-law encountered with FARC started in August of 1999 - that is some seven months after the applicant left Colombia. The Board accepted that the son-in-law had indeed been threatened by FARC, and that he had a well-founded fear of persecution in Colombia. The Board also recognized that FARC customarily targeted the immediate family of its victims, and that, as a result, his wife was also at risk. As a consequence, their claims for refugee protection were accepted.
[5]
The Applicant's Claim Before the Board
[6] The applicant's refugee claim was based upon her political opinion, as well as her membership in a particular social group. The basis for the applicant's alleged fear was first addressed in her Personal Information Form (or 'PIF'), where she discussed the murder of her husband in 1987. Following his death, she received threatening phone calls, ordering her to leave her town. The murder was allegedly unsolved, and the applicant does not identify any individuals or group who she believed may have killed him. The applicant says that the threatening calls stopped when she moved.
[7] The applicant also described the threats that she says she received from FARC in 1998. According to the applicant, she worked for a state-owned liquor company, which she described as a 'political company', and says that she was threatened with death by members of FARC. The FARC members allegedly wanted her to destroy financial files belonging to her employer, which files would allegedly show the embezzlement of company funds by politicians.
[8] Fearing for her life, the applicant says that she fled Colombia.
[9] Before the Board, the applicant repeated her story. Given that the basis for the claim being advanced by the applicant differed from the facts relied upon by her daughter and son-in-law in support of their refugee claims, the presiding member endeavoured to make sure that she properly understood the nature and scope of the applicant's claim. To this end, the presiding member asked the applicant:
Member: So, am I correct that the reason that you're here today is related solely and only to the demands that were made of you when you were working at this company?
Claimant: Yes.
[10] Thus it is clear that the Applicant was given a clear opportunity to mention any fear that she may have had based upon her relationship with her son-in-law, and did not make any such claim.
[11] Given that the Board accepted that her son-in-law had been threatened by FARC, and the Board's finding that FARC customarily targeted the immediate family of its victims, the applicant says that it was nevertheless incumbent on the Board to consider the risk that she faced as a result of her membership in her son-in-law's family. This risk was so obvious, the applicant says, it should have been considered, even though no such claim was advanced by the applicant herself.
Analysis
[12] Insofar as the applicant's claim is based upon section 96 of the Immigration and Refugee Protection Act, her argument must fail. In order to satisfy the Convention refugee test, the burden is on the applicant to demonstrate that her fear of persecution is both objectively and subjectively well-founded.
[13] The Board carefully considered the claim being advanced by the applicant, and found that there was no credible evidence to support the applicant's story. As was previously noted, the applicant does not take issue with the Board's credibility findings.
[14] Given the failure of the applicant to ever mention any subjective fear on her part arising out of her relationship with her son-in-law, there was simply nothing for the Board to consider in this regard.
[15] Citing cases such as Ustaoglu v. Minister of Citizenship and Immigration, [2003] F.C.J. No. 1285, 2003 FC 1009 and Shah v. Minister of Citizenship and Immigration, [2003] F.C.J. No. 1418, 2003 FC 1121, the applicant argues that a subjective fear is not an essential element of a claim under section 97 of IRPA. Given the obviousness of the risk to the applicant arising out of her membership in her son-in-law's family, the applicant says that the Board erred in failing to address the risk that she faced in this regard.
[16] I do not accept this argument. The Board found that FARC targeted members of its victims' immediate family. The applicant was the mother-in-law of the primary target of the threats, and thus was not clearly a member of his immediate family. Moreover, she was not living with her daughter and son-in-law when the threats were made. Indeed, the applicant was not even in Colombia at the time, having already left for the United States several months before. Moreover, given that her daughter and son-in-law are now refugees in Canada, the applicant would also not be living with them if she were to return to Colombia.
[17] Thus, even if I were to accept that there is an obligation on the Board to consider a risk that is not even mentioned by an applicant, I am not satisfied that such an obligation arises in the circumstances of this case.
Conclusion
[18] For these reasons, the application is dismissed.
Certification
[19] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
"A. Mactavish"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-987-05
STYLE OF CAUSE: MARIA ZULIDMA CASTANEDA VANEGAS
APPLICANT
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
RESPONDENT
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 31, 2005
APPEARANCES:
Anshumala Joyal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Davis & Grice
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT