An Afro-Colombian citizen (who I will refer to as “Mike”) left his country of Colombia in 1998 at age 15 and migrated to the U.S. where he worked as a drywall installer.
He has not been back to Colombia since that time and in 2008 he arrived in Canada and claimed refugee status. His claim was refused in 2011.
While in Canada, he continued to work as a drywaller and in 2013 he founded his own drywall business which currently employs four people.
In early 2015, Mike applied for permanent residence on H&C grounds, based on his degree of establishment in Canada, his personal relationships in Canada and Colombia and his fear of discrimination in Colombia as an Afro-Colombian.
In March 2015 an officer refused his H&C application, stating he did not find that Mike’s personal circumstances were such that the requirement of having to obtain a permanent resident visa from outside Canada would constitute unusual or disproportionate hardship.
The officer noted that Mike worked as a drywall installer from 2009 to 2013 and has taken several safety and construction courses related to his business, as well as classes to further his knowledge of English and better communicate with his clients.
The officer considered various letters of reference indicating that Mike’s company had been hired as a subcontractor by several contracting companies, as well as a letter from someone indicating that they worked part time for the company.
While the officer acknowledged Mike had not been in Colombia for the past 17 years, he considered that “he would not be returning to an unfamiliar place, culture or language that would render re-integration unfeasible.” He assumed Mike would have the support and assistance of his mother, brother and sister in Cali and that he would be able to apply his work experience and skills to obtain employment.
Regarding the applicant’s fear of discrimination as an Afro-Colombian in Colombia, the officer noted that according to the 2013 U.S. Department of State Human Rights Report on Colombia (the extrinsic evidence or U.S. Department of State Report), the government has been taking steps, through legal and political measures, to address the discrimination Afro-Colombians face in their country.
As a result of the refusal Mike sought judicial review of the officer’s decision and alleged that the impugned decision is unreasonable and that the officer breached procedural fairness in resorting to the extrinsic evidence.
The judge stated that “the fundamental problem in this case is that the officer apparently did not consider, or arbitrarily chose to discard, the contradictory evidence contained in the U.S. Department of State Report, which demonstrated that actual conditions on the ground remained very difficult for Afro-Colombians.
“For example, the U.S. Department of State Report indicates that societal discrimination against Afro-Colombians at times restricted their ability to exercise their rights (p 1); that threats and violence against Afro-Colombian leaders and communities continued to cause high levels of forced displacement (p 28); that international organizations and NGOs remained concerned about the slow institutional response to displacement (pp 27-28); and that Afro-Colombians faced significant economic and social discrimination (p 43).”
Moreover, the judge ruled, this contradictory information was further corroborated by documentary evidence submitted by Mike with his H&C application – evidence that indicated Afro-Colombians face racism, socio-economic exclusion and discrimination in the workplace in Colombia.
The document Afro-Colombians Battle Racism and Socio-Economic Exclusion (Colombia Reports) states that “Afro-Colombians are plagued by high rates of informal labor and unemployment, high dropout rates, illiteracy, overcrowding, poor access to potable water, poor sanitation, child labor, and poor access to government services, among other things.
The judge noted that “Based on the documentary evidence he has submitted, he faces a return to a country where he would confront significant discrimination, adverse socio-economic conditions and limited opportunities on account of his ethnicity. While it is not for this court to make a determination on the merits of the case, it appears the officer closed his mind to understanding the applicant’s reality and failed to appreciate the difficulties that the applicant might face if he were to return to Colombia.”
The judge stated that, “overall, the impugned decision is unreasonable and must be set aside” and directed the matter back for predetermination by another officer.
Good luck Mike and a Happy and Safe New Year to all.
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.