Date: 20101223
Docket: IMM-2017-10
Citation: 2010 FC 1323
Ottawa, Ontario, December 23,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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ANA ELVIA HERNANDEZ HERNANDEZ AND WANDA
PATRICIA ROJAS HERNANDEZ
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division (the Board), dated March 3, 2010, where Ana Elvia
Hernandez Hernandez (the principal applicant or PA) and Wanda Patricia Rojas
Hernandez (the second applicant) were found not to be a Convention refugee or a
person in need of protection.
[2]
This
application for judicial review shall be allowed for the reasons below.
Facts
[3]
Both
applicants are citizens of Colombia. The principal
applicant is the mother of the second applicant.
[4]
The
applicants fled Colombia in 2007 and claimed refugee protection in Canada based on a
fear of the Colombian Revolutionary Armed Forces (FARC). The PA’s other two
daughters had both previously come to Canada in 2003 and were
accepted as Convention refugees.
The Principal Applicant
[5]
The
principal applicant was formerly a lawyer and prosecutor in Colombia. Her
husband, prior to his death in the 1980s was a judge. The family owned a cattle
farm in an area that came to be dominated by the FARC. The family began receiving
regular threats from the FARC in 1986 due to the prominence of their family in
the country. In the year 2000, the FARC completely took over the farm and stole
all of the cattle. In 2003 the applicants began receiving threats again.
[6]
During
this time, the PA was also experiencing difficulties with her boss. The PA
alleges that her boss was sexually harassing her, and that after refusing his
advances, he ordered her transferred to an area of the country known to be
dangerous because of FARC activity. Given her personal history with the FARC,
the PA objected to the transfer and complained that it was “retaliation”.
[7]
She
alleges that in further retaliation for refusal, her boss also initiated a
corruption investigation regarding her. He accused the PA of agreeing not to
prosecute three police officers accused of extorting money from a criminal, in
exchange for receiving money for herself. As a result of these accusations, the
PA was arrested in 2003 and placed in jail pending trial. Her trial occurred in
2005 and she was convicted of abuse of authority and graft (the
equivalent of bribery).
[8]
The
PA alleges that she did not commit the alleged crimes and that there were
numerous irregularities in her prosecution. Also, the prosecutor in charge of
her case had close ties with her former boss. She appealed her sentence and it
was reduced.
[9]
She
was eventually released from prison in 2006 with conditions, one of them
being that she was not to leave the country without permission. The PA alleges
that as soon as she was released from prison in July 2006, she began to request
permission to leave the country, as she believed that she was no longer
protected from the FARC. She had formerly been given protection through her job
until 2000.
[10]
The
second claimant stated that she contacted the Canadian Embassy in her efforts
to leave Colombia, but she did
not receive a response. The PA also stated that she applied to the Court of
Execution of judgments for permission to leave the country. She also alleges
that she also made a declaration to the Attorney General in regard to her fears
of the FARC.
[11]
On
August 28, 2007, the PA’s lawyer told her that the time of the judgment had
been carried out and that she could leave the country. He came to that
conclusion because he had gone to the Department of Administrative
Security (DAS) to request a report in her name, and it showed that everything
was clear. In the principal applicant’s opinion, the Court of Execution of
Judgements did not respond on a timely basis to her request to leave. The Court
of Execution judgements then denied her departure from Colombia without any
argument. She then appealed again and the same magistrate who had denied her
appeal did not answer her second petition.
[12]
Receiving
no answer, the applicants went to the airport on September 4, 2007, where they met
DAS officials whom the PA had known from having worked there in the past. At
the airport, the authorities looked into their computer, found nothing, wished
them a good trip then the applicants left Colombia for Canada. The
principal applicant believed that there was no process against her in Colombia and that she
had obtained a clear criminal record certificate.
The Second Applicant
[13]
The
second applicant assisted her mother while she was in prison with her legal
matters. She also started attending university while waiting for her mother’s
trial. In December 2004, she was approached by the FARC and was given a message
for her mother. After this incident, she moved although she continued to attend
University.
[14]
Almost
five months later, the second applicant was blindfolded, gagged and placed in a
vehicle by the FARC. They informed her that her mother owed them a substantial amount
of money and she would be harmed if it was not paid. After this incident, the second
applicant stopped attending University, went into hiding, and frequently moved
from house to house.
[15]
After
the PA’s release from prison, the applicants relocated again and attempted to
sell the farm to avoid any future problems with the FARC. The farm was sold in
May 2007. Shortly after the sale, the applicants were found again by the FARC
and told that they had eight days to turn over the proceeds from the sale of
the farm, otherwise they would be killed. They were also told that they were
now both military targets. The applicants immediately went into hiding at a friend’s
farm for three months. They then travelled to Bogota from where they flew to
the United
States
and then crossed into Canada where they made their claims.
Impugned
Decision
[16]
The
determinative issues in this case were the questions of exclusion, well-founded
fear of persecution, failure to claim elsewhere, credibility, perceived
political opinion, and risk to life or of cruel and unusual treatment or
punishment and whether or not the applicants had rebutted the presumption of
state protection.
Principal Applicant
[17]
The
Board found that the principal applicant was excluded under Article 1F(b) of
the United Nations Convention. In making this finding, the Board noted
that the government in Columbia has taken steps to
remedy corruption, despite the fact that it is not perfect. The Board did not
agree with the argument put forth by the applicant’s counsel that the panel
should make a finding that the crime that the principal applicant had been
convicted of had not been committed. The Board did not feel that it had the
jurisdiction to make this type of determination. The Board also stated that the
applicant had her opportunity to be heard in Court in Colombia and that it
was not up to this Board to make findings on the Court’s determination.
The Second Applicant
[18]
The
determinative issues for the second applicant were whether the harm feared by
her would rise to the level of persecution or risk to life or risk of cruel and
unusual treatment or punishment.
[19]
The
Board found that the female claimant did not establish that there was a serious
possibility that she would face persecution or other incidents of serious harm
if she returned to Colombia. The Board did not find that the second
applicant would have a well-founded fear of persecution from the FARC, if she
were to return to Bogota in Colombia. The Board noted that
even though threats to be killed started back in 2000, and the second claimant
was allegedly continually having to hide, the second claimant was able to
reside in Bogota where she attended school from 1991 through 2006, having gone
to the USA for school from August 2001 to May 2002, and returning to reside and
go to school in Bogota, with nothing happening to her from any members of the
FARC.
[20]
The
Board also drew a negative inference from the applicants not contacting the
authorities in regard to the allegations of threats of death from the
FARC. The Board stated that if the FARC had been so interested in harming or
killing the female claimant, they would have found the second claimant
in the two-year period from May 2005 until she left Colombia and went to
the USA in September
2007.
[21]
The
Board further stated that if the FARC gave the principal applicant eight days
to pay the money from the sale of the farm and it was not paid, surely the FARC
would have made sure that neither the principal applicant nor the second
applicant escaped from Colombia without paying the money from the farm in the
months from the time of the sale on May 9, 2007 until five months later when
they left for the USA on September 4, 2007.
[22]
The
Board stated that the second applicant’s allegations that she was in hiding for
two years is not supported by the evidence. The Board found that her statements
that she attended school during this time in her PIF were contradicted by her
stating that she was in hiding.
Issues
[23]
The
issues are as follows:
a. Did the Board
err when it found that it did not have the jurisdiction to “go behind a
decision of the Courts in Colombia”?
b. When concluding
that the principal applicant should be excluded under Article 1F(b), did the Board
make unreasonable findings in light of the evidence before it?
c. Did the Board
make an unreasonable finding when it stated that the FARC would have already
found and harmed the second applicant if they were really interested in her?
Standard of
Review
[24]
This
Court has found that the question of exclusion under Article 1F is a question
of mixed law and fact and it should be reviewed on the standard of reasonableness
(Jayasekara v Canada (Minister of
Citizenship and Immigration), 2008 FC 238, 324 FTR 62 (FC) at para 10).
[25]
The
other issues pertain to the Board’s consideration of evidence which is a matter
of fact, attracts a deferential standard (Villicana v Canada (Minister of
Citizenship and Immigration), 2009 FC 1205, 357 FTR 139 at paras 35 to
39). Accordingly, the Court will only intervene if the decision does not fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190 at para 47).
a. Did the Board
err when it found that it did not have the jurisdiction to “go behind a
decision of the Courts in Colombia”?
Applicants’
Arguments
[26]
The
applicants argue that the Board refused to look in any detail at the
circumstances surrounding the PA’s conviction and the evidence before it
because it believed that it did not have the jurisdiction to do so (paras 32-38
of the decision).
[27]
The
applicants further contend that it was a clear error of law for the Board to
say that it did not have jurisdiction to go behind the conviction to look at
the circumstances surrounding the alleged crime and conviction. The applicants
submit that such an inquiry is very much appropriate in the context of an
assessment under Article 1F(b) and arguably even required.
[28]
The
applicants state that the jurisprudence instructs that the Board is not
entitled to take the mere existence of a conviction to be sufficient evidence
of participation in a serious non-political crime. Factors such as the
circumstances of the crime, the method of prosecution, and the sentence should
be looked at by the Board before such a determination can be made (Jayasekara
v Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4
FCR 164 at para 44 (Jayasekara (FCA)); Rihan v Canada (Minister of
Citizenship and Immigration), 2010 FC 123, [2010] FCJ No 134 (QL)). The
applicants submit that the Board has even more of a duty to engage in an
analysis of the circumstances surrounding a conviction when the claimant
specifically alleges that there are mitigating factors warranting the claimant
not being excluded, such as corruption, and when there is ample evidence on the
record to support the claimant’s position.
[29]
The
applicants refer to Rihan, above at paras 54 and 55 where the Court
stated the following:
What emerges is Article 1F(b) leaves
signatories to the convention a fair degree of latitude to exclude both
criminal and possibly criminal applicants. The Article is not restricted to
extraditable crimes, nor must there be proof of a conviction or even an
allegation of a qualifying crime made by authorities in other countries.
That being said, Canada's commitment to Convention refugees
requires the RPD [Board] members properly scrutinize the evidence before them
before applying the exclusionary articles of the convention.
Respondent’s
Arguments
[30]
The
respondent advances that it was reasonable to find that that the
applicant committed a non-political crime.
[31]
First,
the respondent states that it was reasonable to find that the crime was
serious, given that it noted that the Canadian equivalent of the alleged crime
carries a sentence of up to 14 years in prison. The respondent notes that the
Courts have affirmed that any offence for which Parliament has determined a
maximum sentence of ten years or more may be imposed in Canada is reasonably
considered “serious” (Jayasekara (FCA), above at para 40).
[32]
The
respondent also refers to Pineda v Canada (Minister of Citizenship and
Immigration), 2010 FC 454, [2010] F.C.J. No. 538 (QL) at paras 27-30,
Xie v Canada (Minister of Citizenship and Immigration), 2004 FCA 250,
[2005] 1 FCR 304 where the Court has stated that the Board can rely on
an arrest warrant to conclude that there are reasonable grounds to conclude
that a claimant committed a serious crime outside of Canada. The respondent underscores
that in this case, the evidence was not only an arrest warrant, the applicant
was convicted and her conviction was maintained on appeal, and there were court
documents detailing the criminal charges.
[33]
The
respondent contends that contrary to the applicant’s argument, it is not the
function of the Board to determine whether the applicant had in fact committed
serious non-political crimes. Article 1F(b) requires only that there be
serious reasons for considering that she had done so (Deng v Canada (Minister of
Citizenship and Immigration), 2007 FC 943, [2007] F.C.J. No. 1228 (QL) at
para 11, quoting Xie, above at para 23).
[34]
The
respondent further states that the Rihan case raised by the applicant is
distinguishable on its facts given that in that case the applicant had not made
restitution, and that the only evidence favouring exclusion was a warrant, and
the Board did not address the applicant’s evidence that the charges had been
fabricated.
[35]
The
respondent further submits that in the case at bar, it was reasonable for the Board
to reject the PA’s claim that she had been unjustly convicted. The Board
considered the following factors:
a. The PA had
counsel and applied to the Supreme Court of Justice.
b. The letter
from the applicant’s former counsel in Colombia does not
provide details as to why he believed the applicant was unjustly convicted in Colombia.
c. The evidence
indicated that the applicant’s boss was being investigated for corruption and
that the Supreme Court had issued an inhibitory judgment for 15 days, as it did
not find proof against him (para 36 of the reasons).
d. It found that
the Supreme Court in Colombia also looked at the
allegations against the principal applicant’s boss and made their findings.
e. The evidence
indicated that the Colombian government had taken steps to remedy corruption.
Analysis
[36]
The
Board found that there were serious reasons for considering that the principal
claimant is a person described in Article 1F(b) of the United Nations
Convention, and accordingly, that she is excluded from refugee protection
in Canada. The Board
stated that it had no jurisdiction over what happened to the applicant in Colombia (page 826, tribunal
record).
[37]
The Board
made an error in stating that it did not have the jurisdiction. If the Board is
to make decisions regarding the exclusion of an individual from refugee status,
it must be convinced or satisfied that there are serious reasons that the
individual committed a serious non-political crime outside of Canada. It depends
on the particular circumstances in each case.
[38]
Jurisprudence
from this Court demonstrates that the Board is to scrutinize the
evidence before it before applying the exclusionary articles (Rihan,
above).
In the case at bar, the Board did not even want to look at the evidence
presented by the applicant to see if it could be satisfied that there were serious
reasons that the principal applicant had committed a serious non-political
crime outside of Canada.
[39]
The
Court in Pineda stated the following at paras 27 to 30:
… Parliament has also given the RPD [Board]
a lot of freedom to receive any evidence it considers credible and trustworthy
[subsections 170(g) and (h) of the Act]. That said, the need for "serious
grounds" is protection against arbitrary and capricious action especially
in light of the dire consequences resulting from an exclusion pursuant to
Article 1F(b) of the Convention. For this standard to be meaningful, it requires
a proper and objective assessment of the context as well as all the evidence
presented by the refugee claimant. Obviously, the RPD must be particularly
cautious when charges led have been dismissed by a competent court in
accordance with the rule of law.
… the Federal Court of Appeal made it
clear that the RPD [Board] can, in a proper context, rely upon an indictment
and an arrest warrant to conclude that there are reasonable grounds to conclude
that a claimant has committed serious crime outside of Canada.
This is based on the premise that in a
system where the rule of law prevails, the RPD [Board] can reasonably infer
that there were reasonable and probable grounds for the police or the judicial
investigative system to issue a warrant or lay a charge.
Naturally, for such premise to apply, the
RPD [Board] must first be satisfied that the issuing authority does
respect the rule of law, that is, for example, that it is not dealing with a
country known for the filing of false charges as a means of harassment or
intimidation.
[40]
In
this case, as will be discussed below, there were serious questions about
corruption in Colombia’s legal
system at the time of the arrest and conviction of the principal applicant.
Therefore, in light of the fact that the applicant was alleging a wrongful
conviction, she merited for her case to be further analyzed, especially
considering that she comes from a country in which the respect for the rule of
law was questionable.
b. When concluding that
the principal applicant should be excluded under Article 1F(b), did the Board
make unreasonable findings in light of the evidence before it?
[41]
The
applicant submits that the Board based its refusal to consider whether the PA’s
conviction was wrongful and facilitated by a corrupt judicial system, in part
on “serious efforts” that the Colombian Government is reported of having taken since
2008. The applicant argues that regardless of whether “serious efforts”
have actually resulted in a reduction in corruption on the ground in Colombia,
these efforts that the Colombian government may or may not have taken to combat
corruption in that country’s judicial system since 2008 would have had
absolutely no bearing on whether the PA’s charges in 2003 and conviction in
2005 – five and three years earlier – were facilitated by corruption within the
system.
[42]
The
applicants argue that it was unreasonable for the Board to dismiss the question
of whether corruption played a role in the PA’s conviction in part because of
the evidence that the Colombia government had
undertaken “serious efforts” to combat corruption five and three years after
the relevant time periods.
[43]
The
applicants add that quite contrary to the Board’s conclusions on this point,
evidence of serious efforts undertaken in 2008 should support the need for an
inquiry into whether corruption played a role in the PA’s conviction in 2005,
rather than eliminate the need for such an assessment.
[44]
The
applicant further contends that had the Board properly engaged in an analysis
of the circumstances surrounding the conviction, there was ample evidence
before the Board, in addition to the acknowledgement that there is a history of
corruption within the judicial system in Colombia, that specifically
corroborated the events as disclosed by the principal applicant in her testimony
and personal information form as she submitted at paras 49 a. to g. of her memorandum
of fact and law (page 269 of the applicant’s record).
[45]
For
example, among several pieces of evidence, the PA has submitted sworn statements
from two of the three police officers declaring that they did not give money to
the PA and were not asked for money from her. She has also submitted a news
report detailing that the PA’s former boss had sought the transfer of another
of his female employees to a dangerous zone in Colombia after she
refused his sexual advances. The applicants also refer to documentary evidence
relating to the judicial system in 2005 which refers to corruption in the legal
system.
Respondent’s
Arguments
[46]
The
respondent states that the applicants have failed to demonstrate that the
evidence cited by the Board was irrelevant to the PA’s claim. The
respondent notes that the 2009 Department of State (DOS) document indicated
that in 2006, Colombia had
presidential elections that were considered generally free and fair. The
respondent also refers to the 2008 UNHCR document which refers to developments
in 2007 – the same year in which the applicant was seeking permission from the
authorities to leave Colombia – and indicated that the
Supreme Court of Justice was strong and independent.
Analysis
[47]
I
do not find the Board’s conclusion that the government of Colombia had taken
steps to remedy corruption to be sufficient reasons for rejecting the
applicant’s contention that she had been the victim of corruption in the legal
system. The documents relied on by the Board pertain to efforts taken by the
government in the years after the laying of charges and conviction of the
principal applicant.
[48]
The
Board should have also referred to more relevant and timely evidence on the
question of corruption (Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration), 157 FTR 35, [1998] FCJ No 1425 (FCTD) (QL)).
The Board makes mention of the PA’s former boss and the fact that the Court did
not find proof against him, however, it did not consider why he would have been
fired for sexual harassment, and why several allegations would have been made
against him by different women.
[49]
I
do not find that the Board’s reasons on this question were reasonably
justifiable (Dunsmuir, above at para 47).
c. Did the Board make
an unreasonable finding when it stated that the FARC would have already found
and harmed the second applicant if they were really interested in her?
[50]
The
applicants submit that the panel’s inference that the second applicant is not
at risk from the FARC because she was not already found and harmed by the FARC
is untenable.
[51]
The
applicants submit that the conclusion by the panel that the FARC could not have
been interested in the second applicant if it had not yet harmed her was
essentially a plausibility finding. The applicants argue that adverse
plausibility findings should only be made in the clearest of cases, where the
facts are inherently implausible (Dua v Canada (Minister of Citizenship and
Immigration), 2008 FC 1055, 75 Imm LR (3d) 20 at para 4, Valtchev v Canada (Minister of
Citizenship and Immigration), 2001 FCT 776, [2001] FCJ No 1131 (QL) at
para 7).
[52]
The
applicants contend that it is not inherently implausible that the FARC would
still be interested in harming the applicants despite not having located and
harmed the applicants in the three months that they remained in hiding prior to
feeling Colombia. The
applicants add that the Board provides no basis for its conclusion on this
point and does not refer to any specific evidence to support its conclusion,
other than to merely assert that this was not what would be expected of the
FARC if they were really interested in harming the applicants.
[53]
The
Board’s conclusion rests solely on the panel’s personal interpretation of what
the FARC would be expected to do in the circumstances (Keqaj v Canada
(Minister of Citizenship and Immigration), 2008 FC 388, 71 Imm LR (3d) 269 at
para 36, Soto v Canada (Minister of Citizenship and Immigration), 2008
FC 354, 70 Imm LR (3d) 292 at paras 19 and 26). The applicant also refers to Barrero
v Canada (Minister of
Citizenship and Immigration), 2010 FC 364, [2010] FCJ No 415 (QL) at paras
7 to 9, where the Court found that the Board’s conclusion that there was no
objective basis for the applicant’s claim was unreasonable.
[54]
The
applicants also quote Ilyas v Canada (Minister of
Citizenship and Immigration), 2004 FC 1270, 41 Imm LR (3d) 3, in
which the Court stated at paras 58 and 59:
I am highly cognizant of the respondent’s
warning that the Court should not merely re-weigh evidence and come to a
different conclusion from the Board. This is particularly so in the case of a Decision
based on credibility.
What troubles me here is that so much of
the decision rests upon negative plausibility findings and negative inferences:
failure to make a claim in the U.S.; implausible target for the
SSP; failure of the SSP to kill the applicant when they had the chance. None of
these findings have much of a base to them. They are not based upon
inconsistencies internal to the Applicant’s evidence but upon the Board’s own
view of what someone in the position of the Applicant and his family should
have done, or upon what the Board thought would have been a more likely outcome
in the circumstances. When it comes to making decisions based upon these kind
of criteria, the Board is no better placed than the Court. Also, inferences and
conclusions are drawn by the Board without really addressing strong evidence
that points the other way …
[55]
The
applicants further highlight that the Board’s conclusions with regard to the second
applicant also seem to be based on a factual error. The Board seems to base its
conclusion that the FARC is not interested in the second applicant in part on
the assumption that she resided in Bogota between 2005 and 2007
(para 67 of the decision). The applicants submit that in reality, the applicant
lived outside of the city for part of 2006 and only lived in Bogota for three
months during 2007.
Respondent’s Arguments
[56]
The
respondent submits that the Board is entitled to make reasonable findings based
on implausibility, common sense and rationality, and may reject evidence if it
is not consistent with the probabilities affecting the case as a whole (Shahamati
v Canada (Minister of Employment and Immigration), [1994] FCJ No 415
(FCA) (QL), Wu v Canada (Minister of Citizenship and Immigration, 2009
FC 929, [2009] FCJ No 1143 (QL) at paras 15 and 17). The respondent
states that the Board clearly explained the implausibility findings.
[57]
The
respondent also suggests that the Board’s findings were based on the fact that
the second applicant was able to remain in Colombia for so long
without incident. Furthermore, the respondent adds that if the Board erred by
stating that the second applicant lived in Bogota before coming to Canada, such
an error is immaterial because the Board’s conclusions were based on her
remaining in Colombia without incident (paras 58-65 of the decision).
[58]
The
respondent also underscores that the finding that the second applicant was not
in hiding for two years was reasonable given that the evidence indicated that
she was in school at the time she claimed to be in hiding.
Analysis
[59]
I
am of the opinion that the Board's conclusion that the second applicant is not
at risk from the FARC because she was not already found and harmed is not
reasonable. It is not logical to require the second applicant to have
been harmed by the FARC in order to receive refugee protection.
[60]
I
am also concerned with the factual error made by the Board where it assumed at
para 67 that the second applicant resided in Bogota between 2005
and 2007. Although this is not the only factor upon which the Board relied upon
to come to its conclusion, it nonetheless took it into consideration where it
stated that “the second applicant continued to reside in Bogota for an
additional two years, before coming to Canada, without any
further incidents from the FARC”. As such, I am concerned as to what bearing
this mistake had on the Board’s final determination.
[61]
With
regards to the Board’s adverse inference regarding the applicant’s
inconsistency with respect to her schooling and her being in hiding (at para
66) of the decision, I find that it was reasonable for the Board to come to that
conclusion. However, in light of the above considerations, I still find that
the Court’s intervention is warranted.
[62]
No
question for certification was proposed and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for judicial
review be allowed. The matter is remitted back for reconsideration by a newly
constituted Board. No question is certified.
“Michel
Beaudry”
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