Montoya v. Canada (Minister of Citizenship and Immigration)

Between
Hernan Dario Calderon Montoya and Jorge Isaias Calderon
Montoya, applicants, and
The Minister of Citizenship and Immigration, respondent

[2002] F.C.J. No. 83
2002 FCT 63
Court File No. IMM-5027-00

Federal Court of Canada - Trial Division
Toronto, Ontario
Hansen J.

Heard: July 12, 2001.
Judgment: January 18, 2002.
(26 paras.)

       Aliens and immigration — Admission, refugees — Appeals or judicial review, grounds.

       This was an application by Montoya for judicial review of a decision of the Immigration and Refugee Board wherein his claim for Convention refugee status was denied.  Montoya, a citizen of Columbia, claimed a well-founded fear of persecution on the ground of political opinion and membership in a particular social group.  Montoya came from a wealthy family with a long history of success in business.  He claimed that this reputation as well as the perception that the family was wealthy made them targets for extortion, kidnapping, harassment and violence.  The Board found that there was no nexus between Montoya's fears and the Convention refugee definition.  Montoya argued that the Board erred in so concluding as he was part of one of the classes of people targeted by the leftist revolutionary group which included government officials, military personnel and wealthy businessmen.  He argued that these classes of people were not targeted solely because they had money but because they were perceived to be on the opposite side of the revolution.  The Board had therefore failed to consider that the revolutionary group had imputed a political opinion to Montoya's family. The Minister argued that economically motivated criminal acts did not support a finding of persecution.

       HELD:  Application dismissed.  While the revolutionary group was politically motivated and while it engaged in kidnapping to further its political aims, the evidence indicated that Montoya's family was targeted because of its wealth.  It was reasonably open to the Board to find that Montoya's family was targeted primarily because of its wealth.

Counsel:

Raoul Boulakia, for the applicant.
David Tyndale, for the respondent.

REASONS FOR ORDER

1      HANSEN J.:—  In this judicial review application, 23 year-old  Hernan Dario Calderon Montoya and his 25 year-old brother Jorge Isaias Calderon Montoya (the "applicants") seek to set aside the August 28, 2000 decision of the Convention Refugee Determination Division (the "CRDD"), which denied their claims for Convention refugee status. Their claims were based on a well-founded fear of persecution on the ground of political opinion and membership in a particular social group.

Background

2      The applicants are citizens of Columbia.  On June 28, 1998, the applicants' father was released from captivity. He had been held captive for 98 days in the mountains of Columbia by guerilla  kidnappers.  The kidnappers were members of a leftist guerrilla faction known as the Columbian Revolutionary Armed Forces ("FARC").  The kidnappers informed the applicants' father while he was in captivity that his children would be next.  Therefore, once their father was released, he helped the applicants' flee Columbia.  They arrived in Canada on student visas shortly after and claimed protection under the refugee Convention.

3      The applicants come from a family with a long history of success in business in Colombia.  They claim that this reputation as well as the perception that the family is wealthy has made them targets for extortion, kidnapping, harassment, and violence.  In his Personal Information Form ("PIF") the first applicant states that while all persons in Columbia are vulnerable to kidnapping, members of the government armed forces (and their families) and prominent business people (and their families) are especially at risk. The second applicant served four years in the army and achieved the rank of 2nd lieutenant before his discharge.

4      Beginning December 4, 1996, the applicants' uncle was held hostage for nine days in an attempt to extort $800,000.  The Gaula Bogota (special police group) rescued him. Then on May 7, 1997, guerillas seeking the applicants' mother, kidnapped their cousin when the mother could not be found and demanded $50,000. for her release.  The cousin was released on May 11, 1997 as a result of pressure from the government military.

5      The applicants' father was kidnapped on March 23, 1998, and held for 98 days in an attempt by FARC to extort $2,000,000 from the family.  Although they paid only $50,000, the applicants' father was released on June 28, 1998 with the assistance of the Presidential Program Zar Antikidnappers. Also, around this time, the applicants' family received threatening calls from a right-wing paramilitary organization informing them that, since they had contributed to the guerrillas cause, they would also have to contribute to their cause.

6      While the applicants themselves have never been specifically targeted and since 1998 the family has not suffered further attack, they claim the family still faces danger.

Decision under Review

7      The CRDD rejected the applicants' claim.  They made the following findings that are challenged in this proceeding: first, there was no nexus between the applicants' fears and the Convention refugee definition; second, effective state protection was available to the applicants since each of their relatives had received assistance; third, if one of the brothers had been granted an American Visitor's Visa, he would not have applied for Convention refugee status in Canada; and fourth, the panel was of the opinion that if the Colombian guerillas truly wanted to harm the applicants, they would have already done so.

8      In the end, the CRDD concluded that while the protection being offered by the Colombian government may not be perfect, it is adequate.  The CRDD found that on a balance of probabilities, if the applicants were to return to Colombia, there is not a reasonable chance or serious possibility the applicants would be persecuted by reason of political opinion (real or imputed), membership in a particular social group, or any other ground set out in the Convention refugee definition.

Issues

9      The applicants submit the CRDD misconstrued the basis of their claim; misconstrued critical testimony on which they relied; and failed to take into account documentary evidence in reaching its decision.  This application raises the following issues:

1.                Did the panel err in concluding there is no nexus between the applicants' fears and the Convention refugee definition?   

2.                Did the panel err in concluding that there is effective state protection in Columbia?  

3.                Did the CRDD err otherwise in rejecting the applicants' claims?               

Analysis

Is there a nexus between the applicants' fears and the Convention refugee definition?

10      Both parties were in agreement that this issue raises a question of law that should be reviewed on a standard of correctness.

11      The applicants argue they are part of one of the classes of people targeted by the leftist revolutionary group, FARC, which includes government officials, military personnel, the judiciary, civil servants, wealthy businessmen, and working class people who oppose their aims and ideologies.

12      The applicants submit these classes of people are not targeted solely because they have money, but because they are perceived to be on the opposite side of the revolution. The FARC believes they are fighting a war of national liberation.  Therefore, in the applicants' view, the panel erred by failing to consider that the FARC has imputed political opinion to this wealthy family.  The applicants argue that the leftist revolutionary movement imputes a political opinion counter to its own to every bourgeois family.

13      The applicants further submit that in Astudillo v. Canada (The Minister of Employment and Immigration) (1979), 31 N.R. 121 (F.C.A.), the Federal Court of Appeal held that it is the persecutor's perspective that is critical.  Therefore, in the applicants' opinion, the CRDD erred in law because they "ascribed non-political motives to a movement that believes it is revolutionary".  In ignoring the nature of the agent of persecution, the CRDD has erred in law.

14      The applicants also argue that the CRDD erred in law by failing to consider whether the paramilitary militia ascribed a political opinion to the applicants.  They note that the paramilitary was clearly threatening the family for the purpose of intimidating them not to cooperate with the FARC.  The applicants maintain that the documentary evidence supports their argument that the paramilitary groups threaten and kill people who collaborate with the FARC.  Again, the applicants argue that the CRDD erred in its characterization of the nature of the agent of persecution.

15      The respondent submits that it is well-established in the Federal Court of Canada's jurisprudence that economically motivated criminal acts do not support a finding of persecution (See, for example, Soberanis et al. v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1282).

16      Further, the respondent submits that the CRDD did not misunderstand the applicants' argument that the FARC were motivated by political considerations.  The panel simply did not accept that position.  The respondent submits it was reasonable for the CRDD to conclude that the FARC guerrillas were motivated primarily by money.

Analysis

17      I accept the applicants' submission that the FARC and the paramilitary organizations operating in Columbia are politically motivated.  I also accept that the FARC engages in kidnapping to further their political aims.  However, all of the evidence in this case indicates that the applicants' family was targeted because of its wealth.

18      For example, the applicants' PIFs note the following under the heading: Convention grounds on which the claim is based:

         My family runs a successful business in Columbia and are considered by the guerrillas to have money.  Rich people in Columbia are targets for the guerrillas.                                                                       

19      It may be that the FARC considers as its enemy anyone who opposes their revolution.  However, the documentary evidence makes it clear, and it is only logical, that the guerrillas will target the rich for kidnapping and extortion. Further, the applicants' account of the threatening telephone calls received from the paramilitary organizations after their father was released indicate that the applicants' family is vulnerable to extortion from both sides of the political spectrum.  In my view, it was reasonably open to the CRDD to find that the applicants' family was targeted primarily because of their wealth.

20      Consider the following excerpt from the transcript of the applicants' hearing before the CRDD at page 26:

         RCO:                 You tell us in your Personal Information Form that all residents of Columbia are targets of harassment, kidnapping and are killed by guerrillas.                               

         HERNAN DARIO:                                                                                           Yes, I do.          

         RCO:                   Would you say that your family is any more at risk than anyother resident of Columbia? 

         HERNAN DARIO:                                                                                           Yes.       

         RCO:                  Why would you say that?                                                      

         HERNAN DARIO:                                                                                              Because my father has his own business, so they think that we have money.

         RCO:                  Anything else?                                                                       

         HERNAN DARIO:                                                                                           No.        

21      The panel found that the applicants were targeted by the FARC because of their wealth, not because of their political opinion or membership in a particular social group, therefore, they do not meet the definition of Convention refugees.

22      The CRDD reasons state as follows at page 2:

         The panel accepts that the claimants' father, uncle, and cousin were victims of kidnapping and extortion by a guerrilla group.  The panel also accepts that the claimants' father is a successful businessman and that the claimants' family is generally perceived as affluent. The panel further accepts the claimants testimony that rich people and successful businessmen are being targeted by guerrilla groups because of their money.                                          

         Having accepted this, the panel determines that the guerrillas' motive in the kidnapping of the claimants' father was money and he was essentially targeted because he is rich.  The panel finds no persuasive, reliable or trustworthy evidence to show that there was any political dimension to this particular kidnapping and extortion...

23      The documentary evidence before the tribunal included a report by the U.S. Department of State entitled Colombia Country Report on Human Rights Practices for 1998. The report states:

         Kidnaping was an unambiguous, standing policy and major source of revenue for both he FARC and ELN. The NGO Pais Libre reported  that there were 2,216 kidnapings during the year - fully one-third more cases than in 1997.  It is said that 1, 799 of these were financially motivated, and 417 cases were politically motivated. Pais Libre attributed 667 cases to the FARC, 566 to the ELN, 109 to the EPL, 43 to other guerilla groups, 231 to common criminals, 20 to paramilitary groups, and 580 to "unknown organizations". According to Pais Libre, politicians, cattlemen, children, and businessmen were guerillas' preferred victims...                                                                                       

(Emphasis added)                                                                                                     

24      I am unable to find anything in the evidence that indicates that the kidnappings of the applicants' family members were politically motivated.  There is no indication that the FARC attributed any political views to the family. There is no evidence that the FARC knew about the former military service of Jorge Isias Calderon Montoya. Accordingly, it was reasonably open to the panel to conclude that the applicants failed to demonstrate the requisite nexus between their fear and the Convention refugee definition.

Disposition

25      Having concluded that the CRDD committed no reviewable error in reaching their decision that the applicants failed to establish a nexus to a Convention ground, it is not necessary to consider the remaining two issues.

26      Accordingly, this application for judicial review is dismissed.

HANSEN J.