Federal Court of Canada Dismisses Refugee Claim for Lack of Motivation by Perpetrator

Madam Justice Whyte Nowak has delivered a judgment in the matter of Lady Diana Ramirez Ortega et al. versus the Minister of Citizenship and Immigration, dismissing the Applicants' claim for asylum due to a lack of motivation on the part of the National Liberation Army (ELN) to pursue them. The Applicants, a family of four, had fled Colombia in October 2022, following extortion attempts and threats by the ELN. Their refugee claim was initially refused by the Refugee Protection Division and later upheld by the Refugee Appeal Division.

Key Takeaways:

• The Applicants claimed persecution by the ELN due to their repeated refusal to give in to extortion attempts between June 2021 and December 2022.
• The Refugee Appeal Division found that the ELN lacked the motivation to pursue the Applicants, citing a 15-month gap between June 2021 and September 2022 during which time the ELN was aware of the Applicants' complaints to the prosecutor's office and had obtained their new cell number.
• The Applicants argued that the ELN relies on sophisticated and covert methods of tracking targets, which the RAD did not acknowledge.
• The RAD based its assessment of the ELN's motivation on more than the ELN's failure to continue to make inquiries of the Applicants' family, including evidence of the profile of targets that the ELN was known to pursue, which did not match the Applicants.
• The Applicants failed to establish a serious possibility of persecution in the proposed Internal Flight Alternative (IFA), and the onus rested on them to prove this.
• The Federal Court of Canada has held that the RAD's Decision is justified on the facts and law that constrained it and demonstrates the requisite intelligibility and transparency.

Statistics:

• 2021: Extortion attempts by the ELN began, lasting until December 2022.
• 2022: The Applicants fled Colombia, arriving in Canada on October 31, 2022.
• 2024: Refugee Protection Division refused the Applicants' refugee claim on March 1st, and the Refugee Appeal Division upheld the decision on July 11th.

Sources:

• Immigration and Refugee Protection Act, SC 2001, c 27
• Refugee Appeal Division (RAD) Decision, dated July 11, 2024
• Refugee Protection Division (RPD) Decision, dated March 1, 2024
• National Documentation Package (NDP)
• Monsalve v Canada (Citizenship and Immigration), 2022 FC 4
• Mohammed v Canada (Citizenship and Immigration), 2022 FC 1333
• Vavilov, 2019 SCC 65
• Losada Conde v Canada (Citizenship and Immigration), 2020 FC 626
• Rivera Benavides v Canada (Citizenship and Immigration), 2020 FC 810