Date: 20090506
Docket: IMM-4165-08
Citation: 2009 FC 465
Toronto, Ontario, May 6, 2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
CLAUDIA CECILIA SEGURA AGUDELO,
MARIA CAMILA ALMONACID SEGURA,
JUANITA ALMONACID SEGURA,
and VALENTINA ALMONACID SEGURA
Applicants
and
THE MINISTER OF CITIZENSHP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee and
Protection Division (RPD) dated August 28, 2008, which refused the Applicants’
claim for refugee status under s.96 or s.97 of the Immigration and Refugee
Protection Act, S.C. 2001, c.27 (IRPA).
BACKGROUND
[2]
Ms.
Segura Agudelo is the representative applicant (the Applicant). She represents
her three daughters in this application. The applicants are citizens of Colombia.
[3]
The
Applicant and her husband both come from politically active families. They
fled Colombia to the United States
of America
because they claim they face persecution by the Revolutionary Armed Forces of
Colombia (Fuerzas
Armadas Revolucionarias de Colombia – Ejército del Pueblo), also known as FARC.
[4]
The
Applicant states in her PIF that the family believes that her husband’s father,
uncle and grandparents were murdered by FARC. However, the police reports did
not identify FARC as the perpetrators.
[5]
The
Applicant’s family received threatening phone calls; men have entered their
home and threatened them, and taken her husband’s computer and video camera.
The family moved to different homes in Columbia, and changed
their telephone numbers, but still received threatening telephone calls after
each move.
[6]
The
Applicant’s husband left Colombia on November 25, 2004.
The Applicant remained with her children and mother in Colombia. They
arrived in the US on December 14, 2004. During this interval the
Applicant alleges that she was abducted and raped by four members of FARC.
This story was not corroborated with any evidence. The Applicant admits that: she
did not tell the authorities, her husband, her mother, her doctor, their lawyer
or the judge in the US about the abduction and rape; nor did she
document her injuries with photographs; or attend to the doctor immediately for
treatment or testing for sexually transmitted diseases.
[7]
The
Applicant, her husband, Carlos Mauricio Almonacid Espejo, and their children,
made unsuccessful claims for asylum in the US. The
Applicant and her husband did not make their refugee claim in the US until six
months after their arrival. They subsequently withdrew their claim and were
ordered to leave the US by November 24, 2006 or be deported back to Colombia. Mr.
Almonacid Espejo went to the border at Buffalo, NY to ask
how to make a refugee claim in Canada. He was told he was not eligible and was
ordered to return to the US. The Applicant and family walked across
the border at the town of Emerson, Manitoba. Her
husband was arrested for crossing the border illegally, but was released.
[8]
The
Applicant was asked to provide documentation concerning the claim made in the US; she only
provided the decision. The Applicant’s claim in the US was made on
a completely different basis. The US claim did not mention
the Applicant or her husband’s involvement with politics. There was also no
mention of her alleged rape in the claim. The US decision was
not appealed.
[9]
The
Applicant provided the US refusal decision but not specifics of the US claim. The US claim was
based on a similar story that her husband’s family had previously made for asylum
in the US. Since the
Applicant would not provide it, the RPD panel member (the Member) found that specifics
of the US asylum claim
had to be retrieved. The US Asylum Officer found that the Applicant’s husband,
Mr. Espejo, owned two casinos, and his casinos were robbed five times. The Asylum
Officer found:
The applicant claims to have a fear of
future persecution. The applicant has failed to show that the harm he fears is
on account of one of the five protected grounds. Applicant fears that he will
be harmed because he is wealthy. He fears further robberies and extortion
resulting in harm if he does not comply. However, the harm applicant fears is
not protected under the refugee definition. Specifically, it is not related to
his race, religion, nationality, political opinion, or particular social group.
DECISION UNDER REVIEW
[10]
The
Member found that the Applicants were not Convention refugees, or persons in
need of protection. Her conclusion was based on credibility and alternatively,
that a viable internal flight alternative (IFA) exists in Colombia.
[11]
The
Member found the Applicant was not credible for a number of reasons including:
a. the Applicant’s
failure to provide the US claim, despite being required to;
b. the fact that
the US claim was
based on different grounds and the Applicants admitted being untruthful in that
claim;
c. the absence
of evidence that the FARC was involved in the alleged murder of her husband’s
family members;
d. the
Applicant’s lack of knowledge about the political group she claims to be an
active member of, even though she is an educated woman;
e. the absence
of evidence regarding her alleged abduction and rape; and
f.
the
misleading letters indicating the Applicant and her husband were members of the
claimed organizations.
[12]
The
Member was troubled by the fact that after threats were made to harm the
children, the Applicant’s husband left his wife and children behind in Colombia
and, further, the Applicant herself did not immediately leave but waited almost
one month before leaving even though she and all the children had US visas.
[13]
The
Member gave the psychological report little weight because its conclusions were
drawn solely from the Applicant’s story. The author of the psychological
report did not refer to any objective tests administered in the assessment.
[14]
Finally,
the Member found that there was a viable IFA for the family in Medellin, a city in
another region in Colombia. The Member noted that the allegation of
political activity was based in Manta where the family farm was located. The
Applicant and her family had only relocated within the same region and this did
not prove to the Member that there was no alternative IFA in another region of Columbia.
ISSUES
[15]
The
issues in this application are:
a. Did the RPD
breach the principles of fundamental justice in coming to its decision by not
calling the husband and the psychotherapist as witnesses?
b. Did the Member
err in finding that the Applicant lacked credibility?
c. Did the Member
err in finding that the Applicant had a viable internal flight alternative
within Colombia?
STANDARD OF REVIEW
[16]
In
Yurteri v. Canada (M.C.I.), 2008 FC 478, Justice Beaudry states that the
Federal Court has consistently found that findings of credibility and fact are
subject to the highest level of deference. Furthermore, since Dunsmuir v. New Brunswick, 2008 SCC 9,
determinations of credibility in the refugee claimant context are reviewable on
the standard of reasonableness.
[17]
The
standard of review for IFA findings is found in Khokhar v. Canada (M.C.I.),
2008 FC 449, where Justice Russell concluded, based on pre-Dunsmuir
jurisprudence, that the standard is reasonableness. The reasonableness
standard was recently further elaborated on in Canada (M.C.I.) v. Khosa,
2009 SCC 12, where the Supreme Court stated:
“There might be more than one reasonable
outcome. However, as long as the process and the outcome fit comfortably with
the principles of justification, transparency and intelligibility, it is not
open to a reviewing court to substitute its own view of a preferable outcome.”
[18]
With
regard to breaches of fundamental justice or procedural fairness, Justice
Binnie stated in CUPE v. Ontario, 2003 SCC 29 at para. 100:
The content
of procedural fairness goes to the manner in which the Minister went about
making his decision, whereas the standard of review is applied to the end
product of his deliberations.
If a breach of fundamental justice or
procedural fairness occurs in the course of coming to a decision, the decision
is flawed and will be set aside.
ANALYSIS
Did
the RPD breach the principles of fundamental justice in coming to its decision
by not calling the husband and the psychotherapist as witnesses?
[19]
The
Applicant submits that the Member erred by failing to call both her husband,
and her psychotherapist as witnesses who were prepared to testify at the
hearing. The Member found that it was not necessary to call the two witnesses.
The Applicant submits that the Member cited credibility concerns in its
decision that could have been answered had they called the husband as a
witness.
[20]
Furthermore,
the Applicant submits that the Member erred by giving no weight to the
psychotherapist’s report. This report is critical to the Applicant’s claim,
and as such, if there were questions about the tests conducted, the
psychotherapist should have been questioned. The Applicant suggests that this
equates to a denial of due process.
[21]
The
Applicant believes that she did not receive a fair hearing, nor was she able to
present a full and complete case due to the fact that these two witnesses were
not called.
[22]
The
Applicant had sought to restrict the content of the husband’s testimony by
excluding questions about the alleged rape. The rationale for this position
was that the Applicant had not told her husband about being raped after he left
Columbia. The Member
questioned whether there was any value to the husband’s testimony beyond the
Applicant’s own testimony. Applicant’s counsel agreed that the Applicant’s
husband need not be called to testify but the Member left that option open for
Applicant’s counsel.
[23]
On
the issue of whether the psychotherapist should have been called as a witness, the
Member was not concerned with the credentials of the psychotherapist. Rather,
the Member stated that its findings would be the same “with or without
verification of the Canadian credentials”. The Member gave little weight to
the psychotherapist’s report because the report was based entirely on the
Applicant’s own account without any objective testing.
[24]
The
Member was under no obligation to call the psychotherapist as a witness.
Applicant’s counsel was allowed the opportunity to call the psychotherapist to
testify, but determined it was not necessary. In Gill v. Canada (M.C.I.),
2004 FC 1498, at para. 25, Justice Noël stated:
Since the
applicant has the burden of establishing the merit of his claim before the
panel, it is entirely up to him to do whatever is necessary to present all the
evidence that he deems necessary. That includes calling four necessary
witnesses such as the interpreter or the immigration
officer. It is not the panel's responsibility to establish the applicant's
evidence for him.
[25]
The
Applicant was given every opportunity to call their witnesses but chose not
to. The Member is not required to evoke information or evidence for the
Applicant. I do not find that the Member breached the principles of
fundamental justice by not calling the Applicant’s husband or the psychologist
as witnesses.
Did the Member
err in finding that the principal Applicant lacked credibility?
[26]
The
Applicant submits that the Member’s decision on credibility was mainly based
around the finding that the Applicant lied about the rape and that this finding
was insensitive, erroneous and in complete disregard of the reactions of
victims suffering a rape.
[27]
The
Applicant is dissatisfied with the Member’s treatment of the explanation of why
the Applicant did not go to the doctor immediately or why she did not tell
anyone about the incident. The Applicant submits that the Member did not properly
consider the cultural norms of rape victims and as such, the decision is
erroneous. However, the Applicant did not provide evidence about cultural
norms relating to this issue and the Member did consider the gender guidelines
when making its decision.
[28]
The
Member, while considering the gender guidelines, relied on substantial evidence
to support its finding that the Applicant was not credible regarding the
allegation of being raped:
a. the
Applicant, an educated woman, and knowing the possibility of disease did not
report it to the doctor, or ask for disease testing;
b. there was no
evidence of any trauma to her body; and
c. the rape was
not addressed by the judge in the US since the Applicant did not offer the
information to add to their US asylum claim.
I consider the Member’s finding that the
Applicant fabricated the story regarding her alleged rape to be reasonable.
[29]
The
Member erred in referring to a medical report as no written medical report was provided.
However, this is not a substantive error as the Applicant gave evidence about
the medical report in her testimony.
[30]
The
Applicant states that although she was a member of ANAPO she mainly
participated in rallies, and her knowledge of the party is vague because she
was not that involved. The Applicant submits that the Member misheard the
question posed to the Applicant and thus misunderstood her answer.
[31]
The
Applicant submits her political affiliation is not what has put the Applicant
and her family at risk; it is the political affiliations of her husband. Thus,
the Applicant submits the Member’s conclusion as to the Applicant’s political
association is an error. The Member found that the Applicant’s personal
political activities were not the basis of the claim.
[32]
However,
the Member is to consider the totality of the evidence before it, and the
Applicant put this information in her PIF, thus, her political activities were
a legitimate area for inquiry at the hearing. Further, a review of the
transcript demonstrates that the allegation that the Member misunderstood is
clearly wrong.
[33]
The
Applicant was less than forthcoming with the claim made in the US. Although
the immigration officials requested details of the US claim on several
occasions, only the US decision was supplied at one point by the Applicant; the
US asylum claim
was never provided by the Applicant. The Applicant did eventually admit that
their claim in the US was not truthful.
[34]
The
Applicant also admitted that the threatening phone calls were regular
occurrences in Colombia and this was why they did not notify the police
of the calls.
[35]
The
Member must be aware that plausibility findings cannot be based solely on
Canadian paradigms. In Djama v. Canada (M.E.I.), [1992]
F.C.J. No. 531, (C.A.), Justice Marceau found that the panel
exaggerated the import of a few contradictions which then led to the finding of
adverse credibility. In making findings of adverse or lack of credibility the Member
must be certain that the evidence is inconsistent, rather than just vague. The
Applicant’s evidence the Member assessed was clearly inconsistent in several
important respects.
[36]
Given
the significant deference accorded to findings of fact and credibility, I find
the Member’s conclusions, based on the totality of the evidence, are well
within a reasonable outcome. The Member doubted the truthfulness of the
Applicant’s allegations. The findings fit comfortably within the principles of
justification, transparency and intelligibility, and as such are not open to me
to review.
Did
the Member err in finding that the Principal Applicant had a viable internal
flight alternative within Colombia?
[37]
Given
my findings above with respect to credibility, there is no need to address the
issue of an IFA.
CONCLUSION
[38]
For
the reasons above, I find that the application for judicial review is
dismissed.
[39]
The
Parties did not propose a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is certified.
“Leonard S.
Mandamin”
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