Docket: IMM-8536-11
Citation: 2012 FC 776
Toronto, Ontario, June 19, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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RONALD ANTONIO MORENO MANIERO
GIANEYA SAO KING RAMOS LEE
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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 JUDGMENT AND JUDGMENT
[1]
The Court finds that there are three significant
errors in this decision and as such it is unreasonable. The applicants’ claims
for protection must be redetermined.
Failure to Examine
on the Documentary Evidence
[2]
The Board’s decision begins by noting
inconsistencies concerning the date of the car accident between Mr. Maniero and
Ivan, the police officer who is the alleged agent of persecution. Whereas the
applicants assert in their Personal Information Forms (PIF) that the car
accident occurred on October 25, 2007, two of the four police reports filed in
support state that the accident occurred in 2005. This discrepancy was only
noticed by the Board after the hearing; it was not put to the applicants. The
Board stated that it was simply “noting the inconsistency.” However, later the
Board writes: “Irrespective of my credibility concerns due to inconsistencies
in which the initial incident and Ivan occurred whether it was in 2005 or 2007
… .” I agree with the applicants that notwithstanding the assertion by the
Board that it was simply noting the inconsistency, it appears to have weighed
into the Board’s view of the credibility of the applicants. This view is
further supported because the Board goes on to speculate that a trip to Canada in 2005 was prompted by this
accident. Thus, despite the assertion that the conflict in dates was just
being noted, the Board appears to have used that discrepancy against the
applicants without seeking any clarification from them.
[3]
The Board also rejects a letter signed by the
applicants’ Venezuelan lawyer, in part because the lawyer states in that letter
that he arrived at the scene of the accident, whereas the Board noted that
there is no mention of him in any of the police reports. This concern or
conflict in the documentary evidence was not put to the applicants by the
Board. In fact, the Board asked no questions of the applicants about any of
the documentary evidence they submitted.
[4]
In my view, in the circumstances of this case,
natural justice required that the Board, before discounting or relying on
documentary evidence to question the credibility of the applicants, was
required to recall the applicants and put these concerns directly to them.
Subjective Fear
[5]
The Board found that the applicants had no
subjective fear of the agent of persecution. A major fact used to reach that
conclusion was the conduct of Mr. Maniero between the date of the car accident
and the date on which he was shot at by the agent of persecution. I find this
to be unreasonable. After the shooting the applicants left Venezuela within two weeks. Delays after
the shooting to the date of claiming refugee status are obviously relevant.
Using the prior period, in the circumstances here is of marginal, if any,
relevance.
[6]
Prior to the shooting incident, the applicants
sought legal assistance, made police reports and relocated, all in an effort to
distance themselves from the agent of persecution. The implication of the
Board’s decision is that if they were then in fear, rather than take these
steps, they ought to have fled immediately and sought refugee protection. This
is perverse. It is contrary to the body of Canadian and international law that
requires claimants to take all reasonable steps to seek protection in their
home state before seeking refugee protection. The shooting was clearly an
intervening event that significantly changed their assessment of their
situation.
State
Protection
[7]
Lastly, the Board found that there were other
authorities that the applicants should have approached to seek state
protection, namely the Ministry of the Interior which it says “appears to be
dealing with the issues of police misconduct in Venezuela.” The evidence of the applicants as to efforts they made to seek
state protection was the following. Mr. Maniero approached the police himself
on four occasions; without result. He retained the services of a lawyer who
followed up with the police and also contacted the Public Ministry and
the Attorney General on his behalf; without result. Furthermore, he testified
that it was on his lawyer’s advice that he fled Venezuela after the shooting
because of the previous lack of action by these authorities.
[8]
Canadian courts have never held that a refugee
claimant must exhaust every possible avenue of protection before fleeing the
country. The test is only that all “reasonable” efforts must be made. In
light of the numerous avenues that had been taken by these applicants, the
resounding lack of action, and most particularly the fact that their own
lawyer, who presumably knows the available avenues to seek, recommends flight,
it is unreasonable for the Board to have found that they failed to prove that
they had exhausted all reasonable avenues of protection before fleeing
Venezuela.
Conclusion
[9]
This decision must be set aside. Neither party
proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is allowed, the decision of the
Refugee Protection Division of the Immigration and Refugee Board is set aside,
the applicants’ claim for protection is referred to a differently constituted
panel, and no question is certified.
"Russel W. Zinn"
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