Date: 20101005
Docket: IMM-454-10
Citation: 2010
FC 993
Ottawa, Ontario, October 5, 2010
PRESENT: THE CHIEF JUSTICE
BETWEEN:
SEBASTIAN
VELASCO MORENO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In
my view, a negative determination of the Refugee Protection Division which
turns on the issue of state protection must be scrutinized with particular care
where the member chooses to make no credibility finding concerning the
applicant’s allegations of a subjective fear.
[2]
In
the absence of a negative credibility assessment, the applicant’s testimony is
deemed to have been accepted by the member.
[3]
However,
the judge sitting in judicial review must be satisfied that the applicant’s
allegations, usually in the personal information form and the transcript of the
refugee hearing, were treated as true by the decision-maker.
[4]
Only
then can a proper review be made of the member’s state protection analysis. The
state protection issue should not be a means of avoiding a clear determination
concerning the subjective fear of persecution.
[5]
In
this case, I am satisfied that the member made a “veiled credibility finding”,
a term used by the applicant’s counsel to highlight the inconsistency between
the facts deemed to be true and the state protection conclusion. The case law
has recognized the notion of disguised credibility findings.
[6]
In
Zokai v. Canada (Minister of Citizenship and Immigration), 2004 FC
1581 at paragraph 13, stated:
… the essence of the decision
is that the applicant’s story and professed fears are given no weight,
effectively rejecting the applicant’s evidence as not credible, even though no
specific reference is made to credibility as an issue.
[7]
Similarly,
when Justice Layden-Stevenson was a member of the Federal Court, she concluded
in Medina v. Canada (Minister of Citizenship and Immigration),
2008 FC 728 at paragraph 10, that the member made an “elusive negative
credibility finding”, falling short of the requirement to justify credibility
determinations in clear and unmistakable terms: Hilo v. Canada (Minister of
Employment and Immigration), [1991] F.C.J. No. 228 (C.A.) (QL).
[8]
Also,
in D.J.D.G v. Canada (Minister of Public Safety and Emergency Preparedness),
2010 FC 765 at paragraph 21, Justice Mandamin decided that an immigration
officer’s veiled credibility finding contributed to a reviewable error.
[9]
The
applicant, a senior high school student who intended to pursue university
studies in Bogota,
Colombia, his country
of citizenship, asserted that he was forcibly interviewed at gun point by two
persons identifying themselves as members of FARC. His personal information
form, which detailed his story, read in part as follows:
I kept walking towards my
building. The men grabbed me, one by each arm. They tried to take me to the
park that is two blocks away but I refused. One of them showed me his gun so I
stopped resisting. I knew they might shoot me. It was getting dark. While
walking to the park they were talking among themselves about “the boss” using
code language. I did not understand much because I was so scared. They kept
talking about the boss.
At one point in a dark corner
of the park, they told me to sit down. No one was around. They told me they
were from the FARC and that I had been chosen to work for them because of my
education and that I could help them fight against the army. They told that one
of the activities that I could help with would be assisting the injured and
protecting the base. They said they would tell me the rest once I was working
for the FARC.
They said that now that I knew
what I would be doing with them, they would meet me in one month (March 4) at
my house to start working. One of the men pulled his gun out and pointed it at
me. They said that now that I knew they were the FARC that I shouldn’t call
anyone or tell anyone about this.
I was very scared. I ran home.
I was thinking that I would not be able to do anything because I could call the
police and I could not tell my mom because she is so sick. I knew that the
police say that unless you are injured you are fine. Besides, the FARC will
kill you if you say anything.
[10]
The
applicant’s counsel, Ms. Leigh Salsberg, was concerned with the veiled
credibility issue as early as the refugee hearing itself:
COUNSEL FOR CLAIMANT: … you are not questioning
the credibility of what happened to him in Colombia?
MEMBER: In a way, I am. I’m saying
are his actions in the United
States
consistent with someone who has had that experience. If your question is, did I
find any inconsistencies, omissions in his evidence concerning being approached
by the FARC in their effort to recruit, the answer to that would be no. But the
objective documentary evidence may not be in support of the FARC being able to
recruit as openly as he has indicated and the fact that he isn’t aware of
persons similar to himself being kidnapped or forced recruitment. And I’m also
not – to be honest, I’ve not read a report such as that.
COUNSEL FOR CLAIMANT: So your question of possibility
of whether this happened or just a clear statement of –
MEMBER: Is it supported by the
objective documentary evidence. But that’s not – that’s not the point of the
real issue. The real issue is state protection.
[11]
Coincidental
with the member’s equivocal approach to the applicant’s version, and perhaps on
account of it, his state protection analysis is generalized with little regard
for the applicant’s personal circumstances. There is little, if any, analysis
whether there is protection for individuals such as the applicant who have been
targeted by the FARC. Here, according to the applicant’s version, he was
recruited at gun point and threatened if he disclosed the incident. This
version contradicts the member’s conclusion that young students in Bogota are not
harmed for refusing to follow the FARC’s demands.
[12]
The
member’s veiled credibility finding infected his state protection analysis. By
assuming that the FARC does not target and harm individuals in Bogota, the member
failed to consider state protection from the perspective of this applicant who
asserted that he was targeted and threatened by the FARC. If the member did
not believe the applicant, he was required to state so clearly.
[13]
The
member was required to deal with the veracity of the persecution alleged by the
applicant prior to the state protection analysis: Jimenez v. Canada (Minister of
Citizenship and Immigration), 2010 FC 727 at paragraph 4. His failure
to do so, together with his failure to explain his doubts concerning the
applicant’s credibility in clear and unmistakable terms, constitutes a
reviewable error of law.
[14]
Neither
party suggests the certification of a serious question and none will be
certified.
ORDER
THIS
COURT ORDERS that this application for judicial review be allowed.
The determination by the Refugee Protection Division of January 5, 2010 is set
aside and the matter is referred for re-determination by a differently
constituted panel.
“Allan
Lutfy”
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