2023 FC, 2023 FC 1096

Date: 20230810 Docket: IMM-9790-23 Citation: 2023 FC 1096 Ottawa, Ontario, August 10, 2023 PRESENT: The Honourable Mr. Justice Zinn BETWEEN:JAIRO LEONARDO MORA ORTIZ DORIS ADRIANA GARZON GUEVARA ANA SOFIA MORA GARZON and JOSE DAVID MORA GARZONApplicantsandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent ORDER AND REASONS [1] The Applicants are seeking a temporary stay of their removal from Canada to Colombia, scheduled for August 13, 2023.

If granted,the stay would be in effect until the final determination of their application for leave and judicial review of a decision of an Officerrefusing their request to defer their removal. [2] The test to be applied in this motion is well established: Toth v. Canada (Minister of Employment and Immigration), (1988) (FCA), 86 NR 302 (FCA). The Applicants must establish: (

i) a serious issue is raised by the underlying application forjudicial review; (ii) irreparable harm would result from removal in the period between now and when the application is disposed of; and(iii) the balance of convenience favours granting the stay. [3] Given that the underlying decision is one refusing a request to defer removal, the serious issue requirement is examined on anelevated standard.

The Court must examine whether, on the merits, the underlying application for leave and judicial review is likely tosucceed: Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at para 66. [4] The Applicants claimed they required protection from Fuerzas Armadas Revolucionarias de Colombia [FARC]. The determinativeissue for the Refugee Protection Division [RPD] was whether the Applicants had an internal flight alternative [IFA]. It found that theyhad an IFA in either Medellin or Barranquilla. That decision is dated August 19, 2022.

An application for leave and judicial review wasdismissed by this Court. [5] The Applicants are not able to request a Pre-Removal Risk Assessment until February 6, 2024. They submitted the deferral requestadvancing a claim that "“there is compelling new evidence that has not been assessed by a decision maker that the family’s life is at riskshould they be removed at this time.”" [6] The new evidence they submitted consisted of two items. First, the Principal Applicant’s mother-in-law was shot three times recentlyby FARC.

The gunmen said they knew her "“son-in-law Jairo Leonardo Mora Ortiz had left the country along with his family and that ifthey returned to Colombia they would have bullets in their heads, that is certain death for not complying with their demands anddisobeying this organization.”" [7] Second, they submitted a letter dated July 22, 2023, from Adriaan Alsema, Colombia Reports.

That letter notes that "“I have beenasked by the counsel to provide you with my opinion about the viability of an internal flight alternative (IFA) for the applicant and hisfamily and the relevant documentation that allowed me to form my opinion.”" [8] This opinion states: The reach of the EMC has grown to such an extent that the guerrillas are capable of enforcing their rule anywhere inColombia. This reach extends to cities where the guerrillas have brokered a deal to allows [sic] the outsourcing of acts of violence bygangs. This wasn’t a reality when guerrillas initially approached the applicant in 2018.

Since then, however, the EMC has beenextremely successful in expanding a network that makes the guerrillas a major security concern for targeted people outsidethe areas under consolidated EMC control. … Guerrillas in the region where armed men who identified themselves as FARC in 2018 and FARC dissidents earlier this yearhave become a part of the national guerrilla organization EMC.

Founded on the remnants of the FARC in southeast Colombia, the EMC has gained control over significant parts of Colombia. At the moment, this organization and its associates have the capacity and capability to harm the applicant and his wife anywhere in Colombia. This risk is particularly high because of evident failures to protect the State from infiltration by GAO’s like the EMC and to keep targeted citizens safe.

The security situation is unlikely to improve anytime in the coming years despite the fact that the government and the EMC leadership have agreed to negotiate the possible demobilizing of the dissident and rearmed former FARC guerrillas and new recruits.

Consequently, I believe that the applicant and his wife could not possibly enjoy an acceptable level of safety in the face of the threat posed by the guerrillas. [ 9 ] Counsel for these Applicants acknowledges that the more important and critical item of evidence is this report as the shooting occurred in the Applicants’ hometown which they fled due to the risk there. [ 10 ] The Officer considered this report and the prior RPD decision and writes: I have read the submission by Adriaan Alsema whom is the founder and editor in chief of Colombia Reports.

This report is a risk assessment written outlining the potential risk for the family in Colombia and it is appreciated that the effort is there to demonstrate the risk in Colombia. However, although the opinion has been considered, I have also considered the decision already rendered by the RPD in response to the evidence put forth by the family. … As outlined above, I am of the opinion that the risk brought forward by Counsel is the same risk already assessed by the RPD.

Sufficient evidence has not been presented which warrants a deferral of removal in this instance. [ 11 ] The Applicants submit that this decision does not bear the hallmarks of reasonableness – justification, transparency, and intelligibility – as mandated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 . Counsel writes: … there is no rational chain of analysis to understand what impact Mr. Alsema’s evidence had on the officer’s decision. The officer simply states that both Mr. Alsema’s opinion and the RPD decision were considered.

However, given that there is no analysis whatsoever of Mr. Alsema’s evidence, which clearly states that there has been a change in country conditions vis a vis FARC (EMC)’s capacity to find and harm the Applicants anywhere in the country, the Applicants are left wondering whether the officer properly considered this evidence. [ 12 ] In response, the Minister submits: The Officer also reasonably considered a report prepared by Adriaan Alsema, the founder and editor in chief of Colombia Reports (the Alsema Letter) and submitted by the Applicants on their request of deferral.

The Officer noted that while the report outlined the potential risk for the family in Colombia, it had to be weighed against the findings of the RPD which had assessed the same risk. The Alsema letter amounted to nothing more than a disagreement with the RPD’s findings. [ 13 ] Both parties accept that the level of analysis in a deferral officer’s decision need not reach that expected of officers in PRRA applications or tribunals. However, I agree with the Applicants that a Court is likely to find that this decision fails to reach the required minimum standard.

While the agent of harm is the same and many other aspects are identical, what distinguishes the risk assessed by the RPD from this report is the location. When looked at in that manner, the Officer had to explain why he was giving this report little or no weight and why it did not raise an issue of the risk to these Applicants in the IFA identified by the RPD. [ 14 ] I find that a failure to consider properly the risk to these Applicants in the identified IFA constitutes irreparable harm. [ 15 ] The balance of convenience favours the Applicants.

ORDER in IMM-9790-23 THIS COURT ORDERS that the motion is granted and the removal of the Applicants, currently scheduled for August 13, 2023, is stayed until the final disposition of this matter. "Russel W. Zinn" Judge FEDERAL COURT

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-9790-23 STYLE OF CAUSE: JAIRO LEONARDO MORA ORTIZ, DORIS ADRIANA GARZON GUEVARA, ANA SOFIA MORA GARZON and JOSE DAVID MORA GARZON v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: August 10, 2023 ORDER AND REASONS: ZINN J. DATED: august 10, 2023 APPEARANCES : Lisa Winter-Card For The Applicants Rachel Hepburn Craig For The Respondent SOLICITORS OF RECORD : Lisa Winter-Card Barrister and Solicitor Welland, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent