Ottawa, Ontario, December 5, 2022
PRESENT: The Associate Chief Justice Gagné
[3] For the reasons that follow, this application is allowed.
I.
Facts
[4] The applicant claims that the FARC guerrilla movement has threatened his life many times for refusing to cooperate with them. He claims that the FARC declared him a [translation] “military target”
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[5] From April 2011 to June 2012, the applicant was a hospital manager in the department of Nariño in southwestern Colombia. He states that, in 2012, the FARC’s 48th Front threatened him several times after he refused to provide it with medication and medical supplies for wounded FARC soldiers. Mr. Hernandez Ariza filed a complaint with the local police and subsequently resigned from his position in the hope that the threats would cease.
[6] He then founded an ambulance service company, also in the department of Nariño. The applicant submits that the FARC’s 48th Front also targeted his company and stole medication and other supplies from him on several occasions. In September 2013, one of his ambulances was reportedly attacked while transporting a pregnant woman to the hospital. Following this event, the applicant chose to relocate to Bucaramanga to manage his company’s operations from this city in northern Columbia.
[7] In July 2016, two FARC members visited the applicant while he was at his company’s offices and asked him to use his ambulances to transport narcotics. He was reportedly threatened with death because he refused. As a result of these threats, he had to leave the region, settle permanently in Bucaramanga and abandon his business.
[8] In 2018, he allegedly received a series of threats over the telephone from the FARC, which stated that they knew where he was living and that they were going to find him and kill him. Fearing for his life, he left Bucaramanga in September 2018 to claim refugee protection in Canada.
II.
Impugned decision
[9] Although the RPD raised a number of questions regarding the applicant’s credibility, the RAD was of the view that the determinative issue was a lack of forward-looking risk. Therefore, it did not deem it appropriate to comment on the applicant’s credibility.
[10] The RAD also considered some fresh evidence not at issue in this application.
[13] In the RAD’s view, the fact that the applicant was told that he was considered a military target because of his refusal to cooperate was not sufficient to objectively justify a forward-looking fear. After shutting down his business in 2016, the applicant had no contact with members of the 48th Front until February 2018. Since then, no one has approached him, nor has anyone approached his parents or his daughter, who still live in Colombia. The RAD therefore found that, on a balance of probabilities, the applicant was not considered a military target.
[14] Furthermore, the documentary evidence did not show that groups of ex-FARC members have a significant presence in Bucaramanga or would have the ability to organize a search to find the applicant there. Also, it did not show that FARC cooperates with dissident or criminal groups in that region. This was confirmed by the fact that the applicant and his family were never approached or attacked in Bucaramanga.
[15] The RAD therefore dismissed the applicant’s appeal.
III.
Issues and standard of review
[17] In my view, the RAD did not analyze the applicant’s claim in this light. The question is not whether the applicant can relocate to Bucaramanga, since he had been living there for at least two years before leaving Colombia. Therefore, the RAD did not have to analyze whether it was reasonable for the applicant to settle there, as he and his family chose this location on their own. Instead, the question was whether the applicant would face a forward-looking risk if he returned to where he lived prior to his departure.
[19] Again, that is not the issue.
[21] There is no dispute that the reasonableness standard applies to the analysis of this question.
IV.
Analysis
[22] First, it is not true to state, as the applicant does, that the RAD found his testimony to be credible. Instead, it concluded that it did not need to review the RPD’s findings in this regard given its own conclusion on forward-looking risk. The RAD simply accepted the facts to be true.
[26] Here, in my view, is where the decision’s rationality breaks down. If the RAD believed that the FARC did contact the applicant in 2018 and told him that they knew where he was, it is unclear what would lead it to conclude that they had lost interest in the applicant when he abandoned his business.
[28] I therefore find that the intervention of this Court is warranted in this case.
V.
Conclusion
THIS COURT’S ORDER is as follows:
Certified true translation
Michael Palles