PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
DEYSSE JHANET VELANDIA BARON
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicants, Luis Trujillo Sanchez and Deysse Velandia Baron, seek judicial review from a negative decision of the Immigration and Refugee Board (Board) dated May 27, 2005 whereby their respective claims to refugee protection were denied.
Background
[2] The Applicants came to Canada from Colombia in 2004 after Mr. Sanchez had been threatened by Fuerzas Armadas Revolucionarias de Colombia (FARC). There is not much dispute in the record about what led to Mr. Sanchez' conflict with FARC, and the Board appears to have accepted the history he provided in that regard.
[3] Mr. Sanchez was trained in Colombia as an environmental engineer and was employed by the National Ministry of Agriculture as an engineer specializing in environmental cleanup. Along with his brother, he also operated a part-time business which involved reporting violators of a local sign bylaw to the authorities. If the offending business owner was fined for a violation of the bylaw, Mr. Sanchez and his brother would receive a commission for having initiated the prosecution.
[4] According to Mr. Sanchez, this part-time employment was sufficiently bothersome to those affected that he became a target of FARC. He testified that the first indication of trouble came in the form of a threatening letter dated June, 2002 where FARC demanded that Mr. Sanchez and his brother desist from carrying on their business. That letter stated:
Bogota June 2002
Luis Miguel Trujillo Sanchez
Juan Manuel Trujillo Sanchez
In the name of the Urban Military of the Revolutionary Armed Forces "FARC - EP" I communicate to you that I am not agreeing with the procedures that you pair of sons of a bitches, are utilizing to attack the business people in this city.
I hope Mr. Trujillos' that for your own good and your integrity you can desist from your intentions, because our organization also is being affected by the voluntary quotas that maintain us, as good part of the Bogota businesses have been supporting us, this I do not permit and I will not permit it at any necessary price.
Sirs I hope I do not have to see you face to face because it will be fatal for you, get away from your intentions because there could be someone who would be sorry for you too [sic] " "I am observing you two you have a shadow on your back""[sic]
FARC_EP Urban Militia
[5] The Applicant did not comply with FARC's demands and continued to operate his business, albeit with some changes in his routines to avoid detection from FARC. It was not until 2004 that further problems with FARC arose. Mr. Sanchez testified that he was briefly kidnapped by FARC on two occasions that year, threatened at gun point and told to cease making bylaw complaints to the authorities. On the second of those occasions, Mr. Sanchez was told that his wife, Ms. Velandia Baron, and brother would also be targeted if the demands were not respected. His testimony about this was as follows:
...After being made to get inside the vehicle these people, there was two of them, again issued a death threat against me. They repeated that one shouldn't be playing games with them, that they would kill me if I didn't do what they demanded.
They knew that I - they knew that I had a wife because if they didn't kill me they would kill her. That the same way that they could kill me they could kill my brother and I was placing my family at risk. That I should stop my work, my reports about visual pollution, that I was undermining their interests and this was the last direct threat against me because next time they would kill me. They would kill me or my family.
And this incident it was traumatizing me because they placed a gun or weapon in my mouth since I tried to defend myself or protect myself and they used force to subdue me and reiterated their threats.
[6] Mr. Sanchez appropriately reported these events to the Colombian authorities and when called upon to explain the apparent motivation behind the threats he repeated what he had been told by his persecutors - that he must withdraw from his business of reporting sign violators to the local authorities or risk further retribution. In one of his official denunciations to the Colombian Police, he stated:
I am sure that these threats are originated by some people who are not pleased by our professional activities as litigation lawyers in enviromental matters (sic), because of their written threats.
[7] It was following the second kidnapping incident that the Applicants fled to Canada through the United States.
[8] Although Mr. Sanchez did testify that his father had been a political target of FARC in the 1980's, and that the family home had once come under attack, there was no evidentiary nexus between those events and the threatening incidents which led to the Applicants' departure from Colombia.
[9] The Board found Mr. Sanchez to be credible and it did not take issue with the history outlined above. It rejected the Applicants' claims on the sole basis that they would not face a risk of persecution or harm if Mr. Sanchez returned to Colombia and pursued a line of employment different from the one which had caused his difficulties with FARC. The Board concluded that Mr. Sanchez' previous part-time employment was neither fundamental to the preservation of his core human rights, nor was it essential to his right to earn a living generally. In short, the Board held that Mr. Sanchez could return to Colombia and work in his field of expertise, but in a job that would not attract the attention of FARC. In doing so, he and his wife would not face a serious possibility of coming to harm.
Issue
Did the Board err in its treatment of the issue of risk, having particular regard to the question of Mr. Sanchez' right to pursue employment?
Standard of Review
[10] The question of whether a person faces a risk of future harm is usually based upon an assessment of factual evidence of what has come before. To the extent that such prognostications for the future are fact-based, the Board's findings are entitled to considerable deference. This would include findings with respect to the nexus between past persecutory conduct and one of the convention grounds: see Mia v. Canada(Minister of Citizenship and Immigration) [2000] F.C.J. No. 120 requiring that the decision be found to be perverse or made in a capricious manner. Similarly, findings bearing upon changed circumstances in a person's country of origin are typically fact driven. Here, though, the determination of whether these Applicants would be at risk of harm upon a return to Colombia turned, in part, upon the Board's conclusion that Mr. Sanchez was not entitled to rely upon the evidence of risk created by his past employment experiences as a measure of the risk he would face upon a return to Colombia. This seems to me to be more in the nature of an issue of mixed fact and law and I would adopt the approach taken by Justice Fred Gibson in Jayesekara v. Canada(Minister of Citizenship and Immigration) [2001] F.C.J. No. 1393, 2001 FCT 1014 where he applied the standard of reasonableness to a similar question (at paragraphs 23-24).
[11] At the end of the day, the application of the appropriate standard of review is of no significance to my analysis because, whatever the standard may be, I believe that the Board's decision was both reasonable and legally correct.
Analysis
[12] Counsel for the Applicants identified a number of issues which he asserted were indicative of errors made by the Board but which I do not believe are raised by its decision.
[13] The Applicants' counsel argued that the Board mischaracterized the nature of the threats by focusing on the perception of the victims and by failing to consider the perception or motivation of the persecutor. On these facts, however, the motivation was obvious: FARC was engaged in a form of criminal extortion which, insofar as the Applicants were concerned, had no obvious political aspect to it. That is how it was put to Mr. Sanchez and that is how he consistently reported it. There was, accordingly, no evidentiary foundation to support Convention Refugee status in this case.
[14] It was also argued on behalf of the Applicants that the Board erred by failing to consider the earlier family history with FARC against the backdrop of other evidence of country conditions and the generalized risk posed to the Applicants by FARC. It was asserted that this evidence proved that FARC had both a long arm and a long memory and that Mr. Sanchez and Ms. Velandia Baron would continue to be at risk. The fundamental weakness of this argument is that the Applicants failed to offer any material evidence to support the theory of risk from FARC extending beyond the incidents complained of and those were specific to Mr. Sanchez' part-time employment. In fact, when Mr. Sanchez was specifically asked about the risk of going back to Colombia under different employment circumstances, he testified as follows:
...So what I'm asking you is -- so what I'm asking you is if you went back to Colombia and you did something other than the illegal sign business why would your life be at risk?
CLAIMANT #1: I believe that if I go back to Colombia I start working any issues to deal with environmental health I would still be at risk.
PRESIDING MEMBER: If you went back to Colombia and you worked on water pollution and rivers would you be at risk?
CLAIMANT #1: I don't know.
[15] The Board correctly held that the early family history of difficulties with FARC had nothing to do with this claim and it, therefore, did not err by failing to give that history any more than a passing reference.
[16] To my mind, the Board's decision raises a single arguable question: whether the Board erred by finding that the Applicants could now safely return to Colombia provided that Mr. Sanchez abandoned his pursuit of employment which had caused the previous difficulties with FARC.
[17] On this issue, I believe that the Board was correct. The Board's analysis of risk faced by a refugee claimant returning home is required to be prospective not retrospective: see Pour-Shariati v. Canada(Minister of Employment and Immigration) [1995] 1 F.C. 767, [1994] F.C.J. No. 1928 (at paragraph 17) (T.D.). If conditions have changed for the better, a claimant may be required to return home notwithstanding the existence of a prior meritorious fear of persecution or harm. So, too, if a refugee claimant can return home and, by making reasonable choices about the place of residence or employment, thereby eliminate a previous risk, there can be no overriding entitlement to refugee protection in Canada.
[18] The Applicants' situation in this case is analogous to having an internal flight alternative (IFA). Canada cannot and should not be a substitute refuge for those who have the option of choosing a safe haven in their home countries. By the same token, refugee claimants who are able to make other reasonable lifestyle choices, and thereby free themselves from a risk of persecution or harm, must be expected to pursue those options before claiming protection here.
[19] I recognize that refugee protection may be available to claimants who are denied the fundamental opportunity to pursue gainful or meaningful employment on persecutorial grounds. However, this is not a situation like that in He v. Canada (Minister of Employment and Immigration) (1994), 78 F.T.R. 313, [1994] F.C.J. No. 1243 where it was found that the claimant was prevented by the Chinese authorities from working in her chosen profession as a teacher and was forced, instead, to work as a labourer in a rural village. Here, Mr. Sanchez had been gainfully employed as an environment engineer and there is no reason to believe that he could not be employed in that capacity again upon a return to Colombia. At most, the actions of FARC were effectively depriving Mr. Sanchez of the opportunity to pursue part-time work which the Board felt had little redeeming social value and which undoubtedly annoyed those who had been officially sanctioned by virtue of his actions. While Mr. Sanchez may have reasonably believed that he was pursuing a laudable social service, there are undoubtedly other means by which those same purposes could still be served beyond running a business that profited from reporting signage violators to the public authorities.
[20] Given Mr. Sanchez' past history with FARC, it would be surprising if he took up his previous business upon a return to Colombia; but even if he did, it would still be a matter of personal choice. There are likely many other similar behaviours or choices that Mr. Sanchez could make in Colombia that would put him at risk with FARC but surely that cannot be a basis for demanding refugee protection in Canada. In short, the denial of an employment interest of this sort by the actions of a criminal agency does not engage a principle of fundamental human rights or dignity worthy of refugee protection.
[21] Here, the Board reasonably concluded that, by making a reasonable choice, Mr. Sanchez could eliminate the risk of future harm. Like the obligation to pursue an IFA, it is not enough for Mr. Sanchez to say that he would rather stay in Canada than be forced to make an inconvenient employment choice in Colombia. As was the case in Thirunavukkarasu v. Canada(Minister of Citizenship and Immigration) [1994] 1 F.C. 589, [1993] F.C.J. No. 1172 (F.C.A.), the protective options required to be pursued in one's home country must be reasonable and attainable and the barriers reasonably surmountable. The fact that a person may face some hardship, including some difficulty in finding work, is not a basis for attaining refugee protection elsewhere.
[22] Although the Applicants argued that the Board failed to carry out a sufficiently comprehensive and independent section 97 analysis under the Immigration and Refugee Protection Act (IRPA), I do not believe that criticism to be sound. Once the Board determined that the Applicants would not be at further risk at the hands of FARC in the contemplated circumstances, there was no factual basis to conclude that they were persons in need of protection. The evidence of generalized risk throughout Colombia at the hands of FARC was simply insufficient in this case to support a claim to section 97 protection. The same point has been made by Justice Paul Rouleau in Ahmad v. Canada(Minister of Citizenship and Immigration), [2004] F.C.J. No. 995, 2004 F.C. 808 where he held at paragraphs 21 and 22 as follows:
21 First of all, I wish to point out that the relevant test under section 96 is in fact quite distinct from the test under section 97. A claim based on section 97 requires the Board to apply a different criterion pertaining to the issue of whether the applicant's removal may or may not expose him personally to the risks and dangers referred to in paragraphs 97(1)(a) and (b) of the Act. However, this criterion must be assessed in light of the personal characteristics of the applicant. Indeed, as Blanchard J. noted in Bouaouni, supra:
para. 41 [T]he wording of paragraph 97(1)(a) of the Act ... refers to persons, "... whose removal ... would subject them personally ...". There may well be instances where a refugee claimant, whose identity is not disputed, is found to be not credible with respect to his subjective fear of persecution, but the country conditions are such that the claimant's particular circumstances, make him/her a person in need of protection. [Emphasis added]
22 Thus the assessment of the applicant's fear must be made in concreto, and not from an abstract and general perspective. The fact that the documentary evidence illustrates unequivocally the systematic and generalized violation of human rights in Pakistan is simply not sufficient to establish the specific and individualized fear of persecution of the applicant in particular. Absent the least proof that might link the general documentary evidence to the applicant's specific circumstances, I conclude that the Board did not err in the way it analyzed the applicant's claim under section 97.
[23] In conclusion, I find that the decision of the Board is, in all respects, reasonable and should not be disturbed.
[24] The parties requested an opportunity to propose a certified question from this decision. They will each have seven (7) days to do so with three (3) days following for a reply.
JUDGMENT
THIS COURT ORDERS that:
1. this application be dismissed; and
2. the parties are at liberty to propose a certified question within seven (7) days from the date hereof with a further three (3) days for a reply.
" R. L. Barnes "
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3818-05
STYLE OF CAUSE: LUIS MIGUEL TRUJILLOSANCHEZ
DEYSSE JHANET VELANDIA BARON
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 19, 2006
REASONS FOR JUDGMENT
DATED: May 16, 2006
APPEARANCES:
Mr. Timothy Wichert for the Applicant
Mr. Bernard Assan for the Respondent
SOLICITORS OF RECORD:
Jackman & Associates for the Applicant
Barristers & Solicitors
Toronto, Ontario
DEPUTY ATTORNEY GENERAL OF CANADA for the Respondent
Department of Justice
Toronto, Ontario