Date: 20101108
Docket: IMM-726-10
Citation: 2010 FC 1105
Ottawa, Ontario, November 8, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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JOSE NOE RENDON OCHOA
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Applicant
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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]
Mr. Rendon Ochoa asks
the Court to review and set aside the decision of the Refugee Protection
Division of the Immigration and Refugee Board which found that he was neither a
Convention refugee nor a person in need of protection. He says that the
decision was unreasonable. I agree.
[2]
The
Board issued a negative oral decision on the day of the hearing and later
issued seven pages of edited written reasons. The applicant conceded there was
no claim under s. 96 of the Immigration
and Refugee Protection Act,
S.C. 2001, c. 27, and
accordingly, only s. 97 was addressed.
[3]
The
Board denied the applicant’s claim for protection on the basis that he had
failed to rebut the presumption of state protection with clear and convincing
evidence. The Board made a number of adverse credibility findings in relation
to the applicant’s version of events that were the basis for its finding on
state protection.
[4]
The Board repeatedly
made negative credibility findings against the applicant which were both
unreasonable and made without regard to the evidence before it.
[5]
One of the Board’s
reasons for finding that the applicant had not rebutted the presumption of
state protection and was not credible related to whether his assailants wore
hoods. From any reasonable assessment of the record and the applicant’s
testimony it is clear that on the first day he was accosted by the FARC, June
11, 2002, the assailants wore hoods and that on the second day, June 12, 2002,
they did not. The evidence is as follows:
·
In his statement to
police the applicant says that on the first day his assailants put on hoods.
In his description of his second encounter he is silent as to hoods. He was
told by the officer taking the statement “Tell this office whether or not you
recognize these persons,” and the answer transcribed was “I don’t know who they
are because they were not wearing hoods.”
·
In his PIF narrative,
the applicant said the assailants wore hoods on the first day. He is silent as
to whether they wore hoods the second day.
·
At his refugee hearing
the applicant said the assailants wore hoods on the first day and wore no hoods
on the second day. He told the Board Member that this is what he told police
and that this is what the police report said. When the Board Member directed
him to the passage that read “I don’t know who they are because they were not
wearing hoods,” the applicant agreed with the Member that this must have been a
typo.
[6]
The Board’s finding
that this evidence was “contradictory at worse and equivocal at best” was
unreasonable. The statement in the police report that “I don’t know who they
are because they were not wearing hoods” is nonsensical and is clearly a typo
made by the police. The Board’s finding that the applicant should have
corrected this error and provided information to the police about the
assailants’ identities is also unreasonable given that it is clear from the
transcript of the hearing that the applicant did not notice the typo prior to the
hearing. Further, the applicant also clearly stated at the hearing that
although the assailants were not hooded the second day, he could not provide
specific descriptions of their identities:
Q. Did you try and look at them in case you
had to indentify them later on for the police?
A. Yes, but it is difficult because like I
just said before, I used to transfer many different people on a given day, so
it’s just difficult to identify any person.
Q. No, I’m just saying that during that half
an hour, knowing that these people are not regular people and you wanted to go
to the police afterwards, did you try to pay attention to them?
A. No, I felt intimidated. I was very
nervous. I guess they didn’t let me capture the imagine [sic] of these
persons. I was very afraid. I could say whether they were tall, short, white,
but not an exact identification of them.
[7]
Based on the
applicant’s testimony it was unreasonable for the Board to find that he omitted
key information in giving evidence to the police. Any ambiguity is the result
of an obvious typographical error in the police report made by the police.
[8]
The Board’s findings
regarding the applicant’s evidence of an ongoing threat were also
unreasonable. The Board Member dismissed the written death threat as not being
credible evidence because it did not contain an address, signature, seal or
security features. The Member cited no evidence that a death threat note would
have these features, and frankly, it defies common sense that a death threat
from a terrorist organization would contain a signature or security features. Furthermore,
I do not accept the Board’s rejection of the letter because it did not contain
evidence of how it was delivered because the sworn statement of the applicant’s
sister says that she found the letter in the mailbox next to the front door of
her home.
[9]
The Board’s dismissal
of the sworn statements from the applicant’s cousin, sister, and former co-worker
was also unreasonable. The Board does not offer any other reason for not according
them much weight other than the fact that they come from the applicant’s
“family and friends” and thus are not “independent in any way.” In Ray v. Canada (Minister of Citizenship and Immigration), 2006 FC 731, at para. 39, Justice
Teitelbaum, in the context of a PRRA application, made it clear that
association to the applicant, by itself, is not a valid ground for giving
evidence little weight:
I agree with the Applicant that the PRRA Officer erred by granting
little probative value to the letters on the basis that the letters support the
applicant's personal interest. The mere fact that the letters were written by
the Applicants’ relatives is insufficient grounds, without other evidence of
dishonesty or other improper conduct on the relatives' part, to accord their
letters little weight.
[10]
The applicant’s sister,
cousin and co-worker are the people who know him and know the situation he is
facing in Colombia. They are uniquely placed to provide
evidence and are indeed the only people who could properly provide the evidence
that is sworn to in their statements. If the Board gives that evidence little
weight it must set out some basis for so doing in its reasons other than the
mere fact that the evidence comes from family and friends.
[11]
The respondent’s statement
that the police were willing and able to investigate but were unable to due to
lack of identification may well be true; however, it is clear that the basis of
the Board’s decision was that the applicant had not provided sufficient
assistance to the police and had not properly sought state protection. The
Board’s multiple unreasonable findings with respect to the applicant’s attempt
to seek state protection make the Board’s decision unreasonable as a whole.
[12]
The Board’s cursory
survey of the improving security situation in Columbia does not save the decision. The country condition evidence would have
been more relevant if the applicant had not sought state protection and was
alleging that there was a complete breakdown of the state apparatus. This was
not the applicant’s situation. He sought state protection, pursued it by
hiring a lawyer to take his case to the national police, and then went into
hiding for five months before fleeing the country. The issue here is whether
the applicant provided evidence of past personal incidents in which state
protection did not materialize. The Board’s findings in this regard, and in
respect of the ongoing threat to the applicant, were unreasonable.
[13]
Neither party proposed
a question for certification. No question is certified.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1.
This
application is allowed and the applicant’s application is referred back to a
differently constituted panel for re-determination; and
2.
No
question is certified.
“Russel
W. Zinn”
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