Toronto, Ontario, March 7th, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
JAVIER ARTURO GONZALEZ-CARDENAS
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicant is a 37-year-old citizen of Colombia and Ecuador who claims a fear of persecution at the hands of members of the Revolutionary Armed Forces of Colombia (FARC). The Refugee Protection Division (RPD) of the Immigration and Refugee Board determined that he was neither a Convention refugee nor a person in need of protection. The applicant seeks judicial review of the board's negative determination.
[2] Despite the capable and articulate arguments of the applicant's counsel, I am not persuaded that this application can succeed.
[3] The applicant claimed that he was involved in a private investigation regarding the kidnapping of his second cousin (a student at the National University in Palmira, Colombia), allegedly by FARC guerillas. The applicant asserted that because of his connection to the private investigation, he was approached by a member of the Alonso Cortes Front (ACF) and was informed that he had become a military target for the FARC. He regarded this as being akin to a death sentence. He stated that he sought protection from the Attorney General's office, the army, and the ombudsman. However, those organizations informed him that they did not have the resources to protect him.
[4] An army officer allegedly advised the applicant that young men had been killed by the FARC. Additionally, the applicant discovered that the ACF was a mobile front of the FARC. Believing himself to be in great danger, he fled Colombia in December 2002, with his passport and a United States visitor visa. He remained in New York until mid-February of 2003, then travelled to Canada and made his claim.
[5] The applicant stated that after his departure from Colombia, his wife began receiving threatening calls from the FARC inquiring as to his whereabouts. Members of the FARC approached his wife at gunpoint in September 2003. His sister in Ecuador also received calls. In May of 2004, the applicant's mother informed him that two bodies were discovered close to Palmira. The applicant believes that they are the bodies of his cousin and his cousin's friend.
[6] The RPD accepted the applicant's identity. It found that there was insufficient credible or trustworthy evidence to support the allegations asserted by him. In particular, the board did not accept that the applicant was of interest to the FARC for a variety of reasons. In arriving at its conclusion, particularly in relation to Colombia, the RPD made a number of credibility and plausibility findings. The applicant accepts that the applicable standard of review in this regard is that of patent unreasonableness. Nonetheless, the applicant challenges those findings and submits that the requisite standard is met.
[7] The applicant, in relation to credibility, claims that the board drew a negative inference from his testimony on the basis that he avoided answering questions and provided vague answers. It is said that this constitutes a patently unreasonable error because the applicant has been under psychiatric care since his arrival in Canada and the board failed to take into account the medical evidence that explained his behaviour. Additionally, the applicant argues that the board's negative credibility inferences, from the testimony regarding the need for a power of attorney to participate in the investigation, are not sustainable because he was related to the victim and he would be able to investigate his cousin's disappearance without the necessity of a power of attorney. Last, he attacks the board's finding that he embellished his relationship with his cousin. There was nothing wrong with him taking an interest in his cousin's disappearance out of a sense of moral duty.
[8] Regarding implausibility, the applicant contests the finding that his political profile was not sufficient to attract persecution and submits that it is the persecutor's perception of a claimant that is relevant, not the board's perception. There was evidence before the RPD that illustrated that guerilla groups have a broad definition of who is acting against their interests. Further, the applicant questions the finding that it was implausible that the FARC would find the applicant if it had not discovered his sister. He submits that it was patently unreasonable for the board to conclude that because the FARC had not harmed his sister, it would not harm him. This is particularly so because his sister was not involved in the investigation. Thus, their situations were different.
[9] The applicant also takes issue with other findings. Specifically, he attacks the inferences drawn from the lack of corroborating evidence regarding the investigation and the board's failure to note in its reasons the evidence that was submitted. Last, the applicant asserts that the board erred in concluding that there was no credible evidence to establish that the United States' policy toward Colombian refugee claimants had changed for the worse after 9/11.
[10] In sum, the applicant submits that the RPD made a number of errors which cast doubt on whether the decision would have been the same absent those errors. Judicial review should be granted whether or not all of the findings constitute errors.
[11] It is possible that the applicant could meet with success on one or more of his allegations of error. However, I need not make that determination because, in my view, the board's conclusion that the applicant would not be at risk in Ecuador is dispositive.
[12] Where an applicant claims protection and is a national of two countries, he or she must make out his claim against both countries: Tit v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 556 (F.C.T.D.). With one exception, which will be discussed below, all of the applicant's allegations of error relate to the board's findings regarding the well-foundedness of the claim in relation to Colombia. The RPD determined the well-foundedness of the claim in relation to both Ecuador and Colombia.
[13] The only challenge taken by the applicant in relation to the situation in Ecuador relates to the board's finding regarding his sister. The applicant claimed that he had one sister and two half-sisters living in Ecuador, one of whom allegedly received threatening phone calls from the FARC in its efforts to ascertain the applicant's whereabouts. The board noted that the sister had not been threatened or contacted after she moved. The RPD concluded that because the FARC had not located his sister in Ecuador, even though she worked as a journalist in the media and would be relatively easy to locate, it was implausible that the applicant would be found there. That finding is not patently unreasonable in light of the documentary evidence referenced by the board that stated that the FARC was not active there.
[14] Since this is the only finding that the applicant has raised as a ground of review that relates to the board's finding regarding Ecuador, it necessarily follows that the board's conclusion - that the well-foundedness of the applicant's claim in relation to Ecuador had not been established - must stand. This is sufficient to dispose of the application independent of the other allegations of error.
[15] Counsel did not suggest a question for certification and none arises in this matter.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2588-05
STYLE OF CAUSE: JAVIER ARTURO GONZALEZ-CARDENAS
Applicant
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 22, 2006
AND ORDER: Layden-Stevenson J.
APPEARANCES:
| Douglas Lehrer
|
|
| John Provart |
SOLICITORS OF RECORD:
| Vandervennen Lehrer Barristers and Solicitors Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |