Date: 20031209
Docket: IMM-3361-02
Citation: 2003 FC 1434
Ottawa, Ontario, this 9th day of December, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
CAMILO PONCE CAMARGO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated June 13, 2002, wherein the Board determined that the applicant was not a Convention refugee.
Background
[2] The applicant is a citizen of Colombia. He came to Canada on September 4, 1999. On March 6, 2000, the applicant stated his intention to claim refugee status, claiming a well-founded fear based on perceived political opinion and membership in a particular social group, namely, humanitarian workers in support of peasants.
[3] The applicant states in his Personal Information Form narrative that in March 1997, he organized a group called Esquema Basico along with five university friends. The group gathered food, clothing, medicine and money in order to help peasants of the Magdalena Medio area who were forced to flee from the paramilitary. They had relocated to Ciudad Bolivar, an hour and a half from downtown Bogotá, and were living in extreme poverty.
[4] The applicant states that he distributed pamphlets and made public speeches condemning the paramilitary and security forces. The police tried to disperse these public meetings, and while the applicant was never detained, others were.
[5] The applicant states that on July 23, 1997, the group's truck was stopped en route to Ciudad Bolivar by a group of six armed men, who searched the truck and questioned why the group was taking so many things to Ciudad Bolivar. The applicant explained the humanitarian nature of the trip but was not believed. The group was accused of supporting the guerrillas. While trying to stop the men from confiscating the truck and goods, the applicant's brother was shot in the leg.
[6] After going to the hospital, the applicant and his father went to report the incident at the police station however, according to the applicant, the police said that they were "not there to protect communist like us, and that we were lucky we were not killed."
[7] After this encounter, the applicant obtained a U.S. visa on August 26, 1997.
[8] In September 1997, the applicant obtained work in Ecuador. He left school and moved to Ecuador. Part of his work involved travel between Ecuador and Colombia. He continued contact with Esquema Basico and supported the group financially.
[9] In late August 1998, the applicant learned that his friend had been beaten by the paramilitaries for delivering goods to Ciudad Bolivar. He also learned that his mother had received telephone threats from "an anonymous caller who told her that the whole family was going to regret for aiding the guerrilla."
[10] On September 4, 1998, the applicant's brother fled to the United States. The applicant continued his work in Ecuador, and continued to travel between Colombia and Ecuador, as well as to Bolivia and the Dominican Republic.
[11] On April 3, 1999, the applicant returned to deliver goods to Ciudad Bolivar. He was stopped by the military, who searched the truck and demanded to know where he was taking the goods. The applicant was taken to a military base. He was beaten and interrogated, released only when he promised to name the members of the group.
[12] The applicant sought medical attention from a local doctor and on April 13, 1999, after recovering, returned to Ecuador. Two weeks later, he learned that two men with Colombian accents, who appeared to be members of the Colombian military, came to the construction site in Ecuador where he worked, looking for him.
[13] The applicant stated that, since Ecuadorian and Colombian security forces have worked together, he believed that the two men could be from the Colombian military. As a result, he called his father who made travel arrangements for his departure from Colombia.
[14] The applicant returned to Bogotá on May 9, 1999 and stayed in hiding with his aunt. He left Colombia four days later, on May 13, 1999.
[15] Since being in Canada, the applicant has learned that the military have been looking for him and threatening him.
Reasons of the Board
[16] The Board rejected the applicant's refugee claim because they found his return to Colombia in May 1999 inconsistent with fear of persecution. They held that his returned constituted re-availment, and, as such, the applicant did not have a subjective fear of persecution. The applicant was asked why he did not fly to the United States directly from Ecuador. The Board found the following explanations inconsistent with a subjective fear of persecution:
[17] First, the applicant answered that the Ecuadorian authority could have arrested him at the airport because they perform checks, adding that those checks do not occur on flights from Ecuador to Colombia.
[18] Second, the applicant answered that he was afraid, and that his father was checking on the existence of warrants against him in Colombia; his plan being to spend only one day in Colombia en route to the United States.
[19] Third, when asked the same question in re-direct, the applicant limited his answer to stating that his father had arranged everything for him.
[20] The Board also wrote as follows:
In assessing these explanations, the panel also takes into consideration the following elements:
_ the nature of the fear alleged by the claimant;
_ the identity of the agents of persecution;
_ the absence of any substantive evidence to conclude that he could be arrested upon leaving Quito, especially given the fact that his stay in Ecuador was legal; and,
_ The absence of any substantive evidence to conclude that he could not have made his own travel arrangements from Ecuador.
[21] The Board also notes as follows:
The panel is mindful of the serious on-going conflict in Colombia and the ensuing targeting of some of its citizens by guerrilla forces, the government and the paramilitaries, as well as the general criminal violence. However, given the claimant's re-availment of the protection of his country of nationality, the panel determines that there is not a serious possibility that he would be persecuted in Colombia.
Applicant's Submissions
[22] The applicant submits that the Board erred in concluding that there is effective state protection in Colombia.
[23] The applicant submits that the Board erred in its analysis by selectively quoting from the testimony presented, and by failing to assess the impact of relevant evidence, namely, the continued threats since the applicant's departure. He also submits that he adequately explained his return to Colombia: he was unsure of what security checks in Ecuador would produce, there were no security checks from Ecuador to Colombia, and he was certain he could leave Colombia because his father had confirmed that there was no arrest warrant for him in Colombia. He argues that the Board failed to properly consider this testimony.
[24] The applicant submits that the Board did not properly direct its attention to the objective basis of the applicant's fear of persecution. The applicant submits that, since the Board did not make any adverse findings as to his credibility, the Board must be taken to have accepted his evidence. He relies on M.B.K. v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 374 (T.D.) (QL) in support of this argument.
[25] The applicant submits that before a person can be said to have re-availed himself of his country's protection, three requirements must be met. The refugee must act voluntarily, he must have the intention to re-avail himself of his country's protection, and he must be able to actually obtain such protection. The applicant submits that though he voluntarily returned to Colombia, he did not intend to re-avail himself of the protection of Colombia, which is clear since he remained in hiding for the four days he was in Colombia.
Respondent's Submissions
[26] The respondent submits that a finding of fact is only reviewable if it is truly erroneous, capriciously made or without regard to the evidence, and material to the decision.
[27] The respondent submits that, given the applicant's testimony, it was open to the Board to conclude that the applicant had re-availed himself of the protection of the state, and therefore that the applicant does not meet the definition of Convention refugee.
[28] The respondent submits that the test for well-founded fear involves both a subjective and objective component, and that, because of the applicant's actions, he has not demonstrated a subjective fear of persecution. In particular, in light of the fact that the applicant had a U.S. visa, he had regularly travelled between Colombia and Ecuador, and because he returned to Colombia in May 1999, it was open to the Board to find that the applicant did not have a subjective fear of persecution.
Issues
[29] The parties stated a variety of issues in their memorandums, but at the hearing, both counsel informed me that there was only one issue and that was whether the applicant had re-availed of state protection by his return to Columbia for four days in May 1999 prior to his departure from Columbia.
Relevant Statutory Provisions
[30] Subsections 2(1) and 2(2) of the Immigration Act, R.S.C. 1985, c. I-2 define a "Convention refugee" in the following manner:
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2.(1) "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
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2.(1) "réfugié au sens de la Convention" Toute personne:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
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(2) A person ceases to be a Convention refugee when
(a) the person voluntarily reavails himself of the protection of the country of the person's nationality;
(b) the person voluntarily reacquires his nationality;
(c) the person acquires a new nationality and enjoys the protection of the country of that new nationality;
(d) the person voluntarily re-establishes himself in the country that the person left, or outside of which the person remained, by reason of fear of persecution; or
(e) the reasons for the person's fear of persecution in the country that the person left, or outside of which the person remained, cease to exist.
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2.(2) (2) Une personne perd le statut de réfugié au sens de la Convention dans les cas où:
a) elle se réclame de nouveau et volontairement de la protection du pays dont elle a la nationalité;
b) elle recouvre volontairement sa nationalité;
c) elle acquiert une nouvelle nationalité et jouit de la protection du pays de sa nouvelle nationalité;
d) elle retourne volontairement s'établir dans le pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée;
e) les raisons qui lui faisaient craindre d'être persécutée dans le pays qu'elle a quitté ou hors duquel elle est demeurée ont cessé d'exister.
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Analysis and Decision
[31] The respondent argued that the applicant's different answers as to why he returned to Columbia from Ecuador prior to his departure for the United States are an aspect of credibility. The answers given by the applicant are summarized at page 3 of the Board's decision and read as follows:
In the case at bar, the claimant was asked by the Refugee Claim Officer to explain why he had chosen to return to Colombia instead of taking advantage of being in possession of a valid US visa to immediately escape to safety, directly from Ecuador. He answered that the Ecuadorian authorities could have performed a check on him upon his departure at the airport and possibly arrest him. He then added that such checks did not take place on local flights from Ecuador to Colombia. He was then asked again what could have stopped him from going directly to the United States from Ecuador. The claimant answered that he was afraid, that his father was checking on the existence of possible warrants against him in Colombia and that his plan was to leave Ecuador for the USA via Columbia in one day. Asked the same question by his counsel in re-direct, the claimant limited himself to stating that his father had arranged everything for him.
[32] The Board's finding that the answers are not satisfactory does not mean that the Board made an adverse credibility finding. In fact, I do not agree that the answers are inconsistent. Since the Board did not make a non-credibility finding, the applicant's testimony is presumed to be true (see M.B.K. v. Canada (Minister of Citizenship and Immigration), supra). I would note in passing that the Federal Court of Appeal in Shanmugarajah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 583 (C.A.) (QL) stated at paragraph 3 of its decision:
It is almost foolhardy for a Board in a refugee case, where there is no general issue as to credibility, to make the assertion that the claimants had no subjective element in their fear.
[33] With respect to the issue of whether the applicant re-availed himself of state protection by returning to Colombia, the Board found that by returning to Colombia "the claimant did re-avail himself of the protection of his country of nationality". This finding was made immediately after the Board discussed the applicant's return to Colombia for four days immediately prior to his departure for the United States. Consequently, I would conclude this was the basis for the Board's finding of re-availment and not the earlier return visits from Ecuador to Colombia.
[34] A Board is entitled to consider the fact that a refugee claimant has returned to the country in which he or she alleges persecution in assessing whether there is a well-founded fear of persecution. However, as the Board acknowledged, the fact of returning may not in itself, constitute re-availment (see M.B.K., supra).
[35] According to the Office of the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1988), "re-establishment" and "re-availment" both require an element of intent on the part of a claimant before physical presence in a country will negate refugee status. Paragraph 134 of the UNHCR Handbook states that a temporary visit by a refugee to the country where persecution was feared without an intention to permanently reside there should not result in the loss of refugee status. This idea is supported by James C. Hathaway in The Law of Refugee Status (Markham, Ont.: Butterworths, 1991) at page 197ff and decisions of this Court such as Shanmugarajah, supra and M.B.K., supra.
[36] As in M.B.K., supra, I am of the opinion that the Board's findings in this case regarding re-availment are not supported by the evidence.
[37] Since the Board did not make an express negative credibility finding, I can only conclude that the applicant's evidence was believed. The applicant testified that he was in hiding for the four days he spent in Columbia during May 1999 before fleeing to the United States. The applicant also testified that he did not lose his subjective fear of persecution, even though he was present in Columbia. I am of the opinion that it was unreasonable for the Board to conclude, contrary to this direct testimony, that the applicant's conduct constituted re-availment of state protection in Columbia.
[38] The application for judicial review is allowed and the matter is referred to a differently constituted panel of the Board for redetermination.
[39] Neither party wished to submit a proposed serious question of general importance for my consideration.
ORDER
[40] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a differently constituted panel of the Board for redetermination.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
December 9, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3361-02
STYLE OF CAUSE: CAMILO PONCE CAMARGO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, June 10, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Tuesday, December 9, 2003
APPEARANCES:
J. Byron M. Thomas
FOR APPLICANT
Pamela Lamordin
FOR RESPONDENT
SOLICITORS OF RECORD:
J. Byron M. Thomas
Etobicoke, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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