BETWEEN:
MARGARITA RUBIANO RUEDA
JOSUE CADAVID RUBIANO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
INTRODUCTION
[1] These reasons follow the hearing on the 22nd of March, 2007 of an application for judicial review of a decision of the Refugee Protection Division (the “RPD”) of the Immigration and Refugee Board wherein the RPD determined the Applicants not to be Convention refugees or persons otherwise in need of like protection. The decision of the RPD is dated the 3rd of May, 2006.
BACKGROUND
[2] German Adolfo Cadavid Alvarez (the “principal Applicant”) is a citizen of Colombia and of Spain. He has extensive education and is qualified as an architect in Colombia. As such, he was deeply involved in a number of high profile design and construction projects in Colombia.
[3] Margarita Rubiano-Rueda (“Ms. Rubiano-Rueda”), a citizen of Colombia only, is the spouse of the principal Applicant. Josue Cadavid Rubiano (“Josue”) is the son of the principal Applicant and Ms. Rubiano-Rueda and is eleven (11) years of age at the date of these reasons.
[4] The principal Applicant was born in Bogota, Colombia and has spent most of his life there. He acquired Spanish citizenship through his mother, a citizen of Spain, who was born in that country.
[5] Ostensibly by reason of the principal Applicant’s involvement in high profile design and construction projects in Colombia, the principal Applicant was, on three (3) separate occasions in the summer of 2000, contacted by telephone by persons purporting to be members of, or associates of, the Armed Revolutionary Forces of Colombia (“FARC”), a notoriously violent revolutionary force in Colombia. According to his testimony, he was “invited” to meet with members of FARC. On each occasion, he was threatened, and on each occasion his wife and son were also threatened. The principal Applicant confided with his wife in respect of each of these telephone contacts. The principal Applicant did not attend any of the anticipated meetings.
[6] The Applicants attempted to “hide out” in Cali, Colombia but feared their efforts in that regard were unsuccessful.
[7] The principal Applicant became involved in a design and construction project in St. Kitts. The Applicants travelled to St. Kitts where the principal Applicant continued his involvement with the design and construction project. The family’s removal to St. Kitts served as a convenient means of escaping the pressure and threats from FARC.
[8] When the design and construction project in St. Kitts wound up, the Applicants, having determined that asylum was not available to them in St. Kitts, determined not to return to Colombia, and not to take advantage of the principal Applicant’s Spanish citizenship, but rather to come to Canada and seek asylum here. They arrived in Canada on or about the 12th of April, 2002 and claimed Convention refugee status, or like protection, here.
THE DECISION UNDER REVIEW
[9] While the RPD, in its reasons, under the heading “DETERMINATION” wrote:
The panel determines as the claimants has not provided credible or trustworthy evidence they are not “Convention refugees” nor are they “persons in need of protection” for a risk to life or a risk of cruel and unusual treatment or punishment or danger of torture. [errors in the original]
[10] The foregoing being said, the RPD went on under the heading “ANALYSIS” to find the principal Applicant not to be entitled to protection in Canada because of his Spanish citizenship and his admission that he had no fear of persecution in, and thus no fear of removal to, Spain.
[11] The RPD went on to find that Josue similarly had no claim in Canada to protection:
…as a child of one parent who is a citizen of Spain (regardless of the child’s country of birth) [and that citizenship in Spain could therefore be obtained by him] without difficulty.
Surprisingly, at least to the Court, having so concluded with respect to Josue, the RPD made no similar finding with respect to Ms. Rubiano-Rueda and treated Colombia as the only country of reference in relation to her claim.
[12] The RPD then went on to examine Colombia, as a country of reference, for both Josue and Ms. Rubiano-Rueda. Under the sub-heading “Is it reasonable or plausible for these two claimants [that is to say Josue and Ms. Rubiano-Rueda] to resettle back in Colombia without running the ire of the FARC?”, the RPD answered its own rhetorical question with the following words:
The panel believes that as they were never targets this would be possible.
[emphasis added]
[13] The RPD went on to conclude with respect to Josue and Ms. Rubiano-Rueda, with respect, apparently ignoring its earlier conclusions in respect of the principal Applicant and Josue that they had no claim by reason of, in one case, Spanish citizenship, and in the other case, ability to obtain Spanish citizenship as a “mere formality”, in the following terms:
Overall, and, especially given the passage of time, the panel determines that the claimant’s [sic] behaviour throughout is not consistent with people fleeing either persecution or a risk to life or of cruel and unusual treatment or punishment or a danger of torture.
ANALYSIS
[14] While it was conceded before the Court that the principal Applicant’s claim to protection could not succeed by reason of his Spanish citizenship and his acknowledged lack of fear of settling in Spain, the RPD’s conclusion with respect to Josue and Ms. Rubiano-Rueda is substantially more problematic, particularly in light of its examination of Ms. Rubiano-Rueda’s claim solely against Colombia and Josue’s claim against Colombia notwithstanding its conclusion, not adequately supported in the opinion of the Court, that he had a safe haven “…by way of a mere formality,…” in Spain.
[15] While counsel for the Applicant urged many reviewable errors on the part of the RPD, the Court is satisfied that one alone is determinative. The RPD’s determination that Josue and Ms. Rubiano-Rueda were “never targets” of the FARC’s threats, against the standard of review of patent unreasonableness, constitutes an erroneous finding of fact made by the RPD without regard to the totality of the evidence before it.
[16] In the principal Applicant’s narrative forming part of his Personal Information Form, the principal Applicant records that, in respect of the first telephone call he received from FARC, he was advised that “…they (FARC) knew who I was and who my wife and children were.” He went on to record that, in that telephone conversation, he was advised that “…they (FARC)”…needed information and that if [he] did not collaborate the life of my wife Margarita and my son were [sic] in danger.”[1] Later in his narrative, in respect of a later telephone conversation, the principal Applicant recorded that he was advised that he could not “play” with FARC and that if he did not comply with their wishes, he “…should forget [his] wife and …son.”[2] The principal Applicant confirmed the foregoing in his testimony before the RPD.[3]
[17] The principal Applicant’s attesting to threats against Josue and Ms. Rubiano-Rueda was confirmed by Ms. Rubiano-Rueda in her testimony[4].
[18] I am satisfied that all of the foregoing was confirmed as consistent with the tactics of FARC in the documentary evidence that was before the RPD.
[19] The RPD places some emphasis on the time that had elapsed between the threats and the Applicants leaving Colombia and the time of its reasons for rejecting the Applicants’ claims. The nature of the information that FARC would appear to have been seeking from the principal Applicant would further appear not to be time-sensitive. The fact that the principal Applicant’s claim was rejected because he had recourse to residence in Spain was not significant. If Josue and Ms. Rubiano-Rueda, or either of them, were required to return to Colombia, they could still be utilized by FARC to put pressure on the principal Applicant to himself return to Colombia to provide information that FARC allegedly was seeking and to face the punishment that might follow once he had provided information, by reason of his failure to provide the information earlier.
CONCLUSON
[20] It was not in dispute before the Court that the RPD’s conclusion in respect of the principal Applicant was open to it. In the result, this application for judicial review will be dismissed as against the principal Applicant. That being said, based upon the brief foregoing analysis, the Court concludes that the RPD’s conclusion in respect of Josue and Ms. Rubiano-Rueda is not sustainable. In respect of those two applicants, the decision under review will be set aside and referred back to the Immigration and Refugee Board for rehearing and re-determination by a differently constituted panel.
CERTIFICATION OF QUESTION
[21] At the close of the hearing before the Court, counsel were advised of the Court’s conclusions. When consulted, neither counsel recommended certification of a question. The Court itself concludes that no serious question of general importance here arises. In the result, no question will be certified.
“Frederick E. Gibson”
JUDGE
Ottawa, Ontario
March 27, 2007
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3031-06
STYLE OF CAUSE: GERMAN ADOLFO CADAVID ALVAREZ
MARGHERITA RUBIANO RUEDA
JOSUE CADAVID RUBIANO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: March 22, 2007
APPEARANCES:
Michael Loebach For the Applicants
Kristina Dragaitis For the Respondent
SOLICITORS OF RECORD:
Michael Loebach
Barrister & Solicitor
London, ON For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent
Toronto, ON