Docket: IMM-5762-11
Citation: 2012 FC 309
Ottawa, Ontario,
March 15, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
MAURICIO ZAMBRANO CASTRO
MARTHA
MARGARETH GALINDO SALAMANCA
(A.K.A. MARTHA MARGARET GALINDO SALAMANCA)
MARIA
ANGELICA ZAMBRANO GALINDO
ANDRES MAURICIO ZAMBRANO GALINDO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
At the conclusion of the hearing, I informed the
parties that I would be granting the applicants’ application for judicial
review of a negative decision of the Refugee Protection Division of the
Immigration and Refugee Board finding them to be neither Convention refugees
nor persons in need of protection.
[2]
In my view, the Board improperly and unreasonably rejected their
claims pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 without a proper analysis of their risk.
[3]
The principal applicant, Mauricio Zambrano Castro, and his
family, are Colombian citizens. They came to Canada in April 2009. Mr.
Zambrano Castro was a career officer in the Colombian Armed Forces. In 2000,
he became a captain of a unit in Cali and was responsible for fighting the
United Self-Defence Forces of Colombia (AUC), the country’s main paramilitary
group. While carrying out this role, Mr. Zambrano Castro was twice discharged,
first in 2001, although he was soon reinstated, and again in 2003. He believes
his discharge was a result of his actions arresting AUC leaders and members.
In 2003, he filed a lawsuit challenging his last discharge. It was pending at
the time of the Board hearing.
[4]
Mr. Zambrano Castro alleges that in 2004 he was twice threatened
in phone calls telling him he would pay for what he had done in opposing the
AUC. In December 2005, Mr. Zambrano Castro took his family to the United
States and shortly thereafter applied for asylum. In order to secure
documents, he returned to Colombia in June 2006 and stayed there for some three
months. During his time in Colombia Mr. Zambrano Castro claims he received two
more threatening phone calls, and was shot at.
[5]
The applicants’ US claim was rejected because, although Mr.
Zambrano Castro was found credible, it was found that he and his family were no
longer at risk as the paramilitary had been officially disbanded in 2006.
Their appeal to the Board of Immigration Appeals was rejected in April 2009.
Because the applicants believed their lives remained in danger from the AUC,
they came to Canada and claimed protection.
[6]
The Board rejected the applicants’ claims for refugee protection
under both sections 96 and 97 of the Act based on its finding that parts of the
evidence of Mr. Zambrano Castro was not credible.
[7]
The applicants raised a number of issues, relating to the Board’s
credibility findings, the Board’s examination of the evidence and record, and
the profile of Mr. Zambrano Castro.
[8]
In my view, the one issue raised by the
applicants that has merit is its allegation that the Board erred in
failing to examine Mr. Zambrano Castro’s risk based on his profile. This issue
is to be assessed on the reasonableness standard, and the decision of the Board
is to be given deference: Dunsmuir v New Brunswick, 2008 SCC 9; Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 at para 21-22.
[9]
If an applicant’s personal account of some events is not found
credible but there is substantial documentary evidence attesting to the risk he
or she may face based on his or her identity, then the Board is obliged to
assess the claim. As the applicants submit, “refugee law does not require past
persecution in order to establish future risk.”
[10]
The Board, in a very brief decision, found only
limited aspects of the testimony of Mr. Zambrano Castro not to be
credible; specifically, the threatening phone calls and him being shot. It
appears to have accepted, and in fact there was abundant documentary evidence
to support that he was a member of the Colombian Armed Forces and was actively
involved in fighting the AUC. The Board, however, gave no analysis of whether,
having that profile, Mr. Zambrano
Castro would be at risk if he returned to Colombia. Rather, the Board
dismissed the applications under both sections 96 and 97 of the Act on the
basis of credibility:
When I
consider the actions of the claimant to remain in Colombia for more than 2
years after his army discharge, his return to Colombia after being safely in
the USA, his failure to spontaneously give evidence of the 2004 phone calls
where he was threatened and his inconsistent evidence concerning the September
2006 shooting, I am satisfied on a balance of probabilities the claimant was
not a credible witness. Hence, his claim fails pursuant to both sections 96
and 97 of the IRPA.
[11]
The identity of Mr. Zambrano Castro as a former army officer who worked against the AUC was not
disputed and there was evidence before the Board that such persons are at risk
in Colombia. As a result, and
notwithstanding the negative credibility findings of the Board, Mr.
Zambrano Castro’s political or imputed political identity
triggered a requirement for a proper risk analysis under section 97 based on
the evidence before it.
[12]
Quite simply, the finding of a lack of credibility
regarding some aspects of the evidence of Mr. Zambrano Castro did not
provide a foundation to simply dispense with the claim under section 97 of the
Act.
[13]
Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is allowed, the applicants’ claim for
protection is referred to a differently constituted Board for determination,
and no question is certified.
"Russel W. Zinn"
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