Friday, September 30, 2011

Oliveros Rubiano—no need to exhaust state protection if reasonable efforts made

Oliveros Rubiano v. Canada (Citizenship and Immigration), 2011 FC 106 (CanLII)

Judge: Justice O’Keefe

Date heard: September 22, 2010

Date decided: February 2, 2011

Counsel for Oliveros Rubiano: Jonathan E. Fedder

Counsel for Minister: Kareena Wilding & Veronica Cham

Place of Hearing: Toronto, Ontario

Decision Under Review: negative pre-removal risk assessment

The Applicant fled Colombia with his family, after having become the target of an extortion scheme by the Revolutionary Armed Forces of Colombia (FARC), and having reported it to the Colombian army (para. 4). He suffered detention, threats, the murder of family members, and in 2005 he himself was shot, which he reported (paras. 4-5). The family fled to Ecuador in September 2005, but upon finding out that there was no assistance with food, shelter, or legal counsel, the returned to Colombia (para. 6).

In April 2006, the Applicant and his family entered the United States as visitors (para. 7). They travelled to the Canadian border but the Applicant was denied eligibility to make a refugee claim in Canada because of the Safe Third Country Agreement. He applied for but was refused asylum in the US, and he subsequently crossed the border illegally and made a claim in Canada which was also refused (para. 7).

In November 20098 the Applicant filed a pre-removal risk assessment application and expressly requested an oral hearing (para. 8).

The officer found that the Applicant had not submitted sufficient evidence that he had been or was targeted, or that he had a similar situation to his cousins who had been murdered (paras. 9-10). The officer gave little weight to the affidavits of his mother and cousins, finding that they were interested parties and that their evidence was not supported by the objective evidence (para. 11). The officer found the Applicant had not demonstrated subjective fear, in that he had returned to Colombia from Ecuador (para. 12). Furthermore, the Applicant still had family in Colombia who had not been targeted, and failed to show a lack of state protection (paras. 13-14).

Citing Farias (Farias v. Canada (Minister of Citizenship and Immigration),2008 FC 1035, cited at para. 34), Katwaru (Katwaru v. Canada (Minister of Citizenship and Immigration) 2007 FC 612, cited at para. 35), and Gilvaja (Gilvaja v. Canada (Minister of Citizenship and Immigration), 2009 FC 598 cited at para. 38) Justice O’Keefe found that the PRRA officer had “erred in law by requiring the applicant to show that he had exhausted all avenues of state protection”, since the Applicant had shown that he had made reasonable efforts to no avail (para. 39).


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