Date: 20101104
Docket: IMM-722-10
Citation: 2010 FC 1092
Ottawa, Ontario, November 4, 2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
MARCELA XIMENA GUARIN CAICEDO,
CARLOS ERNESTO TRAVIESO PENA
AND RYAN ANDRES TRAVIESO
GUARIN
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated January 13,
2010, wherein the Applicants were determined to be neither convention refugees
nor persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, R.S. 2001, c. 27 (IRPA).
[2]
Based
on the reasons below, this application is dismissed.
I. Background
A.
Factual
Background
[3]
The
Principal Applicant (PA), Marcela Ximena Guarin Caicedo, is a citizen of Colombia. The other applicants
are her husband, Carlos Ernesto Travieso Pena, a citizen of the Dominican Republic, and her son, Ryan
Andres Travieso Guarin, a citizen of the United States of America. They relied entirely
on the PA’s claim and advanced no independent grounds for refugee protection.
[4]
While
living in France the PA became involved with and a registered member of the
Conservative Party in Colombia. When she returned to Colombia in 2003 she began to
volunteer with “Juventudes”, the youth wing of the party. The PA volunteered
approximately two times per month on Sundays for one year.
[5]
The
group visited poor neighbourhoods around Cartago. The PA lists many activities
the group was involved with on her Personal Information Form – literacy
campaigns, providing vaccinations for children, food distribution, recreational
activities, medical services and religious teachings. The PA claims that one
of the main focuses of the group was to speak up against the recruitment of
youth by the Revolutionary Armed Forces of Colombia (FARC).
[6]
The
PA was first threatened in July 2004 while stopped at a traffic light. A man
on a motorcycle stopped beside her and informed her that she was a FARC
military target and needed to leave the area. The PA soon learned that other
members of the youth wing had been similarly threatened. The PA stopped going
to the Conservative Party office and gave up her volunteer activities. The PA
did not go to the police.
[7]
The
PA was subject to further and escalating telephone threats during the summer.
She cancelled her cell phone service and changed her land line number but
received more phone calls. She was told that her family might also be
targets. The PA started to notice people watching her outside her house. The
cumulative effect of these incidences left the PA feeling like she was going to
have a nervous breakdown and as a result she decided to flee Colombia in September 2004.
[8]
She
arrived in the United
States on
a visitor’s visa and later changed her status to a student. She arrived in Canada on June 2, 2008. She
claims refugee status based on political opinion and membership in a particular
social group.
B. Impugned
Decision
[9]
The
Board made several findings that led to the failure of the PA’s refugee claim:
the Board found that the PA lacked subjective fear of persecution in Colombia
due to her failure to claim in the United States; that the PA was not credible
based on her delay in fleeing Colombia and listing several activities in her
PIF that the PA did not actually actively do; and that the PA had failed to
rebut the presumption of state protection. Furthermore the Board found that
the PA did not have the profile of someone who would be of interest to the
FARC.
II. Issues
[10]
Neither
the PA nor the Respondent lists the issues in a helpful way.
[11]
The
PA’s main contention seems to be that the Board erred in determining that the
PA does not have the profile of someone who would be of interest to the FARC by
failing to address documentary evidence that supports the PA’s claim. The PA
also submits that the Board made negative credibility findings that were
perverse and capricious.
[12]
The
Respondent submits that the determinative issues for the Board were credibility
and lack of subjective fear, and that the Board’s findings on those issues were
reasonable.
[13]
The
issues raised in this application are best summarized as follows:
(a) Was
the Board’s finding that the PA lacked subjective fear reasonable?
(b) Were the
Board’s negative credibility findings reasonable?
(c) Did the Board
consider all of the evidence?
III. Standard
of Review
[14]
The
issues brought before the Court by the Applicant require a deferential standard
of review.
[15]
Decisions
of the Board as to credibility, the weight assigned to evidence and the
interpretation and assessment of evidence are all reviewable on a standard of
reasonableness: Aguebor v. (Canada) Minister of Employment and Immigration (1993), 160 N.R. 315, 42
A.C.W.S. (3d) 886 (F.C.A.) at para. 4; N.O.O. v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1045, [2009] F.C.J. No. 1286 at para.
38.
[16]
As
set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190;
and Khosa v. Canada (Minister of
Citizenship and Immigration), 2009 SCC 12; [2009] 1 S.C.R. 339
reasonableness requires consideration of the existence of justification,
transparency, and intelligibility in the decision-making process. It is also
concerned with whether the decision falls within a range of acceptable outcomes
that are defensible in respect of the facts and law.
IV. Argument
and Analysis
A. The
Board’s Finding that the PA Lacked Subjective Fear is Reasonable
[17]
The
crux of the Board’s reasons rests on the determination that the PA acted in a
way that is inconsistent with a subjective fear of persecution.
[18]
The
PA delayed her departure from Colombia for six weeks after she received the first threat, even
though she already had a visa to enter the United States. The Board found that
this was unreasonable in that if she had been genuinely afraid she would have
attempted to leave the area right away. The Board inferred from this “failure
to take any reasonable steps” that the PA was not credible.
[19]
Although
a delay in leaving a country can be a factor in assessing credibility, it is
not decisive. Justice Roger Hughes recently found that a refugee claimant’s
two-month delay in leaving Mexico was not an unreasonable amount of time in the
circumstances since the claimant explained that he kept himself sequestered (Fernando
v. Canada (Minister of Citizenship and Immigration), 2010 FC 76, 87 Imm.
L.R. (3d) 156 (F.C.) at para. 3). With all due deference to the Board, taking
six weeks to arrange to permanently leave your family, home and country while
experiencing escalating threats does not seem to me to be unduly unreasonable.
Especially when we consider that the PA did take other reasonable steps in line
with the threat similar to sequestration – she stopped doing volunteer work,
going to the party office, changed her telephone number and fled as soon as she
decided that was her only option.
[20]
More
problematic for the PA’s claim, however, is the nearly four years she spent in
the United
States
without making a claim for asylum. This failure to make a refugee claim at the
first available opportunity is relevant in determining whether the PA has the
requisite degree of subjective fear.
[21]
There
is recent jurisprudence to support the well-established position that absent a
satisfactory explanation for the delay, “the delay can be fatal to the PA’s
claim, even where there is no other reason to doubt the PA’s credibility” (Velez
v. Canada (Minister of Citizenship and Immigration), 2010 FC 923 at para.
28). While the delay itself is not determinative, “delay may, in the right
circumstances, constitute sufficient grounds upon which to dismiss a claim. It
will ultimately depend upon the facts of each claim.” (Duarte v. Canada (Minister of Citizenship
and Immigration),
2003 FC 988, 125 A.C.W.S. (3d) 137 at para. 14).
[22]
Here
the PA gave the Board three reasons why she failed to make a claim in the U.S.
– she had no specific plans when she got to the U.S. and wanted to wait because
she hoped that the situation in Colombia would improve; she thought her student
visa would allow her to become a permanent resident; and lastly she consulted a
lawyer after she’d been in the U.S. for ten months who told her that it was too
late to submit an asylum claim.
[23]
The
Board did not find any of these reasons persuasive or satisfactory.
[24]
The
PA argues that the fact that she was counselled by a lawyer not to make a claim
should play in her favour. During the hearing the PA could not provide any
evidence to corroborate her testimony regarding the lawyer beyond remembering
his first name. The PA’s written submissions speculate that the lawyer
probably told her not to make a claim because her claim would have a low chance
of success in the U.S., a likely outcome
corroborated by documentary evidence provided by the PA and not referred to by
the Board. This is not relevant or persuasive. That the Canadian refugee
determination system might be statistically more favourable to Colombians than
the American system does not go very far to reverse the negative inference
raised by spending several years in a safe country without making a claim for
asylum. Based on these inconsistent explanations it was not unreasonable for
the Board to find them unsatisfactory.
B. The
Board’s Credibility Findings were Reasonable
[25]
Admittedly,
the Board is in a much better position than this Court to evaluate the quality
of an Applicant’s viva voce evidence and as such, with regards to
credibility findings the Court defers to the Board as the trier of fact.
However, having reviewed the transcript of the hearing I will admit to being
concerned with some of the Board’s credibility findings.
[26]
As
stated above, I do not find that a delay of six weeks when fleeing a country to
be so unreasonable as to lead to a finding that the PA is not credible. The PA
raises this same point in her written submissions along with the argument that
the Board erred in finding that the PA embellished her claim.
[27]
In
the Board’s decision the Board concludes that the PA embellished her claim and
is therefore not credible because the PA was not trained to do some of the
activities that she initially testified she did as part of her community and
social work.
[28]
The
transcript shows that when asked who trained her, the PA answered the leader of
the youth group not “the youth” as stated in the decision. The PA is also not
evasive about admitting that she did not provide medical services or religious
training but rather was a part of an organizational group that provided these
services.
[29]
Furthermore
the PA was consistent with her PIF when explaining that the most contentious
activity she participated in was speaking out against the recruitment of the
youth. The Board much emphasizes that this fact was only brought up after
extensive questioning. From the transcript it seems like the PA was only, as
she told the Board, trying to answer the questions as they were asked.
[30]
Although
some of the credibility findings appear to me to be overly microscopic and an
overt attempt by the Board to unnecessarily trap in the PA in any kind of
inconsistency, this Court is not to scrutinize isolated sections of a decision
or interfere with a decision that taken as a whole could support a negative
assessment of credibility (Lan v. Canada (Minister of Citizenship and
Immigration), 2010 FC 169 at para. 23 and Larue v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 484, 40 A.C.W.S. (3d) 952
(F.C.) at para. 11). The PA’s application will again fail due to her failure
to claim asylum in the U.S.
[31]
The
Board can make an adverse credibility finding in many ways, and based on any
aspect of the claimant’s testimony or actions, including delay in making a
refugee claim in Canada (Goltsberg v. Canada (Minister of Citizenship and
Immigration), 2010 FC 886 at para. 28). Although the PA claimed refugee
status immediately in Canada, her failure to claim
in the U.S. remains fatal. In Assadi
v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 331, 70 A.C.W.S. (3d) 892
(F.C.) at para. 14, Justice Max Teitelbaum found that the failure to
immediately claim international protection can impugn a claimant’s credibility
even regarding events in her country of origin. As determined above, the PA
has not provided a valid explanation for her delay and therefore cannot avoid
an adverse credibility inference.
C. No Evidence
was Ignored
[32]
The
PA submits that the Board erred in determining that the PA does not have the
profile of someone who would be targeted by the FARC and that the Board ignored
evidence that supports the PA’s position.
[33]
The
Board’s determination that the FARC targets high-profile people is supported by
the documentary evidence and is not baseless as contended by the PA. That the
PA provided documentary evidence showing that the FARC also targets human
rights activists, teachers, trade unionists, community leaders or grassroots
leaders does not contradict the Board’s finding. The PA was a volunteer who
admitted in her testimony that she might have attended a total of 12 to 14
community events in her year of volunteering, six years ago.
[34]
By
the Board’s determination she was not high-profile, nor was she an activist or
a leader and it is largely on the basis of her minimal involvement that the
Board finds she would be of little interest to the FARC.
V. Conclusion
[35]
The
Board’s finding of a lack of subjective fear coupled with an adverse
credibility determination is dispositive of the PA’s application. The PA has
failed to show that the Board committed a reviewable error.
[36]
No
question to be certified was proposed and none arises.
[37]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for judicial review is
dismissed.
“ D. G. Near ”
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