Gonzalez et al. v. Canada (Minister of Citizenship and Immigration), (2015) 479 F.T.R. 74 (FC)

• Judge: Boswell, J.
• Court: Federal Court (Canada)
• Case Date: December 11, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 479 F.T.R. 74 (FC);2015 FC 502

Gonzalez v. Can. (M.C.I.) (2015), 479 F.T.R. 74 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. AP.043

Julio Angelo Barragan Gonzalez, Liza Caroll Lara Nunez, Juliana Barragan Penuela, Gabriela Barragan Lara and Isabela Barragan Lara (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-6335-13; 2015 FC 502)

Indexed As: Gonzalez et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Boswell, J.

April 20, 2015.

Summary:

The applicants, a family from Colombia, applied for refugee protection. The Refugee Protection Division of the Immigration and Refugee Board rejected the application. The applicants applied for judicial review.

The Federal Court allowed the application and returned the matter for redetermination by a different member of the Board.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - Gonzalez, a citizen of Colombia, was allegedly beaten up by the Revolutionary Armed Forces of Colombia (FARC) after he interfered with their drug trafficking activities in his neighbourhood - He also alleged that FARC threatened to kill him and his family if he refused to pay the amounts they demanded or if he complained to the police - Gonzalez and his family claimed refugee protection - The Refugee Protection Division (RPD) rejected the claims, finding that the risk the family faced was generalized - The Federal Court allowed the family's application for judicial review - The RPD failed to conduct an individualized inquiry into the family's present or prospective risk - On the one hand, the RPD accepted that Gonzalez had a personal risk at the hands of FARC because he had interfered with their drug dealings; but on the other, after noting that extortions by FARC and others were widespread in Colombia, it concluded that this personalized risk was negated by being one which was faced generally by many other Colombians - While extortion might be widespread in Colombia, not everyone who was extorted was unable to pay or was personally targeted and threatened with death - Gonzalez was not targeted at random by FARC - The RPD conflated the specific and individual reason for the family's present and prospective risk with the general risk of criminality faced by all or many others in Colombia - See paragraphs 29 to 33.

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Persecution - Protection of country of nationality or citizenship - Gonzalez, a citizen of Colombia, was allegedly beaten up by the Revolutionary Armed Forces of Colombia (FARC) after he interfered with their drug trafficking activities in his neighbourhood - He also alleged that FARC threatened to kill him and his family if he refused to pay the amounts they demanded or if he complained to the police - Gonzalez and his family claimed refugee protection - The Refugee Protection Division (RPD) rejected the claims, finding that the family had not rebutted the presumption that Colombia could protect its citizens - The Federal Court allowed the family's application for judicial review - The RPD erred in its analysis of state protection - Its finding that the police were able to protect victims of FARC's extortion and death threats was entirely unexplained and unsupported by any evidence - The family provided evidence that approaching the police would have been futile - The RPD did not explain why it rejected this evidence - It failed to assess whether the family would have been seriously risking their lives by reporting the extortion, and therefore whether it was objectively reasonable for them not to approach the state for protection - See paragraphs 34 to 44.

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Persecution - Protection of country of nationality or citizenship (internal flight alternative) - Gonzalez, a citizen of Colombia, was allegedly beaten up by the Revolutionary Armed Forces of Colombia (FARC) after he interfered with their drug trafficking activities in his neighbourhood - He also alleged that FARC threatened to kill him and his family if he refused to pay the amounts they demanded or if he complained to the police - Gonzalez and his family claimed refugee protection - The Refugee Protection Division (RPD) rejected the claims, finding that the family (who had lived in Bogota) had an internal flight alternative (IFA) in Cali or Cartagena - The Federal Court allowed the family's application for judicial review - The RPD did not direct sufficient attention to the question of whether the conditions in the proposed IFA were such that it would be reasonable for the family to seek refuge there - There was evidence that big cities such as Cali and Cartagena had witnessed an increase of displaced persons, many of whom ended up in overcrowded slums - There was also evidence that displaced persons in Colombia were routinely deprived of their fundamental human rights - The RPD did not mention this evidence - Nor did it refer to evidence that would reasonably permit it to dismiss this evidence - The RPD erred by basing its decision on unreasonable findings of fact without regard for the material before it - See paragraphs 45 to 54.

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - [See both Aliens - Topic 1323.2 ].

Cases Noticed:

Hilo v. Minister of Employment and Immigration (1991), 130 N.R. 236; 15 Imm. L.R.(2d) 199 (F.C.A.), refd to. [para. 9].

Munoz v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 161; 2010 FC 238, refd to. [para. 11].

Michel et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 159; 2010 FC 159, refd to. [para. 11].

Herrera Andrade v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 742; 2012 FC 1490, refd to. [para. 12].

Hernandez Montoya et al. v. Canada (Minister of Citizenship and Immigration) (2014), 462 F.T.R. 73; 2014 FC 808, refd to. [para. 12].

Ortiz Rincon v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 820; 2011 FC 1339, refd to. [para. 13].

Callejas et al. v. Minister of Employment and Immigration (1994), 73 F.T.R. 311; 23 Imm. L.R.(2d) 253 (T.D.), refd to. [para. 14].

Salamanca v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 346; 2012 FC 780, refd to. [para. 14].

Ruszo v. Canada (Minister of Citizenship and Immigration) (2013), 440 F.T.R. 106; 2013 FC 1004, refd to. [para. 18].

Construction Labour Relations Assn. (Alberta) v. Driver Iron Inc. - see Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al.

Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al., [2012] 3 S.C.R. 405; 437 N.R. 202; 539 A.R. 17; 561 W.A.C. 17; 2012 SCC 65, refd to. [para. 21].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 21].

Caceres Salazar et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 220; 2013 FC 466, refd to. [para. 21].

Baires Sanchez et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 666; 2011 FC 993, refd to. [para. 24].

De Munguia et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 510; 2012 FC 912, refd to. [para. 24].

Sakthivel v. Canada (Minister of Citizenship and Immigration) (2015), 472 F.T.R. 264; 2015 FC 292, refd to. [para. 26].

Portillo v. Canada (Minister of Citizenship and Immigration), [2014] 1 F.C.R. 295; 409 F.T.R. 290; 2012 FC 678, refd to. [para. 26].

Juhasz et al. v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 91; 2015 FC 300, refd to. [para. 26].

Castaneda Malvaez et al. v. Canada (Minister of Citizenship and Immigration) (2012), 423 F.T.R. 210; 2012 FC 1476, refd to. [para. 27].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 27].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 27].

Prophète v. Canada (Minister of Citizenship and Immigration) (2009), 387 N.R. 149; 2009 FCA 31, refd to. [para. 30].

Arenas et al. v. Canada (Minister of Citizenship and Immigration) (2013), 430 F.T.R. 162; 2013 FC 344, refd to. [para. 32].

Correa et al. v. Canada (Minister of Citizenship and Immigration) (2014), 450 F.T.R. 175; 23 Imm. L.R.(4th) 193; 2014 FC 252, refd to. [para. 33].

Hinzman et al. v. Canada (Minister of Citizenship and Immigration) (2007), 362 N.R. 1; 282 D.L.R.(4th) 413; 2007 FCA 171, refd to. [para. 34].

Minister of Employment and Immigration v. Villafranca (1992), 150 N.R. 232; 99 D.L.R.(4th) 334 (F.C.A.), refd to. [para. 35].

Toriz Gilvaja v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 391; 81 Imm. L.R.(3d) 165; 2009 FC 598, refd to. [para. 35].

Vargas Bustos et al. v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 35; 2014 FC 114, refd to. [para. 38].

Mudrak et al. v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 70; 2015 FC 188, refd to. [para. 39].

Canada (Minister of Citizenship and Immigration) v. Kornienko (2015), 474 F.T.R. 110; 2015 FC 85, refd to. [para. 41].

Shilongo v. Canada (Minister of Citizenship and Immigration) (2015), 474 F.T.R. 121; 2015 FC 86, refd to. [para. 45].

Sanchez et al. v. Canada (Minister of Citizenship and Immigration) (2007), 360 N.R. 344; 2007 FCA 99, refd to. [para. 46].

Li (Y.) v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 239; 329 N.R. 346; 2005 FCA 1, refd to. [para. 46].

Chowdhury v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 480; 2014 FC 1210, refd to. [para. 46].

Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164; 266 N.R. 380 (F.C.A.), refd to. [para. 49].

Rahal v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 163; 2012 FC 319, refd to. [para. 54].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 104 D.L.R.(4th) 1; 153 N.R. 321, refd to. [para. 55].

Rasaratnam v. Minister of Employment and Immigration, [1992] 1 F.C. 706; 140 N.R. 138 (F.C.A.), refd to. [para. 55].

Counsel:

Raoul Boulakia, for the applicants;

Christopher Crighton, for the respondent.

Solicitors of Record:

Raoul Boulakia, Toronto, Ontario, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on December 11, 2014, before Boswell, J., of the Federal Court, who delivered the following judgment and reasons at Ottawa, Ontario, on April 20, 2015.