Date: 20101112
Docket: IMM-806-10
Citation: 2010
FC 1138
Toronto, Ontario, November 12, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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SANDRA MILENA DIAZ PINZON
JHON EDGAR NAVAS OJEDA
ANDRES FELIPE NAVAS DIAZ
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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 ORDER AND ORDER
[1]
The present
Application concerns members of a family who are citizens of Columbia and who claim refugee
protection under s. 96 and s. 97 of the IRPA from the para-military
group the FARC in Columbia. In its decision, the Refugee
Protection Division (RPD) rejected the Applicants’ claim on a primary finding
of negative credibility. For the reasons which follow I find that the RPD’s
decision was rendered in manifest error.
[2]
In its
decision the RPD states the evidence provided by the Applicants as follows:
[3] The principal
claimant is a 32-year-old woman originally from Bogota, where she and her family lived when
their problems with the Revolutionary Armed Forces of Colombia (FARC,
guerrillas) occurred. She worked for a company whose business was organizing
concerts. She said that she was on a company trip to Valledupar on April 27, 2007, when she found a note
under her hotel room saying “death to you if you do not cooperate.” She said
she showed this to her colleague, Mauricio, and thinking it was a bad joke, she
destroyed the note.
[4] After returning to Bogota, she said that she received a
phone call from a man who said that he was a commandant of the Bolivarian
militias Front 59 of the FARC. He demanded that she give him a list of
information on the firm’s best 100 clients within two weeks or they would kill
her and her family. On May 1, 2007, she said that she received a call reminding
her of the FARC’s demand. On May 2, 2007, she said that she received a call
from another FARC man demanding 10 million pesos within 48 hours and not to
inform authorities. Several calls followed the two demands. She and her husband
decided to pay the money demanded to buy time, so they could arrange for visas
with the U.S. Embassy. They raised 6 million pesos from the sale of their car,
2 million from her sister, Patricia, and they borrowed 2 million from the
company she worked for. On May 4, she delivered the money as instructed. On May
7, she got a call asking for the client information list, but managed to
negotiate for more time, which was reset for June 1. On May 8, they received
their U.S. visas. They moved to her
sister-in-law’s house where they hid until they left the country on June 13,
2007. Before leaving, they filed reports with the U.N. Human Rights Office and
the Attorney General’s Office.
[3]
The RPD’s negative
credibility finding is composed of a number of implausibility findings as follows:
[8] The determinative
issue in this case is credibility as to the well-foundedness of the claimants’
fear. The panel finds the principal claimant’s story not to be wholly credible
in its material aspects due to the following reasons.
[9] The principal
claimant had said that on April 30, 2007, the FARC demanded that she supply
them with an information list of the company’s top 100 clients. She said that
she had managed to put this off until they eventually left the country on June
13, 2007. As far as she knew, no one else in the company was approached by the
FARC for this list. She knew that her boss had access to the list as well but
was not approached by the FARC. The panel finds it hard to believe that the
FARC would not have approached the boss as an alternate source of the list they
wanted. From this, the panel does not believe, on a balance of probabilities,
that the principal claimant was or is a target of the FARC.
[10] The principal
claimant’s mother and sister still live in Bogota to this day without having been
personally confronted by the FARC looking for her. It is well known that the
FARC also targets close family members of people they have targeted. The fact
that the FARC had not gone after her mother and sister in Bogota, even if they may have moved
to another dwelling, casts serious doubt on the principal claimant’s assertion
that the FARC was after her. The panel draws a serious negative inference from
this regarding her assertion that she was a target of the FARC and consequently
does not believe, on a balance of probabilities, that she was or is a target of
the FARC.
[11] The principal
claimant said that she was warned by the FARC not to tell anyone about their
demand of 10 mission pesos. The panel finds this perplexing because the FARC
already were outlaws, and, therefore, it would make no difference if someone
had made a complaint about them to police. Whether any further complaint was
made against them or not, they were already wanted by the police. The panel,
therefore, draws a negative inference from this embellishment to her claim.
[12] Furthermore, she
said that the FARC provided her with elaborate instructions on how she was to
deliver to them the 10 million pesos extortion money at a shopping mall in Bogota. Again, the panel finds this
perplexing in that the FARC could simply have gone to her house to pick up the
money and accomplish the operation in a simpler and straightforward manner,
since they had already warned her about going to the authorities. The panel,
therefore, also draws a negative inference from this, which the panel considers
to be, on a balance of probabilities, an embellishment to her claim.
[13] The principal
claimant had said that she had destroyed the FARC’s demand note, which she
received at the hotel on April 27, 2007. Although, oral testimony is given a
lot of weight over documentary evidence, the note would have been central to
providing support to her claim, as it represented the start of her problems
with the FARC. Consequently, the panel draws a negative inference regarding the
absence of this note and believes, on a balance of probabilities, that she
never received such a note.
[14] The principal
claimant had also said that, just before leaving the country, she had filed a
report with the local human rights office, the Attorney General’s office and
the Ombudsman’s office as to her problems. However, considering the foregoing
discussion and the timing of filing such reports, the panel finds the veracity
of such documents suspect even if they have been included in evidence. The
panel believes that, on a balance of probabilities, these documents in evidence
were acquired as convenience documents for the purpose of furthering their
refugee claims and were not really intended to achieve a serious investigation
against the FARC.
[15] On the basis of the
foregoing, the panel does not believe, on a balance of probabilities, that the
claimants are targets of the FARC.
[4]
With
respect to why the RPD’s credibility finding is made in reviewable error,
Counsel for the Applicant relies on the well known decision in Valtchev v.
Canada (The Minister of Citizenship and Immigration), 2001 FCT 776 to make
the following concise argument at paragraph 22 of the Applicants’ Memorandum of
Argument followed by a very detailed analysis substantiating the argument (see
paras. 23 to 28):
In assessing the Applicants’
credibility/plausibility, it is submitted that Member Lim misconstrued the
Applicants’ evidence, ignored country condition documentation and dismissed
corroborating evidence as convenience documents acquired for the purpose of
furthering their refugee claims. It is submitted that Member Lim essentially
“created” country conditions by imposing his own subjective and unsupported
view of FARC’s methods and operations and drew serious negative inferences by
assessing the Applicant’s [sic] testimony against his erroneous and unsupported
depiction of those methods and operations.
I completely agree with this argument.
[5]
It
appears that the RPD needs to be reminded of the well established law on
credibility, and, in particular, the law on making implausibility findings. My
reasons in the decision of Istvan Vodics v. Minister of Citizenship and
Immigration, 2005 FC 783 accomplish this objective at paragraphs 8 to 13:
Credibility
is at issue in every refugee claim. Even though credibility findings are
"the heartland of the [CRDD's] jurisdiction" (R.K.L. v. Canada
(M.C.I.), 2003 F.C.J. 162), and, as a result, attract the deferential
standard of review of patent unreasonableness (Aguebor v. Canada (M.E.I.),
[1993] F.C.J. 1992), they must be made according to law. In addition, as
outlined in Section D below, the decision is also made in reviewable error
because the CRDD failed to decide whether the test for prospective fear of
persecution was met.
In my
opinion, the CRDD failed to apply the existing law in four ways: failure to
adhere to the principle that sworn testimony is presumed to be truthful, and a
finding to the contrary must be made for specific reasons; failure to give
clear reasons in making a negative credibility finding; failure to provide due
process by providing a proper opportunity to refute specialized knowledge of
the decision-maker before such knowledge is used in reaching a decision; and
the use of unfair stereotypes in the decision-making process.
1. The application of the presumption
of truthfulness
With
respect to making negative credibility findings in general, and implausibility
findings in particular, Justice Muldoon in Valtchev
v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No.
1131, states the standard to be followed:
6. The tribunal adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.)
at 305, that when a refugee claimant swears to the truth of certain
allegations, a presumption is created that those allegations are true unless
there are reasons to doubt their truthfulness. But the tribunal does not apply the Maldonado principle to this applicant, and repeatedly
disregards his testimony, holding that much of it appears to it to be
implausible. Additionally, the tribunal often substitutes its own version of
events without evidence to support its conclusions.
7. A tribunal may make adverse findings of credibility
based on the implausibility of an applicant's story provided the inferences
drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could
reasonably be expected, or where the documentary evidence demonstrates that the
events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision
based on a lack of plausibility because refugee claimants come from diverse
cultures, and actions which appear implausible when judged from Canadian
standards might be plausible when considered from within the claimant's milieu.
[see L. Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992)
at 8.22]
[Emphasis added]
It is
not difficult to understand that, to be fair to a person who swears to tell the
truth, concrete reasons supported by cogent evidence must exist before the
person is disbelieved. Let us be clear. To say that someone is not credible is
to say that they are lying. Therefore, to be fair, a decision-maker must be
able to articulate why he or she is suspicious of the sworn testimony, and,
unless this can be done, suspicion cannot be applied in reaching a conclusion.
The benefit of any unsupported doubt must go to the person giving the evidence.
2. The provision of clear
reasons
The
Federal Court of Appeal impresses a decision-making duty on the CRDD in Hilo v. Canada (M.E.I.) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.)
at paragraph 6 as follows:
In my view, the board was under a duty to give its reasons
for casting doubt upon the appellant's credibility in clear and unmistakable terms.
The board's credibility assessment, quoted supra, is defective because it is
couched in vague and general terms.
In addition, as expressed in Leung v. Canada (M.E.I.) (1994), 81 F.T.R. 303 at paragraph 14,
the duty to be clear is linked to a requirement to state the evidence:
The Board is under a
very clear duty to justify its credibility finding with specific and clear
reference to the evidence.
[Emphasis added]
3. The use of specialized knowledge
The standard
for making implausibility findings, as stated by Justice Muldoon in Valtchev, requires that unmet
reasonable expectations must exist before a refugee claimant's evidence is
found implausible. It is only fair that, since the reasonable expectations
which exist in the mind of the decision-maker constitute evidence to be used in
reaching a decision, the expectations should be exposed to the claimant prior
to the decision being made so that the claimant might have an opportunity to
rebut them with evidence. Indeed, this due process principle is now codified in
the specialized knowledge provision of Rule 18 of the Refugee Protection Division Rules,
Can. Reg. 2002-228:
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SPECIALIZED KNOWLEDGE
Notice to the parties
18. Before using any information or opinion that is within its
specialized knowledge, the
Division must notify the
claimant or protected person, and the Minister if the Minister is present at
the hearing, and give them a chance to
(a) make representations on the reliability and use of the
information or opinion; and
(b) give
evidence in support of their representations.
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CONNAISSANCES SPÉCIALISÉES
Avis aux parties
18. Avant d'utiliser un renseignement ou une opinion qui est du
ressort de sa spécialisation, la Section en avise le demandeur d'asile ou la
personne protégée et le ministre -- si celui-ci est présent à l'audience --
et leur donne la possibilité de :
a) faire des observations sur la fiabilité et l'utilisation du
renseignement ou de l'opinion;
b)
fournir des éléments de preuve à l'appui de leurs observations.
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[Emphasis added]
[6]
With
respect to the RPD’s subjective comments in the decision under review, during
the course of oral argument neither Counsel for the Applicants or Respondent
could confirm that notice under Rule 18 had been given.
[7]
As the
decision under review fails to apply the law on credibility, I find the
decision under review is made in reviewable error.
ORDER
The decision under review is
set aside and the matter is referred back for redetermination before a
differently constituted panel.
There is no question to
certify.
“Douglas
R. Campbell”
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