Date: 20100421
Docket: IMM-3879-09
Citation: 2010 FC 433
Toronto, Ontario, April 21, 2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
CESAR GONZALO VALLENILLA
MARCE ALEJANDRA VALLENILLA COCK
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application by
Cesar Gonzalo Vallenilla (the father) and Marce Alejandra Vallenilla Cock (the
daughter; together, the Applicants) pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for
judicial review of a decision by the Refugee Protection Division of the
Immigration and Refugee Board (the panel), dated July 8, 2009, that they are
neither refugees nor persons in need of protection.
[2]
The
Applicants are citizens of Venezuela. Together with Mr
Vallenilla’s wife and Ms Vallenilla Cock’s mother, Soledad Cock Seballos (the
mother), a citizen of Colombia, they fled Venezuela in 2002. They entered Canada
following a failed asylum bid in the United States. The mother was granted refugee status in Canada by the same decision of which
the father and the daughter are now seeking a judicial review.
[3]
The mother
is the descendant of a family that has long been politically active in Colombia. Many of her relatives have
been targeted, and some killed, in the political violence involving the FARC
and other rebel groups in that country.
[4]
In
December 2001, the mother’s nephew, a citizen of the United States, was kidnapped by an armed group called
the ELN while travelling from Colombia to Venezuela. The kidnappers obtained his diary and
contact numbers and, realizing that his family was politically active, began
harassing the mother, making threatening phone calls to her. Because of the
ELN’s violence in Colombia and lack of state protection
there, the panel found the mother to have a well-founded fear of persecution in
that country based on her perceived political opinions.
[5]
The father
and the daughter claimed that they had a well-founded fear of persecution in Venezuela. The father was a businessman
who provided furniture to opponents of the president Hugo Chavez. He said that
he was a regular participant at opposition marches, and that he once declined
running for a mayoral position because one had to be pro-Chavez to hold it.
[6]
In 2002,
he was the target of allegedly politically-motivated vandalism and harassment.
Thus, his van was vandalized and the word ‘oligarca’, used to refer to
opponents of the regime, was painted on the wall of his office. Then the family
started receiving threatening phone calls. Their car was crashed from the rear and
later that night a caller asked whether they saw “how close we are.”
[7]
In July
2002, the daughter was knocked down by an individual on a motorcycle when
attending an anti-Chavez rally.
[8]
While the
panel accepted that the accidents involving the father and the daughter
happened, it was not satisfied that there was enough evidence to conclude that
they were politically motivated. Furthermore, the Applicants had
not discharged their burden of demonstrating that state protection would not be
available to them.
[9]
The
Applicants submit that the panel erred in finding that they could not be
targeted because their political involvement was not high-profile. I agree. The
panel accepted that the father was helping the opposition movement. It also
accepted that a political slogan had been written in his office by vandals and
that the police refused to act when he complained about this. Yet it did not
mention these facts in its analysis and concluded that there was not sufficient
evidence that the father was targeted for political reasons. It is not clear
what other reasons there could have been for the vandalism against his office,
or what kind of evidence might have persuaded the panel. Thus the panel’s
reasons are not transparent and intelligible and its conclusion is,
accordingly, unreasonable (Dunsmuir v. New-Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190, at par. 47).
[10]
The Applicants
also submit that the panel misconstrued the evidence in concluding that the
daughter was simply watching a demonstration when she was struck or that she
was targeted by the ELN. Again, I agree with the Applicants that this was
contrary to the evidence which suggests that the accident happened while she
was demonstrating and that she was purposely hit by a motorcyclist and targeted
by a Chavez supporter and not by the ELN.
[11]
In fact,
the panel’s reasons fail altogether to distinguish between the two distinct
risks alleged by the Applicants, who say that they were being targeted both by
the government’s supporters and by the ELN. This is a significant flaw in its
analysis and suggests it did not have a careful regard to the evidence before
it.
[12]
Further,
with respect to the threat posed to the applicants by the ELN, I note that the
panel is silent in its analysis about the phone call allegedly received by the
applicants after the father’s traffic accident asking them whether they saw
“how close we are.” The panel explicitly accepted that the accident took place,
but found that it was not “politically motivated.” The alleged phone call at
least seems to support the applicants’ interpretation of the events. In my
opinion, the panel’s failure to comment on it renders its decision
non-transparent and insufficiently justified.
[13]
I also
agree with the applicants that the panel appears to have ignored significant
evidence which contradicted its findings on the issue of state protection and
thus committed a reviewable error (Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), (1998), 157 F.T.R. 35 (F.C.T.D.), 83 A.C.W.S. (3d) 264). It quoted lengthy sections of
the DOS Report on Venezuela in support of its findings that Venezuela is a democratic country able
to protect its citizens, but failed to mention other more relevant passages. The DOS Report
states that “[p]oliticization of the judiciary and official harassment … of the
political opposition continued to characterize the human rights situation” in
the country. It also specifically referred to violent disruptions of opposition
marches and rallies by supporters of the government and the security forces, in
which hundreds of people were injured.
[14]
As
Justice John Evans observed in Cepeda-Gutierrez, above, at par. 17,
“when the agency
refers in some detail to evidence supporting its finding, but is silent on
evidence pointing to the opposite conclusion, it may be easier to infer that
the agency overlooked the contradictory evidence when making its finding of
fact.” Such an inference is warranted in the case at bar.
[15]
Indeed,
in a recent case where, as here, the contradictory evidence overlooked by the
decision-maker was contained in the same document on which it relied in support
of its finding, Justice James Russell concluded that “[a] review of the
evidence before the Board reveals an extremely partial selectiveness in order
to support conclusions that the evidence in total may well contradict.” (Prekaj
v. Canada (Citizenship and Immigration), 2009 FC 1047, 85 Imm. L.R. (3d) 124, at par. 26; see also Sinnasamy
v. Canada (Citizenship and Immigration), 2008 FC 67, 68 Imm. L.R. (3d) 246
at par. 33).
[16]
For
these reasons, the application for judicial review of the decision is allowed;
the panel’s decision set aside and the matter remitted to a differently
constituted panel for re-determination.
JUDGMENT
THIS COURT ORDERS that:
The application for judicial review of the
decision is allowed; the panel’s decision set aside and the matter remitted to
a differently constituted panel for re-determination.
“Danièle Tremblay-Lamer”
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