Medina-Solano v. Canada (Minister of Citizenship and Immigration), 2003 FCT 536

Date: 20030430

Docket: IMM-5964-01

Neutral citation: 2003 FCT 536

Toronto, Ontario, Wednesday, the 30^th day of April, 2003

PRESENT:      The Honourable Mr. Justice O'Keefe   

BETWEEN:

                                              SANDRA LORENA MEDINA-SOLANO

                                                                                                                                                         Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                     Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision of the Immigration and Refugee Board (Refugee Division) (the "Board") dated December 3, 2001, wherein the applicant was found not to be a Convention refugee.

[2]                 The applicant seeks an order that the decision of the Board be set aside and that the matter be referred back for rehearing by a differently constituted Board.

Background

[3]                 The applicant is a citizen of Colombia. She claims a well-founded fear of persecution in Colombia arising from her political opinion as a student targeted by the Revolutionary Armed Forces of Colombia ("FARC"). The applicant claims that if she returned to Colombia, FARC would either force her to join their cause or kill her.

[4]                 For several years, the applicant's father, grandfather and uncles have been regularly paying the FARC guerillas "protection money". Every six months, the applicant's father goes blindfolded to the mountains where he gives FARC a status report of the income he has received from his business and the social programs he has undertaken for the poor.

[5]                 In August 1999, the applicant was one of twenty student representatives elected to the student council of the Grancolombiano Polytechnical University in Bogota, Colombia. A month later, the applicant was asked to join FARC, but she told the person that she was not interested. After this refusal, the applicant was harassed and intimidated on a number of occasions. The applicant suspected FARC was responsible for this harassment.

[6]                 On September 21, 1999, a man approached the applicant during lunch at the school cafeteria and handed her a pamphlet regarding the struggle for the revolution. The applicant tore up this pamphlet and told the man that she was not interested. On September 27, 1999, the applicant received a threatening phone call from a man who said he belonged to FARC. On October 19, 1999, a man sat beside the applicant on a bus, told her that they needed a person like her and asked her to invite her classmates to join the revolution.

[7]                 From October 1999 onwards, the applicant noticed that two men followed her at the places she normally frequented, including movie theatres, restaurants and discos. On November 22, 1999, a man and a woman approached the applicant in the school cafeteria, recited the applicant's name, address, phone number, the name of her parents and siblings and their addresses in Neiva. On November 24, 1999, the applicant received a phone call from FARC, asking her to attend a meeting. When she refused, the caller told her that she was being followed very closely.

[8]                 The applicant returned to her parents' house in Neiva, in the province of Huila after her exams were finished. According to her PIF, she informed her parents of what was happening. Her parents told her to wait until the next year to do anything because the government had been negotiating with the guerillas and things could change. On January 11, 2000, the applicant sent a letter to the university, requesting a six month leave of absence in order to study English in Canada.

[9]                 On January 18, 2000, while working at the family copy/printing shop, three men approached her and asked her to make copies of subversive propaganda. One of the men was the same man who accosted her on the university campus. When the applicant refused to make the copies, the men placed a sheet of paper on the counter which contained all of the applicant's personal information. Following this incident, the applicant went into hiding at her uncle Alfredo's house in Tello. On February 25, 2000, the applicant was told by her uncle Alfredo that some "friends" (one of whom was the same man at the shop) were asking for her.

[10]            On February 29, 2000, the applicant travelled to Bogota with her father, looking for a way to leave the country. The applicant applied for a Canadian visa on March 1, 2000, which was denied the next day. She also unsuccessfully applied for a Mexican visa. The applicant then successfully applied for a Guatemalan visa, and she left Colombia for Guatemala on March 8, 2000. After travelling to Mexico and the United States, she made her way to Canada, where she made a refugee claim upon arrival at the border on March 27, 2000.

The Board's Decision

[11]            The Board concluded that the applicant was not a target of unceasing and relentless invitations from FARC because of implausibilities and inconsistencies in her testimony. There was no credible or trustworthy evidence for the Board to determine that the applicant's fears of persecution were well-founded.

[12]            In the Board's opinion, it was in the applicant's own interest and security to advise someone she could trust about the presence of FARC members on campus and to find out whether other student council members had been approached by FARC. The applicant explained that her problems with FARC were personal, and not a matter for the student council, whose mandate related to academic issues. The Board did not find this explanation acceptable because, in its view, the harassment and intimidation of students on campus is a legitimate student concern.

[13]            According to the Board, the applicant stated at the hearing and in her PIF that the events of January 18, 2000 precipitated her decision to leave university. However, the documentary evidence indicated that she had written to the university on January 11, 2000, requesting a six month leave of absence in order to study English in Canada. According to the Board, the applicant explained this inconsistency by testifying that she felt she had to leave Colombia because of the failure of the peace talks on January 18, 2000 and that she had not had an opportunity to review her PIF, which was written one year earlier, until recently. The Board did not find this explanation satisfactory, and used this inconsistency as a major basis for finding that the applicant's evidence was not credible.

[14]            According to the Board, the applicant testified that being in possession of a FARC pamphlet on campus is a dangerous situation. As a result, the Board did not find it plausible that a FARC representative would hand her a FARC pamphlet in the crowded school cafeteria at lunchtime. The Board also found that it was not plausible that FARC would ask the applicant, who was not committed to the FARC cause, to recruit her classmates for FARC. It was evident to the Board that someone not committed to the FARC cause could not be an effective recruiter for that cause. The Board further concluded that it was implausible that FARC would only call the applicant when they knew she would answer the phone. Although the applicant lived with her brother, she was the only person to answer the FARC phone calls. The Board found this too fortuitous to be true.

[15]            Finally, the Board found it implausible that the applicant's father, who regularly communicated with FARC, did not use his connections to stop the harassment and intimidation of his daughter, or pay more money to FARC to protect his daughter. The Board also found it implausible that the applicant was able to travel to Mexico and to the United States without visas.

Issue

[16]            Did the Board err in law by making credibility findings without regard for the evidence before it or which were otherwise unreasonable?

Applicant's Submissions

[17]            The applicant submits that the Board's credibility findings were unreasonable, and were made without regard for the evidence before it. It is submitted that the Board made a number of baseless speculations regarding the function of the student council and the recruitment policy of FARC. The applicant submits that the Board ignored the applicant's explanations as to why she kept her problems with FARC to herself and why she left Colombia.

[18]            The applicant further submits that the Board misconstrued the evidence regarding the relationship between the applicant's father and FARC, the reason why her father did not pay extra money to FARC to protect the applicant, the danger to the applicant if she kept the FARC pamphlet, and FARC's knowledge of who would answer its telephone calls to the applicant. The applicant submits that the Board took irrelevant considerations into account when assessing the applicant's credibility, including the ability of the applicant to cross the Mexican and United States borders without visas for either country.

[19]            Finally, the applicant submits that the Board's treatment of the reason why the applicant left Colombia was "riddled with misstatements, misunderstandings and outright overlooking of large portions of relevant evidence." The applicant submits that the applicant's PIF, which was amended at the start of the hearing, did not contradict her testimony and other documentary evidence on this issue.

Respondent's Submissions

[20]            The respondent submits that the Board's findings regarding the applicant's credibility were reasonably open to it on the record. It is submitted that there is no evidence that the Board refused to consider any evidence, ignored evidence or made erroneous findings. It is submitted that the Board clearly and unequivocally determined the applicant not to be a credible witness, and offered detailed reasons for this decision, citing numerous implausibilities and inconsistencies in the applicant's evidence. The respondent submits these implausibilities and inconsistencies related to central aspects of the applicant's refugee claim. It is submitted that questions of credibility and weight of evidence are within the jurisdiction of the Board, and this Court cannot intervene because no reviewable error was committed.

Relevant Statutory Provisions

[21]            Subsection 2.(1) of the Immigration Act, R.S.C. 1985, c. I-2, states:

Analysis and Decision

[22]            Issue

Did the Board err in law by making credibility findings without regard for the evidence before it or which were otherwise unreasonable?

I am of the view that the Board did make errors in its credibility findings, particularly with respect to the applicant's decision to withdraw from university and leave Colombia.

[23]            The suggested inconsistency in the applicant's evidence with respect to her reason for withdrawal from university and departure from Colombia was a major factor in the Board's negative credibility finding. The Board's decision reads, in part, as follows, at pages 4 to 5:

The claimant was asked several times what event precipitated her decision to leave university and her reply was that it was the event of January 18, 2000 when the same man approached her to undertake photocopying work at her father's printing shop. This information is consistent with her evidence at her Personal Information Form (PIF) narrative . . .

However, this is not consistent with a document written by the claimant, dated January 11, 2000 where she wrote:

I write to you for the purposes of requesting a leave of absence for the first semester of this year . . . because I will be taking a trip to Canada . . . for six months.

The letter above was written a week before the alleged precipitating event of January 18, 2000. When asked to explain this inconsistency, the claimant provided several explanations. One explanation was that she felt she had to leave Colombia because of the failure of the peace talks on January 18, 2000. We do not find this explanation acceptable, as she clearly indicated both in her written and oral testimony that it was the incident at her father's shop that precipitated her departure from Colombia. The claimant further explained that the PIF was written one year ago, and hence, she had not had the opportunity to review this narrative until recently. She then stated that what she really meant was that she did not want to wait for her Canadian visitor's visa, but wanted to leave immediately. We do not find this explanation acceptable. This is a complete change from what she clearly and precisely stated, both in oral evidence and in the PIF. Furthermore, if she had noticed this error in her PIF, she did not so indicate when asked at the beginning of the hearing if there were any corrections to the PIF. She in fact swore to the accuracy of the PIF. The panel finds this inconsistency relates to a matter central and material to her claim as it refers to the precipitating event that led to her decision to leave the university and Colombia. This inconsistency detracts from the credibility of her evidence.

[24]            The Board concluded that there was an inconsistency between the applicant's PIF and the letter dated January 11, 2000. The applicant amended her PIF at the beginning of the hearing. A review of the transcript of the hearing discloses the following:

COUNSEL:      . . . Then on page 11, paragraph 9, the fourth line from the bottom of that paragraph reads: "Then we decided to cancel my studies." That should read: "The previous week we decided to cancel my studies."

The applicant swore to the accuracy of this amended PIF. As a result of this amendment, the PIF was consistent with the applicant's testimony and the documentary evidence regarding when she decided to cancel her studies at the university. As a result, there is no evidence to support the Board's conclusion that the PIF was inconsistent with the January 11, 2000 letter.

[25]            I am also satisfied that the applicant's testimony at the hearing is not inconsistent with the January 11, 2000 letter. The applicant testified at the hearing, in part, at pages 394 to 395 of the tribunal record (pages 22 to 23 of the transcript):

COUNSEL:      Now at what point did you decide that you had to leave the country?

CLAIMANT: When I returned to Neiva after I finished my exams. When I talked to my parents in relation to what was happening to me, my father said to wait for the end of the year to see if the government was able to manage to achieve an arms-disarmament agreement and the mobilization of the guerrilla forces. He said maybe that things would turn out to be better if the government managed to do this treaty accord.

        When the new year has started in the first week of January, when nothing had changed and there was no peace - no peace was achieved, or cease fire, we decided that I should leave the country, but I should do it in a normal way so that they would not become suspicious.

COUNSEL:       What do you mean by do it in a normal way?

CLAIMANT:     To ask for a student visa to be able to go to another country to study English.

[26]            The above noted testimony indicates to me that the applicant made a decision in early January to withdraw from university. My review of the transcript does not lead me to the conclusion that the applicant decided to leave the country because of the events of January 18, 2000. That decision appears to have already been made. The applicant's testimony with respect to the events of January 18, 2000 reads, in part, at pages 402 to 403 of the tribunal record (pages 30 to 31 of the transcript) as follows:

RCO:                 Could you explain what motivated you to withdraw from the university at that point?

CLAIMANT: Three things. One was the negotiations weren't carried out and the work continued. The second one, we had to make it appear my leaving the country would look as normal as possible, and the third one was that we had to, and we already knew what had happened to me before and we wanted to avoid anything more serious happening.

                          At that time, and I want to clarify, that we had taken a general decision to make my departure look easy and would elicit the least suspicion from these people, but the truth is on the 18^th of January we decided that I had to leave the country right away, because the persecution was not ever going to finish, they were going to find me wherever I was, and my parents were not going to allow for anything to happen to me.

A review of the transcript indicates that the applicant had decided earlier to discontinue university and to leave the country. The events of January 18, 2000 merely sped up the applicant's departure from Colombia. I am of the opinion that there is no inconsistency amongst the applicant's amended PIF, the January 11, 2000 letter, and her oral testimony with respect to the decision to leave university or to depart the country. This finding of inconsistency by the Board was a major factor in the Board's negative credibility finding. This negative credibility finding is not supported by the evidence. Therefore, the Board committed a reviewable error in this respect.

[27]            The application for judicial review is allowed and the matter is submitted to a differently constituted panel of the Board for reconsideration.

[28]            Neither party wished to propose a serious question of general importance for my consideration for certification.

ORDER

[29]            IT IS ORDERED that the application for judicial review is allowed and the matter is submitted to a differently constituted panel of the Board for reconsideration.

"John A. O'Keefe"            

J.F.C.C.                     

                         FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              IMM-5964-01

STYLE OF CAUSE:              SANDRA LORENA MEDINA-SOLANO

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:                        TUESDAY, NOVEMBER 19, 2002

REASONS FOR ORDER

AND ORDER:                                   O'KEEFE J.

DATED:                                               WEDNESDAY, APRIL 30, 2003

APPEARANCES:                                 Mr. Clifford Luyt

For the Applicant

Ms. Pamela Larmondin

For the Respondent

SOLICITORS OF RECORD:           Waldman & Associates

281 Eglinton Avenue East

Toronto, Ontario

M4P 1L3

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

Date: 20030430

Docket: IMM-5964-01

BETWEEN:

SANDRA LORENA MEDINA-SOLANO

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                           Respondent

REASONS FOR ORDER

AND ORDER