2019 FC, 2019 FC 1566

Date: 20191206 Docket: IMM-3010-19 Citation: 2019 FC 1566 Ottawa, Ontario, December 6, 2019 PRESENT: The Honourable Mr.

Justice Zinn BETWEEN: JAVIER ANTONIO FUENTES REYES SANDRA VICTORIA ANDRADE VARGAS AND CRISTIAN DANIEL LOPEZ ANDRADE ApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] The Applicants challenge the decision of a Senior Immigration Officer rejecting their Pre-Removal Risk Assessment [PRRA]application based on the Officer’s finding that they would not be subject to a risk of persecution, risk of torture, risk to life or risk of crueland unusual treatment or punishment if returned to their country of nationality.

For the reasons that follow, this application is allowed. [2] The applicant family members are all citizens of Colombia. The family is wealthy and owned a business in Colombia. Theyclaimed refugee status in Canada alleging that an armed criminal group extorted, detained, and threatened them, thereby forcing them torelocate in Colombia, and ultimately leading to their departure from the country in April 2017. That criminal group goes by manynames, including the Urabeños, the Pro-Gaitán Self-Defense Forces of Colombia (Autodefensas Gaitanistas de Colombia – AGC), Clandel Golfo, Clan Úsuga, and Bloque Centrauros.

It will be referred to herein as AGC. [3] The Refugee Protection Division [RPD] rejected their claims based on a general finding that they were not credible given theaccumulation of inconsistencies, omissions, and contradictions in their evidence as a whole.

The RPD did not believe their claim that theAGC extorted them, detained them at a warehouse for failing to make payments, forced them to relocate to the home of the principalclaimant’s mother, or subjected them to ongoing threats of harm or death. [4] With their PRRA application, the Applicants included new information, which, they submitted, rehabilitated their testimony beforethe RPD. They submitted affidavits and an AGC pamphlet dated October 28, 2018, together with undated letters from two employees oftheir former store stating that members of the armed group continue to appear there and demand payment.

When informed that theApplicants no longer own the business, the armed group said they would find and kill them. In addition, on or shortly after October 20,2018, one of the employees found the pamphlet submitted with the PRRA application, which lists the Applicants as military targets ofthe group. [5] An attestation from applicant Mr. Fuentes Reyes also accompanied the PRRA application. He attests that he has a daughter wholives with her mother, his ex-partner, and that in late summer 2018, she called and told him that two men had come to the house anddemanded to know where the Applicants were.

When informed that they had left Colombia, they told her that she was to find out wherethey were and that if she failed, there would be consequences. His daughter and her mother fled to Spain and remain there. [6] After reviewing the additional evidence, the PRRA Officer concluded that the determinative issue was the availability andcompetence of state protection in Colombia.

The Officer found that the Applicants did not mention how they sought state protection andthat the failure to seek it was fatal to their application: In a democratic country, like Colombia, with functioning police and armed forces, it is incumbent on Colombian citizensfearing threats from criminal organizations to first seek out state protection in their country of citizenship.

Only after beingrefused help from the local, department or national authorities of Colombia or the Applicants are able to show that theColombian authorities are incapable of protecting its citizens can a claim to protected person status be successful in Canada.

In my judgement by not seeking out police help to deal with the threats the Applicants have not rebutted the presumptionthat adequate state protection is available in Colombia. [emphasis added] [7] I agree with the Applicants that the Officer has misstated the requirement that in every circumstance one must seek state protectionbefore being accepted as a refugee.

Although a claimant cannot simply rely on his own belief that protection will not be forthcoming, aclaimant does not need to risk his life to prove that state protection is unavailable: Canada (Attorney General) v Ward, (SCC), [1993] 2 SCR 689, 20 Imm LR (2d) 85. The Officer’s duty is to assess whether the actions taken to seek protection or the actionsnot taken were reasonable given the overall context.

The Officer here failed to consider whether, on the facts before him, the failure toseek protection was reasonable. [8] The evidence before the Officer might well lead to a decision that the Applicants’ failure to seek protection was reasonable, for thefollowing reasons.

[ 9 ] Although the RPD had found the Applicants’ claims that they were at risk from the AGC were not credible, the new evidence, which the Officer appears to have accepted, shows otherwise.

Specifically, the pamphlet from the AGC states that the Applicants, among others, " “are military targets … as they have failed to meet the demands agreed upon for their own safety and or cause.” " [ 10 ] The Applicants also provided the Officer with the Immigration and Refugee Board of Canada’s Response to Information Request COL.105118E – " “What it means to be a ‘military objective’(objetivo militar), including who executes these threats and methods of issuing them; whether there is an internal flight alternative for someone who has been issued a threat; state response.” " That document is strong evidence that there is no state protection available to ordinary citizens such as the Applicants when named as military targets: The Assistant Professor at Winthrop University noted that if a person receiving a threat “currently holds a position of leadership or power or is a public servant in the judicial system, [they] might receive protection from the authorities, but not otherwise,” adding that a citizen (or their family) who has been “victimized (displaced/killed)” may obtain resources from the state but might not receive protection from the police or other forces once the individual has received a threat. [ 11 ] Additionally, the Applicants submitted reports showing that there continues to be collusion between the AGC and the Colombian authorities who would be responsible for protecting the Applicants if protection were sought.

They also submitted numerous reports going to the availability, or lack thereof, of state protection in Colombia generally and in some specific areas of the country.

These had to be weighed when considering whether it was reasonable for the Applicants to seek state protection. [ 12 ] Notwithstanding the submissions made by counsel for the Respondent, I cannot agree that the submissions made by the Applicants " “are based on a fairly granular assessment of the country conditions evidence” " and " “amounts to a disagreement with the analysis and weighing of the evidence.” " The Officer, in my view, did no analysis and weighing of the evidence as to whether it was reasonable for these Applicants not to seek protection in Colombia.

In the face of the record before him, and the Court, that is a reviewable error. [ 13 ] The Applicants also alleged the Officer used the incorrect test for determining if state protection is available. That issue will not be addressed, as the Officer’s error that the Applicants had to seek state protection is determinative of this application. [ 14 ] No question was proposed for certification. JUDGMENT IN IMM-3010-19 THIS COURT’S JUDGMENT is that the application is allowed, the Applicants’ PRRA application is to be re-determined by a different officer, and no question is certified. "Russel W.

Zinn" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3010-19 STYLE OF CAUSE: JAVIER ANTONIO FUENTES REYES ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: NOVEMBER 27, 2019 JUDGMENT AND REASONS: ZINN J. DATED: DECEMBER 6, 2019 APPEARANCES : Penny Yektaelan Guetter Maxwell Trower For The Applicants Lorne McClenaghan For The Respondent SOLICITORS OF RECORD :

Penny Yektaelan Guetter Barrister & Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Department of Justice Toronto, Ontario For The Respondent