Date:
20120530
Docket:
IMM-8238-11
Citation:
2012 FC 668
Toronto, Ontario, May 30, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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DEICY PRIETO SANABRIA, DANIEL
FELIPE PRIETO, AND CARLOS FERNANDO TORRES MAHECHA
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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
MOSLEY J.
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (“IRPA”) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the “Board”)
dated October 20, 2011 rejecting the applicant’s refugee claims.
[2]
For
the following reasons, the application is granted.
BACKGROUND:
[3]
The
applicants are citizens of Columbia. The principal applicant, Ms. Deicy Prieto
Sanabria, is the wife of Carlos Fernando Torres Mahecha and the mother of
Daniel Felipe Torres Prieto. The applicants fear the Revolutionary Armed Forces
of Colombia (the “FARC”) and left Columbia for Canada to seek refugee status.
[4]
The
principal applicant was approached in early May 2008 by engineers who claimed
to work for a well know construction company in Columbia. She was told that she
had been referred to them by a previous employer and that they were interested
in hiring her. At that time, the principal applicant was an engineering student
at the Universidad Distral Fanscisco Jose de Caldas in Bogota. She met with the
engineers and told them she was interested in working for them as they
indicated that the company would pay for her graduate studies. The principal
applicant was then informed that the engineers were members of the FARC.
[5]
In
June 2009, after consulting with a friend and receiving calls from the FARC
asking if she had made up her mind, the principal applicant denounced the
engineers to the police. The police officer told her to take precautions as
they were not able to guarantee her safety. Two weeks later, she received a
pamphlet indicating that she had become a military target. The principal
applicant fled Columbia with her son on 11 July 2008.
[6]
As
for Mr. Torres Mahecha, he started receiving calls from unknown individuals
asking for his wife in September 2008. For a time he stopped answering his
phone until it caused some trouble with his employer. He was terrified of the threat
and decided to leave his employment and university to join his wife and son. He
left Columbia on 20 November 2008.
[7]
The
principal applicant and her son arrived in Canada on August 9, 2008 and made claims
for refugee protection. Mr. Torres Machecha arrived in Canada on December 11, 2008 and also made a claim for protection. His claim was joined with
that of his wife and son.
DECISION UNDER
REVIEW:
[8]
The
Board found that it was plausible that the principal applicant would be
approached considering her education and her work experience. However, it did
not believe that the two engineers were members of the FARC. The Board gave
little weight to the FARC pamphlet because it was simply dated July 2008 and because
it did not have the opportunity to examine the original. The Board also drew
negative inference from the fact that the principal applicant received the pamphlet
warning her that she would suffer consequences if she made a denunciation after
she had made her denunciation.
[9]
The
Board did not believe that the principal applicant’s husband had a well-founded
fear of persecution. The Board found it difficult to believe that the FARC
would make the connection quickly between him and his wife as they were living
separately at the time. The Board found that the husband’s credibility was adversely
affected by the fact that he continued to work and go to university between
September and November 2008 regardless of his alleged fear.
[10]
The
Board found that there was no nexus to a Convention ground and did not believe
that the principal applicant was targeted because of her political opinion.
Instead the Board found that she was targeted because of her education. The
Board also found that the applicants were not members of a particular social
group as engineers do not form a particular social group.
[11]
The
Board found
that the risk faced by the principal applicant was generalized. It indicated
that since the principal applicant was targeted because of her education, she
did not face a personalized risk as all educated Columbians were facing the
same risk.
[12]
Finally,
the Board found that state protection was available in Columbia. The Board
noted that although the FARC were still active, they were retreating outside
urban areas. The Board found that the state was increasing its effectives to
combat the FARC and was making progress in that regard. The Board also noted
that the principal applicant’s complaint was forwarded to the Attorney General
Office and then to the Bogota Police for a risk assessment after she left Columbia. The Board further noted she had received a letter from the Justice and Interior
Ministry about a program for people who are at imminent risk of losing their
life.
ISSUES:
[13]
This
application raise the following issues:
a. Did
the Board breach procedural fairness?
b. Was
the decision of the Board reasonable?
STANDARD OF REVIEW:
[14]
State
protection, generalized risk, nexus to a convention ground and credibility are
issues of facts and mixed facts and law which are reviewable on a standard of
reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9 at
paras 51 and 53; Martinez Caicedo v Canada (Minister of
Citizenship and Immigration), 2011 FC 749 at para 17; Arevalo Pineda v Canada (Minister of Citizenship and Immigration), 2012 FC 493 at para 5; and Bledy v Canada (Minister of Citizenship and Immigration), 2011 FC 210 at para 20.
Reasonableness is based on the existence of justification, transparency and
intelligibility within the decision-making process and whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law: Dunsmuir, above, at para 47; and Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59.
[15]
For
issues of procedural fairness, the Court will determine if the requirements of
procedural fairness were met; no deference is due: Khosa, above, at para
43; Singh v Canada (Minister of Citizenship and Immigration), 2011 FC
813 at para 9; and Krishnamoorthy
v Canada (Minister of Citizenship and Immigration), 2011 FC 1342 at
para 13.
Analysis:
[16]
The
respondent concedes that the Board breached procedural fairness in misleading
the applicants with regard to the finding that there was no nexus to a
Convention ground. At the conclusion of the hearing, during submissions, the Member
interrupted counsel to acknowledge that there was such a nexus, namely
political opinion, in this case. Counsel relied on that acknowledgement to move
on to other submissions. In the decision, written four months later, the Board
found to the contrary without notice to the applicants or giving them a further
opportunity to be heard on the issue.
[17]
In Canada
(Minister of Citizenship and Immigration) v Dhaliwal‑Williams, [1997]
FCJ No 567, Justice Pinard stated at paragraph 7 that "[i]t is...well
established that procedural fairness means at a minimum allowing each side to
present its case and providing both parties with the opportunity to be
heard".
[18]
The
applicants were deprived of their right to a fair hearing and the right to
fully present their claim: Yildiz v Canada (Minister of Citizenship and
Immigration),
2004 FC 1551 at para 11; and Bokhari v Canada (Minister of Citizenship and
Immigration), 2005 FC 574.
[19]
A
breach of procedural fairness will render a decision invalid if the breach
affects an essential requirement of the duty of fairness in the particular
circumstances of the case: Cardinal v Director of Kent Institution,
[1985] 2 S.C.R. 643 at paras 23-24. A breach of natural justice will
not warrant setting aside the tribunal's decision if correcting the error would
not affect the result of the case: Mobil Oil Canada Ltd v
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202
at paragraphs 52-53; Yassine v Canada (Minister of Employment and
Immigration), [1994] FCJ No 949 (FCA) at para 9; and Uniboard Surfaces
Inc v Kronotex Fussboden GmbH, 2006 FCA 398 at paras 13-14.
[20]
In
this matter, the respondent argues that the effect of the breach was “neutralized”
by the state protection finding. However, the accumulation of errors casts
doubt on the reasonableness of the decision as a whole: Huot v Canada (Minister of Citizenship and Immigration), 2011 FC 180 at para 26; and Paramasivam v Canada (Minister of Citizenship and Immigration), 2010 FC 811 at para 50.
[21]
The
Member based her credibility finding, in part, on not having seen the original
of a FARC pamphlet left at the applicants’ home in which the principal
applicant is declared a military objective. However, the record discloses that
the originals of this and other documents were available for inspection and
counsel advised the Member of this during the hearing. This and other errors
suggest a lack of attentiveness to the evidence and submissions of the
claimants.
[22]
With
regards to the generalized risk finding, the board erred in not considering
that the applicant was personally targeted for recruitment by the FARC and then
threatened after her complaint to the authorities: Arevalo Pineda,
above; Garicia Vasquez v Canada (Minister of Citizenship and Immigration), 2011
FC 477 at paras 31-32; and Barrios Pineda v Canada (Minister of Citizenship
and Immigration), 2011 FC 403 at paras 12-13.
[23]
The
Member, in her state protection finding, conducted an adequate analysis of the
documentary evidence with respect to the improved conditions in Columbia. Based on that, it was open to her to find, as she did, that the government is in
effective control of its territory and is making serious efforts to protect its
citizens. However the Member then misconstrued the principal applicant’s
efforts to obtain protection and the responses she received from the state
authorities.
[24]
The
Member misread the correspondence from the several state agencies that
considered the principal applicant’s denunciation, in particular a letter dated
February 2, 2010 from the Justice and Interior Ministry. The Member read that
letter as a response to correspondence from the principal applicant after she
had sought protection in Canada. That finding is not supported by the record.
The February 2, 2010 letter refers to correspondence from other state agencies,
not the applicant.
[25]
There
is nothing in the transcript to suggest that the principal applicant was
questioned on the matter or provided evidence that she was in correspondence
with the Ministry in 2009. The Member, therefore, erred in finding that the
principal applicant had continued to seek protection from the Columbian
government in 2009 and that this was inconsistent with her claim that she no
longer had faith in the government to protect her and her son from harm.
[26]
The
principal applicant was eventually told by the Justice and Interior Ministry
that she did not qualify for their protection. The National Police told her, in
effect, to look out for herself. The burden is on the applicant to adduce clear
and convincing evidence to satisfy the Board, on a balance of probabilities,
that adequate state protection would not likely be available to her if she were
required to return to her country of origin. Here, the finding was made without
regard to the evidence before the Board: Arguedas v Canada (Minister of Citizenship and Immigration), 2004 FC 112 at
para 9; and Canada (Minister of Citizenship and Immigration) v Abboud,
2012 FC 72 at para 35. It cannot serve to “neutralize” the
Board’s other errors.
[27]
Neither
party has submitted a serious question of general importance for certification
in relation to the determinative issues.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1. The
application for judicial review is allowed, the decision of September 29, 2011
is set aside, and the matter is remitted for redetermination by a differently
constituted panel.
2. No
serious question of general importance is certified.
“Richard G.
Mosley”
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