Toronto, Ontario, August 3, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
FRANCISCO ARTURO ATEHORTUA JIMENEZ
YOLANDA MARTINEZGIRALDO
SEBASTIAN DAVID ATEHORTUA MARTINEZ
JENNIFER VANESSA ATEHORTUA MARTINEZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of an immigration officer (the "officer"), dated March 29, 2004, wherein the applicants' application for permanent residence in Canada as members of the source country class pursuant to section 148(1) of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 ("section 148.1") was refused.
[2] The applicants seek an order quashing the decision refusing the applicants' request for permanent residence as members of the source country class, and an order remitting the matter back for redetermination by a differently constituted panel.
Background
[3] Francisco Arturo Atehortua Jimenez, (the "principal applicant"),Yolanda Martinez Giraldo, Sebastien David Atehortua Martinez, and Jennifer Vanessa Atehortua Martinez ("his family") are citizens of Colombia who were privately sponsored and applied for permanent resident visas under the source country refugee class.
[4] The principal applicant alleged that he had been a victim of death threats by members of different armed illegal groups in Colombia. Many of the threats were due to his work as a civil engineer building roads in different parts of the country.
[5] At his hearing before the officer on March 29, 2004, the applicant allegedly stated that he had not reported the threats to the authorities because he feared reprisals since the different armed illegal groups in Colombia had infiltrated the police and the military. He instead opted for moving his addresses over the years. The principal applicant alleged that neither he nor his family were treated reasonably by the officer. In her affidavit, the officer denied that assertion. The applicants alleged that in light of country conditions in Colombia and the threats the principal applicant had received, they could not live safely anywhere in Colombia.
Reasons of the Officer
[6] The officer refused the application for permanent residence in Canada as members of the source country class based on a determination that the principal applicant did not meet the requirements for immigration to Canada.
After carefully assessing all factors relative to your application, I am not satisfied that you are a member of the source country class because you appear to have the possibility of a durable solution in Colombia. At the interview, you said that problems started about 7 years ago in relation to your work as civil engineer in various zones where armed groups are present. You were unable to provide any proof of personal threats at interview, you never sought the help of your own government, and never attempted to live outside Antioquia. You were unable to demonstrate that you were personally affected by civil conflict, and if you were, that you could not continue living in Colombia.
. . .
I am not satisfied that you meet the requirements of the Act and the regulations for the reasons explained above. I am therefore refusing your application.
Issues
[7] The issues as framed by the applicants are:
1. Whether the officer made perverse and capricious findings of fact?
2. Whether the officer ignored generally recognized facts in prejudice to the applicants?
3. Whether the officer misconstrued the definition of member of the source country class?
[8] The issues as framed by the respondent are:
1. Should the affidavit of Monica Vanegas be admitted or given any weight?
2. Were the officer's findings of fact and consideration of the evidence reasonable?
3. Did the officer properly analyze the applicants' source country class application?
Applicant's Submissions
[9] The applicants submitted that the principal applicant explained that he and his family feared for their lives as due to his work as a civil engineer building roads, he had received death threats from illegal armed groups in Colombia. The principal applicant further submitted that he explained at his interview on March 29, 2004 that he did not report those threats to the authorities of his country because he feared retaliation since the illegal groups that he feared had infiltrated the police and military of Colombia.
[10] The applicants submitted that the lack of their personal affidavits should not be determinative of the issues raised by them in their application. The issues they raise are evident from the face of the reasons of the officer's decision.
[11] The applicants submitted that the officer made no negative credibility finding as to the principal applicant. The applicants submitted the officer had a duty to act fairly and make findings supported by the evidence. Further, section 11.2 of Immigration Manual OP5 ("OP 5") directs the officer to consult a number of listed sources including, inter alia, Amnesty International Human Rights Watch and the U.S. Department of State Reports. The reports on human rights showed the devastating effects of the internal conflict in Colombia, including deliberate and arbitrary killings by armed opposition groups, the government's inability to control the situation, tortures, kidnappings, and the displacement of thousands of people.
[12] The applicants submitted that the credibility and probative value of evidence has to be evaluated in light of what is generally known about conditions and the laws in a claimant's country of origin (see Sathanandan v. Canada (Minister of Citizenship and Immigration) (1991), 15 Imm. L.R. (2d) 310 (F.C.A.)). The experiences of similarly situated persons are also relevant in assessing the probative value of the evidence (see Chaudri v. Canada(Minister of Employment and Immigration) (1993), 20 Imm. L.R. (2d) 296 (F.C.T.D.)). Those principles are set out in section 13.1 of OP 5. The officer erred by ignoring well known facts about the condition of human rights in Colombia, and making findings of fact unsupported by the evidence.
[13] The applicants submitted in their reply that they are not arguing that the officer was not apprised of general country conditions, but that she failed to consider them when refusing the application contrary to section 11.2 of OP 5. This was a breach of natural justice.
[14] The applicants further submitted that the officer erred in refusing the application because the principal applicant was unable to produce hard evidence of the death threats he had received. The applicants submitted that in keeping with section 13.1 of OP 5, as there is no reason on the record to disbelieve the principal applicant's account, the officer was under a legal obligation to give the principal applicant the benefit of the doubt.
[15] The applicants submitted that the officer's finding that if the guerrillas really wanted to harm the applicants they could easily locate them as they had been living at the same address, and the principal applicant worked for the same employer, for fifteen months, was not based on any evidence before her. Further, she arrived at that conclusion without canvassing the issue with the principal applicant.
[16] The applicants submitted that the officer erred in limiting her analysis of the applicants' application to paragraph 148 (b)(i) of the Regulations and failed to consider the well-foundedness of the fear of persecution as required under paragraph 148 (b)(iii).
[17] The applicants submitted that contrary to the respondent's submissions, the officer never stated in her reasons for decision or her affidavit that she did not believe that the applicants had been threatened by the FARC, or put another way, that she was not satisfied that the applicants were ever threatened by guerrillas at all.
Respondent's Submissions
[18] Respondent's Issue 1
The respondent submitted that the only evidence the applicants have put before the Court in support of their application is an affidavit from their counsel's legal assistant, purporting to provide hearsay evidence by way or relating a telephone conversation with them. The affidavit does not comply with Rule 12(1) of the Federal Court Immigration and Refugee Protection Rules, S.O.R./2002-232 ("Rule 12(1)"). Hearsay evidence in an affidavit is only admissible if the Court is satisfied that the two-part test of necessity and reliability is met. The applicants have provided no explanation as to why they need to rely on a hearsay affidavit and the reliability of its content is put in doubt by the unchallenged testimony provided by the officer's affidavit. The applicants have failed to meet the required test (see Akomah v. Canada(Minister of Citizenship and Immigration) (2002), 20 Imm. L.R. (3d) 204).
[19] The applicants' submission that the officer erred in law by requiring "hard evidence of threats" is derived entirely from the untestable hearsay evidence of Monica Vanegas and the officer denies this allegation in her affidavit. Similarly, contrary to the applicants' hearsay allegations that the officer was arrogant, inattentive and uninformed about their file and did not offer the applicants a seat, the officer's evidence is that she treats all applicants with respect, asks them many questions to make sure she has the facts straight and understands the situation and properly assesses the application. The officer also noted that in fact there are no seats in the Embassy's interview booths.
[20] Issue 2
The respondent submitted that the applicants failed to put any human rights reports before the officer. There is therefore no basis for stating that the documents were ignored. The applicants' submission that section 11.2 of OP 5 required the officer to consult the documents they refer to cannot succeed. Manuals are simply guidelines designed to assist officers and are not binding. Further, section 11.2 of OP 5 only "encourages" officers to visit several human rights web sites when researching country conditions.
[21] The applicants have not shown that any evidence was ignored or that the officer's weighing of the evidence was unreasonable. The applicants' submission that the officer refused their application because they were "unable to produce hard evidence of death threats" is unsubstantiated and based upon the hearsay affidavit.
[22] The respondent submitted that although the principal applicant said he did not report the threats to the authorities because he feared that various armed groups had infiltrated the police and the military, and instead opted for moving his address over the years, the officer was not satisfied with this explanation because all of the applicants' addresses were in the same region.
[23] The respondent further submitted that the officer had no duty to explain to the applicants why she was not satisfied with this explanation at the interview, it was a reasonable conclusion for her to draw based on the evidence before her.
[24] The respondent submitted that the officer's reasons and affidavit indicate that she did not find the principal applicant's behaviour to be consistent with that of someone who truly feared for his life in Medellin. She was not satisfied that the applicants had been seriously or personally affected by the strife in Colombia or otherwise satisfied the criteria for source country class. This is reinforced in the applicants' "refugees outside Canada" application form in which the applicants referred to generalized violence making it unsafe for any person to live in Colombia, and that it was happening all throughout the country. The applicants' written application made no mention of them having actually been threatened.
[25] The respondent further submitted that the officer's refusal of the applicants' application for source country class resettlement based on findings that she was not satisfied that they were ever threatened by guerrillas at all, was sufficient to dispose of the applicants' claim on all grounds under both subparagraphs 148(1)(b)(i) and (ii).
[26] Issue 3
The evidence before the Court does not establish any well-founded fear of persecution as required by paragraph 148(b)(iii) of the Regulations. The applicants' application form makes no mention of any specific threats or grounds for their fear. They therefore did not meet the definition of "member of the source country class" (see Bonilla v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 29).
[27] The respondent submitted that in light of the conjunctive "general requirements" for the issuance of a permanent resident visa to foreign nationals in need of refugee protection in section 139 of the Regulations, the officer's finding that the applicants had the possibility of a durable solution in Colombia was determinative of their application (see Ha v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 620, rev'd on other grounds in Ha v. Canada Minister of Citizenship and Immigration) 2004 FCA 49).
Relevant Statutory Provisions
[28] The relevant sections of the Immigration and Refugee Protection Act Regulations, supra, state:
| 139. (1) A permanent resident visa shall be issued to a foreign national in need of refugee protection, and their accompanying family members, if following an examination it is established that
(a) the foreign national is outside Canada;
(b) the foreign national has submitted an application in accordance with section 150;
(c) the foreign national is seeking to come to Canada to establish permanent residence;
(d) the foreign national is a person in respect of whom there is no reasonable prospect, within a reasonable period, of a durable solution in a country other than Canada, namely
(i) voluntary repatriation or resettlement in their country of nationality or habitual residence, or
(ii) resettlement or an offer of resettlement in another country;
(e) the foreign national is a member of one of the classes prescribed by this Division;
(f) one of the following is the case, namely
(i) the sponsor's sponsorship application for the foreign national and their family members included in the application for protection has been approved under these Regulations,
(ii) in the case of a member of the Convention refugee abroad or source country class, financial assistance in the form of funds from a governmental resettlement assistance program is available in Canada for the foreign national and their family members included in the application for protection, or
(iii) the foreign national has sufficient financial resources to provide for the lodging, care and maintenance, and for the resettlement in Canada, of themself and their family members included in the application for protection;
(g) if the foreign national intends to reside in a province other than the Province of Quebec, the foreign national and their family members included in the application for protection will be able to become successfully established in Canada, taking into account the following factors:
(i) their resourcefulness and other similar qualities that assist in integration in a new society,
(ii) the presence of their relatives, including the relatives of a spouse or a common-law partner, or their sponsor in the expected community of resettlement,
(iii) their potential for employment in Canada, given their education, work experience and skills, and
(iv) their ability to learn to communicate in one of the official languages of Canada;
(h) if the foreign national intends to reside in the Province of Quebec, the competent authority of that Province is of the opinion that the foreign national and their family members included in the application for protection meet the selection criteria of the Province; and
(i) subject to subsection (3), the foreign national and their family members included in the application for protection are not inadmissible.
(2) Paragraph (1)(g) does not apply to a foreign national, or their family members included in the application for protection, who has been determined by an officer to be vulnerable or in urgent need of protection.
(3) A foreign national who is a member of a class prescribed by this Division, and meets the applicable requirements of this Division, is exempted from the application of section 39 of the Act. (4) A foreign national who is a member of a class prescribed by this Division, and meets the applicable requirements of this Division, is exempted from the application of paragraph 38(1)(c) of the Act.
148. (1) A foreign national is a member of the source country class if they have been determined by an officer to be in need of resettlement because
(a) they are residing in their country of nationality or habitual residence and that country is a source country within the meaning of subsection (2) at the time their permanent resident visa application is made as well as at the time a visa is issued; and
(b) they
(i) are being seriously and personally affected by civil war or armed conflict in that country,
(ii) have been or are being detained or imprisoned with or without charges, or subjected to some other form of penal control, as a direct result of an act committed outside Canada that would, in Canada, be a legitimate expression of freedom of thought or a legitimate exercise of civil rights pertaining to dissent or trade union activity, or
(iii) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group, are unable or, by reason of such fear, unwilling to avail themself of the protection of any of their countries of nationality or habitual residence.
(2) A source country is a country (a) where persons are in refugee-like situations as a result of civil war or armed conflict or because their fundamental human rights are not respected;
(b) where an officer works or makes routine working visits and is able to process visa applications without endangering their own safety, the safety of applicants or the safety of Canadian embassy staff;
(c) where circumstances warrant humanitarian intervention by the Department in order to implement the overall humanitarian strategies of the Government of Canada, that intervention being in keeping with the work of the United Nations High Commissioner for Refugees; and
(d) that is set out in Schedule 2. |
|
139. (1) Un visa de résident permanent est délivré à l'étranger qui a besoin de protection et aux membres de sa famille qui l'accompagnent si, à l'issue d'un contrôle, les éléments suivants sont établis:
a) l'étranger se trouve hors du Canada;
b) il a présenté une demande conformément à l'article 150;
c) il cherche à entrer au Canada pour s'y établir en permanence;
d) aucune possibilité raisonnable de solution durable n'est, à son égard, réalisable dans un délai raisonnable dans un pays autre que le Canada, à savoir:
(i) soit le rapatriement volontaire ou la réinstallation dans le pays dont il a la nationalité ou dans lequel il avait sa résidence habituelle,
(ii) soit la réinstallation ou une offre de réinstallation dans un autre pays;
e) il fait partie d'une catégorie établie dans la présente section;
f) selon le cas
(i) la demande de parrainage du répondant à l'égard de l'étranger et des membres de sa famille visés par la demande de protection a été accueillie au titre du présent règlement,
(ii) s'agissant de l'étranger qui appartient à la catégorie des réfugiés au sens de la Convention outre-frontières ou à la catégorie de personnes de pays source, une aide financière publique est disponible au Canada, au titre d'un programme d'aide, pour la réinstallation de l'étranger et des membres de sa famille visés par la demande de protection,
(iii) il possède les ressources financières nécessaires pour subvenir à ses besoins et à ceux des membres de sa famille visés par la demande de protection, y compris leur logement et leur réinstallation au Canada;
g) dans le cas où l'étranger cherche à s'établir dans une province autre que la province de Québec, lui et les membres de sa famille visés par la demande de protection pourront réussir leur établissement au Canada, compte tenu des facteurs suivants:
(i) leur ingéniosité et autres qualités semblables pouvant les aider à s'intégrer à une nouvelle société,
(ii) la présence, dans la collectivité de réinstallation prévue, de membres de leur parenté, y compris celle de l'époux ou du conjoint de fait de l'étranger, ou de leur répondant,
(iii) leurs perspectives d'emploi au Canada vu leur niveau de scolarité, leurs antécédents professionnels et leurs compétences,
(iv) leur aptitude à apprendre à communiquer dans l'une des deux langues officielles du Canada;
h) dans le cas où l'étranger cherche à s'établir dans la province de Québec, les autorités compétentes de cette province sont d'avis que celui-ci et les membres de sa famille visés par la demande de protection satisfont aux critères de sélection de cette province;
i) sous réserve du paragraphe (3), ni lui ni les membres de sa famille visés par la demande de protection ne sont interdits de territoire.
(2) L'alinéa (1)g) ne s'applique ni à l'étranger ni aux membres de sa famille visés par la demande de protection qui, selon l'agent, sont vulnérables ou ont un besoin urgent de protection.
(3) L'article 39 de la Loi ne s'applique pas à l'étranger qui appartient à une catégorie établie par la présente section et qui satisfait aux exigences applicables qui y sont prévues.
(4) Le motif sanitaire selon lequel l'état de santé de l'étranger risque d'entraîner un fardeau excessif ne s'applique pas à l'étranger qui appartient à une catégorie établie par la présente section et qui satisfait aux exigences applicables qui y sont prévues.
148. (1) Appartient à la catégorie de personnes de pays source l'étranger considéré par un agent comme ayant besoin de se réinstaller en raison des circonstances suivantes:
a) d'une part, il réside dans le pays dont il a la nationalité ou dans lequel il a sa résidence habituelle, lequel est un pays source au sens du paragraphe (2) au moment de la présentation de la demande de visa de résident permanent ainsi qu'au moment de la délivrance du visa;
b) d'autre part, selon le cas:
(i) une guerre civile ou un conflit armé dans ce pays ont des conséquences graves et personnelles pour lui,
(ii) il est détenu ou emprisonné dans ce pays, ou l'a été, que ce soit ou non au titre d'un acte d'accusation, ou il y fait ou y a fait périodiquement l'objet de quelque autre forme de répression pénale, en raison d'actes commis hors du Canada qui seraient considérés, au Canada, comme une expression légitime de la liberté de pensée ou comme l'exercice légitime de libertés publiques relatives à des activités syndicales ou à la dissidence, (iii) il ne peut, craignant avec raison d'être persécuté du fait de sa race, de sa religion, de sa nationalité, de ses opinions politiques ou de son appartenance à un groupe social particulier, ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays.
(2) Est un pays source celui qui répond aux critères suivants : a) une guerre civile, un conflit armé ou le non-respect des droits fondamentaux de la personne font en sorte que les personnes qui s'y trouvent sont dans une situation assimilable à celle de réfugiés au sens de la Convention;
b) un agent y travaille ou s'y rend régulièrement dans le cadre de son travail et est en mesure de traiter les demandes de visa sans compromettre sa sécurité, celle des demandeurs ni celle du personnel de l'ambassade du Canada;
c) les circonstances justifient une intervention d'ordre humanitaire de la part du ministère pour mettre en oeuvre les stratégies humanitaires globales du gouvernement canadien, intervention qui est en accord avec le travail accompli par le Haut-Commissariat des Nations Unies pour les réfugiés;
d) il figure à l'annexe 2. |
Analysis and Decision
[29] Standard of Review
The officer's determination of the law must be correct while her decisions relating to the application of the facts to the law which is a question of mixed fact and law, must be assessed on the standard of reasonableness simpliciter (see Bonilla, supra).
[30] At the hearing, the applicants stated the issues as follows:
1. Did the officer misconstrue the definition of a source country class member?
2. Did the officer make findings of fact not supported by the evidence?
[31] Preliminary Issue - Affidavit
The applicants indicated at the hearing that they were not relying on the affidavit of their counsel's legal assistant which was objected to by the respondent.
[32] Issue 1
Did the officer misconstrue the definition of a source country class member?
The applicants submitted that the officer only addressed s. 148(1)(b)(i) of the Regulations and did not address s. 148(1)(b)(iii) of the regulations. My reading of the Immigration Officer's notes and other material indicate to me that the officer was aware of s. 148(1)(b)(iii) and although she did not specifically refer to the section her notes indicate that she did consider whether the applicants had a well-founded fear of persecution. By way of example, the officer was not satisfied that the principal applicant was threatened by guerrillas and that the applicants had not sought state protection. I am of the view that the officer did not make an error in this aspect of the case.
[33] Issue 2
Did the officer make findings of fact not supported by the evidence?
The applicants submitted that the officer erred in stating that the principal applicant appeared to have a possibility of a durable solution in Columbia. The officer stated as follows in her decision:
After carefully assessing all factors relative to your application, I am not satisfied that you are a member of the source country class because you appear to have the possibility of a durable solution in Colombia. At the interview, you said that problems started about 7 years ago in relation to your work as civil engineer in various zones where armed groups are present. You were unable to provide any proof of personal threats at interview, you never sought the help of your own government, and never attempted to live outside Antioquia. You were unable to demonstrate that you were personally affected by civil conflict, and if you were, that you could not continue living in Colombia.
[34] The officer noted that the principal applicant never lived outside of Antioquia and although he moved addresses over the years, none were outside of Antioquia. Further, the principal applicant had lived at the same address for fifteen months and had been working for the same employer during that time. As well, the principal applicant stated he worked in various regions of the country and his problems existed where armed groups were present. The principal applicant did not report any of the incidents to the authorities.
[35] The officer was also familiar with the country conditions in Columbia and took those into consideration when arriving at her decision.
[36] Based on the evidence before the officer, I am of the view that the officer did not make a reviewable error with respect to the possibility of a durable solution for the applicants or the lack of a well-founded fear of persecution.
[37] The application for judicial review is therefore dismissed.
[38] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
ORDER
[39] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5542-04
STYLE OF CAUSE: FRANCISCO ARTURO ATEHORTUA JIMENEZ
YOLANDA MARTINEZ GIRALDO
SEBASTIAN DAVID ATEHORTUA MARTINEZ
JENNIFER VANESSA ATEHORTUA MARTINEZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
Luis Antonio Monroy FOR APPLICANTS
SOLICITORS OF RECORD:
Luis Antonio Monroy
Toronto, Ontario FOR APPLICANTS
John H. Sims, Q.C.