Date: 20100913
Docket: IMM-5581-09
Citation: 2010 FC 907
Ottawa, Ontario, September 13,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
FRANCISCO JAVIER GARCIA OSORIO
SANDRA MARGARITA FORERO SAMPER
NICHOLAS GARCIA
DANIEL GARCIA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review of a decision of the Immigration and Refugee Board (Board)
where it held that the Applicants were neither Convention refugees nor persons
in need of protection. The principal Applicant (the Applicant) and his wife are
citizens of Colombia whereas the
two children are citizens of the United States.
[2]
The
Applicants sought protection based on their fear of the Revolutionary Armed
Forces of Colombia (FARC), a guerrilla movement which was and is continually
operating in Colombia. The
Applicant came to the attention of FARC because of his work distributing
educational materials to local schools. FARC wanted the Applicant to disseminate
their propaganda for them using the cover of educational distribution. The
Applicant claimed that his life would be at risk if he did not comply with
FARC’s demands.
[3]
The
Board found that the Applicant was credible, but concluded that there was no
serious possibility he would face persecution by FARC upon return to Colombia.
II. BACKGROUND
[4]
In
January 1999, while working as a salesman of educational materials, the
Applicant was approached by FARC. Because the Applicant had access to schools, FARC
considered him a perfect cover and distributor of their own propaganda. When he
was first approached, the Applicant was afraid to directly refuse to act on
behalf of FARC so he did not say that he would not do as demanded.
[5]
In
March 1998 FARC informed the Applicant’s wife that the propaganda materials
were ready for distribution. Rather than begin distribution, the Applicants
moved to a different city.
[6]
However,
a month later FARC caught up with the Applicant in the new city. In May, he
was advised that a meeting would be set up in June to begin the distribution of
materials. The Applicant did not attend the June meeting.
[7]
In
July of that year, the Applicant and his wife were stopped on the roadside, a
gun was put to the Applicant, and he was advised that this was his last
opportunity to assist FARC; otherwise, he would be killed.
[8]
As
a result of that encounter, the Applicant and his wife left for the United
States
in August 1998 and subsequently lived there for 11 years. They attempted to
obtain asylum in the United States but that application was
denied. They subsequently moved to Canada where they made their
refugee claim.
[9]
The
remainder of the Applicant’s family (parents and siblings) remained in Colombia. He claimed
that they were subjected to threats and inquiries as to his location, and that as
a result, his parents moved on a number of occasions over that 11-year period.
[10]
As
part of the evidentiary record, the Applicant had submitted a letter from his
mother confirming the threats, and the fact that unknown persons were inquiring
about his whereabouts and when he would be returning. The letter goes on to
confirm that as a result of those encounters, the mother and father had moved numerous
times.
[11]
As
indicated earlier, the Board found the Applicant to be credible and his
evidence trustworthy. The Board accepted his subjective fears but held that
those fears were not supported by objective evidence. The critical objective
evidence relied on by the Board was the fact that 11 years had passed since the
Applicant had left and that conditions in Colombia had changed significantly
such that the threat posed by FARC had been very much reduced. The Board
concluded that the Applicant was not a target or a member of a social group
which was targeted by FARC; the targeted groups being politicians and the
wealthy.
III. ANALYSIS
[12]
The
standard of review on findings of fact in this case is the standard of
reasonableness with considerable deference owed to the Board.
[13]
The
thrust of the Applicant’s case is that he was targeted by FARC, that his life
was threatened and that FARC will again engage in threats and pressure if for
no other reason than to exact retribution for his refusal to comply with their
demands. This prospective view of the threat was supported by his mother’s
letter and thereby formed a critical part of his case.
[14]
In
its decision, the Board identifies that treatment of family was an important
aspect of the case. The Board specifically refers to the fact that the family
of the Applicant’s wife had not been subjected to any form of adverse treatment
or threats. However, the Board makes no mention of the experiences of the
Applicant’s family.
If it was
relevant for the Board to consider the circumstances of the family of the
Applicant’s wife, it was clearly relevant to consider the circumstances of the
Applicant’s family. This the Board failed to do.
[15]
In
respect of the mother’s letter, there is no question that the letter is
somewhat vague and lacking in precise detail. However, it is documentary
evidence relied upon by the Applicant which addresses the potential threat he
faces upon return to Colombia.
[16]
If
that letter is accurate, arguably FARC is still looking for the Applicant and
his fears of retribution have some reasonable basis. The mother’s letter is
therefore an important piece of evidence in this case, yet there is simply no
mention of that letter in the Board’s analysis of the circumstances that the
Applicant would face upon return.
[17]
The
Federal Court in numerous decisions has accepted the rationale in Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425, and most particularly,
the following paragraphs:
15 The
Court may infer that the administrative agency under review made the erroneous
finding of fact "without regard to the evidence" from the agency's
failure to mention in its reasons some evidence before it that was relevant to
the finding, and pointed to a different conclusion from that reached by the
agency. Just as a court will only defer to an agency's interpretation of
its constituent statute if it provides reasons for its conclusion, so a court
will be reluctant to defer to an agency's factual determinations in the absence
of express findings, and an analysis of the evidence that shows how the agency
reached its result.
16 On
the other hand, the reasons given by administrative agencies are not to be read
hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33
(F.C.A.)), nor are agencies required to refer to every piece of evidence that
they received that is contrary to their finding, and to explain how they dealt
with it (see, for example, Hassan v. Canada (Minister of Employment and
Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a
burden to impose upon administrative decision-makers who may be struggling with
a heavy case-load and inadequate resources. A statement by the agency in its
reasons for decision that, in making its findings, it considered all the
evidence before it, will often suffice to assure the parties, and a reviewing
court, that the agency directed itself to the totality of the evidence when
making its findings of fact.
17 However,
the more important the evidence that is not mentioned specifically and analyzed
in the agency's reasons, the more willing a court may be to infer from the
silence that the agency made an erroneous finding of fact "without regard
to the evidence": Bains v. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered
all the evidence will not suffice when the evidence omitted from any discussion
in the reasons appears squarely to contradict the agency's finding of fact. Moreover,
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.
(Emphasis added)
[18]
In
this case the mother’s letter was highly relevant as it reflected the potential
threat to the Applicant. The letter contradicts the Board’s conclusions, yet
the Board is silent on any evidence which points to an opposite conclusion to that
which it reached. It is proper for this Court to infer that the letter was
either overlooked or alternatively, if it was considered, that no rationale was
given for dismissing the letter or giving it less weight than the other
documentary evidence.
[19]
Under
these circumstances, the Court must conclude that the Board failed to meet the
standard of reasonableness in reaching its decision as it failed to either
consider or to adequately explain the significance, or lack thereof, of the
Applicant’s evidence.
IV. CONCLUSION
[20]
Therefore,
this judicial review will be granted, the decision of the Board will be quashed
and the matter will be referred back to the Board for a new determination
before a separately constituted panel. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is granted, the decision of the Board is
quashed and the matter is to be referred back to the Board for a new
determination before a separately constituted panel.
“Michael
L. Phelan”
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