Date: 20100804
Docket: IMM-6553-09
Citation: 2010 FC 797
Ottawa, Ontario, August 4, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
YOLANDA AVILA DIAZ
NORA CONSUELO AVILA-DIAZ
(a.k.a. NORA CONSUELO AVILA DIAZ)
ANDREA LILIANA SEGURA
(a.k.a. ANDREA LILIANA SEGURA AVILA)
ADRYNAH JAELEE CASTILLO
DIEGO ALEJANDRO SEGURA
VANESSA SEGURA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (Board). The
Board determined that the applicants were neither Convention refugees nor
persons in need of protection.
[2]
The
Board’s decision is riddled with numerous and significant errors. For the
reasons that follow, this application is allowed.
Background
[3]
Yolanda
Avila Diaz, her sister Nora Consuelo Avila-Diaz, her daughters Andrea Liliana
Segura and Vanessa Segura, her son Diego Alejandro Segura, and her
granddaughter Adrynah Jaelee Castillo are citizens of Colombia. The three
minor applicants are citizens of the United States of America and their claims
were rejected because they had not claimed against the U.S.; this
finding is not challenged and it will not be addressed further.
[4]
The
principal applicant’s claim was based on alleged persecution that her husband
experienced in the late 1980s. She claimed that her husband, who was a judge
in Colombia, and his
co-worker, were approached by narco-traffickers and offered a bribe to decide a
case regarding fraudulent documents in a particular manner. When her husband
refused, they were threatened. She claimed that the family was again
threatened some two years later when her husband continued to investigate the
case in question. It appears from the record that judges in Colombia at that time
had a dual role of prosecutor and judge.
[5]
The
family contacted the police the next day, but were told “that they could not
offer them protection.” Given the serious nature of threats to the judiciary,
the family moved to their parents’ home and left Colombia shortly
thereafter on June 11, 1991.
[6]
The
applicants went initially to the U.S. where they filed a
claim for asylum. This claim was denied and the family was ordered deported.
The family remained in the U.S. without status until the principal
applicant’s husband was detained by American immigration officers and deported
back to Colombia. The
officers’ discretion was exercised not to detain the remaining family members
at that time.
[7]
At
this point, the principal applicant and her remaining family made inquiries
about how to enter Canada surreptitiously and eventually crossed
undetected at an unguarded border crossing. Shortly thereafter the family made
a claim for refugee protection.
[8]
The
principal applicant states that her other family members received at least two
additional threats in the intervening years in relation to her husband’s
refusal to accept the bribe in question.
[9]
The
Board rejected the applicants’ claim on December 2, 2009. It is from this
decision that the applicants seek judicial review.
[10]
The
Board found that there was no evidence of persecution based on a nexus ground
so the claim was analysed only on the basis of s. 97 of the Act.
[11]
The
Board stated that “[t]he determinative issue in this case is credibility as to
the well-foundedness of the claimant’s fear.” The Board based its lack of
well-founded fear determination on five reasons: (1) that the principal
applicant’s oral testimony stated that the agent of persecution was the FARC
whereas her Personal Information Form (PIF) stated that she was unsure of the
agent of persecution; (2) that the principal applicant testified that her
husband’s co-worker (who was also offered a bribe and refused) was murdered without
knowing whether this murder was linked to the alleged persecution; (3) that the
principal applicant was unable to explain why her husband continued to be
threatened upon his return to Colombia; (4) that the FARC were known to be more
ruthless and efficient in tracking down their victims, which suggested that the
applicants were not in fact targeted by them; and (5) that the passage of time
had diminished the possibility that the applicants would be identified and
targeted. The Board concluded that “[b]ased on the totality of the foregoing,
the panel is not persuaded to believe that the claimants were or are targets of
the FARC.”
[12]
The
Board then turned to the availability of an internal flight alternative (IFA)
and concluded that an IFA would be available in another part of Bogota, Colombia, even
if the agent of persecution was in the same city, because of the size of the
city. The Board stated that the principal applicant’s husband could find other
employment that would lessen his risk. The Board based its IFA finding on the
apparent removal, between a 2005 UNHCR report and a 2008 UNHCR report, of a
reference to the ability of irregular armed groups to track their victims
throughout Colombia. The
Board also cited the “high concentration of civic, social, medical, government
and security services that generally look after its [Bogota’s] large
population.”
[13]
In
the alternative, the Board determined that the applicants faced a generalized
risk of being victims of crime, which brought them outside the definition of s.
97 of the Act. The Board found that “[l]aw enforcement officials and those in
the judiciary system face a risk that is a ‘prevalent’ or ‘widespread’ risk
generally faced by these people, as a subset or subgroup of the general
population of that country.” The Board reviewed Vickram v. Canada (Minister of
Citizenship and Immigration), 2007 FC 457, and Prophete v. Canada (Minister of
Citizenship and Immigration), 2008 FC 331, and concluded:
Based on the
foregoing, the panel is of the view that the risk faced by the claimants, if
such risk were true, would be a generalized and prevalent risk faced by a
subset or subgroup of the population at large. As such, this risk is an
excluded risk.
On this basis, the Board determined that
the applicants were neither Convention refugees nor persons in need of
protection.
Issues
[14]
The
applicants listed five issues in their memoranda; however, I am of the view
that they may be compressed to the following:
a.
Whether the Board erred in determining that the
applicants would not be at risk if returned to Colombia;
b.
Whether the Board erred in determining that Bogota
represented a viable internal flight alternative; and
c.
Whether the Board erred in determining, in the
alternative, that the risk the applicants faced was one faced generally by
other individuals in or from Colombia?
Analysis
- Whether the
Board erred in determining that the applicants would not
be at
risk if returned to Colombia?
[15]
The
applicants submit that the Board’s negative credibility and lack of
well-founded fear determination was unreasonable. They say that the Board
engaged in speculation in stating that the agent of persecution was likely
“drug cartel people” and not the FARC and that in any event the specific agent
of persecution is immaterial to a s. 97 analysis. The applicants further
submit that their testimony regarding the murder of principal applicant’s
co-worker was not an “embellishment”, as found by the Board, because they never
testified as to a link between his murder and their persecution. The
applicants further submit that the Board made a mistake of fact in stating that
the principal applicant’s husband was living in Bogota and that he was
attempting to ascertain evidence to support their claim in the U.S.. The
applicants contend that the Board failed to reference a police report that was
filed relating to recent threats that the principal applicant’s husband had
experienced, and that this report is directly contrary to the Board’s statement
that the passage of time would minimize the risk faced by the applicants. The
applicants further contend that the Board failed to provide any specific
evidence for its finding that the actions of the agent of persecution were
insufficiently ruthless to be indicative of FARC involvement.
[16]
The
respondent submits that despite some errors made by the Board, the totality of
the Board’s reasons are reasonable, and fall within the range of possible,
acceptable outcomes. The respondent further argues that there is a presumption
that the Board considered all the evidence, and that even if the Board had
considered the recent police report filed by the family, it does not increase
the credibility of their story. The respondent submits that the Board’s
finding with respect to the FARC’s modus operandi was supported by
evidence.
[17]
Determinations
of whether a claimant is credible and whether he or she is at risk are
questions of fact reviewable on the reasonableness standard.
[18]
The
Board stated that its negative credibility/well-founded fear determination was
made based on the totality of its reasons. Each of the Board’s five reasons is
flawed, some to a greater degree than others. The Board’s determination on the
risk the applicants faced is unreasonable and cannot stand.
[19]
The
principal applicant was forthright in her testimony that she could not
definitively state that people persecuting them were members of the FARC or
members of a drug cartel. The applicant speculated that the agent of
persecution could be the FARC, but this does not undermine her credibility
regarding her allegations that the family was threatened following her
husband’s refusal to take a bribe. In any event, in the circumstances of this
case, the identity of the agent of persecution is not relevant when assessing
the prevalence of risk.
[20]
The
principal applicant did not embellish her testimony when she stated that her
husband’s co-worker, who was also approached to take a bribe, was murdered
around the time their family was receiving threats. The Oxford English
Dictionary defines “embellish” as “to ‘dress up’, heighten (a narration) with
fictitious additions”: The Oxford English Dictionary, 2d ed., s.v. “embellish”.
There was nothing fictitious about the principal applicant’s recitation of the
murder of her husband’s co-worker. The principal applicant did not testify
that this murder was directly linked to her family’s persecution which, if she
had, would arguably have been embellishment. It was open to the Board to
discount this aspect of the applicant’s testimony given its unproven relevance;
however, it was unreasonable for the Board to use this testimony to cast a
negative aspersion on her credibility.
[21]
The
Board erred in determining that the principal applicant’s husband was living in
Bogota and that he
was gathering evidence for the family’s asylum claim in the U.S.; both of
these factual findings were incorrect. The principal applicant testified that
her husband was not living in Bogota but was moving around Colombia. The
principal applicant’s daughter testified that her mother misspoke when she
stated that her father was collecting evidence for the U.S. claim – he
was collecting evidence for the claim in Canada. These
factual errors are not reviewable in themselves, but they cast some doubt on
the thoroughness and accuracy of the Board’s assessment in its totality.
[22]
The
Board finds that the applicants’ persecution was not ruthless enough to have
been committed by the FARC. The Board cites to the national documentation
package for this finding, but provides no reasons or explicit discussion to
support this finding. It appears to be purely
speculative. In any event, as the Board
had previously noted, the identity of the agent of persecution is relevant to
nexus, and not to the probability of risk under s. 97. That the agent of
persecution is underdetermined does not negate the probability of risk the
applicants alleged they faced if returned to Colombia nor their
credibility.
[23]
There
are many ways that the passage of time can minimize the risk to individuals.
The applicants presented evidence, in the form of a police report, to the
effect that the passage of time had not minimized the risk they faced. The Board
failed to refer to this evidence, which directly contradicted its finding. The
respondent is correct that a police report is not necessarily conclusive proof
of persecution, in that any individual can file a complaint with the police;
however, the Board made no reference to this evidence and did not explain why it
discounted this evidence.
[24]
The
Board’s finding on credibility and the risk the applicants faced if returned
was riddled with errors that in their totality render the Board’s finding
unreasonable. However, given the Board’s determinative finding with respect to
the availability of an IFA and/or the existence of generalized risk, this error
does not constitute a reviewable error.
2.
Whether
the Board erred in determining that Bogota represented
a viable
internal flight alternative?
[25]
The
applicants submit that the Board erred in its reasoning regarding the apparent
changes between the 2005 UNHCR report and the 2008 report relied on by the
Board. The applicants note that the 2005 report was from the United Nations
High Commissioner for Refugees whereas the 2008 report was from the
United Nations High Commissioner for Human Rights. The applicants
further submit that even if the reports had been from the same agency their
different titles suggest they have distinct purposes, which does not
necessarily support the conclusion that the absence of a particular paragraph
is indicative of a change in country conditions. The applicants submit that
the Board failed to support its country conditions finding with any evidence.
[26]
The
respondent submits that it was open to the Board to assign more weight to the
2008 UNHCHR report than to the 2005 UNHCR report. The respondent
cites Brar v. Canada (Minister of Employment
and Immigration), [1986] F.C.J. No. 346 (C.A.), for the proposition that
arguments of weight afford no legal basis for granting judicial review. The
respondent says that the different report author provides no support to the
applicants’ argument because the Board “considered both documents and ultimately
decided to assign more weight to one….”
[27]
The
availability of an IFA is a question of mixed fact and law reviewable on the
reasonableness standard. Questions of appropriate weight for specific pieces
of evidence are factual determinations reviewable on the reasonableness
standard.
[28]
In
Augusto v. Canada (Solicitor General), 2005 FC 673
at para. 9, Justice Layden-Stevenson (as she then was) held that:
[i]n the absence of having failed to consider
relevant factors or having relied upon irrelevant ones, the weighing of the
evidence lies within the purview of the officer conducting the assessment and
does not normally give rise to judicial review.
[29]
In
this case the Board relied on factors that were perverse.
[30]
The
Board’s principal reason for concluding that an IFA was available was the
“removal” of a paragraph from a 2005 UNHCR report and a subsequent report. The
Board stated:
While
the previous 2005 UNHCR report of March 2005, in paragraph 58, said that
‘irregular armed groups have the capacity to track down victims throughout Colombia and indeed
have done so frequently in the past,’ such reference no longer exists in the current
report published four years later by the same agency. The panel is
satisfied that this reference has been removed, since it no longer applies
(emphasis added).
[31]
The
reports the Board referred to were not from the same organizations. The 2005
report was from the United Nations High Commissioner for Refugees. The 2008
report was from the United Nations High Commissioner for Human Rights. These
are separate entities, with different commissioners, and different mandates.
The Board’s error renders its conclusion that the paragraph was “removed”
because it no longer applied perverse.
[32]
I
find little merit in the submission of the respondent that the Board considered
each report independently and preferred the more recent report from UNHCHR over
the older report of UNHCR. It is obvious from the Board’s reasons that its
conclusion was predicated on the reports’ authors being the same organization
and the reports being issued for the same purpose. It is plain and obvious
that the Board did not consider these reports independently, and that it relied
on its error in reaching its conclusion.
[33]
Furthermore,
the Board provided no reasons for its conclusion that the state institutions in
Bogota “generally
look after its large population;” a conclusion that seems to fly in the face of
the Board’s own high acceptance rate of Colombian nationals.
[34]
But
for the Board’s finding on issue 3 (generalized versus individualized risk) I
would have found that the error on IFA was a reviewable error.
- Whether
the Board erred in determining, in the alternative, that the risk the
applicants faced
was one
faced generally by other individuals in or from Colombia?
[35]
The
applicants submit that the Board failed to make reference to extensive
documentary evidence before it that “makes it very clear that members of the
judiciary in Colombia…and their
families are facing a particularized risk in that country.”
[36]
The
respondent says the Board determined that the risk faced by the applicants was
qualitatively the same as that faced by the general population of Colombia and that the
Board’s finding with respect to s. 97(1)(b) of the Act was reasonable.
[37]
The
question of whether the applicants faced a generalized or particularized risk
is a question of mixed fact and law reviewable on the reasonableness standard: De
Parada v. Canada (Minister of Citizenship and Immigration), 2009 FC
845.
[38]
In
De Parada, at para. 22, I held that:
…
an increased risk experienced by a subcategory of the population is not
personalized where that same risk is experienced by the whole population
generally, albeit at a reduced frequency. I further am of the view that where
the subgroup is of a size that one can say that the risk posed to those persons
is wide-spread or prevalent then that is a generalized risk.
[39]
In
this case, the Board never made a finding that citizens of Colombia are generally at risk
of violence for refusing to accept bribes; such a finding can be found nowhere
in the decision. The Board concluded that “[l]aw enforcement officials and
those in the judiciary system face a risk that is a ‘prevalent’ or ‘widespread’
risk generally faced by these people, as a subset or subgroup of the
general population” (emphasis added).
[40]
In
order to rely on the decisions in Vickram, Prophete and De
Parada, the Board must first find that the type of risk alleged is one
generally faced by citizens in that country. Only after this finding is made
can the Board then say that a heightened risk within the applicants’ subgroup
does not bring them within the ambit of s. 97(1)(b) of the Act. The Board only
determined that the risk to the judiciary was widespread, and not that the risk
the applicants faced was generally also faced by the population at large.
Furthermore, I agree with the applicants that the Board made insufficient
reference to the documentary record on the prevalence of risk faced by the
judiciary in Colombia.
[41]
For
these reasons this application must be granted and the applicants’ application
referred to a different Board for a redetermination based on the facts as
presented and the applicable law.
[42]
Neither
party proposed a question for certification; there is none on the record before
the Court.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application is allowed, the decision of the Refugee Protection Division of the
Immigration and Refugee Board is quashed, and the application is remitted to a
different panel for determination in accordance with these Reasons for
Judgment; and
2. No question is certified.
"Russel
W. Zinn"
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