Date: 20061206
Docket: IMM-2420-06
Citation: 2006 FC 1463
Ottawa, Ontario, December 6, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
VICTOR SAMUEL CALVERA,
MARLENE MARIA CALVERA and
SAMUEL
RICARDO CALVERA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants are a family of Colombian citizens, whose claims for refugee
protection were rejected by the Refugee Protection Division of the Immigration
and Refugee Board on credibility grounds. The applicants now seek judicial
review of that decision, asserting that a number of the Board’s negative
credibility findings were either not grounded in the evidence or were arrived
at without any meaningful analysis, and that, as a result, the Board’s decision
was patently unreasonable.
[2]
For
the reasons that follow, I am satisfied that several of the Board’s negative
credibility findings were indeed patently unreasonable. These findings were
sufficiently central to the Board’s analysis as to render it unsafe to allow
the decision to stand. As a consequence, the application for judicial review
will be allowed.
Background
[3]
The
applicants sought refugee protection in this country based upon their alleged
fear of the Armed Revolutionary Forces of Colombia (or “FARC”). According to
the applicants, they had been the victims of extortion at the hands of FARC for
a number of years prior to their departure from Colombia.
[4]
In
1992, after becoming aware of a plot by FARC to kidnap the family, the family
fled to the United
States,
where they lived, studied and worked for many years. After the crackdown on
illegal immigrants in the United States in the wake of the
terrorist attacks of September 11, 2001, the family came to Canada, where they
sought refugee protection.
[5]
The
Board considered the claims of the applicant parents separately from that of
their adult son, Ricardo. As a result, I will address the issues relating to
Ricardo’s claim first, and will then address the issues relating to the claims
of his parents.
Ricardo’s Criminal
Record in the United States
[6]
After
reviewing the facts giving rise to Ricardo’s claim, the Board stated that
“Ricardo did not disclose during his hearing any information regarding his
criminal records in the United States”. After noting that he
had an American criminal record, the Board went on to state “The tribunal notes
that the claimant did not disclose his criminal record in question 9 of his
PIF. The tribunal concludes that this situation undermines the claimant’s
credibility”.
[7]
This
finding was patently unreasonable. A review of the record discloses that, on
numerous occasions, Ricardo disclosed the fact that he had been convicted of
one count of impaired driving and one of battery while he was in the United
States.
He mentioned his American criminal record at the Port of Entry, again in his
Personal Information Form and yet again in his testimony before the Board.
[8]
Moreover,
the transcript of the hearing reveals that Ricardo was extremely forthcoming
about the troubles that he had had as a young man in the United States in his
testimony, going so far as to offer to be fingerprinted, so as to allow the
Board to verify the state of his criminal record in that country.
[9]
It
is true that Ricardo initially neglected to mention a brief detention by the
American authorities following his return to the United States. This
detention related to the outstanding battery charge against him, which
ultimately resulted in a conviction - a conviction that Ricardo freely
acknowledged throughout the processing of his claim.
[10]
To
suggest that this minor omission meant that Ricardo “did not disclose during
his hearing any information regarding his criminal records in the United
States”
is a gross and most unfair mis-representation of what actually occurred in this
case.
[11]
It
is clear that this finding was a primary reason why the Board concluded that
Ricardo was not credible, and this error on the part of the Board would, by
itself, provide a sufficient basis for setting aside the decision insofar as
Ricardo was concerned. As will be discussed below, it was not, however, the
only error made by the Board in relation to Ricardo’s claim.
Ricardo’s Return to Colombia in 1990 or
1991
[12]
After
Ricardo’s parents began being extorted by FARC in the 1980’s, the couple made
the decision to send Ricardo and his brother to the United States, where they
could be educated in safety. Nevertheless, Ricardo decided to return to
Colombia at some point in either 1990 or 1991, as he did not want to stay in
the United
States
any longer.
[13]
The
Board found that the fact that Ricardo returned to Colombia at this
point undermined his claim to fear for his safety in that country.
[14]
The
difficulty with this finding is that while the family was being extorted by
FARC during this period, their level of fear had not yet risen to the point
where they felt that they had to flee Colombia for their safety. This
did not occur until a year or two later, when Ricardo’s parents became aware of
a threat to kidnap the family.
Conclusion Regarding
Ricardo’s Claim
[15]
While
the Board had a number of reasons for rejecting Ricardo’s claim, the two
findings discussed above were sufficiently central to the Board’s analysis, and
to its conclusion that Ricardo was not credible. In these circumstances, it
would not, in my view, be safe to allow the decision to stand insofar as it
relates to Ricardo’s claim for protection.
[16]
I
will next consider the issues that relate to the refugee claims of Ricardo’s
parents, Victor and Marlene Calvera.
The “Internal Flight
Alternative” Issue
[17]
Although
the Board did not make a true Internal Flight Alternative finding, it did
observe that the family did not try to relocate within Colombia after
becoming aware of the kidnap threat.
[18]
The
Board also noted that Victor Calvera had explained that relocation to a secure
location within Colombia was not possible, as the guerrillas were
everywhere throughout the country.
[19]
According
to the Board “The tribunal does not find this answer satisfactory, and is of
the opinion that this behaviour is not compatible with a subjective fear thus
it undermined their credibility”.
[20]
The
Board provides no explanation as to why it was that it did not find Mr.
Calvera’s explanation to be satisfactory. Moreover, Mr. Calvera’s claim with
respect to the reach of guerrilla organizations within Colombia is borne out
by the Board’s own documentary evidence with respect to conditions with that
country for the victims of guerrilla forces such as FARC.
[21]
In
particular, there was country condition information before the Board emanating
from the Board itself which clearly stated that the organizations such as FARC
are well-organized and sophisticated, and that they are in possession of
computer technology and intelligence networks that allow them to track and
locate their victims throughout Colombia.
[22]
In
these circumstances, it was simply not sufficient for the Board to reject Mr.
Calvera’s explanation as to why the family did not try to relocate within Colombia after the
family became aware of the kidnap threat, without some analysis of the evidence
before it.
The Family’s Delay in
Leaving Colombia
[23]
The
Board noted that the family made their last “protection” payment to FARC in
January of 1992, and that they did not leave Colombia until May of
that year. The Board further observed that the family continued living in
their village during this period, and that they did not encounter any
difficulties with FARC prior to their departure.
[24]
According
to the Board, “this long delay is not compatible with a subjective fear and it
undermines the veracity of their credibility and their story”.
[25]
The
Board’s conclusion appears to have been premised upon its earlier finding that
the family “was forced to pay monthly sums of money to the FARC”. If this were
in fact the case, it follows that, having made their last payment in January of
1992, the family would have been substantially in default of their obligations
to FARC in the months immediately preceding their departure from Colombia, presumably
putting themselves at increased risk of retribution from militia forces.
[26]
However,
the problem with this reasoning is that the evidence of the applicants was
quite clear that they were required to pay two million Colombian pesos to FARC
for “protection” every six months. This being the case, the family was
not in default of any obligations to FARC when they fled Colombia in May of
1992, still being within the “protection period” purchased with the January,
1992 payment.
Conclusion
[27]
There
are a number of difficulties with the claims of the applicants, not the least
of which is the substantial period of time that the family spent in the United
States
without seeking refugee protection. However, the errors identified in this
decision are both sufficiently serious and sufficiently central to the Board’s
analysis that the decision must be set aside.
Certification
[28]
The
applicants have suggested a question for certification relating to the failure
of the immigration authorities to provide the Board with a copy of Ricardo’s
current and expired passports. At the hearing of this application I advised
the parties that I would not deal with this issue at the hearing, as it had not
been raised in the applicants’ memorandum of fact and law.
[29]
Given
that the issue played no role in my analysis, it does not raise an appropriate
question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
differently constituted panel for re-determination; and
2. No serious question
of general importance is certified.
“Anne
Mactavish”
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