[1] To hear Mr. Gaviria Florez tell it, he served a stint in the army in Colombia and later acted as chauffeur and bodyguard to a Mr. Munoz, an engineer by profession, who was a senior executive in the Ecopetrol petroleum company. One day early in 1996, the Armed Revolutionary Forces of Colombia (FARC) attempted to intercept Mr. Munoz' car. Notwithstanding gunfire, Mr. Gaviria Florez successfully evaded the guerillas and brought Mr. Munoz safely back to Bogota.

[2] Shortly thereafter, members of FARC confronted Mr. Munoz and not only extorted money from him but forced him to provide them with Mr. Gaviria Florez' particulars, including his military background. In addition, individuals, presumably guerillas, were searching for him in his mother's town.

[3] Mr. Munoz urged him to flee, funded him, and got him in contact with a smuggler who arranged transport, via Mexico, to the United States where he remained from March 1996 to April 2002.

[4] His American sojourn was nothing if not eventful. He claimed asylum and was rewarded by spending 52 days in jail until he could come up with $1,000 bail. Although he left his forwarding address, the Naturalization Service did not communicate with him for years. He was joined in the U.S. by his common-law spouse and her son. With her consent, he entered into a sham marriage, apparently in an effort to get his daughter into the U.S.

[5] After 9/11, there was a hunt on for illegal aliens. One day, his friend told him the authorities came knocking on his door. He, his spouse, her son and their American-born son came to Canada claiming to be refugees or otherwise in need of protection. It was conceded that the American-born son is neither, and his claim was withdrawn.

[6] The Immigration and Refugee Board dismissed his claim, and the other claims which derived from it. Mr. Gaviria Florez was found not to be credible. This is a judicial review of that decision.

[7] The panel found Mr. Gaviria Florez' testimony to be riddled with discrepancies, inconsistencies, hesitancy and evasiveness. Examples were given on what the panel itself considered central elements of his claim. He was vague as to whether he worked for Ecopetrol or for Mr. Munoz. He could not remember Mr. Munoz' first name although he was his chauffeur for two years. He could not remember which airline brought him from Mexico to Texas. His explanation as to his status in the U.S. was unsatisfactory. Perhaps he was a permanent resident. On the other hand, if he was not a permanent resident, he showed no subjective fear of returning to Colombia as he worked illegally in the U.S. for years without attempting to clarify his status. His answer that this was a risk he lived with was deemed to be simply not acceptable.

[8] I have reviewed the evidence relating to these central elements and have determined that findings of fact flew in the face of the evidence and that inferences were mere conjecture based on cultural overtones. The decision was patently unreasonable.

[9] Let us examine the central elements, so called, one by one.

THE NAME

[10] According to Mr. Gaviria Florez, Mr. Munoz' first name did not immediately come to mind because as a matter of respect he always called him Engineer Munoz, just as one might address a doctor as Dr. Munoz. Mr. Munoz gave an affidavit corroborating Mr. Gaviria Florez' account of events. However, the panel doubted that there even is a Mr. Munoz. I find Mr. Gaviria Florez' explanation to be perfectly acceptable, and the panel's conclusion to be utterly wrong.

THE EMPLOYER

[11] Mr. Gaviria Florez worked for Mr. Munoz, who in turn worked for Ecopetrol. He mentioned both names at all times. This distinction drawn by the panel is meaningless.

THE FLIGHT TO THE U.S.A.

[12] When Mr. Gaviria Florez was interviewed at the port of entry in Canada, some six years later, he remembered the airline he flew from Bogota to Mexico City, but not the one from Mexico City to El Paso. The Immigration Officer was engaging in a meaningless memory test.

AMERICAN STATUS

[13] The investigation of Mr. Gaviria Florez' United States status was extremely sloppy. The notes of interview at the Canadian border say that he is a permanent resident of the United States as a result of a marriage with an American citizen in January 2002. This had nothing to do with any refugee claim he may have made in the United States. However, in his Personal Information Form he said that although he had applied for refugee status in the United States the results were unknown to him. He thought that marriage to an American might have given him status, but that is a verifiable fact. His belief has nothing to do with it. He did not claim to be a permanent resident of the United States and, in one sense, he has been asked to prove a negative, i.e., to prove that he is not a permanent resident. He was not put on sufficient notice in the Immigration hearings in Canada to clarify the situation, and the Canadian authorities themselves could have done so. The case is not dissimilar from Muliri c. Canada (Ministère de la citoyenneté et de l'immigration), [2004] ACF N^o. 1376 (QL). If the Panel raises something which it says is verifiable, and it can verify it easily, then it should verify it.

SUBJECTIVE FEAR

[14] Mr. Gaviria Florez, if not a permanent resident of the United States, then worked there illegally for several years. He said he was afraid to make enquiries as to his status because they might result in his deportation. After all, he had already spent some 52 days in jail. The Panel was of the view that he had no subjective fear because he should have clarified his status. Sometimes limbo is better than hell. The applicant chose to weigh the risk of remaining illegally in the United States against being deported to Colombia. (See, El-Naem v. Canada (Minister of Citizenship and Immigration), [1997] FCJ No. 185, per Gibson J. at para. 20 (Q.L.).)

[15] What is important is that Mr. Gaviria Florez actually claimed refugee status in the United States upon his arrival there. This distinguishes him from those who have remained illegally in a country for years without ever attempting to regularize their status.

[16] For these reasons, the application for judicial review shall be granted.

"Sean Harrington"

Judge

Ottawa, Ontario

September 8, 2004

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-8660-03

STYLE OF CAUSE: HECTOR FABIO GAVIRIA FLOREZ, JHONNY JAVIER SERRATO GRAJALES, LUZ ROCIO GRAJALES CARDONA

BRIAN ALEJANDRO GAVIRIA

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: MONTREAL, QUEBEC

DATE OF HEARING: SEPTEMBER 1, 2004

REASONS FOR ORDER : HARRINGTON J.

DATED: SEPTEMBER 8, 2004

APPEARANCES:

Jeffrey Nadler FOR APPLICANT

Lynne Lazaroff FOR RESPONDENT

SOLICITORS OF RECORD:

Jeffrey Nadler FOR APPLICANT

Montreal, Quebec

Morris Rosenberg FOR RESPONDENT

Deputy Attorney General of Canada

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Florez v. Canada (Minister of Citizenship and Immigration), 2004 FC 1230

Citations2004 FC 1230

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2004 FC 1230